COURT FILE No.: 11-11608

City of Ottawa

DATE: 01-11-12

Citation: R. v. Jensen, 2012 ONCJ 685

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

DARREN JENSEN

Before Justice R.G. Selkirk

Heard on October 15th, 2012

Reasons for Judgment released on November 1st, 2012

Sarah Fountain .......................................................................................................... for the Crown

Lawrence Greenspon .......................................................................... for the accused Darren Jensen

SELKIRK, J.:

[1] Mr. Darren Jensen is charged with a count of over 80, contrary to s. 253(1)(b) of the Criminal Code arising out of an incident on September 16th, 2011.

[2] Three issues have been raised by the defence.

[3] First, was the Approved Screening Device (ASD) samples taken forthwith and in compliance with s. 254(2)?

[4] Second, were the breath tests taken as soon as practicable as required by s. 258?

[5] Third, was Mr. Jensen’s identification as the driver of a vehicle established beyond a reasonable doubt?

[6] Constable Jellinek testified that he was with a number of officers at a R.I.D.E. program. At 23:06 hours a vehicle was stopped. After a brief conversation with the driver, the officer had a reasonable suspicion that the driver had alcohol in his body and told him to pull over to the side of the road. At 23:08 the officer made an ASD demand. After checking the driver’s documents, he asked Mr. Jensen to step out and to come to the cruiser. The officer demonstrated how to use the ASD. It was working properly. This demonstration took roughly one minute. The accused had no questions for the officer. These steps were complete by 23:12 or possibly 23:13.

[7] At 23:19 the accused was provided an opportunity to blow into the ASD. He did so and it resulted in a Fail. The accused was arrested. It was conceded that the arrest and subsequent demand under s. 254(3) were dependent on this fail as otherwise there were no reasonable proper grounds to arrest.

[8] Between 23:13, after the demonstration, and 23:19, the test, it is not known what occurred. There is no evidence and I cannot even speculate as to what may have been happening because all of the pre-conditions, as in pull car over to safe spot; read demand; receive usual documents; walk back to cruiser and demonstration of device, which also verifies the device is working properly had occurred. The demonstration took one minute or less. There is nothing more to do but presumably, put in a new mouthpiece and tell the accused to blow. This would take seconds, not six minutes.

[9] The Supreme Court of Canada addresses this issue in Woods 2005 SCC 42, at paragraph 13,

“We are left as well with the ASD breath sample provided by the respondent at the police station, approximately 1 hour and 20 minutes after his arrest for refusing to provide a sample at roadside. “Forthwith” means “immediately” or “without delay”: Canadian Oxford Dictionary (2nd ed. 2004), at p. 585. Without doing violence to the meaning of the word, “forthwith” cannot be stretched to bring within s. 254(2) of the Criminal Code the long-delayed “compliance” that occurred in this case. This semantic obstacle to the Crown’s position, like the factual one, is in my view insurmountable.”

[10] The Court goes on to say at paragraphs 43 and 44,

“It is true, as I mentioned earlier, that “forthwith”, in the context of s. 254(2) of the Criminal Code, may in unusual circumstances be given a more flexible interpretation than its ordinary meaning strictly suggests. For example, a brief and unavoidable delay of 15 minutes can thus be justified when this is in accordance with the exigencies of the use of the equipment: see Bernshaw.

The “forthwith” requirement in s. 254(2) appears to me, however, to connote a prompt demand by the peace officer, and an immediate response by the [page 218] person to whom that demand is addressed. To accept as compliance “forthwith” the furnishing of a breath sample more than an hour after being arrested for having failed to comply is in my view a semantic stretch beyond literal bounds and constitutional limits.”

[11] Woods was considered by the Ontario Court of Appeal in Quansah, 2012 ONCA 123, 2012 O.J. 779, where eleven minutes after the accused was arrested and searched (and after a reasonable suspicion would have arisen), an ASD demand was made. The issue was whether “forthwith” means immediately or within a reasonable time. The trial Judge held the latter, while the Summary Conviction Appeal Judge held the former.

