Court File and Parties

Court File No.: 2944/11 Date: 2012-10-18 Ontario Court of Justice

Between: Her Majesty the Queen — and — Adrienne Beth Hanley

Before: Justice G. F. Hearn

Heard on: January 12, July 18 and September 14, 2012

Reasons for Judgment released on: October 18, 2012

Counsel:

• K. Katzsch and L. Elliott, for the Crown
• C. Parry, for the accused Adrienne Beth Hanley

HEARN J.:

BACKGROUND

[1] On January 12, 2012 the accused entered a plea of not guilty to a count alleging that on or about June 6, 2011 at the City of Kitchener having consumed alcohol in such quantity that the concentration thereof in her blood exceeded 80 milligrams of alcohol in 100 millilitres of blood she did operate a motor vehicle. Prior to the trial counsel for Ms. Hanley had served and filed a notice of application alleging breaches of Ms. Hanley's Charter rights under s. 8, s. 9 and s. 10(b) of the Charter and seeking the exclusion of any evidence obtained following Ms. Hanley's detention at the roadside pursuant to s. 24(2) of the Charter. The application brought by the defence arises out of a rather unique set of circumstances which evolved at the roadside upon Ms. Hanley being stopped by the police.

[2] A response has been served and filed by the Crown wherein the Crown effectively denies the breaches of any of Ms. Hanley's Charter rights and asks that the application be dismissed.

[3] As is common in these types of matters, the trial proceeded as a blended hearing with the Crown calling evidence on both the application and trial issues. Ms. Hanley has given evidence on the application on her own behalf. The trial commenced on January 12, 2012 and continued thereafter on July 18, September 14 and has ultimately been adjourned to today's date for judgment.

EVIDENCE OF THE CROWN

Evidence of Constable Maria Politano

[4] Constable Politano has been a member of the Waterloo Regional Police Service since September of 2000 and on June 6, 2011 she was working a shift on patrol, in full uniform, in a marked police cruiser. Her shift had started on June 5, 2011 at 9:00 p.m. and was to continue to 5:00 a.m. on the morning of June 6, 2011.

[5] Sometime after 3:00 a.m. Cst. Politano was operating her cruiser in an eastbound direction on Weber Street when she observed Ms. Hanley's vehicle driving westbound past her location. As Ms. Hanley's vehicle passed her, the officer noted that the lid to the gas tank was open and the gas cap was hanging off and down, leaving the tank without closure. After the officer made this observation she turned her cruiser around and initiated a traffic stop. The officer indicated there were no other observations with respect to how the vehicle was being driven prior to the stop and the only reason for the stop was the observation concerning the gas tank.

[6] The vehicle was stopped at 3:43 a.m. There were two occupants, one of whom was Ms. Hanley who was the operator of the vehicle.

[7] The officer approached the driver's window which was down and Ms. Hanley had available already a copy of her insurance and driver's licence. The officer asked her for her registration which was also produced, but as it was handed to the officer it "slipped slightly" out of Ms. Hanley's hand.

[8] The officer explained the reason for the stop and at that point she "observed a strong smell of alcoholic beverage" coming from the accused. She also observed Ms. Hanley to have red, glassy eyes and slightly slurred speech. The officer then testified as follows:

"At that point I realized that the – I would have needed a roadside Alco – a roadside – now I'm trying to think of the name. Hmm. Alcotest in regards to testing the defendant in regards to her blood alcohol concentration."

[9] The officer did not have such a device with her but Cst. Friesen had attended at the location apparently after having heard about the traffic stop and this officer asked if he had a "roadside" with him. Cst. Friesen did not but said he would go and get one. The officer had not noted the time when Constable Friesen attended, although she did have noted the time Cst. Friesen returned.

[10] Constable Politano then told Ms. Hanley that she was "being detained for over 80" at 3:47 a.m. The officer read to Ms. Hanley her rights to counsel and caution. At 3:49 a.m. after reading the caution and her rights to counsel the officer then read to Ms. Hanley the "roadside demand".

[11] When asked by the Crown specifically what was read to Ms. Hanley at 3:47 a.m., the officer indicated that she was "arresting Ms. Hanley for over 80". She then went on to inform her of the rights to counsel including the right to apply for Legal Aid. Following the reading of rights to counsel, the officer asked Ms. Hanley if she understood and she indicated "yes". The officer then asked Ms. Hanley if she wanted a lawyer and she again said "yes". The officer asked who, Ms. Hanley stated she did not have a lawyer and the officer asked her then if she wished to call Legal Aid. Ms. Hanley then responded that she wished to have Legal Aid contacted. At this point in the examination-in-chief of Cst. Politano the officer, notwithstanding what she had stated earlier, went on to state that she had not told Ms. Hanley that she was under arrest for over 80 but in fact had substituted the word "detain" for the word "arrest" when she read out "her rights to her lawyer and everything" from her notebook.

[12] The officer testified, when questioned with respect to her previous comment about placing Ms. Hanley under arrest, as follows:

"And I apologize. I said she was being detained not arrested for the over 80 at that point. In our book we don't have a section that just says what to read when they're detained. We have a section for their arrest. So I wanted to ensure that she had a right – that she had a right – that she knew her rights to speak to a lawyer and that she could talk to a lawyer."

[13] Ms. Hanley was advised of being "detained" at 3:47 a.m. and Cst. Politano believed at that point she had already had the conversation with Cst. Friesen and he had left the scene. It was then at 3:49 a.m. the "roadside demand" was read.

