Court File and Parties

COURT FILE NO.: CR-18-003533-00AP DATE: 2023-03-17 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Respondent – and – FAZAL NAGIR Appellant

Counsel: Moheb Tewfik, for the Crown Stephen Whitzman, for the Appellant

HEARD: February 16, 2023

Reasons for Decision

DI LUCA J. :

Overview

[1] The appellant was tried before Dwyer J. of the Ontario Court of Justice on an information alleging that on April 27, 2018, he committed the offence of Operating a Motor Vehicle While Over 80.

[2] On January 23, 2020, following a three-day trial, the appellant was found guilty. He was sentenced to a fine of $1,000 and a 12-month driving prohibition. The appellant appeals his conviction and raises the following grounds of appeal:

a. The trial judge erred in not finding that the appellant’s s. 10(b) right to counsel was violated; and,

b. The trial judge erred by misapprehending the evidence regarding the possibility of mouth alcohol and thereby erred in law by failing to find a violation of the appellant’s ss. 8 and 9 Charter rights. [1]

[3] The appellant argues that either or both errors warrant exclusion of the breath sample evidence tendered at trial. As such, the appellant seeks an acquittal or, in the alternative, a new trial.

[4] For the reasons that follow, the appeal is dismissed.

Brief Review of the Facts

(i) Initial Investigation

[5] On November 27, 2018, at approximately 4:53 p.m., Cst. Petrillo and Cst. Marchak were dispatched to investigate a call regarding a possible impaired driver. They were informed that a member of the public had observed the driver of a blue Porsche consuming a beer while driving.

[6] Cst. Marchak first observed the subject vehicle at 5:04 p.m. in the area of Pine Valley Drive and Highway 407. He conducted a traffic stop at 5:08 p.m. The appellant was driving the vehicle.

[7] Cst. Marchak noticed an odour of alcohol on the appellant’s breath. He did not see any alcohol inside the vehicle. Based on the citizen complaint and his own observations, Cst. Marchak made an approved screening device (“ASD”) demand at 5:12 p.m.

[8] Before administering the test, Cst. Marchak asked the appellant if he had recently consumed any alcohol. Cst. Marchak understood that mouth alcohol could “throw off the reading” on the ASD. The appellant advised that he had consumed a beer earlier that day while at home. When asked to specify when he had consumed the beer, the appellant indicated that it was “about 20 minutes ago” and “probably 20 minutes ago.” Cst. Marchak explained to the appellant that if alcohol had been consumed within 15 minutes, he would have to wait to administer the test. The appellant replied that it was “about” 15 minutes.

[9] Cst. Marchak agreed that in view of the citizen complaint suggesting that the appellant had been drinking while driving, he did not know if the appellant was being truthful about the timing and location of his last drink. He also stated,

I explained to Mr. Nagir that mouth alcohol can affect the ASD at this point it’s, you know, sort of – I can only rely on the information that he provides me in order to determine whether or not the ASD results would be accurate. I can’t verify the truthfulness of the public complaint. All I can do is just act in good faith, right?

And further on:

I don’t know if he was telling me the truth or not. It may have been a lie but I had no way of confirming that he was lying…

[10] When asked about the public complaint relating to the consumption of a beer while driving, Cst. Marchak noted that the call came to him at 4:53 p.m. and was based on a complaint that was made three minutes prior. As such, the observations informing the complaint would have been made at a point in time prior to the dispatch. Cst. Marchak was asked whether he recognized the possibility that the appellant may have continued to drink after the initial complaint. He replied:

I don’t know whether or not he continued drinking. I didn’t see any evidence in the car pointing to that, whether a beer bottle or anything of that nature. So – in fact, I didn’t know if Mr. Nagir had been drinking at all. All I had was a complaint from a citizen. And you know, sometimes we get complaints that a driver’s impaired and you get there, you do the ASD and there’s no impairment…

[11] When asked whether it would have been prudent to wait 15 minutes before doing the ASD test in order to avoid the possible effect of mouth alcohol, Cst. Marchak explained,

If I knew that Mr. Nagir was drinking then it would been the 15 minutes of having him stopped ‘cause, indeed, I would have given that opportunity to wait an additional 15 minutes for the mouth alcohol to clear. I had no evidence that he had been drinking in the last 15 minutes.