[12] The Ontario Court of Appeal’s analysis commences at paragraph 18 and at paragraphs 21 to 23. The Court writes,

“The “forthwith” requirement of s. 254(2) is inextricably linked to its constitutional integrity: see Woods, at para. 29. This justifies what would otherwise be sustained as violations of ss. 8, 9 and 10(b) of the Charter. Thus, in interpreting “forthwith”, this court must bear in mind Parliament’s choice of language and Parliament’s intention, which is to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights: see Woods, at para. 29.

So long as the demand is validly made pursuant to s. 254(2) – that is, so long as it is made “forthwith” – for Charter purposes there is no unjustified seizure or arbitrary detention or breach of the requirement to advise the detainee of his or her right to counsel. This is because this statutory detection and enforcement procedure constitutes a reasonable limit on Charter rights, given the extreme danger represented by unlicensed or impaired drivers on the roads: see Degiorgio, at para. 37.

As this court noted in Degiorgio, at para. 46, the “forthwith” period is the time in which Charter rights are justifiably infringed. That is to say, within this time a detained person can be required to comply with an ASD demand and respond to that demand – be it blowing and registering a “fail” or be it refusing or failing to blow – and incur criminal liability that is justified despite ss. 8, 9 and 10(b) of the Charter.”

[13] At paragraphs 27 to 29 the Court discusses how some flexibility must exist in requiring the tests to follow without delay from the demand, but makes it clear it is for reasons such as mouth alcohol and the Court cites Bernshaw.

[14] At paragraph 32 the Court writes,

“Most recently, Woods endorses Bernshaw and acknowledges that while “forthwith” may be interpreted with some flexibility, this should only be done in “unusual circumstances” such as those involving the “exigencies of the use of the equipment”: see Woods, at para. 43.”

[15] The Court explicitly rejects the Crown’s argument that, at paragraphs 33 and 34,

“As I noted earlier, the Crown argues that the only circumstance in which the “forthwith” requirement is exceeded is where there is sufficient delay such that a realistic opportunity to consult counsel was available but not provided.

I do not agree. There is no doubt that if there has been a realistic opportunity to consult counsel that has not been accorded to the detained person when the sample is demanded and the person has responded to the demand by either providing the sample or refusing to blow, the “forthwith” requirement is not met. That is clear from the many cases in which this was the sole issue. See, for example, the following cases in this court: R. v. George; R. v. Torsney, 2007 ONCA 67, 217 C.C.C. (3d) 571; R. v. Latour (1997), 1997 CanLII 1615 (ON CA), 34 O.R. (3d) 150 (C.A.); R. v. Danychuk (2004), 2004 CanLII 12975 (ON CA), 70 O.R. (3d) 215 (C.A.). However, I do not think that these cases canvass – let alone reject – the notion that there are other criteria applicable to assess the “forthwith” requirement.”

[16] The Court provides a summary of the principles at paragraphs 45 to 49,

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

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

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

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

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

[17] At paragraph 54 the Court applies the above noted principles,

“The time that elapsed was 17 minutes at the most, during which, because Mr. Quansah had just sped away from him, the officer understandably conducted a limited search of his car for weapons, had a short conversation with him about his alcohol consumption, and checked out the assertion that there was another person in the car with him. Having formed the required reasonable suspicion, the officer made the demand and Mr. Quansah provided the sample. In these circumstances, the 17 minute delay was reasonably necessary for the officer to properly perform his task.”

[18] The Court held that the eleven minutes delay between the stop and the demand was no more than reasonably necessary for the officer to do his job which included searching the accused; questioning the accused as to his alcohol consumption and walking to the cruiser.

[19] We have from 23:08, time of the demand to 23:19, eleven minutes, the first five minutes of which is more than adequately explained as being reasonably necessary but no explanation for the last six minutes from 23:13 to 23:19.

