Court File and Parties
Court File No.: CR-23-10000023-00AP Date: 2024-04-26 Ontario Superior Court of Justice
Between: His Majesty The King, Respondent – and – Marco Franco, Appellant
Counsel: Andrés Hannah-Suarez, for the Crown Respondent Jassiganth Vamadevan, for the Appellant
Heard at Toronto: March 20, 2024
Davies, J. (Orally)
Reasons for Decision
A. Overview
[1] Mr. Franco was involved in a head-on collision in the early morning hours of October 17, 2021. He was driving a black Audi. One of the passengers in his car sustained serious injuries to his head and neck and was hospitalized for five days. A passenger in the other car was also injured.
[2] At trial, Mr. Franco argued the breath samples he gave at the roadside and at the police station should be excluded because the police failed to make the demands immediately after they formulated grounds to suspect he had been drinking and because the police violated his rights under the Canadian Charter of Rights and Freedoms. The trial judge rejected these arguments and convicted Mr. Franco of driving with more than 80 mg of alcohol in 100 mL of blood causing bodily harm. Mr. Franco was sentenced to six months in custody plus a one-year driving prohibition.
[3] Mr. Franco now appeals his conviction. He advances four arguments. First, Mr. Franco argues the trial judge erred in finding the roadside breath samples were seized immediately pursuant to a lawful demand. Second, Mr. Franco argues the trial judge erred in finding that he was not arbitrarily detained at the scene of the collision. Third, Mr. Franco argues the trial judge erred in finding the police did not violate his right to be informed of the reason for his arrest. Finally, Mr. Franco argues the trial judge erred in finding the delay in putting him in touch with a lawyer did not violate his rights under s. 10(b) of the Charter.
[4] Mr. Franco also appeals his sentence. He argues the trial judge erred by not giving him a non-custodial sentence.
[5] For the following reasons, Mr. Franco’s conviction and sentence appeal are dismissed.
B. The trial judge did not err in finding that the roadside demand was lawful
[6] At trial, Mr. Franco argued the roadside demand was invalid because it was not made immediately after the first officer on scene, Officer Nunes, formulated reasonable grounds to suspect he had alcohol in his system. The trial judge rejected this argument. She found Officer Nunes did not subjectively believe he had a reasonable suspicion that Mr. Franco had alcohol in his system when the collision occurred. The trial judge also found that the breath demand was made promptly after the second officer, Officer Bernard, formed the grounds to make the demand. The trial judge did not err in making these findings.
[7] Officer Nunes was the first police officer to arrive at the scene of the collision. He arrived at 3:38 a.m. Paramedics and firefighters were there when Officer Nunes arrived and one of the passengers from Mr. Franco’s car had already been taken to a trauma hospital. There were several other people standing around as well. Officer Nunes received a briefing from one of the firefighters and was told someone had smelled alcohol on the driver’s breath. At 3:43 a.m., Officer Nunes spoke to a witness who identified Mr. Franco as the driver of the black Audi that caused the collision. Officer Nunes then spoke to Mr. Franco very briefly and told him to “hang tight.” Officer Nunes testified he did not smell alcohol on Mr. Franco’s breath or notice any other signs of impairment during their brief conversation. Officer Nunes did not demand a breath sample from Mr. Franco.
[8] Officer Bernard from the Traffic Service Division arrived on scene at 3:43 am just as Officer Nunes was speaking to the witness and Mr. Franco. Officer Bernard was briefed by Officer Nunes at 3:45 a.m. and assumed responsibility for the investigation. Officer Nunes pointed out Mr. Franco to Officer Bernard as the driver of black Audi. Officer Bernard spoke to Mr. Franco. He smelled alcohol on Mr. Franco’s breath and noticed Mr. Franco’s eyes were watery. Based on those observations, Officer Bernard formed a suspicion that Mr. Franco was impaired by alcohol when the collision occurred. Officer Bernard asked Mr. Franco to accompany him to the front of his police car. At 3:53 a.m., Officer Bernard made a demand for Mr. Franco to provide a breath sample. Officer Bernard’s interactions with Mr. Franco by the police car were captured on video. Officer Bernard demonstrated how the roadside screening device worked and Mr. Franco provided a sample of his breath at 3:54 a.m. The roadside screening device registered a “fail” and at 3:56 a.m. Mr. Franco was arrested and advised of his rights.