There was a phone call that he was drinking. Again, I didn’t have any evidence that he was drinking when I pulled him over. I spoke with him, he did admit having a beer earlier, but it – but that was outside of the timeframe.

[12] Based on the answers given by the appellant, the officer concluded that “mouth contents would not be an issue.” He then proceeded with the breath tests. A first attempt to provide a breath sample at 5:13 p.m. was unsuccessful. A proper breath sample was provided at 5:14 p.m., which was approximately 21 minutes after the radio call was first aired.

[13] The appellant failed the screening device test and was placed under arrest for Over 80 at 5:15 p.m.

(ii) Events Post-Arrest

[14] Upon arrest, the appellant was read his right to counsel, caution and breath demand. When asked if he wanted to call a lawyer, the appellant initially replied “um, no, I don’t have a number handy, so no.” He also declined a free Legal Aid lawyer.

[15] During the drive to the police station, the appellant changed his mind and stated that he did want to speak to a lawyer. Cst. Marchak told the appellant that he could contact a lawyer of his choice or speak with duty counsel once back at the station. The appellant advised the officer that he had a friend he could call to put him in touch with a lawyer. Cst. Marchak advised the appellant that if he provided the number for his friend, he would call the friend on the appellant’s behalf. The appellant replied that the contact for his friend was stored in his phone.

[16] Cst. Marchak advised the appellant that depending on whether they were able to get a hold of the friend, they could put the appellant in touch with duty counsel. He stated,

…so it’s just a free Legal Aid lawyer, uh, just to sort of explain to you like your legal standing and y-, and, and the process and then, um, we, we can also put you in touch with, with, the lawyer of your choice um, but, but again, its entirely up to you.

[17] The appellant replied, “Okay. I appreciate that.”

[18] Once at the booking desk, the appellant indicated that he wanted to contact his friend’s lawyer. He did not know the name of the lawyer. He did not provide his friend’s name, and could not remember his friend’s phone number, though he indicated that it was stored in his phone.

[19] Cst. Marchak advised the Staff Sergeant, in the appellant’s presence, that the appellant had a friend whose lawyer he’d like to contact. He also stated that he had discussed the matter with the appellant and that if they were unable to contact the friend, the appellant would speak with duty counsel.

[20] During this booking procedure, Cst. Marchak discovered that the appellant’s phone was not with the appellant. He agreed to go check the police cruiser used to transport the appellant to see if it had been left there. The Staff Sergeant told the appellant that if the phone was not there, duty counsel would be contacted.

[21] The appellant was asked whether he would be okay with duty counsel. The following exchange took place:

MARCHAK: Okay. But are you okay with, with, with duty counsel then?

NAGIR: Well, do I have a choice?

MARCHAK: Well, you can call anybody you want.

NAGIR: But I don’t have any number or any (inaudible).

MARCHAK: All right. But if you wanna give us a name, we can try and find a phone number, we’ve got, uh, we got…

NAGIR: Um, if you can call my daughter, I don’t even know her number, I j-, as I say, its in my phone, right?

MARCHAK: You wanna give us her name and address and maybe (inaudible)?

NAGIR: Yeah, I do.

[22] The appellant then provided his daughter’s name, date of birth and address. Cst. Marchak then stated, “…if I’m unable to get hold of her, uh, we’ll, we’ll call duty counsel for you.” The appellant replied, “Okay.”

[23] Cst. Marchak then took steps to search the appellant’s daughter’s name on the police computer system. He explained,

It’s very important for me to make sure that if the accused, whom I’m arresting, asks for their own lawyer I try to do my best to use whatever resources available to me to make that happen because everyone’s got a right to talk to a lawyer of their choice.