[20] R. v. John, 2012 O.J. 3567, is a refusal case. The officer first observes the vehicle at 7:51; stops it; approaches the vehicle; has short conversations with the driver; forms his reasonable suspicion; obtains driver’s licence; returns to cruiser; does a computer check and makes some notes and returns to the driver and then made an ASD demand at 7:56 p.m. At 7:57 the officer explained how the device worked and demonstrated it. At 7:59 the officer gave to the accused a new mouthpiece after which the accused makes a number of unsuccessful attempts.

[21] The Judge held that the making of the notes meant the demand was not made forthwith and that, at paragraph 51,

“Although the safety concern was not clearly articulated, I do think it is reasonable that an officer conduct a quick safety check to determine whether or not a person is dangerous. However, as one can see from the decision in R. v. Quansah, that a delay to allow an officer to make notes is not the type of delay that would legitimize a delayed breath demand. It really does not matter whether the delay was three minutes or five-and-a-half minutes, the point is that the note-taking had no connection to the equipment and was not justified in the circumstances. Therefore, I find that the Crown has not proven that the breath demand was made forthwith and Mr. John is acquitted of the charge.”

[22] Of course there was more occurring than just note making within the time period of 7:51 to 7:56, there was getting the vehicle to stop; walking to the vehicle; conversation with the driver; obtain documents; walks back to cruiser; does computer check; walks back to vehicle and makes a demand. What this case demonstrates to me is that the Courts will not permit any diversion from the task at hand under s. 254(2) even if it is of a relatively brief duration.

[23] In R. v. Kerr, 2010 O.J. 2222, the accused was stopped for speeding. The officer approached at 02:11 hours and at 02:12 hours had formed a reasonable suspicion. The officer did not make the s.254(2) demand until 02:18, six minutes later. The officer said she waited because she wanted to make sure her partner who was dealing with Kerr’s passengers was safe. The Court rejected this rationale for waiting because there was no basis for believing the partner’s safety was in any way at jeopardy given that the passengers were polite and compliant. The Court held that this resulted in an arbitrary detention and that Kerr was entitled to the informational component of s. 10(b). The Court held that the failure to comport with the implicit requirements of s.254(2) rendered the seizure of her breath samples unreasonable.

[24] Having found violations of sections 8, 9 and 10(b) the Court excluded the evidence under s.24(2). I will return to the s.24(2) analysis later.

[25] The Crown appeal was dismissed. The Summary Conviction Appeal held that the trial Judge made no error in law or principle. (See 2011 O.J. 6142).

[26] One of the decisions relied upon in Kerr was Vinoharan, 2009 O.J. 4037, Summary Conviction Appeal, which held that a seven minute delay between the reasonable suspicion being formed and the demand was a violation of sections 8, 9, 10(a) and 10(b). In that case the Court wrote,

“The limits on the protections are no longer justified where the police officer does not proceed in conformity with the requirements of Section 254(2) of the Criminal Code. One of these requirements, as I have said, is to make the demand forthwith. The Crown conceded and the trial judge found that the police officer failed in this respect. Once the police officer was operating outside of the Section 254(2) framework, the protections in [Charter] Sections 8, 9, 10(a) and 10(b) were available to the appellant. [Citations omitted.]

The appellant was not advised of his right to counsel when he was detained. This is a breach of Section 10(b). As for Section 9, implicit in the Crown’s concession at trial that this section was breached is the fact that the appellant was arbitrarily detained on the “over 80” charge once the demand was not made forthwith.”

[27] The Court did not exclude the subsequent tests under s.24(2). I will address that aspect later on in my reasons.

[28] In Boeje, 1995 O.J. 4948, the officer did a licence check and wrote some notes resulting in a seven minute delay between the formation of the suspicion and the demand. The demand was held to be invalid and the readings were excluded.