[14] The Crown asked the officer why the roadside demand came "after the rights to counsel" and the officer responded:

"That's the way it is in – because I was detaining her so I wanted to let her know about her lawyer rights and then I read the roadside right after that."

[15] The demand appears to have been properly worded and after reading the demand Ms. Hanley indicated she understood the demand. At that point the officer allowed Ms. Hanley and her passenger to remain in their car while awaiting the return of Cst. Friesen and she went to her cruiser.

[16] Constable Friesen returned at 3:51 a.m. with an approved screening device, now properly described by Cst. Politano. The Crown asked the officer if she had performed any tests on the device prior to asking for a sample from Ms. Hanley and the officer indicated she had not but she believed Cst. Friesen had conducted a test prior to giving her the device. She indicated that Cst. Friesen had told her that and her understanding was that the machine was in proper working order. With some assistance from the Crown by way of leading questions, the officer was then asked why she had requested the device and made the demand and she noted that it was because of the odour of alcohol from Ms. Hanley. The officer indicated that she believed Ms. Hanley had "alcohol in her system".

[17] Once the machine arrived Ms. Hanley was requested to step out of her vehicle at 3:51 a.m. Ms. Hanley ultimately provided a sample but the officer indicated she was not able to obtain a proper sample until 4:00 a.m. Ms. Hanley had been given three opportunities to comply with the demand prior to actually providing a sample which resulted in a "Fail". The officer explained what that meant to her and she then placed Ms. Hanley under arrest at 4:01 a.m. for the offence of "over 80".

[18] At 4:01 a.m. the officer again read the rights to counsel and caution in the identical wording that she had used previously except she now stated that she used the word "arrest" as opposed to "detain". Again, when asked if she understood Ms. Hanley responded that she did and she wished to call a lawyer. At 4:02 a.m. the demand "for the breathalyzer" was then made.

[19] At 4:06 a.m. a cursory search of the vehicle was conducted which resulted in the finding of a half-full bottle of alcohol in the back behind the driver's seat and at 4:11 a.m. Ms. Hanley was transported to the detachment, arriving at 4:15 a.m., some four minutes later.

[20] Upon arrival at the detachment Ms. Hanley was questioned about the name of a lawyer. Ms. Hanley indicated she did not know the name of a lawyer but asked the officer to call her mother to get the name. The officer did so but was advised that the mother did not have the name of a lawyer. Ms. Hanley was then asked if she wanted a different lawyer or if she wished to call Legal Aid and Ms. Hanley requested Legal Aid be called.

[21] The officer called Legal Aid, left a message and there was a call back at 4:35 a.m. Ms. Hanley was given an opportunity to speak with duty counsel and that call was completed at 4:48 a.m. Ms. Hanley was then turned over to the qualified breath technician at 4:54 a.m.

[22] Constable Politano provided her grounds to the breath tech. prior to that turnover which grounds included the smell of an alcoholic beverage coming from the breath of Ms. Hanley, the red glassy eyes, the slurred speech, the fumbling of registration and the "Fail" on the roadside. The constable remained for the first sample, escorted Ms. Hanley back to an interview room and then back to the breath tech. at 5:12 a.m. where a second sample was provided.

[23] Following the completion of the tests Ms. Hanley was processed and released in the care of her father at 6:16 a.m.

[24] The Crown questioned the officer with respect to the initial reading of rights to counsel at the scene wherein Ms. Hanley had indicated that she would like to speak to a lawyer and would like to speak to Legal Aid. When asked if the officer did anything following that response, the officer replied as follows:

"She was not detained at that time, like she wasn't in handcuffs. She was still in her vehicle at the time. At that point I didn't – I didn't have a phone with me and it was at, what time is it, 3:40 in the morning, 3:40, yeah, at 3:40 in the morning. I didn't have access to a phone at that point. I'm not sure if she did. If she would have – if she would have had a phone and wanted to call a lawyer then that would have been something I would have allowed her to do."

[25] The officer confirmed there had been no discussion about a telephone at that point.

[26] The officer was also questioned with respect to her expectation as to the arrival of a roadside device and indicated that she knew they were very close to the division and she knew it would not "be very long". She estimated the driving time between the traffic stop and the detachment would have been two to three minutes.

[27] In cross-examination she was questioned with respect to the close proximity to the detachment from where the traffic stop had been conducted. She was questioned with respect to the rights to counsel and the indication from Ms. Hanley that she wished to speak with counsel. The officer indicated she did not have a telephone with her and Ms. Hanley had not indicated whether or not she had a phone. The officer agreed that there was no attempt on her part to put Ms. Hanley in contact with a phone and she indicated she did not do so as Ms. Hanley had not "requested one". However, she did agree that Ms. Hanley had requested a lawyer but she did not do "one single thing in order to comply with that request".

[28] The officer also agreed in cross-examination that even though she ultimately testified in-chief she had "detained" Ms. Hanley for "over 80", she had no idea whether or not Ms. Hanley would "blow over 80". She acknowledged that if an accused person is in custody at the police station and there is a request to contact a lawyer she would have to take steps to do so. She agreed that Ms. Hanley's freedom of movement was interfered with at the roadside and that there was a phone to her knowledge within "a kilometre down the street".

[29] The officer was cross-examined with respect to her training concerning right to counsel. She agreed that the rights to counsel were triggered upon detention or arrest.