[9] Mr. Franco argues that Officer Nunes had reasonable grounds to suspect he had alcohol in his system at 3:43 a.m. and was obliged to immediately make a breath demand. He further argues the trial judge erred in finding that the breath demand made by Officer Bernard 10 minutes later, at 3:53 a.m., was valid. I disagree with this argument for two reasons.
[10] First, Mr. Franco’s argument is inconsistent with the trial judge’s findings of fact. Before a valid breath demand can be made, the officer must subjectively believe there are grounds to make the demand and those grounds must be objectively reasonable. The trial judge accepted Officer Nunes’s evidence that he did not subjectively formulate reasonable grounds to make a demand before Officer Bernard took over the investigation. That finding was open to the trial judge.
[11] Officer Nunes testified his task was to manage the scene until the Traffic Services officer arrived and to gather some preliminary information about the people and vehicles involved in the collision. He understood that officers from Traffic Services would be responsible for the investigation. Officer Nunes acknowledged that he had some information from the police dispatcher and the firefighters on scene that the driver of the Audi may have been drinking. Officer Nunes testified his suspicion that the driver of the Audi might have been impaired mounted as he gathered more information. He also testified that his suspicion that Mr. Franco was driving the Audi at the time of the collision became “more clear” after he spoke to Mr. Franco. Nonetheless, Officer Nunes testified that he was still trying to establish who had been driving the Audi during the collision when Officer Bernard arrived. Officer Nunes testified he would have wanted more information to “firm up” his suspicion that Mr. Franco was the driver before demanding a breath sample from him. In cross-examination, Officer Nunes testified that his suspicion that Mr. Franco had been driving with alcohol in his system did not crystallize until he saw Officer Bernard arrest Mr. Franco.
[12] Based on Officer Nunes’s evidence, it was open to the trial judge to find that Officer Nunes’s task was to secure the scene and identify witnesses and, despite gathering some information that Mr. Franco may have been drinking, he did not subjectively form grounds to make a breath demand. It does not matter if Officer Nunes could have formed a reasonable suspicion based on the information available to him. If he did not subjectively believe he had grounds to make a demand, he could not lawfully do so.
[13] Because Officer Nunes did not subjectively believe he had reasonable grounds to make a demand, the first opportunity for a valid demand to have been made was when Officer Bernard formed reasonable grounds to suspect Mr. Franco had alcohol in his system at the time of the collision. And Officer Bernard made a demand as soon as he had grounds to do so. Officer Bernard arrived on scene at 3:43 a.m. He received a briefing and started his investigation. When he spoke to Mr. Franco, he smelled alcohol on his breath and saw that his eyes were watery. Officer Bernard then had grounds to make the demand. He asked Mr. Franco to accompany him to his car. Within three minutes Officer Bernard had made the demand and obtained the sample.
[14] The trial judge did not err in finding Officer Bernard’s demand was made immediately and was valid.
[15] Second, even if the trial judge erred in finding that Officer Nunes did not have subjective grounds to make a breath demand, there was no obligation on Officer Nunes to make a demand. Section 320.27(1) of the Criminal Code states that if a police officer has reasonable grounds to suspect a driver has alcohol in their body, the officer may require the driver to provide a sample of their breath. Section 320.27(1) is permissive. It does not require the police to make a demand each time they have grounds to do so.
