Court File and Parties

Court File No.: 2811 998 Date: June 26, 2012

Ontario Court of Justice

(Central East Region)

B E T W E E N:

Her Majesty The Queen

T. D'eri, Counsel for the Crown

- and -

Dennis W. Cole

S. Skolnik, Counsel for the Defendant

Heard: May 3, 2011 & April 30, 2012

Reasons for Judgment

BELLEFONTAINE, J:

Introduction

[1] These are my reasons for judgment in the matter of Mr. Dennis Cole who is charged with having the care and control of a motor vehicle with a blood alcohol concentration exceeding 80 milligrams of alcohol.

[2] The certificate filed establishes him to have had 150 milligrams of alcohol in 100 millilitres of blood and he was admittedly operating his motor vehicle. The defence has been properly confined to alleged breaches of s.8 and s.10(b) of the Canadian Charter of Rights and Freedoms surrounding the use of an approved roadside screening device (the A.S.D.) to form the grounds for the breathalyzer demand that ultimately lead to the test and readings that otherwise established Mr. Cole's guilt on the charge.

Legal Framework

[3] Section 254(2) of the Criminal Code provides that where a peace officer has reasonable grounds to suspect a driver has alcohol in their body, the peace officer may by demand require that person to provide forthwith a sample of their breath into an A.S.D.. The defence submits:

1. The officer did not have a reasonable suspicion that Mr. Cole had alcohol in his body;

2. Alternatively, the demand was not made forthwith upon the officer forming a suspicion that Mr. Cole had alcohol in his body;

3. Further, the taking of the screening device test was delayed to await an A.S.D. to be brought to the scene resulting in a constitutional breach as Mr. Cole had a realistic opportunity to consult counsel in the interim and no rights to counsel were provided to him.

Any of the arguments would result in a breach of s.8 of the Canadian Charter of Rights and Freedoms. The first two defence arguments would lead to a direct breach of s.8 and the third grounds would also lead to a breach of s.8. Section 10(b) would play a role in assessing whether Section 8 was breached for the third argument, as a test delayed long enough for Mr. Cole to have a realistic opportunity to consult with counsel without being provided that opportunity would not meet the "forthwith" requirement under s.254(2). See R. v. George, [2004] O.J. No. 3287, and R. v. Quansah, 2012 ONCA 123, [2012] O.J. No. 779.

[4] As Section 10(b) plays only a secondary role in the alleged breach I will conduct the analysis for all three grounds as alleged Section 8 breaches. The burden is accordingly on the Crown to establish the lawfulness of the A.S.D. test on a balance of probabilities.

Factual Background

[5] There is some confusion in the time line of the case given some oversights in noting times by P.C. Browell. She testified she saw the vehicle cut across some lanes of traffic and start to turn down a one-way street before abruptly aborting the turn at approximately 2:55 a.m. She stopped the vehicle shortly after at 2:56 a.m. and approached the vehicle one or two minutes after that. After some brief conversation with Mr. Cole and obtaining his documents, she returned to the police car to "run the accused," and ensure his documentation was correct and to confirm his identity. Her call log shows her to have done that 3:01 a.m. but the length of time involved in doing so before or after that point in time is not in evidence. While at the cruiser she spoke with her partner P.C. Rodgers and was provided with what she felt was an inconsistent version of where Mr. Cole had been that night, that had been provided by a passenger to P.C. Rodgers.

[6] She returned to Mr. Cole's vehicle, spoke further with him, and brought him back to the cruiser where she read a breath demand for the screening device at 3:05. She testified she called for an approved screening device very shortly after making the demand, and was told within a minute that one was being brought by P.C. Bowler. P.C. Bowler testifies he was dispatched at 3:07 a.m. to bring a roadside screening device to the scene. Although P.C. Browell has no note of the time of arrival of the A.S.D., both Officer Bowler and P.C. Rodgers say it arrived at 3:13. There is no clear evidence as to how long after its arrival, the machine was given to P.C. Browell and how long it took her to prepare the machine to the point she was in a position to require that a breath sample be provided by the accused. Officer Browell did not note the time of the fail on the device, but testified that after the fail reading, she arrested Mr. Cole for exceed 80 at 3:19 a.m. They left the scene at 3:27 a.m. for the detachment.

Crown's Position

[7] The position of the Crown is that Officer Browell's evidence that she smelled alcohol on Mr. Cole's breath at the first contact with him, should be accepted, and that the eight to nine minute delay to identify him and check out his documentation on the police computer system, before making the screening demand, was a reasonable one that should be accepted given a flexible approach to any forthwith requirement. They submit the odour of alcohol on Mr. Cole's breath is sufficient to provide a reasonable suspicion to support the demand. Finally they submit the clock should stop, for the purpose of considering the time frames involved, at the point the A.S.D. arrived at 3:13 a.m. At that point Officer Browell would be returned to the same position she would have been in had she had an A.S.D. with her at the outset. Accordingly, the starting point for the Crown's calculation is the time of the demand at 3:05 as any preceding time was necessary and reasonable investigative activities. The Crown submits the eight minute time frame from 3:05 to 3:13 a.m. is insufficient to allow Mr. Cole at 3:00 in the morning to call a family friend to give the name and number of a lawyer and contact that lawyer to obtain meaningful advice.