[30] It was the court's impression at this point that the officer was doing a bit of dodging and weaving with respect to the issue of right to counsel at the roadside, but ultimately the following exchange took place between defence counsel and the officer:

Question: You understand that that's your obligation when that right has been asserted, right?

Answer: Correct.

Question: The ball is in your court at that point, right? You understand that's what you've been told through your police training, correct?

Answer: Correct.

Question: All right, and do you tell my client well I don't have a phone; I can't put you in contact with counsel?

Answer: She didn't ask me, no I – she never.

Question: Well, who's ball – where – where's the ball? Is in your court or hers?

Answer: Mine.

Question: Okay. Did you tell her I don't have a phone?

Answer: No, I did not.

Question: Did you tell her oh, there's the phone at the police station you could use?

Answer: No, I do not.

Question: You have an implementational duty, correct?

Answer: Correct.

Question: You did nothing to make an effort to implement that duty, correct?

Answer: Correct.

Question: Okay. Did you advise her that she could use any phone that was on her person?

Answer: No, I did not.

Question: Did you advise her if she could use her friend's phone?

Answer: No, I did not but I had walked away from the vehicle as well.

Question: Did you advise her of the 1-800 number she could call?

Answer: Yes.

Question: Okay. So after she asserts the right to counsel the subject never gets brought up again by you, is that fair?

Answer: No, I do not. Constable Friesen was there…

Question: Okay.

[31] In cross-examination as well the officer was questioned with respect to the caution that she read to Ms. Hanley immediately following the rights to counsel and the indication from Ms. Hanley that she wished to speak with counsel. The officer did not respond to that request and had indicated she had read a caution from the front of her notebook to Ms. Hanley and had specifically stated during that evidence in-chief that she had told Ms. Hanley that she was "charged with over 80". In cross-examination when referred to that particular part of the caution, the officer indicated she did not believe she had read out the caution in-chief in full (but she had) and she thought she simply read the rights to counsel. She then stated:

"Oh, that would have been – because she was detained and I explained that she was detained, nothing is you are, because at that point she – she was just being detained."

However, she also indicated although it was confirmed she in fact had stated in-chief that she had told Ms. Hanley that she was charged, in cross-examination she changed that to indicate that she had actually said, instead of "you are charged", "you will be charged". The officer had nothing in her notes with respect to exactly what she had read to Ms. Hanley other than the "rights to counsel". There appeared to be confusion on the part of the officer, or at least in her articulating exactly what she read specifically dealing with the issues of whether there was an arrest or detention or whether Ms. Hanley was charged or could be charged. The officer did not have a note of what she read however was adamant that she had substituted the word "detain" for "arrest" at some point and had stated "could be charged" as opposed to "charged".

[32] Ultimately, Cst. Politano agreed that after reading the right to counsel and Ms. Hanley indicating a desire to speak to a lawyer, she simply went on to read the caution. When it was put to her that the reading of the caution had no relation to the subject of a lawyer, the officer indicated that was "correct". The officer also agreed there had been no waiver of the rights to counsel and she was aware of the duty to hold off eliciting evidence once a person has asserted rights to counsel, but indicated "I was never told that you couldn't ask them to provide the sample".

[33] The officer also agreed that during the course of providing the ultimate sample into the screening device she had advised Ms. Hanley that if she refused to provide a sample the result was "the same penalty as over 80". She agreed then that she had effectively provided legal information to Ms. Hanley, but after some further cross-examination agreed that she had not provided complete information, for example with respect to a "s. 24(2) scrutiny".

[34] The officer testified that during the course of her time as a police officer, which was approximately 11 years, she had had only "two other refusals" and either they had refused outright or they had been "just arrested for the impaired". Further, she estimated that she had in her career only been involved in ten to 15 "roadside screening tests".

[35] Of note as well is that the constable's evidence seems to be that Cst. Friesen had departed the scene prior to 3:47 a.m. and after the stop at 3:43 a.m. It was only after Cst. Friesen had left that the various "rights" were provided to Ms. Hanley by Cst. Politano.

[36] In reply the officer indicated that notwithstanding the close proximity of the police station, she did not deem it "feasible" to transport Ms. Hanley to the station to allow a phone call to be made and then return back prior to Cst. Friesen returning with the roadside device. She was also questioned in reply about her understanding of facilitating contact with counsel where there has been a request to provide a roadside sample and her response was this:

"That it was – if it was available, if there was a pay phone across the street or something like that and they wanted to use that that was feasible. I knew Constable Friesen – I knew the distance – I knew we weren't far from the Central Division. I knew that Constable Friesen wouldn't take long to get a roadside. And I also knew that it was 3:43 or 3:45 in the morning. It would be difficult for me to find somewhere to use a phone at that point."

At no point had Ms. Hanley asked for the 800 telephone number to be repeated or clarified, nor did she ask for a phone or make any requests with respect to a phone.

[37] When questioned by the court with respect to when the rights to counsel were read, the officer indicated she believed Cst. Friesen had left or just left or was "a very close proximity" at the time rights to counsel were read. When it was indicated to the officer that she had provided a number of choices, the officer confirmed that she recalls that Cst. Friesen was either just leaving or had left before the rights to counsel were provided at 3:47 a.m. to Ms. Hanley.