[24] Cst. Marchak discovered a phone number for the appellant’s daughter. He contacted her and asked if she knew who the friend or lawyer might be. While the daughter did not know, she advised the officer that she had the appellant’s phone in her possession. At that point, Cst. Marchak went back to the cells and spoke with the appellant, providing him with an update. The appellant advised that his daughter did not have the password for his phone and that in any event, she would not likely be able to find the friend’s contact on the phone because his phone was “set up for a QA.”

[25] The appellant then indicated that he would speak with duty counsel. A call was placed at 6:30 p.m. and at 6:45 p.m., duty counsel called back. At 6:50 p.m., the call with duty counsel was complete and the appellant was transferred into the custody of the breath technician.

[26] In cross-examination, Cst. Marchak agreed that he never specifically asked for the name of the appellant’s friend. He agreed that if he had the name, he could have passed it on to the appellant’s daughter when he spoke with her. Cst. Marchak also agreed that he never asked the appellant if there was another lawyer he wanted to speak to other than duty counsel. Lastly, Cst. Marchak agreed that the appellant was not told that he could access a lawyer’s directory or have a Google search performed for him in order to locate other counsel.

[27] The appellant’s daughter testified and indicated that had she been provided with the name of her father’s friend, she would have been quickly able to contact him. Nonetheless, it later occurred to her that the friend was likely Mr. Samaroo, whom she contacted using a WhatsApp contact she had for him. Mr. Samaroo provided the name of counsel, and the name was passed on to appellant’s wife who then called counsel.

[28] In his evidence, the appellant confirmed that he knew that his daughter had Mr. Samaroo’s contact information. He was asked why he did not simply ask Cst. Marchak to ask his daughter for Mr. Samaroo’s name. He explained that it just did not occur to him.

(iii) Events Relating to the Appellant’s Cell Phone

[29] Prior to leaving the roadside scene, the appellant was advised by Cst. Marchak that his vehicle would be towed. He was also advised that his daughter would be permitted to take his personal belongings from the car. The appellant agreed but asked for his cell phone to remain with him. He did not provide a specific reason why he wanted his cell phone, though in his testimony he indicated that he wanted it as a “resource or backup.” In cross-examination, Cst. Marchak agreed that accessing counsel was a potential reason for the appellant’s request to keep his cell phone.

[30] Cst. Petrillo was also on scene when the appellant was arrested. Following the arrest, he spoke with the appellant’s daughter who had been a passenger in the appellant’s vehicle. Cst. Petrillo advised the appellant’s daughter that the vehicle would be impounded and that she should arrange for a ride home. Cst. Petrillo was advised that the appellant wanted his daughter to take some personal items from the vehicle. According to his notes, the appellant’s daughter took possession of his cell phone, house keys and one key off the key ring for the vehicle. Medication was also found in the appellant’s vehicle, but the appellant explained that he did not need it.

[31] During the events following the arrest, Cst. Petrillo understood that the appellant wanted to keep his cell phone with him. He too acknowledged at trial that this request may have been related to accessing information for the purpose of exercising the right to counsel, though he explained that the appellant never specified this purpose.

[32] Despite the appellant’s specific request, the cell phone was one of the items that was taken by the appellant’s daughter. Cst. Petrillo had no explanation for why the appellant’s daughter ultimately took possession of the cell phone in addition to the other items of personal property she removed from the vehicle.

(iv) Events During the Police Station Breath Tests

[33] At approximately 6:51 p.m., the appellant was turned over to the breath technician, Cst. Williamson. At the outset of their interaction, Cst. Williamson confirmed that the appellant had spoken with duty counsel and that he was content with the advice received.

[34] At 6:55 p.m., the appellant provided his first breath sample with a result of 125 milligrams of alcohol in 100 millilitres of blood.

[35] Shortly before 7:16 p.m., a lawyer, Mr. Bukhari, contacted the police and asked to speak with the appellant. The lawyer had been contacted by the appellant’s wife. The following conversation then occurred between the appellant, Cst. Marchak and Cst. Williamson, the breath technician:

WILLIAMSON: We’re about to do the second test, do you wanna speak to that lawyer?