[29] In Megahy, (2007) 2008 ABCA 207, 233 CCC (3d), 142, the Alberta Court of Appeal, there was a four minute delay between the suspicion and the demand which occurred while the officer and Megahy walked one and half blocks to where the ASD was kept. The demand was found to be not forthwith. The Court held that although the pre-demand delay was relatively minor but because it was unnecessary and unreasonable that it was a violation of the accused’s rights.

[30] While the case law recognizes that there needs to be some degree of flexibility where the ASD needs to be brought to the scene, or where a wait is necessary in order to obtain reliable results or where there are public or officer safety concerns, none of those situations were present here.

[31] Based on Kerr and Vinoharan, I am bound to find a violation of sections 8, 9 and 10(b) and I do so. The requirement in Quansah that any delay be for no more than is reasonably necessary cannot be satisfied where there is an unexplained six minute delay where on the evidence nothing occurred.

Section 24(2)

[32] A section 24(2) analysis is governed by Grant, 2009 SCC 32, where at paragraphs 68 to 70, the Supreme Court of Canada writes,

“The phrase “bring the administration of justice into disrepute” must be understood in the long‑term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.

Section 24(2)’s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system.

Finally, s. 24(2)’s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.”

[33] The Court sets out three factors at paragraphs 108 to 110,

The first inquiry informing the s. 24(2) analysis — the seriousness of the Charter-infringing conduct — is fact-specific. Admission of evidence obtained by deliberate and egregious police conduct that disregards the rights of the accused may lead the public to conclude that the court implicitly condones such conduct, undermining respect for the administration of justice. On the other hand, where the breach was committed in good faith, admission of the evidence may have little adverse effect on the repute of the court process.

The second inquiry assesses the danger that admitting the evidence may suggest that Charter rights do not count, thereby negatively impacting on the repute of the system of justice. This requires the judge to look at the seriousness of the breach on the accused’s protected interests. In the context of bodily evidence obtained in violation of s. 8, this inquiry requires the court to examine the degree to which the search and seizure intruded upon the privacy, bodily integrity and human dignity of the accused. The seriousness of the intrusion on the accused may vary greatly. At one end of the spectrum, one finds the forcible taking of blood samples or dental impressions (as in Stillman). At the other end of the spectrum lie relatively innocuous procedures such as fingerprinting or iris-recognition technology. The greater the intrusion on these interests, the more important it is that a court exclude the evidence in order to substantiate the Charter rights of the accused.

The third line of inquiry — the effect of admitting the evidence on the public interest in having a case adjudicated on its merits — will usually favour admission in cases involving bodily samples. Unlike compelled statements, evidence obtained from the accused’s body is generally reliable, and the risk of error inherent in depriving the trier of fact of the evidence may well tip the balance in favour of admission.

[34] The issue is that the fail result on the ASD was the basis for the arrest and the s.254(3) demand or in other words without the ASD results there were no grounds for the arrest and demand other than the odour of alcohol.

[35] I have found that s.8 was breached by the subsequent search being without reasonable and probable grounds, that s.9 was breached because the accused’s detention was without legal grounds and therefore arbitrary and that s.10(b) was breached by detaining the accused and not providing him with his right to counsel immediately upon that detention.

[36] R. v. Au-Yeung, 2010 ONSC 2292, 2010 O.J. 1579, is an often cited case in these circumstances. Indeed it was cited with approval by the Ontario Court of Appeal in Quansah. For a variety of reasons the fail result on Au-Yeung could not be relied upon and there, as here, it was the basis for the subsequent s.254(3) demand.

[37] Under his analysis of the seriousness of the breach, Ducharme J. writes at paragraphs 55 and 56 the following,

“The reputation of the administration of justice is jeopardized by judicial indifference to unacceptable police conduct. Police officers who stop and detain motorists in order to perform ASD tests must execute their duties efficiently, competently, and accurately. There is no question that the need to combat drinking and driving is a pressing social concern. The public therefore accepts the use of breath samples both for roadside screening and ultimately for the determination of blood alcohol levels. Nonetheless the administration of justice would inevitably fall into disrepute if such shoddy police conduct were permitted to form the basis for the arrest, detention, and subsequent testing of drivers. As Sopinka J. observed in Bernshaw at para. 74:

Although we all agree that Parliament has every reason to vigorously pursue the objective of reducing the carnage on our highways, that objective is not advanced by subjecting innocent persons to invasions of privacy on the basis of faulty tests. I do not believe that this is what Parliament intended in enacting s. 254 of the Criminal Code. [Emphasis added.]

