Court File and Parties

Court File No.: Brampton 11-2112 Date: 29 February 2012 Ontario Court of Justice Central West Region

Between: Her Majesty the Queen — and — James Taylor

Before: Justice Richard H.K. Schwarzl

Heard on: November 23, 2011 and February 29, 2012

Reasons for Charter Ruling given on: February 29, 2012

Counsel:

• Mr. Carson Coughlin and Mr. Vick Aujla for the Crown
• Mr. Robbie Tsang for the Accused

SCHWARZL, J.:

CHARTER RULING

1.0: INTRODUCTION

[1] On February 11, 2011 the Applicant, James Taylor, was charged with an offence under section 253(1)(b) of the Criminal Code of Canada. He alleges that the police violated his constitutional rights guaranteed by sections 8 and 10 of the Canadian Charter of Rights and Freedoms and he seeks to exclude the breath test results, without which the case against him cannot be proven.

[2] The Applicant claims that the breath samples were obtained without a lawful foundation. That is to say, the Applicant says that the screening demand was illegal because it was not made forthwith as required by section 254(2) of the Criminal Code. This illegal demand is said to have ultimately led to the impugned breath test results. The Applicant further claims that there was, in the circumstances, a reasonable opportunity for Mr. Taylor to consult with counsel prior to the taking of the screening test and that the failure by the police to provide this opportunity violated Mr. Taylor's right to counsel. He also says he was not promptly told of the reason for his detention.

[3] The Crown submits that in the circumstances of this case, none of the Applicant's rights were breached, but if they were the evidence should not be excluded.

2.0: RELEVANT FACTS

[4] On February 11, 2011 at 3:32 a.m. P.C. Christopher Whighton and his partner, P.C. Clough, were on patrol in Brampton. At that time, they saw a pick-up truck driven by the Applicant quickly leave a parking lot known for drug, liquor, and other offences. The truck was pulled over and stopped within the same minute. The purpose of the stop was to check the driver's sobriety given the time, location, and speed.

[5] P.C. Whighton went to the passenger door whilst P.C. Clough went to the driver's door. There were four occupants of the truck: Mr. Taylor was in the driver's seat, one Peter Campbell was in the front passenger seat, and two unknown individuals – one adult male and the other a teenaged female – were sitting behind the other two. The man in the back seat appeared agitated. P.C. Whighton saw that Mr. Campbell appeared to be under the influence of cocaine. His face was covered in a white powder, his nose was running, his eyes were bloodshot, and he was fidgety. Campbell was also holding a clear baggie in his hand. Mr. Taylor appeared agitated, too, and seemed angry with Mr. Campbell.

[6] At 3:35 a.m. P.C. Whighton opened the passenger door, removed Mr. Campbell, and arrested him for possession of a controlled substance. P.C. Clough was left to deal with the other three occupants. P.C. Whighton called for back-up, and as he did so Mr. Campbell tossed the baggie away. The baggie was never found.

[7] According to P.C. Whighton, things happened very quickly. The routine traffic stop had morphed into a drug investigation of a passenger. Mr. Campbell was never charged with an offence because the baggie could not be recovered.

[8] Within a couple of minutes, back-up arrived at which time the other three occupants, including Mr. Taylor, were removed from the truck. P.C. Whighton had no material dealings with the Applicant.

[9] At 3:35 a.m. Sgt. David Housdon, the shift supervisor, arrived on scene. He noticed the Applicant and two other people in the truck. He went to the passenger side to assist P.C. Whighton. Some four or five minutes later, Sgt. Housdon went to the driver's door and told Mr. Taylor to get out, which he did. On exiting, Mr. Taylor was given a pat search by Sgt. Housdon, whose stated concern was "figuring out what we were dealing with."

[10] While speaking with Mr. Taylor for a few minutes, Sgt. Housdon could smell alcohol on the Applicant's breath, at which time another officer, P.C. Steven Foster approached the driver's side. Sgt. Housdon informed P.C. Foster of the situation and his observations of the driver and turned Mr. Taylor over to P.C. Foster to deal with a screening test. Sgt. Housdon did not want to conduct an approved screening device test on Mr. Taylor because (a) it was not part of his duties and (b) he candidly stated that he did not feel qualified to do the test correctly.