[16] There is, of course, jurisprudence that states that the police are required to make a demand immediately if they intend to do so. The Criminal Code does not explicitly require a police officer to make the demand immediately after establishing reasonable grounds to suspect the driver has alcohol in their body. However, Canadian courts have repeatedly held that, to be constitutional, s. 320.27(1) of the Criminal Code (and its predecessor) must be interpreted to mean that the police have an implicit obligation to make a demand as soon as they form the reasonable suspicion that the driver has alcohol in their body: R. v. Breault, 2023 SCC 9 at para. 34, R. v. Quansah, 2012 ONCA 123 at paras. 24 to 44, R. v. Woods, 2005 SCC 42 at para. 15, R. v. Pierman (1994), 19 O.R. (3d) 704 at para. 5. This is because the police are allowed to detain the driver for the purpose of seizing a sample of their breath without giving the driver an opportunity to speak to counsel before the sample is taken. The statutory power to demand a breath sample before the driver has an opportunity to speak to counsel has been found to be a reasonable limit on the driver’s Charter rights because of “the extreme danger” posed by impaired drivers, but only if the police exercise that power without delay: Quansah at para. 22.
[17] The cases on the constitutionality of s. 320.27(1) of the Criminal Code (and its predecessor) were decided in the context that the driver had been detained by the police before the demand was made. For example, in Pierman at para. 5, Arbour J.A. (as she then was) explained the rationale for requiring the police to make the demand as soon as they have reasonable grounds to suspect the driver has alcohol in their body as follows:
This is the only interpretation which is consistent with the judicial acceptance of an infringement on the right to counsel provided for in s. 10(b) of the Charter. If the police had discretion to wait before making the demand, the suspect would be detained and therefore entitled to consult a lawyer. The basis upon which the courts have held that Parliament may infringe on a suspect's right to counsel is that there is no opportunity for the police to accommodate that right if the breath sample must be taken "forthwith". It follows, in my view, that for the section to maintain its constitutional integrity, we must assume it also contemplates that there be no opportunity for the suspect to consult counsel before the demand is made.
[18] However, in R. v. MacMillan, 2013 ONCA 109, the Court of Appeal for Ontario held that “greater flexibility” is permitted if the driver is not detained between the time the officer forms the grounds to make a demand and when the demand is made. The court made that finding because the rights under ss. 9 and 10 of the Charter are not engaged if the driver is not detained. In other words, if the driver is not detained, any delay between the officer formulating grounds and making the demand will not interfere with the driver’s Charter rights and the need for immediate action on the part of the police disappears.
[19] In my view, the cases which establish an implicit requirement on the police to act immediately do not stand for the proposition that the police must make a breath demand every time they formulate grounds to do so. The police can always exercise their discretion not to take an investigative step they have the power to take. What is impermissible is for the police to delay making the demand after formulating the grounds and the intention to do so.
[20] So even if Officer Nunes had reasonable grounds to suspect Mr. Franco had alcohol in his system when the collision occurred, he was not required to make a demand. He was entitled to leave that decision to the lead investigator as long as Mr. Franco was not detained as part of the criminal investigation before the demand was made. The trial judge found that Mr. Franco was not detained as part of a criminal investigation between 3:43 a.m. (when Mr. Franco says Officer Nunes had grounds to make a demand) and 3:53 a.m. (when Officer Bernard made the demand). And I am satisfied the trial judge did not err in making that finding.
[21] I, therefore, find the trial judge did not err in finding that Officer Bernard’s demand was valid under s. 320.27(1) of the Code.
C. The trial judge did not err in finding that Mr. Franco was not arbitrarily detained
[22] Mr. Franco argues the trial judge erred in finding that he was not detained as part of a criminal investigation until Officer Bernard formulated the grounds to suspect he had alcohol in his system and made the breath demand. He argues the criminal investigation started as soon as Officer Nunes had reasonable grounds to suspect he had alcohol in his system and he was detained when Officer Nunes told him to “hang tight.” I disagree.
[23] As the driver of the Audi, Mr. Franco was under a duty to remain at the scene of the collision and to give the police certain information, if asked: Highway Traffic Act, R.S.O. 1990, c. H.8, s. 200. That duty does not give rise to a detention under s. 9 of the Charter.
[24] The trial judge did not err in finding that Mr. Franco was not detained as part of a criminal investigation when Officer Nunes told him to “hang tight”. If this were not a collision investigation, my analysis may be different. In other circumstances, the police would likely be found to have detained someone if they tell them to “hang tight” and not leave. However, Mr. Franco was required by law to remain. It was not Officer Nunes’s comment that compelled him to stay.