As Chief Justice McLachlin noted in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 (S.C.C.) at para 22, courts should dissociate themselves from police activity, “where the police knew (or should have known) that their conduct was not Charter-compliant.” There is no question that P.C. Wollenzien should have known his actions did not comply with either the Criminal Code or the Charter and this weighs in favour of excluding the evidence.

[38] The above comments apply to this case.

[39] The next step was to analyse the impact of the breach on the Charter protected interests of the accused and at paragraphs 60 to 62, the Court writes,

“As for the s. 8 violation, it is true that the taking of breath samples pursuant to either s. 254(2) or 254(3) is not "a significant compelled intrusion upon the body." While the taking of a breath sample interferes with privacy of the person, the most assiduously protected privacy interest, the procedure is minimally intrusive in two respects. First, the procedure involved in collecting and analyzing breath samples is minimally intrusive in a physical sense. Second, the information gleaned from a breath sample is far from the "biographical core of personal information" that is protected by s. 8.[9] These factors favour the admission of the evidence.

But that should not end the matter, because the demands placed on a driver to facilitate these tests are often not minimally intrusive. In this case, the appellant was arrested, handcuffed, placed in the rear of a police car and taken to a police station, a sixteen minute trip, and, once at the station, he was kept in police custody for another hour and fifty minutes. Thus, while the trial judge was correct in saying that the treatment of the appellant was not “oppressive” that is not the test. Certainly, such an interference with the appellant’s personal liberty cannot be dismissed as minor. Thus, where the police lack the requisite grounds for the s. 254(3) demand, these aspects of the appellant’s treatment constitute a significant violation of s. 9.

While the public are supportive of the legislative scheme in place to combat drinking and driving, this support cannot be presumed to extend to police actions that involve the detention and arrest of drivers without the requisite statutory and constitutional grounds. To condone or excuse the behaviour in this case would send a message to the public that, despite their Charter rights under sections 8 and 9 of the Charter, the police can ignore these and detain and arrest any driver. Thus, despite the minimal intrusiveness of the breath-testing procedures themselves, the second branch of Grant also weighs in favour of exclusion of the evidence.”

[40] These comments are also applicable to the case at bar.

[41] Society’s interest in a trial on the merits would clearly favour inclusion. At paragraphs 65 and 66, the Court finds,

“Certainly, evidence obtained by analysis of breath samples is reliable and would not mislead a trier of fact. Moreover, as the general public accepts the use of breath sample evidence, admitting the evidence would not create an impression that the appellant’s trial was unfair or otherwise bring the administration of justice into disrepute.

Thus, the third branch of the Grant analysis favours the admission of the breath sample evidence.”

[42] In conclusion, the Court addresses the long-term effect on the administration of justice at paragraphs 67 to 69, which reads,

“Given the comments about breath sample evidence in para. 111 of Grant, one might conclude that the breath sample evidence in this case should be admitted. But this conclusion would be incorrect, because it would ignore the first two lines of inquiry described in Grant and give the third factor an unjustified analytical pre-eminence. Moreover, these comments in Grant were directed solely at the s. 8 issues involved in the taking of breath samples and did not consider the broader issues mentioned above. While the courts have long recognized the need to effectively address the serious problem posed by drinking and driving, it is important to remember that persons accused of drinking and driving offences are entitled the full protection of the Charter. The protections of the Charter apply to all persons accused of criminal offences, no matter how minor or serious.

