Court File and Parties

Court File No.: 11 819 Ontario Court of Justice

Between: Her Majesty the Queen — and — Christopher Corrado

Ruling on Voir Dire (Charter application to exclude results of breath sample)

Counsel:

• Mr. Brian Ducharme, for the Accused
• Mr. Russ Cornett, for the Crown

CAMPBELL GREGORY J.:

THE CHARGE

[1] Mr. Corrado is accused of operating a motor vehicle with a blood alcohol content exceeding 80 milligrams of alcohol in 100 millilitres of blood.

THE FACTS

[2] On April 7, 2011 shortly after 2:00 a.m. Officers LaSorda and Bender were stopped at a parking lot across the road and a short distance from a local pub when they saw a Ford Mustang turn in to the pub parking lot. Although they couldn't see where the vehicle stopped, they could hear what they believed to be the Mustang revving its engine loudly before accelerating quickly out of the parking lot and squealing its tires. The officers pulled out and stopped Mr. Corrado in his mustang just a short distance away for the purpose of making inquiries about his erratic driving.

[3] It was 2:11 a.m. when Officer LaSorda approached the driver's side of the vehicle and asked the accused for his driver's licence, ownership and insurance. During and as part of this preliminary questioning, the officer asked Mr. Corrado about his driving. Mr. Corrado apologized and explained that patrons outside the pub were "egging me on".

[4] Officer LaSorda detected an odour of alcohol on Mr. Corrado's breath so he asked Mr. Corrado if he had been drinking. Mr. Corrado responded with "four or five beers". The officer also noticed that the accused's eyes appeared red and glossy. Officer LaSorda testified that within a minute of his initial encounter with Mr. Corrado, he reasonably suspected that Mr. Corrado had been operating his motor vehicle with alcohol in his system. He therefore decided to "have him blow into an approved screening device". The Officer did not have an ASD with him. Using his hand held radio while standing outside of the police cruiser and not far away from Mr. Corrado, who remained seated in his own vehicle, Officer LaSorda made a request for delivery of an ASD to his location.

[5] Officer LaSorda had no knowledge in regard to where the closest ASD might be located and did not know how soon one might be expected to arrive. He only knew that one was located subsequent to his request and that it would be delivered to his location.

[6] Officer Bender testified that from her experience, there are typically several ASD's assigned to various units that are located in different districts throughout the City. She held the opinion that after a request is made for delivery of an ASD, it would likely arrive within eight to ten minutes.

[7] Officer LaSorda could provide no particulars in regard to what occurred while he waited for the ASD to arrive, other than to say that Mr. Corrado remained seated in his vehicle he stood outside of the vehicle and nearby at the side of the road.

[8] The ASD arrived at 2:18 a.m. Officer LaSorda turned on the device, checked the calibration date and tested the unit to satisfy himself that it was operating properly. It was 2:21 a.m. when Officer LaSorda issued a breath demand for Mr. Corrado to provide a sample of his breath for analysis by ASD.

[9] Mr. Corrado complied with the demand. The result was a fail. At 2:23 a.m. Mr. Corrado was placed under arrest. When asked if he understood what he was being charged with, Mr. Corrado responded in the affirmative. Officer LaSorda next informed Mr. Corrado about his right to counsel and issued the customary caution by reading from the text contained in his standard issued police officers note book. Mr. Corrado indicated that he understood. Officer LaSorda had no recollection of ever asking Mr. Corrado if he wished to call a lawyer but he did recall making a demand that Mr. Corrado provide a sample of his breath suitable for analysis by an approved instrument.

[10] It was 2:38 a.m. when Officer Colbourne arrived at the scene to transport Mr. Corrado. They arrived downtown 3:01 a.m. Officer Colbourne understood a request was made at some point by the accused to speak to a lawyer.

[11] Evidence of Police Officer Diotte was read into the record. Officer Diotte placed the call and confirmed that contact was made with defence counsel. The entire process from making the call to its completion lasted a total of three minutes.

[12] Mr. Corrado testified on the Voir Dire. He acknowledges that he had been drinking beer but maintained that the couple of drinks he had did not have any effect on him. He said that after Officer LaSorda spoke with him, he was instructed to shut the car off, place his keys on the roof and to remain seated in the car. He testified that at no time did the officer tell him why he was to remain there. Mr. Corrado estimated that he remained there for approximately fifteen minutes before he was asked to provide a sample of his breath.

[13] Mr. Corrado indicated that he had a cell phone with wireless internet access in his possession while he waited in his vehicle. He testified that if he was told that he had a right to call a lawyer, he would have looked up Mr. Ducharme's telephone number with his smart phone via yellow pages directory and called him.