[38] The officer testified that she did not have the machine in her possession at the time that the demand was made, but knew that Cst. Friesen was on his way to the detachment to retrieve one. For the first time also, when questioned by the court she indicated she had been advised over the radio at some point that Cst. Friesen had the device and was returning to her location. She could not recall however when that precisely occurred in the context of the various rights being read.

Evidence of Constable Andrew Friesen

[39] Constable Friesen is also a member of the Waterloo Regional Police Service and was on duty on the evening in question. He had been aware from a broadcast over the police radio that Cst. Politano had conducted a traffic stop at 3:43 a.m. He was in the area and for officer safety reasons attended at the scene, arriving some two to three minutes later.

[40] He arrived, had contact with Cst. Politano and was advised while he remained in his cruiser that an approved screening device was required. All of this took place within 20 to 30 seconds of his arrival at the scene. He headed to Central Division where he entered the building and retrieved the device. He then returned to the scene where he conducted a self-test using the device at 3:51 a.m.

[41] The officer then handed the device to Cst. Politano who had interaction with the driver, Ms. Hanley. This officer also had interaction with the passenger in Ms. Hanley's vehicle. It would appear from this officer's evidence that he initially arrived at the scene at approximately 3:45 a.m. or 3:46 a.m. It took him a short period of time to attend at the detachment where he remained for about a minute while he retrieved the device. He estimates it then took him about a minute and a half to return to the scene and conduct the test on the approved screening device at 3:51 a.m.

[42] In cross-examination the officer agreed that he believed the passenger had used a cell phone to call the registered owner of the vehicle while at the scene. He also testified that he had advised Ms. Hanley during the course of a sample being provided that the consequences of failing to provide a sample were the same as the consequences for over 80.

[43] The officer was questioned thoroughly on that particular statement and it became apparent that the officer had not considered when he stated that to Ms. Hanley the lawfulness of any demand that might have been provided nor the aggravating factors that may arise such as where the readings ultimately may be in excess of 160 milligrams of alcohol in 100 millilitres of blood. The officer indicated in fact he was not even aware of that particular issue.

[44] This whole area of questioning of the officer would indicate that the officer ultimately did not know what the penalty might be. Upon further questioning by defence counsel that it would therefore be incorrect to say the penalty is the same, the officer still did not necessarily agree with that statement nor that he gave misinformation to Ms. Hanley. When put to the officer that he did not have to even provide any "advice" and simply had to tell Ms. Hanley that she could be charged if she refused, the officer indicated that his police training was such that he was to indicate to an individual that the consequences were the same for both matters.

[45] Notwithstanding that the officer seemed to agree he had not provided full information with respect to any penalty, he adamantly maintained his position that he had not provided misinformation and his comment to the accused with respect to the penalty was not held out to be an inducement but simply to provide Ms. Hanley with some information to assist her in making a decision on whether or not to provide a sample.

[46] Constable Friesen also indicated he understood it was his obligation in law to advise an individual such as Ms. Hanley of the consequences of failing to provide a sample. This area of questioning was directed at trying to determine exactly what the officer was conveying to Ms. Hanley when he advised her of the consequences. Whatever the officer's view it might be, it is quite clear from his evidence that he referred to this particular area as "advice" and it was certainly his opinion that it was in the best interests of Ms. Hanley to provide a sample, which she ultimately did, and he was conveying that to her in his own way. Whatever his training or obligation might be, it is clear that he had not fully advised her. He finally agreed, although somewhat reluctantly, that the penalty may not be the same as it depends on the circumstances.

[47] With respect to travelling to the detachment to obtain the screening device, the officer did not believe he had radioed ahead to see if a device was available nor did he advise Cst. Politano that devices were at the detachment. Further, contrary to the evidence of Cst. Politano, this officer had not noted nor did he give evidence that he in fact had contacted Cst. Politano once the device had been obtained. He in fact testified that while he was gone he had not provided any information to Cst. Politano that the device was obtained. From his evidence she would have no information that he had the device until he returned to the scene. He also testified that when he left he had no idea how long he would be gone nor would Cst. Politano from anything he did. The gist of his evidence in that regard is that he did not know how long it would take nor had he provided any information to Cst. Politano to assist her in understanding the timing of the return of the device as he had had no communication with her with respect to that issue.

Evidence of Constable Stephen Malolepszy

[48] Constable Malolepszy is the qualified breath technician who took the breath samples ultimately at the detachment from Ms. Hanley. There was no issue taken with respect to the officer's qualifications as a qualified technician, nor indeed, with respect to his use of the Intoxilyzer 8000-C on the date in question.

[49] He testified that two samples of breath were obtained, one completed at 4:54 a.m. on June 6, 2011 resulting in a reading of 219 milligrams of alcohol in 100 millilitres of blood, with the second sample being obtained at 5:17 a.m. resulting in a reading of 212 milligrams of alcohol in 100 millilitres of blood.

EVIDENCE OF THE DEFENCE ON THE APPLICATION

Evidence of Adrienne Hanley

[50] Ms. Hanley testified that on the evening in question she had been out with some friends for one of her friend's birthday party. She had dropped one of the friends off at her home about five minutes prior to being stopped. She still had one friend in the car at the time she was stopped by Cst. Politano.

[51] She provided documents to Cst. Politano and at some point during the course of her interaction initially with Cst. Politano she had been advised with respect to "a charge of over 80". She could not recall the specifics of the conversation but was under the impression that she was being charged with that offence. She recalled the officer reading items from her notebook and again although at trial she could not recall the specific wording with respect to rights to counsel, she agreed that the rights to counsel had been read and had indicated she wished to speak to a lawyer. She also indicated she did not have a lawyer to the officer and was advised of duty counsel. She then had told the officer that she wished to speak with Legal Aid.