In considering this question Grant requires that I bear in mind the long-term and prospective effect upon the fair administration of justice, focusing less on the particular case than on the impact over time of admitting the evidence obtained by infringement of the constitutionally protected rights of the accused. In doing so, I note the comments of Fish J. for the majority at paras. 110 to 113 of R. v. Morelli, 2010 SCC 8, [2010] S.C.J. No. 8 (S.C.C.):

Justice is blind in the sense that it pays no heed to the social status or personal characteristics of the litigants. But justice receives a black eye when it turns a blind eye to unconstitutional searches and seizures as a result of unacceptable police conduct or practices.

The public must have confidence that invasions of privacy are justified, in advance, by a genuine showing of probable cause. To admit the evidence in this case and similar cases in the future would undermine that confidence in the long term.

I am persuaded for all of these reasons that admitting the illegally obtained evidence in this case would bring the administration of justice into disrepute.

I would therefore exclude that evidence ... [Emphasis added.]

In my view, the public should expect that when they are stopped by the police their Charter rights will be expected. Certainly, the public must have confidence in the competence of the police and in the fact that they will not detain or arrest drivers without the requisite grounds. Even more importantly, the public must have confidence that those officers who are charged with exercising the important powers under s. 254 of the Criminal Code have the necessary skills and training to do so in a matter that complies with both the Criminal Code and the Charter. Thus, while the facts in Morelli are more serious than those in this case,[10] the foregoing comments of Fish J. are nonetheless applicable to this case. In conclusion, I am persuaded for all of these reasons that admitting the breath sample evidence in this case would bring the administration of justice into disrepute.”

[43] In Kerr, as discussed above, Justice Green found the seriousness of the breach favoured exclusion. The Court found there was not “good faith” on the part of the police because “the failure to immediately make the ASD demand was inconsistent with well-settled law and thereby provoked unnecessary constitutional trespass.” He cites Grant at paragraph 75, “.....ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith.”

[44] The Court went on to find that the impact was such that admission is favoured as would the third step. However, at paragraph 37, Green J. writes,

“Here the reliability and importance of the evidence to the prosecution of the Crown’s case favours its reception, as does an assessment of the impact of the breaches on the defendant’s Charter guaranteed rights. That said, there must still be a balancing of the search for truth and the integrity of the judicial system. This inquiry inevitably returns to the “long term”, “prospective” and “societal” interests that undergird and inform a proper s. 24(2) analysis. These considerations, in my view, tip the equilibrium in the direction of exclusion where, as here, the police conduct signals a disturbing misapprehension of constitutional norms. The repute of the justice system demands that courts not be seen to condone the ignorance or disregard of the law by those charged with its enforcement. In the end, the final reasoning of Justice B. Duncan in R. v. Beattie, supra, at para. 34, seems particularly apt:

Most of the circumstances clearly favour inclusion of the evidence. Yet the focus must be long term, on the big picture. Viewed in that way, the balance shifts towards favouring exclusion in order to restore the intended public interest/individual liberties balance and underscore the limits of statutory powers that are permitted to encroach upon Charter rights. I conclude, after much anguished consideration, that the long term interests of the administration of justice are better served by exclusion in this case.”

[45] As a result the breath tests were excluded.

[46] R. v. Vecchiarelli, 2011 O.J. 3860, Ontario Court of Justice, the Court excluded the evidence of the breath tests because of a four minute delay in making the ASD demand. The Court relied heavily on Kerr and Au-Yeung.

[47] Although the reasons for finding the s.254(2) demand was invalid are different, the following cases come to the same result under the s.24(2) analysis: Bhela, 2012 O.J. 1831; Vihayam, 2010 ONCJ 537, 2010 O.J. 4914; Stapler, 2011 O.J. 1329 and Caruso, 2011 O.J. 2030.

[48] R. v. Vinoharan, discussed above, is a Summary Conviction Appeal where breaches were found as in Au-Yeung but the evidence was not excluded.

[49] In the material provided to me this is the only case where this result was obtained.