Defence Position

[8] The position of the defence is that the officer did not smell alcohol coming from Mr. Cole, and did not have a subjective suspicion that Mr. Cole had alcohol in his body. It is submitted that she only raised alcohol consumption during her second attendance at the car, and only made the demand, as a result of Mr. Cole being perceived to have lied to her about where he was earlier that night. Requiring the test is said to be "punishment" to teach Mr. Cole a lesson for lying to the officer. They further submit that if alcohol was smelled by her, during her second attendance at the vehicle, the demand was not provided forthwith, as it could have been provided at Mr. Cole's car, rather than having him come back to the police cruiser and reading it to him in the cruiser. The defence also argue that due to the poor note-taking, the time of the demand could have been immediately after checking his documents at 3:01. The defence submits the clock should run to 3:19 at the earliest creating an 18 minute period during which Mr. Cole could have meaningfully consulted with counsel.

Analysis

Reasonable Suspicion

[9] I am prepared to find that Officer Browell detected an odour of alcohol coming from Mr. Cole's breath during her initial interaction with him. The defence have raised a number of concerns about her evidence. However, the incident occurred in the early morning hours of a Sunday when weekend Saturday night drinking is common. The poor driving choices leading up to the stop would reasonably lead Officer Browell to suspect Mr. Cole might be under the influence as she has testified to. Officer Rodgers testified the smell of alcohol from Mr. Cole was obvious when he was placed in the cruiser and noted it to be moderate later on in the breath test room. Mr. Cole admits that he had been drinking and concedes that a person would likely be able to detect alcohol on his breath although he questions whether it may have been masked by the stronger smell from his more heavy drinking passenger. Mr. Cole was driving a sport utility vehicle with a higher stance than a passenger car, supporting Officer Browell's evidence that she was face-on to Mr. Cole during the initial encounter and smelled the odour of alcohol from him at the outset. Accordingly, I am satisfied that Officer Browell did smell an odour of alcohol emanating from Mr. Cole's breath on her first attendance at his motor vehicle at 2:57 am, and reject the defence argument that there was no reasonable suspicion to support the A.S.D. demand. The odour of alcohol coming from the driver's breath is a sufficient basis to support the A.S.D. demand. See R. v. Lindsay, [1999] O.J. No. 870.

Forthwith Requirement

[10] Having smelled alcohol at that point in the proceedings, she was obligated in my view to make the screening device demand, that she testified she knew she would ultimately make, rather than go on to make the routine checks that she did. The position of the Crown that a reasonable delay should be permitted for these inquiries has been effectively rejected by our Court of Appeal in R. v. Quansah, 2012 ONCA 123, [2012] O.J. No. 779. The routine inquiries made in this case, to confirm the status of Mr. Cole's license and his criminal history, are not the type of unusual circumstances referred to in Quansah where the driver fled from the police, nor were they steps necessary for the exigencies of the proper use of the equipment. Given the officer's admitted intention to be giving the test from the point of her detecting alcohol during her first attendance at the vehicle, it was not in my view reasonable or necessary for her to make those inquiries at the point she did and to delay providing the demand. This is especially so, given her lack of an A.S.D. and the delay that would flow from awaiting it's arrival. There would have been time to make those inquiries after reading the demand to Mr. Cole. Accordingly the requirement that the demand be provided promptly upon forming the reasonable suspicion has been breached.

Right to Counsel and Timing

[11] I would further find that s.8 has been breached by virtue of the delay overall having been long enough that Mr. Cole's rights to counsel should have been provided. As noted in Quansah at paragraph 46:

"The immediacy requirement…commences at the state of reasonable suspicion."

Accordingly, I reject the Crown's argument that the time frame for assessing whether there was a reasonable opportunity to consult with counsel should run from the time of the demand and would commence the time frame from 2:57 a.m. being the minute after the stop when Officer Browell attended at the vehicle and formed her reasonable suspicion.

[12] Had the testimony been that she needed some brief delay to assess whether to direct the motorist to go on his way rather than make a screening device demand, a later point in time may have been countenanced. See R. v. Fildan, 69 C.R. 6th, 65 (Ont. S.C.), quoted with approval in R. v. Quansah.