[11] P.C. Foster had arrived on scene at 3:39 a.m. and went straight to the Applicant and Sgt. Housdon to make sure everything was alright. P.C. Clough informed P.C. Foster that Mr. Taylor was the driver. P.C. Foster then took a few minutes to be brought up to speed on the entire situation.

[12] Around 3:42 or 3:43, P.C. Foster first spoke to Mr. Taylor and in doing so immediately smelled alcohol on the Applicant's breath. P.C. Foster brought Mr. Taylor back to his cruiser, took a minute or two outside to search him, placed Mr. Taylor in the police car, and then read a screening demand to him. P.C. Foster's demand would have been made at approximately 3:45 a.m.

[13] P.C. Foster asked that an approved screening device be brought to him because he did not have such a device with him. At 3:52 a.m., P.C. Brad Chisholm, who arrived on scene at 3:37 a.m., brought an approved screening device to P.C. Foster. P.C. Chisholm made his own screening demand on Mr. Taylor at 3:52 because he wasn't sure if P.C. Foster had already done so.

[14] At 3:54 a.m. P.C. Foster administered the approved screening device test which Mr. Taylor failed resulting in his arrest for the offence now before the court.

[15] After the fail, P.C. Foster turned the Applicant over to P.C. Chisholm to continue the investigation. Sometime later, Mr. Taylor provided two suitable samples of his breath directly into an approved instrument for analysis. Both results were over the proscribed legal limit.

[16] No evidence was given by P.C. Clough who did not appear in court on either trial date despite being required to do so. No explanation was offered for her absence.

3.0: THE LAW

[17] The Ontario Court of Appeal has recently provided guidance to trial courts with respect to the issues that arise when screening demands are impugned. In R. v. Quansah, 2012 ONCA 123, Mr. Justice LaForme summarized the law as follows:

Summary

45 In sum, I conclude that the immediacy requirement in s. 254(2) necessitates the courts to consider five things. First, the analysis of the forthwith or immediacy requirement must always be done contextually. Courts must bear in mind Parliament's intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.

46 Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body. The immediacy requirement, therefore, commences at the stage of reasonable suspicion.

47 Third, "forthwith" connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible interpretation may be given. In the end, the time from the formation of reasonable suspicion to the making of the demand to the detainee's response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2).

48 Fourth, the immediacy requirement must take into account all the circumstances. These may include a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed to ensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns. These are examples of delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty. Any delay not so justified exceeds the immediacy requirement.

49 Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee's s. 10(b) rights before requiring the sample. If so, the "forthwith" criterion is not met.

[18] The court emphasized that an articulation of the precise linguistic equivalent for "forthwith" is less important than a careful consideration of all the circumstances of the particular case. The legal context for this consideration is the objective that "forthwith" sets out, namely a prompt demand and an immediate response, ultimately taking no more than the time reasonably necessary for the prompt performance of the steps contemplated by s. 254(2): Quansah, supra, at ¶ 52.

4.0: ANALYSIS

4.1: What is the context of the situation?

[19] In this case, Mr. Taylor's truck was stopped by P.C. Whighton and P.C. Clough to investigate his sobriety. The stop was made at 3:32 a.m. Once the two officers got to the truck, the focus of the investigation immediately shifted to the passenger who appeared to be high on cocaine. The officers were outnumbered two to one. They called for backup which started at 3:35 a.m. when Sgt. Housdon arrived and ended at around 3:40 a.m. at which time P.C. Foster and P.C. Chisholm were there. Until 3:40 a.m., it would appear that the police were doing two main tasks: ensuring the safety of the officers and figuring out or assessing the scope of the entire situation. Sgt. Housdon had grounds to make a demand by 3:40 a.m. but didn't because he did not feel competent to administer a screening test. P.C. Foster formed his grounds to make a demand around 3:42 or 3:43 a.m., brought Mr. Taylor to his cruiser, searched him, then made a screening demand at approximately 3:45 a.m. but P.C. Foster did not have an approved screening device with him. The device was given to P.C. Foster at 3:52 by P.C. Chisholm, who made his own, independent screening demand at 3:52 a.m. The test was administered at 3:54 a.m.