NAGIR: We already spoke to the, uh…

WILLIAMSON: So you already spoke to duty counsel.

MARCHAK: Yeah, you’ve already spoken to duty counsel…

NAGIR: Yeah.

MARCHAK: …uh, if you’d like to, it sounds like your family has arranged a lawyer.

WILLIAMSON: Yeah.

NAGIR: I mean, uh, what are they gonna say now? Can I ask you…

WILLIAMSON: (Inaudible)

MARCHAK: It’s, it’s, it’s your choice.

WILLIAMSON: I mean, we’re ready to do this and in five minutes – or or in two minutes, you’ll be done with me anyways and you can go speak to them and say that you’ve done a test and…

NAGIR: Is somebody here actually or…

MARCHAK: No, on the phone. He, he just called on the phone, he wants to find out what’s, what’s, what’s going on.

NAGIR: Well, just tell him before, I spoke to duty counsel and I’m ok with it.

MARCHAK: Yeah.

NAGIR: …for now.

MARCHAK: I’ll let him know, yeah.

NAGIR: Let him know we’re doing this, if I need him…

MARCHAK: Okay. So I will, uh, I’ll, I’ll, I’ll give him a call, one-, once you’re done here and, uh, I’ll give you his name and number after we’re done here.

NAGIR: I don’t even know the guy.

MARCHAK: All right. Hussain Bukhari.

NAGIR: Oh, that guy, yeah, (inaudible) guy.

MARCHAK: (Inaudible) Anyway, so it’s, it’s, it’s your choice, so you’re, so you’re so you’re okay (inaudible) without a lawyer here (inaudible)?

NAGIR: I’m okay for now, yeah, I mean…

MARCHAK: Okay, ‘cause you spoke to duty counsel, that’s fine.

NAGIR: Yeah, I have nothing.

MARCHAK: It’s yo-, it’s yo-, it’s your choice, okay?

NAGIR: I’m okay.

[36] At approximately 7:17 p.m., the appellant provided his second breath sample with a result of 120 milligrams of alcohol in 100 millilitres of blood.

The Reasons for Judgment

[37] The trial judge provided lengthy written reasons setting out his findings in relation to the various Charter arguments advanced as well as the substantive charge.

[38] On the right to counsel issue, the learned trial judge made the following findings:

a. When initially advised of his right to counsel after arrest, the appellant declined, though he subsequently changed his mind and indicated that he wanted to speak to counsel.

b. The appellant did not have the name of a specific lawyer but indicated that he wanted to contact a friend who knew of a lawyer.

c. During a discussion about personal items that were in his vehicle, the appellant was advised that his vehicle was going to be towed and that his daughter would be taking some of his personal items. The appellant was fine with his daughter taking his personal effects but asked whether he could keep his cell phone. He did not tell either Cst. Marchak or Cst. Petrillo that he needed it in order to contact counsel, though the officers both agreed that this could be one reason for keeping the phone.

d. Despite this request, it appears that the appellant’s daughter took the cell phone, along with other personal items, from the vehicle before it was towed. Cst. Petrillo saw the appellant’s daughter take the phone though he did not attach significance to the event when it happened.

e. Once at the police station, it appears that both Cst. Marchak and the appellant believed that the cell phone was still with the appellant, perhaps inside the police cruiser. After checking, it was determined that the cell phone had been taken by the appellant’s daughter “by mistake.”

f. After booking, Cst. Marchak took steps to find the lawyer, though he was not given the name of the friend who knew the lawyer or the name of the lawyer. It was unclear why the appellant did not give the name of his friend, though he explained in his evidence that he was never asked the name of his friend.

g. The officer’s intention was to try and get the phone number for the friend from the cell phone. The appellant did not know his friend’s phone number by memory.