[52] Ms. Hanley testified that she was not put into contact with Legal Aid at that point and the officer went on to read other things to her. She recalled being provided with an 800 number but did not remember it "by heart" and to obtain the number she would have to get the number from the officer who had returned to her cruiser.

[53] Ms. Hanley testified that she had her cell phone with her beside her in the vehicle. She did not make the call to Legal Aid as she was waiting for the officer to tell her she was allowed to call and to give her the number again. She was waiting for the officer and was feeling "nervous and scared".

[54] Ms. Hanley testified that once at the detachment she was put in touch with duty counsel and that call had been arranged for by the officer. She stated when the officer returned with the device she did not recall specifically the discussions with regard to the providing of a sample but did confirm that she had not as yet spoken to a lawyer and wished to. When asked by her counsel why she had not advised the officer that she still wanted to speak to a lawyer, Ms. Hanley indicated that she was "waiting for her [referring to Cst. Politano] to call the shots". She did not recall the exact discussion with respect to the possibilities of being charged with refusal, although she understood and recalls that she was told she was being charged with the same thing whether "I blow or didn't blow and I was thinking it was the same penalty no matter what I did".

[55] Ms. Hanley also testified that her friend at some point during her interaction with the police had used her cell phone to call her mother and that had been done at the roadside.

[56] In cross-examination Ms. Hanley acknowledged she had never told either officer that she had a cell phone. She also indicated that the call to her mother by her friend took place while she was interacting with the officers after the presentation of the screening device.

[57] With respect to her mother, she confirmed her mother was in fact called at the detachment. She had made that request and the police had complied. Ms. Hanley was quite candid in cross-examination in indicating that her ability to recall the specifics of conversations was due to her impairment and also the passage of time. Her evidence at its highest would indicate that she had a cell phone available with her and was effectively under the direction of the officers at the scene.

[58] That concluded the evidence.

ISSUES TO BE DETERMINED

[59] Dealing with the application before the court, there are ultimately two issues to be determined.

(1) Were Ms. Hanley's s. 10(b) rights infringed by the failure of Cst. Politano to provide her with a reasonable opportunity to consult with counsel after providing her with such rights and Ms. Hanley indicating that she wished to speak with counsel in circumstances where technically it was not necessary for Cst. Politano to advise of such rights at all?

(2) Was Cst. Politano in a position to require that Ms. Hanley provide a breath sample forthwith, i.e. before there was a reasonable opportunity for her to consult counsel given that Cst. Politano was not aware at the time the demand for such sample was made how long it may take or if, in fact, an approved screening device could be brought to the scene?

DETERMINATION OF FACTS AND ANALYSIS

[60] In addressing the issues it is first necessary to determine the facts the court accepts on the evidence. In my view, there are concerns with respect to the evidence of both Cst. Politano and Cst. Friesen. Those concerns relate to the presentation of their evidence as well as the content. Those concerns, however, do not necessarily result on their own with a finding favourable or unfavourable to the defendant without further analysis.

[61] For the purpose of such analysis the court finds the facts to be as follows:

(1) Constable Politano conducted a traffic stop at 3:43 a.m. on June 6, 2011, which stop was appropriate given the safety and Highway Traffic concerns the officer had after viewing the vehicle.

(2) Constable Politano approached the vehicle, had a conversation with Ms. Hanley and made certain observations which led her to formulate a suspicion that Ms. Hanley was operating a motor vehicle with alcohol in her body.

(3) That for reasons known only to Cst. Politano, and which she was unable to reasonably articulate at trial, she told Ms. Hanley she was being "detained for over 80" at 3:47 a.m. She then read Ms. Hanley her rights to counsel and caution. The officer's evidence is somewhat unsatisfactory as to whether she advised Ms. Hanley she was "under arrest" or under detention but after hearing the officer's explanation that she simply exchanged the words from her notebook and the arrest card and notwithstanding her evidence initially, I accept that she did in fact substitute the word "detain" for "arrest". Her actions thereafter are consistent with a detention as opposed to arrest. I further accept, notwithstanding again a critical concern, her evidence relating to the reading of a caution where she again substituted the words "could be charged" for "charged" as she originally read to the court.

(4) I find that upon reading the rights to counsel Ms. Hanley indicated that she wished to speak with counsel but did not have a lawyer and wished to speak to duty counsel. I accept Ms. Hanley's evidence as well with respect to that exchange, which evidence is effectively consistent with Cst. Politano's evidence.

(5) I find that, notwithstanding the indication she wished to speak to counsel, the officer did not address the issue any further until the arrival at the detachment and after arrest. At the scene Cst. Politano simply did not respond at all to that indication by Ms. Hanley. Thereafter Cst. Politano read the caution and the demand to Ms. Hanley at 3:49 a.m.

(6) I accept Cst. Politano's evidence that she read the rights to counsel, notwithstanding this was in her mind a detention, to ensure Ms. Hanley knew her right to speak to a lawyer and that she could "talk to a lawyer". I further find, notwithstanding that understanding, no opportunity to consult counsel at the time was provided nor offered by the officer. She returned to her cruiser awaiting the arrival of the approved screening device which did in fact arrive, delivered by Cst. Friesen at 3:51 a.m.