Arrival of Machine and Calculation of Time

[13] I am also obligated to reject the Crown's position that the arrival of the machine should stop the clock. In R. v. Torsney, 2007 ONCA 67, [2007] O.J. No. 355 at para. 10 and 11, the Court of Appeal in considering this issue reviewed other Court of Appeal decisions, which clearly added post arrival time to the calculation and specifically included the time through to the time of the test. In their analysis of the case they went on to note the time through to the point the machine was ready for use and not the time through to the ultimate fail reading which occurred after a third attempt to provide a breath sample into the A.S.D.. The decision of the Court of Appeal in R. v. George, [2004] O.J. No. 3287 also supports a point beyond the arrival of the machine:

Relying on the Supreme Court's decision in Thomsen, Charron J.A., on behalf of the Court explained at p.286 that "[t]he meaning of the word forthwith 'must…be defined in terms consonant with the outside limit on the limitation to the right to counsel." She reiterated, at p.287, that the test to be applied is that given in Cote:

The determinative question then becomes in any given case, was the police officer in a position to require that a breath sample be provided by the accused before any realistic opportunity to consult counsel? If so, the demand, if otherwise appropriate, falls within the scope of s.254(2). If not, the demand is not valid.

Justice Charron held that s.254(2) did not require an officer to have a reasonable belief in his or her mind at the time a demand is made that the sample would be taken before there was any realistic opportunity to consult counsel. She explained at p.288 that:

If, as the events actually unfold, the peace officer is in a position to require the person to provide the sample before there is any realistic opportunity to consult counsel, the statutory requirements are met.

(My italics)

[14] In cases where a wait is involved for an A.S.D. to arrive, I consider the appropriate time, to end a calculation of the time period available for a realistic consultation with counsel, to be the point at which the officer is ready to require the accused to be involved in the testing process. In situations where an A.S.D. is present any time required to prepare the machine for a test will generally be too brief to be a negative factor impacting the 'forthwith' requirement. However, where an Officer does not have an A.S.D., it is important to recognize that some time is required upon receipt of the device to ensure it is working properly, has been recently calibrated and allowing it to perform its self-tests to ensure it is functioning. In winter conditions, some significant time may be required for the machine to warm up before it can be used.

[15] In a situation where some time to consult counsel has existed, this preparatory time frame that does not involve the participation of an accused would as equally be available for the accused to consult counsel as the time prior to the arrival of the machine.

[16] There will also be preparation for the ultimate test and fail reading that does involve the accused in insuring a proper test is taken. In this case, some un-documented length of time was involved in giving instructions to Mr. Cole on the use of the machine and having him open and test the mouthpiece to be used. This preparatory time would not have been available for Mr. Cole to consult with counsel. I consider the preparation time involving the subject, prior to his providing a breath sample into the machine, to be a necessary part of the test process and one of the exigencies for the proper use of the machine that ensures a proper result is obtained. This approach is consistent with the decision of Justice Durno in R. v. Gill, [2011] O.J. No. 3924.

[17] I consider the time frame involved in this case, that would have been available for Mr. Cole to consult with counsel, to run from 2:57 a.m. to 3:18 a.m. In doing so I have allowed for a minute for the preparatory procedures involving Mr. Cole immediately before his providing a breath sample. Given the absence of evidence as to how long that process actually took, I consider that minute to err on the side of the defence while still in fairness allowing some time to reflect the fact that those procedures involving Mr. Cole did occur.

[18] There was accordingly 21 minutes available for the demand to be made, rights to counsel provided and for Mr. Cole to contact his friend to get a number for a lawyer to contact and meaningfully consult with.

Contextual Analysis

[19] Conducting the contextual analysis required by R. v. Quansah I am satisfied that the 21 minute delay in this matter does not satisfy the forthwith requirement. There was an initial eight minute delay following the reasonable suspicion being formed and the decision made to require a breath sample before the A.S.D. demand was made. The routine license enquiries that were made during this time were not necessary to enable the officer to discharge her duties under s. 254(3). No safety concerns were raised to merit any delay. The officer has not been able to recall what portion of the time frame was involved in the preparation of the A.S.D., on this occasion, to justify any of the delay on the basis of the necessary operational time required to ensure an accurate result on the A.S.D.

[20] Mr. Cole was in possession of a cellular telephone with which to immediately contact counsel and in addition to the real potential that his friend, who had a lawyer, could connect him with that lawyer, 24 hour available duty counsel are available and may have been contacted had his rights been provided to him. I am mindful of the late hour of the night but I do consider 21 minutes under these circumstances to be long enough to realistically have a meaningful consultation with counsel. Significantly Mr. Cole did ask to speak to Duty Counsel upon being advised of his Rights to Counsel. Duty Counsel was contacted by the police at 3:40 A.M. and returned the call within ten minutes. The consultation lasted for five minutes. The total time for this process of fifteen minutes is well within the 21 minutes that was available while waiting for the A.S.D.. Accordingly I find his Section 8 rights to have been breached.

Conclusion

[21] Considering the R. v. Grant factors, especially given the multiple Section 8 breaches, the evidence in this matter will be excluded and an acquittal granted.

Justice P.L. Bellefontaine