h. While the appellant also did not know his daughter’s phone number by memory, he provided the officers the spelling of her name and they were able to contact her. Cst. Marchak advised the appellant that he had contacted his daughter, who had his phone. He told the appellant that if the password was provided, he could pass it on to his daughter who could then access the phone. The appellant declined indicating that his daughter would not know how to find the number.

i. The appellant then agreed to speak with duty counsel, which was a choice provided to him. The officer’s efforts to locate counsel of choice were reasonable.

j. While the appellant testified that he did not actually want to speak to duty counsel, his evidence did not “stand up to the stark reality of the recordings of his interactions with the officers.”

k. In terms of the subsequent call from counsel in between the two breath tests, the trial judge rejected the appellant’s evidence that he felt discouraged from speaking with the lawyer. Instead, the trial judge found that based on the recorded conversation, the appellant felt he already had legal advice and could talk to Mr. Bukhari after the second breath test.

[39] The trial judge concluded that police had undertaken sufficient efforts to allow the appellant a reasonable opportunity to speak with his counsel of choice. He found that the officers took reasonable and diligent steps to correct the mistake in relation to the absence of the cell phone. He also found the appellant was not steered towards duty counsel. Rather, he was provided a choice and he chose duty counsel.

[40] On the issue of whether the arresting officer should have delayed the administration of the ASD test in order to account for the potential presence of mouth alcohol, the trial judge concluded as follows:

[11] PC Marchak was aware of the potential impact of mouth alcohol and asked a question to satisfy himself that mouth alcohol was not an issue. He accepted the answer of Mr. Nagir, that, his last drink was 15-20 mins before. This was perfectly reasonable. It is not inconsistent with the complainant stating that a person was observed drinking a beer in the vehicle. The complaint led to the investigation.

[12] The investigation was not static. As it continued, the officer noted an odour of alcohol and there was an admission of drinking. Once the grounds for the ASD were settled on the officer took the next step. He asked a direct question, to satisfy himself on the issue and acted reasonably in continuing with the steps to do the ASD. It would have been unreasonable to wait, based on speculation about the drinking having continued. Enough time had passed since the complainant had made the observation, to safely do the test. The dispatch call was received by officers at 4:53 pm., the first unsuccessful test at 5:12 pm and the second test resulting in a fail at 5:14 pm. Both were more than 15 minutes after the last drink based on the complaint and the statement of Mr. Nagir.

[13] I find that mouth alcohol was not a factor. It was reasonable for PC Marchak to rely on the ASD result. There was no section 8 or section 9 Charter breach.

Issues on Appeal

(a) Section 10(b) of the Charter

[41] The appellant argues that the trial judge committed three errors in relation to his assessment of the right to counsel issue. First, the trial judge failed to find that s. 10(b) was violated when the police officers allowed the appellant’s daughter to take his cell phone, despite his request to keep it in his possession. Second, the trial judge failed to find that s. 10(b) was violated on the basis of the insufficient efforts undertaken by police to place the appellant in contact with counsel of choice. The third error is that the trial judge failed to find that the police essentially “steered” the appellant to duty counsel, thereby occasioning a further s. 10(b) violation.

[42] In terms of the failure to the secure the appellant’s cell phone, the trial judge found that letting the appellant’s daughter take the phone was a mistake. However, it was a mistake that was not done in bad faith. While not explicit in the reasons, it appears that the trial judge was not satisfied that the failure to secure the phone amounted to a s. 10(b) violation.

[43] The appellant argues that the failure to secure his cell phone, barring some police action to resolve the issue, constitutes a s. 10(b) breach. I disagree for several reasons. First, the context is important. By allowing the appellant’s daughter to take custody of his personal effects from the vehicle, the officers were essentially easing the burden of arrest and the impounding of the vehicle. They did nothing wrong in doing so. To the contrary, they acted courteously.

[44] Second, the police officers were not told that the appellant needed his phone in order to contact counsel, though they agreed to have his phone taken to the station with him, essentially as a courtesy. While the fact that a good faith “mistake” occurred does not answer the question as to whether a s. 10(b) violation occurred, this is not an instance where the officers took the position that the appellant could not have access to his cell phone despite a request to use the phone for the purpose of locating contact information for counsel of choice. Indeed, barring the mistake, he would have had access to his phone once at the police station.