ANALYSIS

[14] I indicated to counsel during submissions that it was apparent to me there was a breach of Mr. Corrado's right s. 8, 10(a) and 10(b) rights as guaranteed by the Charter.

[15] Prior to securing the sample of breath by way of an approved screening device between 2:21 and 2:23 a.m. Mr. Corrado was detained at the side of the road. The detention was not in accordance with the substantive requirements of section 254 (2) of the Criminal Code. As such, he had the right to be informed promptly of the reason for his detention and to be informed about his right to retain and instruct counsel without delay.

[16] The Supreme Court has indicated that the suspension of an individual's constitutionally protected rights under the Charter to allow for a roadside screening and sobriety assessment as contemplated and provided for in Section 254 of the Criminal Code of Canada is a justifiable infringement of an individual's rights in a free and democratic society.

[17] The suspension of that right is only reasonable when the state is in full compliance with the enactment.

[18] It is implicit in the language of Section 254 (2) of the Criminal Code that the ASD demand must be made forthwith in order to comply with the suspension of the constitutional right to consult with counsel without delay. (See R. v. Woods, 2005 SCC 42.)

[19] It is clear that Officer LaSorda did not make a demand for a sample of Mr. Corrado's breath until after he received the ASD from Officer Rettig and tested it. This was twelve minutes after the Officer had the requisite grounds to make the demand. Now it has been said before and I agree that the exercise of calculating minutes alone is in and of itself rarely determinative of an issue such as this. However, there is more. When Officer LaSorda was asked if Mr. Corrado was informed in regard to the officer's request for an approved screening device, the Officer responded by indicating "to me it's irrelevant". He went on to explain that he planned to make the demand when he received the device. There was no evidence to suggest that the officer's attention or duties were needed or being utilized in any other way. There were no safety concerns or security issues. He simply stood at the side of the road and waited for what began as an uncertain period of time for the screening device to arrive. And as the officer waited, Mr. Corrado remained seated in the car after being instructed to place his keys on the roof. No demand was made and the accused was never informed in regard to why he should remain or what was about to happen next. And as indicated, there was no evidence to suggest that the officer either asked or was informed about when the screening device would arrive. In an effort to assist with the prosecution on this point, officer Bender offered her opinion in regard to how long it would typically take to receive the device in similar circumstances. She offered eight to ten minutes as a reasonable estimate.

[20] The suspension of the accused's rights, in anticipation of gathering evidence by way of an approved screening device, contemplates the timely administering of the ASD test. The courts have indicated that it is to be administered forthwith. This has generally been interpreted to mean, in the context of 10 (b) rights, that there is no reasonable opportunity for contact with counsel prior to taking the test.

[21] Whether Mr. Corrado had a cell phone and would have utilized it in the manner indicated by him and the fact that when he ultimately spoke with counsel at the police station the conversation lasted only three minutes or well within the time he waited at the side of the road is not so fundamental.

[22] What is important to my mind is that the routine traffic stop became a statutory detention within the meaning of s. 254 (2) Code and the Charter from the moment Officer LaSorda had the requisite suspicion and determined, at 2:11 a.m., that he had grounds to make a demand for an ASD test. From that moment the accused's rights to be informed promptly of the reasons for detention under Section 10 (a) and of the right to retain and instruct counsel without delay under s. 10 (b) could only be suspended by operation of Section 254 (2) in the circumstances of this case if the officer made the requisite demand forthwith. There was nothing that prevented the officer from being able to make the demand forthwith. He was not attending to any other duty. He did not have an ASD available and most notably, the officer had no knowledge in regard to when he might be in possession of one. The officer simply concluded from his training that he was under no obligation to make the formal demand until such time as he had in his possession the approved screening device. With that, I can only conclude from the facts that he believed it was entirely reasonable to detain the accused indefinitely and while doing so, had no obligation to even tell Mr. Corrado why he was doing so.

[23] In the end, the facts reveal that there was no lawful reason to suspend the operation of Mr. Corrado's constitutional rights. Officer LaSorda could have realistically fulfilled the obligations under 10(a) and (b) insofar as he did not have the screening device in his possession, had no knowledge of when it might be made available to him and there was nothing preventing the officer from being able to afford Mr. Corrado the opportunity to consult with counsel. As such, the failure to make a proper demand and administer the ASD forthwith was a breach of Mr. Corrado's rights on detention to be informed promptly of the reason therefore, and to be informed of his right to retain and instruct counsel without delay.