[50] I note that it was decided before Woods and Quansah, Kerr and Au-Yeung were decided. These cases allow for more significance to be given to the seriousness of the breach than was done in Vinoharan. It is also apparent that this case does not consider that the constitutionality of s.254(2) is saved only by s.1 and that the long term effects of permitting unconstitutional searches is something from which the courts should distance themselves.

[51] I believe the above cited case law demonstrates that Vinoharan should not be followed.

[52] Based on Grant, Au-Yeung and Kerr, I make the following findings. The breaches are serious and did not occur in good faith. They are such that the Court cannot condone or reward them and must distance themselves from the, at best, negligent conduct of the police. The impact is significant in that the accused was arrested, searched, cuffed, driven one half hour to the station and lodged in a cell. This cannot be said to be minimally intrusive although the breath tests by themselves have been said to be so. These two factors favour exclusion.

[53] The reliability of the tests favour inclusion.

[54] Ultimately it is the long term effect of regularly admitting breath tests obtained in a manner that is not only contrary to the Criminal Code but is also unconstitutional that tips the balance towards exclusion. In order for s.254(2) to be valid it was necessary that it be saved under s.1 of the Charter. Section 1 requires that “the means, even if rationally connected to the objective, should impair as little as possible the right or freedom in question.” (See Oakes, (1986) 1986 CanLII 46 (SCC), 24 CCC (3d), 321). I do not believe it was coincidental that the Ontario Court of Appeal in Quansah set the bar at “no more than is reasonably necessary” as that is but a different way of saying the same thing as stated in Oakes. It follows that if s.254(2) is not strictly construed as against the police then it no longer can be justified under s.1 and the section would be struck down in its entirety. There is to be a flexible approach as defined in Quansah but the Court strictly limits the situations in which flexibility can be accommodated. This case does not fall within any of those situations as discussed above.

[55] The result is that the breath test evidence will be excluded and the accused will be found not guilty.

[56] For the purpose of completeness, I will address the other two issues raised by the defence.

[57] The second issue raised was whether the breath tests were taken as soon as practicable as required by the Code. The complaint is that the tests appear to have been delayed because the accused spoke to counsel. This, it is alleged, was contrary to his wishes as evidenced by the fact that at the roadside and upon arrival at the station the accused indicated he did not want to speak to a lawyer.

[58] At the station he declined a lawyer at 00:08 hours but was speaking to a lawyer at 00:16. Constable Jellinek had no notes and no recollection as to how specifically this came about. The accused did not testify. However, Cst. Jellinek did say that while he and any accused are waiting for the Breath Technician to be ready that it is his normal practice, where the accused has not spoken to counsel, to discuss with an accused the fact that he or she can easily be put in contact with a lawyer and that it is free, no cost to the accused. He said that it was not unusual for persons to reconsider their position and accept the free services of a lawyer at that point.

[59] I find I can rely on Cst. Jellinek’s normal practice or habit on this issue. It sounds true and it is quite likely that is what happened even though no notes were made to confirm it.

[60] In any event, I am not prepared to find that in some manner the services of a lawyer were forced upon the accused despite his protests that he did not want one. He knew he could refuse a lawyer and did so twice. If he did not wish, voluntarily to speak to a lawyer, he knew, I infer, he could say so. There is no evidence to suggest either that he was simply acquiescing to the inevitable or that he was just doing what he was told to do because an officer told him to do so. There is no evidence to find that the officer insisted on the accused talking to a lawyer.

[61] This finding distinguishes this case from the cases cited to me on this point such as R. v. Kubas, 1996 O.J. 4828.

[62] In Davidson, 2005 O.J. 3474, Summary Conviction Appeal, the accused at the roadside indicated he did not wish to speak to a lawyer. Nonetheless, the officer upon arriving at the station called duty counsel and told the accused and the Breath Technician that they were waiting for a call back from duty counsel. It is significant that the Breath Technician was ready and waiting before duty counsel called back. The call with duty counsel delayed the testing by thirty-five minutes.