(7) I accept Ms. Hanley's evidence that she had in her possession a cell phone and after the demand was provided she waited in her motor vehicle. She did not remember the 800 number and was waiting for the officer to tell her she was allowed to call and to "give her the number again". She was, I accept and find, reasonably in the circumstances effectively waiting for the officer "to call the shots".

(8) I accept Cst. Friesen's evidence that he arrived at the scene and then left to retrieve an approved screening device. I accept his evidence that he did not at any time advise Cst. Politano how long might be needed to get the device, that he had retrieved the device, nor that he was on his way back to the scene with the device. I do not accept Cst. Politano's evidence that she believed she was advised by Cst. Friesen of the return as her evidence in that regard was less than convincing and is completely contrary to the evidence of Cst. Friesen who seems to have a better recall of that particular issue. I do find, however, that Cst. Politano was aware Cst. Friesen only had a short distance to travel to the detachment and believed his return would be fairly prompt. I accept Cst. Politano was of such a view at the time she read the demand to Ms. Hanley at 3:49 a.m. I find that the device was delivered within approximately two minutes after that demand at 3:51 a.m.

(9) I find that the approved screening device, properly described, arrived at 3:51 a.m. and was tested by Cst. Friesen thereafter. The device was then provided to Cst. Politano. There then appears to have been some issue with respect to the providing of a sample, the details of which were not disclosed in the evidence, but it is clear that there was some discussion in place as evidenced by the cross-examination by defence counsel of Cst. Friesen wherein there was some discussion with Ms. Hanley with regard to the consequences of failing to comply with the demand. A suitable sample was ultimately obtained at 4:00 a.m., resulting in a "Fail", the meaning of which was properly described by Cst. Politano, leading to the arrest of Ms. Hanley. Rights to counsel and a caution were then again provided which resulted in the same response by Ms. Hanley that she wished to speak to counsel. With respect to the information provided as to penalty by Cst. Friesen, that information was incomplete and the providing of such information, in my view, was ill-advised on the part of the officer notwithstanding his alleged "training" in that regard. However, there is no real impact of that particular evidence on the application. Ultimately, I accept Ms. Hanley's evidence that she believed whether she blew or did not blow the penalty was the same.

(10) Ms. Hanley and Cst. Politano then attended at the police station, arriving within a reasonable period of time and thereafter two samples of breath were taken after Ms. Hanley had an opportunity to consult with duty counsel. A call had been placed to her mother by Cst. Politano in order to obtain the name of a lawyer, which ultimately was not provided. As a result, Ms. Hanley had acknowledged that she would speak to duty counsel and did so. Both samples were properly taken by a qualified technician on an approved instrument and both resulted in readings in excess of the legal limit.

[62] The court was not impressed by the evidence of Cst. Politano. Her evidence is rather incomplete and indicates in the context of a drinking and driving offence Cst. Politano's understanding of when someone is detained/arrested and when someone might be provided appropriate rights to counsel at the appropriate time is limited. Her confusion ultimately could create additional confusion, and certainly has, with respect to Ms. Hanley resulting from the providing of rights to counsel in such a context as that before the court. Indeed, her evidence might very well leave a more experienced police officer in the investigation of such matters shaking his or her head.

[63] Still, she did provide details of what she did and the order in which she did it, even though it does not necessarily reflect well on her knowledge of investigating of drinking and driving offences. Ms. Hanley, on the other hand, is not able to assist much in what was precisely said to her by either officer as she has a poor recollection of such details. She candidly acknowledged her recollection is affected not only by the passage of time but also by her impaired condition at the time of the alleged offence.

[64] Constable Politano decided to provide rights to counsel and when she conveyed the rights to counsel to Ms. Hanley initially she did not follow up, even given Ms. Hanley's response that she wished to speak with duty counsel. There is no reasonable explanation given by Cst. Politano why she did not in fact deal with that particular request at the time she read the rights. It was in fact her evidence that she read the rights so that Ms. Hanley could understand that she had the right to speak with a lawyer. She effectively sort of "threw it out there", i.e. the rights to counsel, with no apparent intention of complying with the request at that time.

[65] However, Cst. Politano did state that the reason no call was offered was because she could not facilitate the call as she did not have a cell phone with her, nor was there a pay phone that was close by. Further, she was not aware that Ms. Hanley had a cell phone, nor was she advised of the existence of such a phone. Her response, although not precise, was that she knew Cst. Friesen would not take long and that seemed to be her way of indicating that there would not have been a reasonable opportunity to consult with counsel at that point.

[66] Defence counsel suggests that Cst. Politano provided the rights to counsel because she was unaware by inference of the timing of the return of the device and gave the rights to deal with the issue of reasonable opportunity to consult with counsel while awaiting the return of Cst. Friesen. That is one inference, but an equally reasonable inference on her own evidence is that she knew the machine would be returned promptly, she was providing a preliminary indication to Ms. Hanley that she would have an opportunity to speak with counsel but at the roadside in the absence of a pay phone, the lack of knowledge of a cell phone and the short timeframe involved there would not have been a reasonable opportunity to consult so no real opportunity was provided.

[67] Looking at the issues here, the real issue arises as a result of Cst. Politano providing rights to counsel to Ms. Hanley in a situation where she was not required by law to do so, but having done that should she have implemented Ms. Hanley's request to speak with counsel and held off taking any further steps including the administering of the approved screening device pending that consultation being completed.

