Court File and Parties
Court File No.: Newmarket Courthouse 4911 998 12-00441 Date: 2012-04-23 Ontario Court of Justice
Between: Her Majesty the Queen
— And —
Gurpreet Bhela
Before: Justice Peter N. Bourque
Heard on: March 21, 2012
Reasons for Judgment released on: April 23, 2012
Counsel:
- J. Costain, for the Crown
- P. Lindsay, for the accused Gurpreet Bhela
Overview
[1] The defendant is charged with care and control of an automobile, while having excess alcohol in his blood pursuant to section 253(1)(b) of the Criminal Code. The factual issue which gives rise to a plethora of legal (including Charter) issues is whether the officer complied with the requirement that the ASD test be administered "forthwith".
Jessica Cadieux
[2] Jessica Cadieux is a York Region Police officer of some 4 years experience. She was on uniform patrol and one of her specific duties was to be on the alert for impaired drivers. There was no ASD for her to take on her patrol that evening.
[3] She saw the defendant exit a plaza and drive onto Markham Road at 0012 hours on December 30, 2011. She followed and stopped his vehicle under her powers to check for sobriety. She noticed nothing untoward about his driving, and in all of her evidence, she gave no mention of any observations of the defendant which could point to any suspicion of impairment.
[4] She went up to the vehicle and identified the defendant as the driver of the car. She smelled an odour of alcohol from the mouth of the defendant and when asked, the defendant indicated that he had consumed 2 beers that evening. She stated that she formed the requisite opinion to make the ASD demand. (I note she did not testify that she had a "reasonable suspicion that the defendant had alcohol in his body", but I accept that she had the objective reasons for such a suspicion, and the statement that she was going to do the ASD test is, in my opinion, sufficient evidence of such a suspicion).
[5] She was going to make an ASD breath demand and called for backup as she did not have an ASD in her vehicle. She may have also have been concerned for security reasons. She stated there was another person in the car and she did not want to have the defendant step out of the car. In cross examination she initially admitted to defence counsel that issues of any security were not part of the reason she called for the backup, but only to get the ASD. She then changed her testimony and reiterated again that she did have security concerns. She also admitted that the defendant was always polite in her dealings with her and the passenger (who was a man) did not give any signs that there were any security concerns. She certainly may have been more comfortable having another officer present, but there was, in my opinion, nothing on its face which would have triggered security concerns. I find there were in fact no objective security concerns, notwithstanding the evidence of the officer.
[6] She told the driver to "wait in the car". She did not give him any other information, such as providing any information as to why he should wait in the car and certainly did not give him any form of breath demand, or any rights to counsel.
[7] She stated that it took about 5 minutes to interact with the driver after the stop. In cross-examination she admitted that this was probably some 2 to 3 minutes.
[8] A second police car arrived with the ASD at 0033, some 21 minutes after the first stop and approximately 18 minutes after interacting with the driver.
[9] She could not remember if the machine was turned on or not, but she stated that she tested it herself and was satisfied that it had been recently calibrated and was in proper working order. She then went and read the ASD demand to the defendant and performed the test. She said that he did not provide an adequate sample on the first try but provided an adequate sample which was a "fail" on the second try. She then arrested him for excess alcohol, read the right to counsel, caution and the breath demand. With regard to the provision of the rights to counsel, the officer was of the opinion that it was only after she made the arrest of the defendant that such a provision was required. While admitting that the defendant was not free to leave, it did not occur to her that providing the defendant's 10(b) (or 10(a) for that matter) Charter rights would have been triggered at any time short of the formal arrest.
[10] He was taken to the police division, paraded before the Staff Sergeant, placed in cells, and the officer contacted duty counsel. For the purpose of my ruling in this case it is not necessary to recite the other events which transpired other than to note:
It took a total of 12 minutes for the officer to contact the duty counsel office, receive the return call from duty counsel, take the defendant to a private room to take the call, and then retrieve him after the call was finished.
The readings on the breath certificate were 160 and 150 milligrams of alcohol in 100 millilitres of blood.
Charter Challenge
[11] The defendant asserts that in the circumstances of this particular case, the analysis of the forthwith or immediacy requirement leads to the conclusion that the defendant's rights under sections 9 (arbitrary detention), 10(a) (right to be informed promptly of the reasons therefore), section 8 (unreasonable search and seizure), and 10(b) (to retain and instruct counsel without delay and to be informed of that right) were breached. The appropriate remedy is to exclude from evidence under section 24(2) the results of the breath tests.
[12] The Crown admits that from the moment that the officer told the defendant to "wait in the car", that he was under detention. His 10(a) Charter rights were most certainly triggered as he was detained and given no reason for the detention. At the same moment the officer had determined in her own mind that she had reasonable suspicion to conduct the screening test. This would trigger the beginning of the clock to determine whether the screening test was taken "forthwith" and the combination of these factors would determine whether there were breaches of the section 10(b) and section 8 Charter rights.