[25] The relevant questions are when did the investigation become a criminal investigation and when was Mr. Franco detained as part of that investigation (as opposed to the investigation of the circumstances of the collision under the Highway Traffic Act).
[26] I have already found the trial judge did not err in finding Officer Nunes did not subjectively form the grounds to make a breath demand before Officer Bernard took over the investigation. The trial judge made no error in finding that the investigation became a criminal investigation when Officer Bernard formed the grounds to make the breath demand and that Mr. Franco was not detained for the purpose of engaging his rights under the Charter until the demand was made.
D. The trial judge did not err in finding that Mr. Franco’s rights under s. 10(a) were not violated
[27] Mr. Franco argues his rights under s. 10(a) of the Charter were violated because, when he was first arrested, Officer Bernard told him he was under arrest for impaired driving, not impaired driving causing bodily harm.
[28] After Mr. Franco spoke to duty counsel for the first time but before he gave a breath sample at the police station, the breath technician told him he may be charged with impaired driving causing bodily harm. Mr. Franco was given a second opportunity to speak to counsel after he was told about the more serious charge.
[29] The trial judge found that Officer Bernard should have told Mr. Franco he may be charged with impaired driving causing bodily harm depending on the nature and extent of the injuries to the passenger in his car. The trial judge also found Mr. Franco’s rights under s. 10(a) of the Charter were not violated because he was made aware of his actual legal jeopardy and given an opportunity to speak to counsel before any breath sample was seized from him at the station.
[30] Mr. Franco had a right under s. 10(a) of the Charter to be told the reason for his arrest. The analysis under s. 10(a) of the Charter is not formalistic. The analysis does not turn on precise language used by Officer Bernard. Rather, the focus must be on what Mr. Franco would reasonably have understood at the time of his arrest. The question is whether Mr. Franco had sufficient information to make an informed decision whether to submit to the arrest or not: R. v. Evans, [1991] 1 SCR 869 at p. 888.
[31] Mr. Franco remained on scene after the collision, as he was required to do. By the time Officer Bernard arrested him, Mr. Franco would have known that one of the passengers in his vehicle was taken to hospital. He, therefore, would have known the collision caused injuries to at least one person. When Mr. Franco was arrested for impaired driving or having more than the legal limit of alcohol in his blood, he would have known the allegation was that he caused the collision that injured his passenger when he was impaired. That was sufficient to allow him to make an informed decision about whether to submit to the arrest.
[32] Most importantly, Mr. Franco was told about the more serious charges before the breath samples were taken at the police station and was given a second chance to speak to duty counsel. Even if the information provided by Officer Bernard when he first arrested Mr. Franco was insufficient, the breath technician made a “fresh start” when he told Mr. Franco that he could be charged with a more serious offence of driving with more than 80mg of alcohol in 100 mL of blood causing bodily harm and gave him a second opportunity to speak to duty counsel before seizing a sample of his breath: R. v. Beaver, 2022 SCC 54 at paras. 95 to 99.
[33] The trial judge made no error in finding Mr. Franco did not establish a breach of his rights under s. 10(a) of the Charter.
E. The trial judge did not err in finding Mr. Franco’s rights under s. 10(b) were not violated
[34] Mr. Franco argues the trial judge erred in finding that the police did not violate his rights under s. 10(b) of the Charter by delaying putting him in touch with counsel.
[35] Mr. Franco was arrested at 3:56 a.m. He was searched incident to arrest. He was also advised of his right to counsel. Mr. Franco said he wanted to speak to a lawyer. Officer Bernard told Mr. Franco they would put him in touch with a lawyer at the police station, where he could have privacy.
[36] The police did not leave the scene with Mr. Franco until 4:18 a.m. They arrived at the police station at 4:26 a.m. Mr. Franco was kept waiting in the back of the police car in the sallyport for 26 minutes. He was brought into the station at 4:52 a.m. A call was made to duty counsel on Mr. Franco’s behalf at 5:14 a.m. Mr. Franco spoke to duty counsel for the first time at 5:22 a.m. – 1 hour and 26 minutes after his arrest.