[68] I think it is appropriate to deal with the second issue first as consideration of the second issue ultimately is subsumed in the consideration when looking at the first issue, i.e. the providing of rights to counsel where no such requirement exists.

The "Forthwith" Requirement

[69] In the context of right to counsel and the forthwith requirement of a sample of breath demanded under s. 254(2) the case law clearly indicates that although a motorist is detained when a demand for a screening device sample is made, there is no right to counsel prior to giving the breath sample since the section itself requires that the sample be provided "forthwith". (See Regina v. Thomsen, (1988) 40 C.C.C. (3d) 411, Supreme Court of Canada and Regina v. Bernshaw, (1995) 95 C.C.C. (3d) 193, Supreme Court of Canada.)

[70] The case law establishes that the "forthwith" period is the time in which Charter rights are justifiably infringed. The decision as to whether the forthwith requirement is met in any particular case involves a number of factors. Those factors have been set out most recently in Regina v. Quansah, [2012] ONCA 123, Ontario Court of Appeal. There, the court stated that in determining whether or not the forthwith requirement is met the following should be the subject of consideration:

(1) Consideration of the context of the demand: "bearing in mind Parliament's intention to strike a balance between the public interest and eradicating driver impairment and the need to safeguard individual Charter rights."

(2) The demand must be made promptly once the officer forms the reasonable suspicion that the driver has alcohol in his or her body.

(3) "Forthwith" connotes a prompt demand and an immediate response. The time from formation of reasonable suspicion to making the demand to the detainee's response, refusing or complying, "must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2)".

(4) All the circumstances must be taken into account. Reasonably necessary delay can result from:

a. An ASD not being immediately available,

b. Need to ensure an accurate result, generally because of possible recent drinking or smoking, or

c. Articulated and legitimate safety concerns.

d. Further reasonable steps (such as sobriety and physical coordination tests) after the formation of reasonable suspicion to determine whether there are reasonable grounds for an intoxilyzer demand.

(5) 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.

[71] Whereas here, the officer making the demand, in this case Cst. Politano, does not have a screening device in her possession and where some delay is encountered before a device can be provided the "forthwith" is determined by whether the officer was able to present the device to an accused before there was a reasonable opportunity to contact and consult counsel. An officer need not have a reasonable belief when making the demand the device will arrive in time. Delay is calculated from when the police acquire grounds to make the demand to when an officer has a functioning screening device to present to the driver. An exception is, of course, when an officer believes on an objective basis that some delay is necessary to ensure a valid test result. I note here there is evidence that some open alcohol was found within the vehicle but the issue of its recent consumption was never raised by counsel in the context of the Charter application nor addressed at all.

[72] Factors that are considered to be relevant as to whether there is a reasonable opportunity to consult counsel while awaiting the arrival of a screening device include among other things:

(1) Availability of a telephone whether it be the detainee's cell phone, a phone booth or a phone in a nearby police station; and,

(2) The time of the actual arrival of a device not simply its anticipated arrival.

See Regina v. George, (2004) 187 C.C.C. (3d) 289.

[73] The amount of time in question is that needed to consult with counsel, not simply to make contact with counsel. Some cases where the time is in the range of seven minutes has been determined not to be long enough for a reasonable opportunity to exercise 10(b) rights when the demand takes place in the early hours of the morning. See Regina v. Torsney, (2007) 217 C.C.C. (3d) 571 and Regina v. Bilawey, [2009] S.J. No. 41, Saskatchewan Court of Appeal.

[74] Some of the case law deals with issues where there has been a refusal as opposed to ultimate compliance with a demand and the inquiry with respect to the "forthwith window" is no different. Where there has been ultimate compliance with the demand, as here, the question for determination where forthwith is in issue is whether in all of the circumstances once the reasonable suspicion required under s. 254(2) has materialized in the mind of the officer, the demand was made, and the officer was in a position to receive the sample before there was a realistic opportunity to consult counsel. If the answer to that question is in the affirmative, there is no violation of the Charter as the events will have occurred within s. 254(2)'s constitutional limitations. If the answer to that question is in the negative and provided the officer has not advised the accused of his or her rights to counsel then a demand is invalid and need not be complied with. Then, the issue of admissibility of the breath samples subsequently obtained would ultimately be decided on the basis of a proper analysis under s. 254(2).

[75] In cases where there is a refusal, as I noted, the inquiry is no different. If an accused refuses to comply with the demand while the "forthwith window" is operative, that is there is no realistic opportunity to consult with counsel, the offence is complete and the accused can be convicted. If, however, the refusal occurs after the "forthwith window" has passed, in other words there was a realistic opportunity for consultation with counsel an accused is entitled to refuse the demand, at least where the accused has not been advised or his or her rights to counsel or given a reasonable opportunity to exercise them.

[76] In this particular case, I am satisfied that the "forthwith" element has been met. Clearly, the timing here is such that there would not have been a reasonable opportunity for Ms. Hanley to contact and consult with counsel.

[77] In that regard, the relevant timing that the court accepts for various events is as follows:

(1) The vehicle was stopped at 3:43 a.m.;

(2) Caution, rights to counsel are provided at 3:47 a.m. Sometime prior or at or about this particular time Cst. Friesen arrives at the scene, stays 20 to 30 seconds and departs to get the device which Cst. Politano understands is being obtained from Central Division, a short distance away.