The Law
[13] I believe that the most recent pronouncement of the Court of Appeal (R. v. Quansah, 2012 ONCA 123) requires that the determination of "forthwith" in section 254(2) requires a five part series of considerations.
The analysis must be done contextually. Parliament intended to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.
The demand must be made promptly once she forms the reasonable suspicion. The immediacy requirement commences at the stage of reasonable suspicion.
Forthwith connotes a prompt demand and immediate response, "although in unusual circumstance a more flexible interpretation may be given". The total time from formation of reasonable suspicion, to making the demand, to the detainee's response to the demand by providing (or refusing) to provide a sample, "must be no more than is reasonably necessary to enable the officer to discharge her duty as contemplated by section 254(2)".
Immediacy must take into account all circumstances including reasonable necessary delay when the ASD is not immediately available or short delay needed to ensure an accurate result, or where a short delay is required due to articulated and legitimate safety concerns. Any delay that is not reasonably necessary to enable the officer to properly discharge her duty exceeds the immediacy requirement.
One circumstance for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee's section 10(b) Charter rights before requiring the sample. If so, "the forthwith requirement is not met".
[14] The defendant was detained for some 19 to 21 minutes after the officer formed her reasonable suspicion and before the defendant was given an opportunity to comply with a demand for a breath sample. I find that the only reason for the delay was because there was no ASD present at the scene and the officer had to await the arrival of such a device. There was a clear breach of the defendant's 10(a) Charter rights.
[15] Was there also a breach of the defendant's section 10(b) rights? In R. v. Yamka, [2011] O.J. No. 283, Justice Durno of the Superior Court found that a 10 minute wait for an ASD was not a section 10(b) violation but referred to it as "a very, very, close call". The court referred to several Court of Appeal decisions where delays of between 6 to 17 minutes were acceptable to comply with the legislation and was convinced, on the evidence of his case, that an attempt to call her counsel of choice would have been futile. I note in our case that the evidence disclosed the defendant (once given the opportunity) was content to speak with duty counsel, and the entire process from first call to completion (when actually undertaken) took no more than 12 minutes.
[16] In R. v. Viajyam, 2010 ONCJ 537, Justice Borenstein determined that a delay of 18 minutes to deliver the ASD led to a section 10(b) breach. In R. v. Kerr, [2010] O.J. No. 2222, Justice Green found a 6 minute delay was also a 10(b) breach. He also stated that assertions of "officer safety" as a reason for delay must be determined on an "objectively ascertainable foundation" and not just the "subjective sensibility" of each officer.
[17] In all the circumstances of this case, I find that the delay of some 19 to 21 minutes, with the defendant under detention, without providing rights to counsel does lead to a breach of 10(b) of the Charter.
In Totality Has The Forthwith Requirement Been Met?
[18] Assuming the breach of 10(b) of the Charter, and assuming the 19 to 21 minute delay between detention and the provision of the ASD to the defendant, I cannot say that the forthwith requirement has been met. There were no unique circumstances in this case other than the delay in obtaining the ASD.
[19] That leads naturally to the determination that there has been a breach of the defendant's section 9 and section 8 Charter rights.
Is the Section 24(2) Remedy Appropriate?
[20] The question to be considered is whether the admission of the evidence could bring the administration of justice into disrepute. The inquiry is objective, asking whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude the admission of the evidence would bring the administration of justice into disrepute. (R. v. Grant, 2009 SCC 32). The three factors to be considered are the seriousness of the Charter infringing conduct, the impact on the defendant's Charter protected interests and society's interest in the adjudication of the case on its merits.
[21] I make no specific finding of bad faith or egregious or flagrant conduct on the part of this officer. Some may find it difficult to understand that the delay in the provision of the ASD with the corresponding failure to provide a reason for the detention and the opportunity to consult with counsel, would lead to breaches of four items of the Charter of Rights and Freedoms but that indeed is the case. I am concerned that this officer's training does not contemplate the provision of rights to counsel upon detention and not just upon arrest. I am concerned that this officer was sent out on general traffic patrol without providing her with an ASD, when surely the investigation of possible impaired drivers was an important part of the duty she was to provide to the public.
[22] I do not think that all of these breaches in the total context of this matter should be considered as insignificant.
[23] The impact upon the defendant was not minimal. While samples of breath are minimally intrusive, the liberty interest in this case was significant.
[24] All drinking and driving prosecutions are serious. However, we are dealing with a carefully constructed scheme to compel persons to give evidence which could implicate them in a crime. It does not ask too much, that officers be trained to implement that scheme without breaching persons Charter rights in so many ways. I believe that a reasonable person looking at this matter and considering the objectives of the criminal law and the Charter of Rights and Freedoms would conclude that to admit the evidence in this matter would bring the administration of justice into disrepute.
[25] The results of the breath tests (Exhibit #1) will be excluded from the evidence in this case.
Conclusion
[26] The charge against the defendant will be dismissed.