REMEDY

[24] Mr. Corrado has moved by application under section 24 (2) of the Charter to exclude the results of the readings obtained by the approved instrument following the unlawful demand.

[25] Officer LaSorda had approximately two years experience as a Police Officer at the time of this incident. For reasons indicated, the officer failed to comply with section 254 (2) of the Code. It was somewhat surprising to hear the officer state with conviction that he essentially had no obligation to inform the accused that he had requested delivery of an approved screening device. To this end when asked if he told Mr. Corrado that he requested one, the officer said it was "irrelevant". The officer seemed to hold the opinion that he could detain the accused indefinitely until such time as the screening device arrived.

[26] I used the word detain in the last paragraph in the generic sense in an effort to accord with the officer's testimony insofar as officer LaSorda clearly did not understand the meaning of a legal detention. Officer LaSorda testified that after he formed the grounds to make the demand, he believed that Mr. Corrado was "not free to leave". When asked to explain further, the officer said that while Mr. Corrado was not free to leave, he was not detained in his mind. This belief he said was because this was a motor vehicle stop and as such, in his opinion until such time as the accused was arrested, he was not legally detained. Officer LaSorda went on to say "I don't know at which point the vehicle stop ends and an illegal detention begins". When I asked the officer to repeat what he had said, he stated "I don't know at which point the vehicle stop ends and the legal detention begins".

[27] It became clear as Officer LaSorda testified that he had no knowledge in regard to when he would be obliged to inform a person of their rights upon detention as he held the opinion that the informational component concerning rights to counsel arose only after affecting an arrest.

[28] Section 24 (2) is not aimed at punishing the police but rather aimed at systemic concerns. The subsection's ultimate goal is to maintain the integrity of the administration of justice. In this context, it has however been said before that the police are held to a higher standard than a civilian when it comes to demonstrating respect for the rule of law. In short, the police are expected to know the law.

[29] I would count myself among the many who have found that the never ending twists and turns and evolving patterns associated with interpreting drinking and driving laws remains challenging. Having said that, however, the concept of being able to distinguish between when a citizen is detained as opposed to under arrest should not be an onerous task for a trained police officer especially having regard to the requirement of police officers to ensure that individuals detained or arrested are informed of their constitutional rights. Detention and arrest are not exclusive to cases involving drinking and driving.

[30] It was apparent from the testimony of Officer LaSorda that he had no idea of what constituted a legal detention or when it would arise, could arise or might arise. The Charter is part of the Constitution of Canada and is described in s. 52 as the supreme law of Canada. Within the Charter, particularly sections 9 and 10, are specific rights and obligations in regard to detention. How a trained police officer could hold the opinion and belief that he is obliged to provide an individual with his rights to counsel only upon arrest is of concern.

[31] Insofar as the impact of this breach on the accused's protected interest is concerned, Superior Courts have already indicated that the taking of breath samples is not particularly intrusive. And with that, the authorities have recognized on numerous occasions the devastating consequences and far reaching affects that drinking and driving has had on society as a whole. The facts reveal that the accused barely got out of the parking lot after revving his engine loudly and squealing his tires before he was pulled over. Other than that, his driving pattern was uneventful.

[32] The Supreme Court of Canada has indicated that the fact there is a Charter breach or in this case breaches, means that damage has already been done to the administration of justice. Section 24 (2) starts from that proposition and seeks further to ensure that any evidence obtained as a result of a breach does not do further damage to the repute of the administration of justice.

[33] While I am satisfied that the officer at no time acted in bad faith, and recognize that the result of the officer's conduct has not served to compromise or negate the reliability of the evidence obtained, and appreciate that the breath samples taken by an approved instrument are essential to the Crown's case, I nevertheless hold the opinion that the ultimate question of public confidence in the system and the rule of law would be reduced by admitting this evidence rather than excluding it.

[34] The actions of the accused leading up to the arrest were, but for the nature of the offence, unremarkable. By contrast, the officer's apparent belief that Mr. Corrado's liberty could be suspended by him indefinitely and without informing him why because of an apparent lack of knowledge, understanding or training suggests to me that it is more important to exclude the evidence to maintain public confidence than it would be to allow it.

[35] Accordingly, having regard to all of the circumstances, I am not only satisfied that the breath samples were obtained in a manner that infringed the accused's rights, but that the evidence of those breath samples ought to be excluded on the basis that their admission as evidence in this proceeding would bring the administration of justice into disrepute.

Dated at the City of Windsor this 20th day of June, 2012.

Justice Gregory A. Campbell Ontario Court Justice