(3) At 3:49 a.m. Cst. Politano then reads the "roadside demand". She then returns to her cruiser, leaving Ms. Hanley in her vehicle with presence of a cell phone the presence of which was unknown to Cst. Politano and which presence Ms. Hanley did not make Cst. Politano aware of.

(4) Constable Friesen returns with the device at 3:51 a.m., self-tests the device which would take some period of time and ultimately a proper sample is provided by Ms. Hanley at 4:00 a.m. Although there is some delay between 3:51 a.m. and the providing of a sample at 4:00 a.m., I am satisfied that that delay was occasioned by the self-testing conducted by Cst. Friesen and also as a result of some conversations that took place between Ms. Hanley and one or both officers with respect to the consequences of failing to comply with the demand. The evidence in that regard is not thorough but the evidence that does exist was created by cross-examination of Cst. Friesen and would clearly indicate to the court that there was some verbal exchange taking place between one or both officers and Ms. Hanley during that period of time.

[78] The court is satisfied then that from the time the demand was made at 3:49 a.m. until the time a suitable sample was obtained was approximately eleven minutes. The time from the demand until the arrival of the device was something in the range of two minutes. At the time the demand was read, the court accepts, Cst. Politano was not aware of how long it might take to get the device or if in fact one was available at Central Division. However, she appreciated it was a short distance and even though the court does not accept her evidence that she was advised by Cst. Friesen that he was on his way back, the fact is he did return within a relatively short period of time with the device.

[79] The court is satisfied that the forthwith requirement has been met. The timing is such that there was no reasonable opportunity for Ms. Hanley to consult with counsel before being required to provide the sample.

The Gratuitous Provision of Rights to Counsel

[80] With those issues in mind then, it seems to me that the same considerations apply with respect to the first issue. Constable Politano advised Ms. Hanley of her rights to counsel at a time when she was not required to do so. Effectively, Ms. Hanley had no such right to counsel at the time right to counsel was provided on the basis of the authority set out in cases such as Regina v. Thomsen. Accepting that the matter was really an issue of police error, and there is nothing to indicate it is anything more here, the court does not find that there can be a breach of an alleged right which did not exist in the first place. It may very well be a situation such as in Regina v. Belecque, [1989] O.J. 3073 which is a refusal case, where the giving and the denial of such rights may result in a reasonable excuse argument, such error has an impact. However, there have been subsequent cases where that issue has been considered which effectively hold that the gratuitous and unnecessary giving of rights to counsel in situations which simply constitute an error cannot give rise to a Charter right which does not otherwise exist. (See Regina v. Dedemus, [1992] B.C.J. No. 615, British Columbia Supreme Court, Regina v. Gill, [1992] 2234, British Columbia Supreme Court, Regina v. MacLean, [1993] B.C.J. No. 1100, Regina v. Jacobson, [2002] B.C.J. No. 3202, Regina v. Redstar, [2009] A.J. No. 295.)

[81] During submissions it became apparent, and I have considered, that there are a number of hypotheticals where indeed the giving of the unnecessary rights to counsel and the failure to implement the request for counsel may be relevant. For example, as I say, with respect to a reasonable excuse on a refusal. It may also present problems to the Crown if in fact the opportunity was exercised and during the course of that consultation taking place the device arrived and the consultation continued. That may very well affect the forthwith issue with respect to the demand. However, it is not necessary for this court to consider hypothetical situations, only the set of circumstances that exist before the court.

[82] Here, the rights to counsel were not required and were effectively premature. Here, for the reasons set out previously and considering the right to counsel was provided two minutes before the demand, the forthwith requirement is still met and there would in any event have been no reasonable opportunity for Ms. Hanley to consult with counsel.

[83] The initial giving of rights to counsel was unnecessary. One cannot create a right which does not otherwise exist and which in any event would not result in a Charter breach on the reasoning set out in Thomsen, i.e. the s. 1 limit on the right to counsel as discussed in that case.

[84] As a result, I find there has been no breach either of s. 8 or s. 10(b) of the Charter and the application will be dismissed.

Section 24(2) Analysis (Alternative Finding)

[85] As an aside, if I am wrong with respect to the first issue and there in fact has been a breach of the s. 10(b) rights of Ms. Hanley, I would ultimately have not in any event excluded the evidence obtained thereafter pursuant to a proper analysis under s. 24(2). Briefly in that regard, the officers acted in good faith, the impact on Ms. Hanley is minimal, rights to counsel were ultimately exercised at the detachment and Cst. Politano took reasonable steps to assist Ms. Hanley in that regard. Further, there were no requests or any indication at all from Ms. Hanley at the scene that she wished to speak to counsel and, specifically, use her cell phone to do so. Constable Politano, notwithstanding her "error" in providing the rights to counsel, would reasonably on her evidence, which I accept, have made efforts to make contact with counsel if there had been a reasonable opportunity to consult and there had been some ability to do so at the scene. Further, the evidence sought to be excluded is clearly relevant for consideration by the court on the charge that Ms. Hanley has pled to, there is no issue taken with respect to the reliability of the evidence of the intoxilyzer results and on a balancing of all of the factors in Grant I would find that to exclude the evidence would in fact bring the administration of justice into disrepute on the particular set of circumstances that the court has before it. I would therefore have not excluded the results of such tests.

[86] As a result, the application will be dismissed.

Released: October 18, 2012

Signed: "Justice G. F. Hearn"