[20] To summarize the context, Mr. Taylor was stopped at 3:32. The police initially dealt with a volatile situation which did not stabilize until 3:40 or so. P.C. Foster formed his grounds to make a screening demand at 3:42 or 3:43 and made that demand at approximately 3:45 after searching Mr. Taylor. The approved screening device was provided at 3:52 a.m. and Mr. Taylor failed the screening test at 3:54, twenty-two minutes after being stopped and nine minutes after P.C. Foster's demand.

4.2: Was the screening demand made promptly once grounds were formed?

[21] P.C. Foster's demand was made promptly after he formed his grounds. The delay between forming grounds and making the demand was reasonable in that Mr. Taylor had to be brought to the cruiser, a secure and undisturbed location to conduct a screening test, and was briefly searched prior to the demand being made. In these circumstances, I find that the demand was made promptly once grounds were formed by P.C. Foster.

4.3: Was the time between the formation of grounds, the making of the demand, and Mr. Taylor's response to the demand no more than reasonably necessary to enable P.C. Foster to discharge his duties under section 254(2) of the Criminal Code?

[22] In the circumstances of this case, I find that the time between the forming of P.C. Foster's grounds and the administration of the approved screening device was no more than necessary for the officer to carry out his duties under section 254(2) of the Criminal Code.

4.4: Was the overall delay reasonable in these circumstances?

[23] Although P.C. Clough did not testify, three things are clear from the totality of the evidence. Firstly, since all of the officers who had direct dealings with Mr. Taylor could immediately smell alcohol on his breath, I infer that P.C. Clough was also in a position to do so at 3:32 a.m. and would have formed grounds to make a screening demand at that time. Secondly, although P.C. Clough was in position to make a demand, it was reasonable for her not to do so given that she and her partner faced an unexpected situation wherein the officers were outnumbered, Mr. Taylor, Mr. Campbell and the man in the back were all agitated, and Mr. Campbell appeared high on cocaine and was found committing a drug offence. It was entirely reasonable for her to not make any demand until the situation was sorted out and secure. Thirdly, it is clear that within five minutes of his arrival Sgt. Housdon took over from P.C. Clough in dealing with Mr. Taylor, who was described as a large, strong, man albeit cooperative with Sgt. Housdon.

[24] The situation was not secure until all the backup had arrived, which was just before 3:40 a.m. Sgt. Housdon formed grounds to make a screening demand but did not. His decision to do so was reasonable insofar as (a) his duties as a shift sergeant were to manage the situation as a whole and not any one of the detainees in particular and (b) he did not feel capable of doing a screening test correctly.

[25] I find that the delay between 3:32 and P.C. Foster's demand at approximately 3:45 was reasonable in order to sort and secure the situation, and to permit a properly qualified officer to deal with the screening test.

[26] The overall delay in making and administering the demand by the police was, in this case, no more than reasonably necessary.

4.5: Could the police have realistically fulfilled their obligations under s. 10(b) of the Charter before administering the screening test?

[27] In these circumstances there was no realistic opportunity to provide Mr. Taylor with access to counsel. Between the stop and being turned over to P.C. Foster, the situation was unstable. Police were figuring out the situation as a whole, they were dealing with upset individuals, one of whom appeared under the influence of illegal drugs, and police safety was a tangible concern. It was only around 3:40 a.m. that the situation was stabilized. At that point, the police acted promptly in making the demand and administering the screening test. There were nine minutes between P.C. Foster's demand and the screening test. Given this brief period and the totality of the circumstances, I find that it would not have been realistic to provide Mr. Taylor with his right to counsel and an opportunity to exercise it despite having a phone containing his lawyer's phone number.

[28] Once the situation was under control, Sgt. Housdon made it clear to Mr. Taylor that P.C. Foster would be taking him to a police car for a screening test. In these circumstances, Mr. Taylor was promptly informed of the reasons for his detention.

[29] I find that the screening demand in the circumstances of this case was made in accordance with the framework set out by section 254(2) of the Criminal Code and took no more time than was reasonably necessary for a prompt discharge of police duties.

5.0: CONCLUSION

[30] For these brief reasons, I find that the rights of James Taylor were not breached by the police. His application for Charter relief is dismissed. The evidence concerning the breath test results and Mr. Taylor's blood alcohol concentration at the time of driving will not be excluded.

Richard H.K. Schwarzl, Justice of the Ontario Court of Justice