[37] This is not a case where the police decided to suspend Mr. Franco’s right to counsel because their investigation was ongoing. Rather, the issue is the time it took for the police to put Mr. Franco in touch with counsel. The police were required to give Mr. Franco a reasonable opportunity to speak to counsel without delay: R. v. Suberu, 2009 SCC 33 at para. 42, R. v. Rover, 2018 ONCA 745, at para. 25. However, there are circumstances that will justify some delay in implementing a detainee’s right to counsel. For example, the police were not under an obligation to implement Mr. Franco’s right to counsel until he was in a secure location where a private call could be made: R. v. Keshavarz, 2022 ONCA 312 at para. 67.
[38] The trial judge recognized that the onus was on the Crown to justify the delay in implementing Mr. Franco’s right to counsel. The trial judge found that Officer Bernard was likely told which police station to take Mr. Franco at 4:10 a.m. The trial judge found there was “no particular reason” why the police stayed at the scene for another eight minutes after receiving those instructions. The trial judge also noted there was no evidence why Mr. Franco was delayed 26 minutes before he was processed at the police station. Nonetheless, the trial judge found that it was reasonable to infer the 26-minute delay was caused by another person being processed when Mr. Franco arrived. The trial judge concluded that the delay did not constitute a breach of Mr. Franco’s rights under s. 10(b) of the Charter.
[39] The trial judge made no error in finding no breach of s. 10(b) of the Charter. As the trial judge noted, there was no obligation for the Crown to provide a detailed account of what occurred every minute between Mr. Franco’s arrest and his first contact with counsel. The police were entitled to wait until Mr. Franco was at the police station so they could facilitate his right to counsel in private. While the police could have acted slightly faster to get Mr. Franco to the station and there was some delay processing Mr. Franco, they acted very quickly to connect Mr. Franco to duty counsel after he had been processed. In those circumstances, the trial judge did not err in finding that the delay did not constitute a breach of Mr. Franco’s rights under s. 10(b).
[40] Even if the delay did constitute a breach of Mr. Franco’s rights under s. 10(b) of the Charter, the breach would be so minor and technical that it would not justify the exclusion of the breath samples under s. 24(2) of the Charter.
[41] I, therefore, dismiss Mr. Franco’s appeal from his conviction.
F. Sentence Appeal
[42] Mr. Franco was sentenced to six months in jail. Mr. Franco argues the trial judge placed undue weight on the public interest in a sentence that would denounce Mr. Franco’s conduct and deter others, and failed to consider whether those principles of sentencing could be satisfied with a non-custodial sentence.
[43] I can only interfere with the trial judge’s sentencing decision if the sentence is demonstrably unfit or the trial judge committed an error in principle. I cannot intervene simply because I might have imposed a different sentence.
[44] At trial, Mr. Franco argued that he should either be granted a conditional sentence or an intermittent sentence so he could continue to work while serving his sentence. The trial judge carefully considered both options. The trial judge acknowledged that conditional sentences have been granted in other cases of impaired driving causing bodily harm. Nonetheless, she concluded that neither a conditional sentence nor an intermittent sentence was appropriate. In reaching that conclusion, the trial judge properly identified and considered the relevant aggravating and mitigating factors. The trial judge found there were two important aggravating factors. First, Mr. Franco’s blood alcohol concentration was twice the legal limit. Second, two people were seriously injured in the collision. In terms of mitigating factors, the trial judge considered that Mr. Franco had no criminal record and had expressed sincere remorse. The trial judge found that those mitigating factors justified a sentence below the 10 to 12 months requested by the Crown.
[45] Balancing all the mitigating and aggravating factors, the Court found that a term of imprisonment was necessary to satisfy the principles of denunciation and deterrence, which are the paramount sentencing principles in impaired driving cases. The trial judge made no error in principle and a six-month sentence is within the range of an appropriate sentence in this case.
[46] Mr. Franco’s sentence appeal is, therefore, also dismissed.
Davies J. Date: April 26, 2024