[45] Third, when the mistake was discovered, the police took immediate corrective steps. Using information provided by the appellant, they tracked down the appellant’s daughter and took steps to assist the appellant in locating the contact information for his friend. While those efforts were not immediately successful, that was through no fault of the police officers. The appellant did not suggest asking his daughter to contact his friend even though he knew that she had contact information for him. While the police officers did not specifically ask for the friend’s name, when the interaction with the appellant is viewed in context, it is clear that the officers were undertaking substantive efforts to place him in touch with his counsel of choice. The appellant was readily engaging in all sorts of discussion with the officers. This is not an instance where he would have been reticent to offer the name unless asked specifically. As well, despite the police efforts to provide some form of access to his phone, the appellant eventually advised that his daughter would not be able to locate the contact on the phone due to the manner in which the contact was stored on the phone.

[46] Lastly, I do not read the caselaw establishing the informational component of s. 10(b) as requiring that a detainee be asked whether he may need to access their phone in order to contact counsel. I also do not see the failure to secure the phone in the circumstances of this case as giving rise to a violation of the implementational component of s. 10(b). While I need not decide whether it may or may not give rise to a Charter violation on different facts, it would appear to make practical sense for police officers to make inquiries about the need to use a cell phone to contact counsel of choice and, where appropriate, secure the phone for that purpose.

[47] Such a practical approach is consistent with the current caselaw which recognizes that in cases where the police decided to assume the responsibility to contact counsel on behalf of a detainee, they are required to pursue the detainee’s rights as diligently as the detainee would in the circumstances. As Zarnett J.A. explains in R. v. Jarrett, 2021 ONCA 758, at para. 43:

Where the police assume the responsibility of making first contact, rather than providing the detainee with direct access to a phone or internet connection, they must be taken to have “assumed the obligation to pursue [the detainee’s] constitutional right to [access counsel] as diligently as she would have”: R. v. O’Shea, 2019 ONSC 1514, 372 C.C.C. (3d) 352, at para. 42; R. v. Doobay, 2019 ONSC 7272, 61 M.V.R. (7th) 225, at paras. 29-33. “Anything less would encourage token efforts by the police and imperil the right of those in detention to consult a lawyer of their choosing”: Doobay, at para. 30.

[48] However, and to be clear, the duty of the police to pursue a detainee’s right to counsel with diligence in circumstances where the police assume the responsibility for making contact does not obviate or lessen the need for the detainee to also act with diligence. The detainee should not sit silently or passively as police officers try to discover the best avenue for contacting counsel of choice.

[49] I turn next to the efforts undertaken by police to place the appellant in contact with counsel of choice. The appellant argues that Cst. Marchak could simply have asked for the friend’s name and then passed that name on to the appellant’s daughter so that she would have been able to contact the friend and secure access to counsel. The trial judge addressed this issue. At paragraph 29 of his Reasons, he stated:

After the booking in, PC Marchak took steps to find the lawyer for Mr. Nagir. The officer was not given the name of the friend who knew the lawyer nor was he given the name of the lawyer by Mr. Nagir. It is unclear why Mr. Nagir did not simply tell PC Marchak the name of his friend.

[50] The trial judge then noted that the conversation at the booking desk was “revealing” and he went on to quote it at length. During the excerpted portion of the conversation, Staff Sergeant Weick tells the appellant “…But if you wanna give us a name, we can try and find a phone number…” In response, the appellant did not provide his friend’s name. Instead, he provided his daughter’s name, date of birth and home address. Cst. Marchak then used the information provided to track down the appellant’s daughter.

[51] In my view, the trial judge committed no error in failing to find a Charter violation as suggested. The appellant simply did not provide his friend’s name, despite open and obvious opportunities to do so. Moreover, when he provided his daughter’s contact information, the police quickly followed up and located her.