[63] A difference between that case and the case at bar is that there is no evidence as to when the Breath Technician was ready to perform the tests. The only evidence is that at 11:56 he started to prepare the approved instrument and at 00:25 he received Cst. Jellinek’s grounds for the s.254(3) demand.

[64] The best evidence, although unsupported by notes or a clear recollection, is that Cst. Jellinek waited outside the room wherein the accused was speaking to counsel until the accused was off the phone. At that time, he returned the accused to a cell and went to the Breath Technician at 00:25 and then turned the accused over at 00:33 hours.

[65] The onus is on the Crown to establish the tests were taken as soon as practicable, however, if a party wishes to allege a specific cause of the delay, i.e. waiting to finish an unwanted call to duty counsel, then there is some onus on the party wishing to establish that fact to call or point to evidence which is probative to that issue. Without knowing when the Breath Technician was ready, it cannot be said there was any delay caused by the telephone call to duty counsel.

[66] In any event, it is the totality of circumstances that must be looked at. (See R. v. Vanderbruggen). Here, the total time between arrival at the station and the first test was forty-five minutes and from that period one must deduct 23:55 to 11:08 or thirteen minutes as being fully explained and from 00:25 to 00:40 or fifteen minutes as also being fully explained since the Breath Technician is required to be made aware of the arresting officer’s grounds, must enter certain information into the Intoxilyzer and must explain to the accused how to perform the tests. This reduces the possible delay to seventeen minutes during which time the accused spoke to counsel. This delay is therefore explained and I find not unreasonable and is therefore within the parameters of as soon as practicable.

[67] I note that in both Pruski, 2006 ONCJ 506, 2006 O.J. 5256, and Litwin, 1997 O.J. 4242, there was a delay of one and a half hours because an officer put the accused on the phone with duty counsel despite there being no request by the accused to speak to any lawyer. In Pruski it was held that the subsequent tests were not taken as soon as possible and the accused was acquitted. However, in Litwin, the opposite result was found. Without deciding which case should be followed, I find that the delay in those cases was of such a magnitude that this case is distinguishable since at most the delay would be from 11:08 to 11:25, a period of seventeen minutes.

[68] Ultimately, however, I accept that Cst. Jellinek followed his normal practice that the issue of counsel is further discussed with an accused and if the accused changes his mind and wants to avail himself or herself of free advice that Cst. Jellinek will take the steps necessary for that to happen. I believe that is what happened in this case. I do not find that Cst. Jellinek insisted or in any way coerced the accused into talking to duty counsel.

[69] I find the tests were taken as soon as practicable and that issue is dismissed.

[70] The third issue is whether the Crown has proven beyond a reasonable doubt that the accused was the driver. This was raised because the arresting officer was not asked to identify the driver in court. It was unchallenged that the Breath Technician, Cst. Biggs, did identify the accused as the person who provided breath samples in the early hours of September 17th, 2011.

[71] I find that the Crown has proven the accused was the driver beyond a reasonable doubt albeit circumstantially.

[72] One such circumstance is that Cst. Jellinek, Cst. Biggs and the accused drove together in one cruiser from the scene to the station for the purpose of Cst. Biggs conducting breath tests on the accused.

[73] A second circumstance is that Cst. Jellinek, at the station, attended upon Cst. Biggs immediately prior to the breath tests to provide Cst. Biggs with his grounds for the s.254(3) demand. These grounds included that the accused was stopped at a R.I.D.E. program and failed an ASD test. Although the evidence did not disclose Cst. Jellinek telling Cst. Biggs explicitly that the accused was driving, I think it is implicit and not contradicted by any other evidence that the person who failed the ASD test was the driver that they brought to the station.

[74] These circumstances allow for only one reasonable inference and that is that the accused was the driver of the vehicle as described by Cst. Jellinek and as identified by Cst. Biggs. This issue is dismissed.

Released: November 1st, 2012

The Honourable Mr. Justice R. G. Selkirk