[52] The appellant further argues that his s. 10(b) rights were violated when the police effectively presented duty counsel as the only option once the attempts to contact the friend proved unsuccessful. The appellant argues that the police essentially “steered” him to duty counsel which, as he stated in his evidence, was not his preference. He argues that the police should have provided him with options for contacting other counsel, including access to the internet and/or to phone directories.

[53] The trial judge addressed this issue in his Reasons. He rejected the appellant’s evidence on this point and found that it did not “stand up to the stark reality of the recordings of his interactions with the officers.” That was a finding that was open to the trial judge to make on the evidence before him. The appellant was not “steered” to duty counsel. He was told he had a choice to speak with anyone he wanted. He offered no names. He did not suggest that he wanted to speak to any other lawyer. He agreed to speak with duty counsel and was satisfied with the advice he received. Indeed, even when counsel of choice contacted the police officers in between the breath tests and asked to speak with the appellant, the appellant declined the opportunity to consult. The trial judge rejected the appellant’s explanation for why he declined to speak to his counsel of choice at that time and found that a “fair interpretation” of the conversation was that the appellant felt he already had legal advice.

[54] In these circumstances, the trial judge was correct in finding there was no violation of s. 10(b) of the Charter. This ground of appeal is dismissed.

(b) Mouth Alcohol - Sections 8 and 9 of the Charter

[55] The appellant argues that the trial judge misapprehended the evidence when he found that Cst. Marchak had a reasonable belief that the ASD test result was reliable, and that this misapprehension tainted his findings on the ss. 8 and 9 Charter violations which were premised on the absence of reasonable and probable grounds for arrest and subsequent breath demand.

[56] The respondent argues that the trial judge correctly determined that Cst. Marchak had sufficient grounds to arrest the appellant based on the ASD test result. The respondent further argues that the trial judge made factual findings in support of this conclusion, did not misapprehend the evidence and applied the correct legal framework.

[57] There is no dispute between the parties on the applicable legal analysis. A police officer is entitled to rely on the result of an ASD test in order to form the requisite grounds for an arrest and subsequent breath demand in circumstances where the officer subjectively believes in the accuracy of the test result and where, in the circumstances, that belief is reasonable, see R. v. Jennings, 2018 ONCA 260 at paras. 9-11, R. v. Notaro, 2018 ONCA 449 at paras. 27-33 and R. v. Einarson, (2004), 70 O.R. (3d) 286 (C.A.). An officer is not entitled to rely on the screening device test result in cases where there is credible evidence that the result is unreliable.

[58] A police officer is required to administer an ASD test “forthwith.” However, an officer is permitted to delay administration of the ASD test if the delay is required in order to obtain a reliable test result, see R. v. Mastromartino (2004), 70 O.R. (3d) 540 (S.C.J.), at para. 23. A delay in administering the test is exceptional and not routine. Officers are not required to inquire into every conceivable issue that may require the delayed administration of the test. That said, one well accepted reason for delaying the administration of an ASD test arises where the test subject has consumed alcohol in the 15 minutes prior to the test. In those circumstances, it is understood that residual mouth alcohol may render the test result unreliable.

[59] I start my analysis of this issue by examining the claimed misapprehension of evidence. The appellant argues that the trial judge ignored the fact that the traffic stop occurred at 5:08 p.m. and that as a result, Cst. Marchak could not determine whether the appellant had been drinking between the time of the initial complaint and the time of his traffic stop. As such, the appellant asserts that there was no evidence before the court that the drink the complainant observed was the appellant’s last drink before being pulled over. On this issue, the appellant notes that his responses and the complainant’s observations must have related to at least two separate drinks. Lastly, the appellant argues that the trial judge ignored the fact that Cst. Marchak suspected that mouth alcohol might be present and believed that the appellant was lying in his statement regarding the timing of his last drink.

[60] The appellant submits that when the evidence is viewed accurately, it would have been impossible to find that Cst. Marchak’s suspicion about mouth alcohol had been assuaged by the appellant’s statements. As such, Cst. Marchak’s reliance on the failed ASD test to provide grounds for arrest was unreasonable in the circumstances.

[61] I am not satisfied that the trial judge misapprehended the evidence. There is no issue that Cst. Marchak was alive to the possibility of mouth alcohol potentially affecting the reliability of the ASD test. He specifically advised the appellant of this possibility during their initial interactions. Viewed in context, Cst. Marchak’s evidence was that he was ultimately satisfied that mouth alcohol was not an issue. He knew that the complaint relating to the appellant’s drink while driving had occurred more than 21 minutes prior to the breath test. He saw no alcohol in the vehicle when it was initially pulled over. He also asked the appellant when his last drink was and was told that it was approximately 20 minutes prior to the stop. While he acknowledged that the appellant might have been lying, he was nonetheless satisfied with the answers he received. The trial judge did not misapprehend or fail to consider the evidence. He simply accepted the officer’s evidence and found that it would have been unreasonable for the officer to wait based on speculation that the drinking had continued.

[62] Apart from any alleged misapprehension of evidence, the trial judge committed no legal error in reaching this conclusion. The mere possibility of recent alcohol consumption is not enough to undermine reliance on a failed ASD test result, see R. v. Notaro, at pages 61-62.

[63] Police officers are not required to affirmatively exclude the possibility of recent consumption of alcohol before administering an ASD test. To hold otherwise would result in a delay in virtually every case which would undermine the constitutional balance struck in the roadside screening provisions of the Code, see R. v. Einarson, at para. 18.

[64] The issue to be determined is whether the officer’s subjective belief regarding the need to delay the test was objectively reasonable in the circumstances. As Doherty J.A. explains in R. v. Einarson at paras. 34 and 35:

The flexible approach to s. 254(2) accepts that different officers may assess similar circumstances differently in deciding whether some brief delay in the administration of the s. 254(2) test is necessary. Indeed, the reasonable and probable standard must reflect the particular officer's assessment tested against the litmus of reasonableness. In considering whether to rely on test results absent some brief delay, one officer may give more significance to the fact that the driver was seen leaving a bar just before he or she was stopped (particularly where the driver admits drinking in that bar) than another officer might give to that fact. The first officer might delay the taking of the test for an appropriately short time while a second officer may proceed without delay. Neither officer has necessarily acted improperly. If the officer decides to delay taking the test and that delay is challenged at trial, the court must decide whether the officer honestly and reasonably believed that an appropriately short delay was necessary to obtain a reliable reading. If the officer decides not to delay the administration of the test and that decision is challenged at trial, the court must decide whether the officer honestly and reasonably believed that he could rely on the test result if the test was administered without any delay.

Bernshaw makes it clear that the mere possibility that a driver has consumed alcohol within 15 minutes before taking the test does not preclude an officer from relying on the accuracy of the statutorily approved screening device. Where an officer honestly and reasonably concludes on the basis of available information that he can form no opinion as to whether the driver consumed alcohol within the prior 15 to 20 minutes, the officer is entitled to rely on the accuracy of the statutorily approved screening device and administer the test without delay. That is not to say that another officer might not assess the same situation differently and have legitimate concerns about the reliability of a test administered without a brief delay and act accordingly. In each case, the officer's task is to form an honest belief based on reasonable grounds about whether a short delay is necessary to obtain a reliable reading and to act on that belief.

[65] Based on the analysis set out in Einarson, I see no error in the trial judge’s conclusion that it was reasonable for Cst. Marchak to rely on the ASD test result in forming grounds to arrest the appellant. While another officer might have come to a different conclusion, it was not objectively unreasonable for this officer to conclude that a delay in administering the test was not required. This ground of appeal is dismissed.

Conclusion

[66] The appeal is dismissed. The stay of the driving prohibition ends with the release of these Reasons.

Justice J. Di Luca

Released: March 17, 2023

Footnotes

[1] Additional grounds of appeal were listed on the Notice of Appeal. Those grounds were not pursued in either written or oral argument. They are dismissed as abandoned.