Ontario Court of Justice

Between:

Her Majesty the Queen

— And —

Udaya Mehta

Before: Justice Lipson

Counsel:

• P. Woods for the Crown
• J. Stilman for the Defendant

Reasons for Judgment

Overview of the Evidence

[1] Udaya Mehta, the accused, pleaded not guilty to a charge of drive over 80 mgs. The main issue is whether the police complied with the "forthwith" requirement found in section 254(2) of the Criminal Code.

[2] On January 28, 2012, P.C. Levy was on duty at a roadblock protecting a crime scene on a Scarborough street. At 12:24 a.m. Mr. Mehta stopped his vehicle near the roadblock and approached the officer who was sitting in a marked cruiser. Mr. Mehta showed some unsteadiness as he moved. He wanted to know how he could get to his house on the street that was being blocked. Mr. Mehta asked the officer how he could avoid the roadblock to get to his house. P.C. Levy explained a number of times an easy alternative route to get home but Mr. Mehta seemed confused and unable to grasp the officer's simple directions. Mr. Mehta had bloodshot eyes and a strong smell of alcohol was coming from his mouth. At 12:25 a.m. the officer formed the suspicion that Mr. Mehta had alcohol in his body. P.C. Levy did not have an approved screening device (ASD) nor did he make an immediate ASD demand. He asked Mr. Mehta some questions about any earlier alcohol consumption, created an "event" with his dispatcher and requested that another officer attend with an ASD. He told Mr. Mehta that he was going to be investigated for "a drinking and driving offence, impaired operation." P.C. Levy directed the accused to remain in his car while he confirmed Mr. Mehta's identity. At 12:32 a.m. P.C. Levy read the ASD demand from the back of his memo book and the accused responded that he understood. P.C. Levy advised him that another officer was on his way with an approved screening device and that he would be required to provide a sample of his breath. The officer also told the accused to spit out some cardamom seeds he was chewing. P.C. Lai arrived with an ASD at 12:39 a.m. P.C. Levy explained the circumstances of the investigation to P.C. Lai and turned Mr. Mehta over to Lai for the ASD testing. Between the time of making the ASD demand and the arrival of P.C. Lai, P.C. Levy continued to guard the crime scene.

[3] In cross-examination, P.C. Levy conceded that the accused was not free to leave the scene after he had formed his suspicion and that he considered Mr. Mehta to be detained.

[4] P.C. Lai testified that he received the radio call to attend the scene at 12:25 a.m. and arrived at 12:39 a.m. He took information from P.C. Levy and the accused. He explained to Mr. Mehta that he was taking over the investigation because P.C. Levy was required to continue guarding the crime scene. P.C. Lai also formed the suspicion that Mr. Mehta consumed alcohol based on his own observations of the accused. At 12:44 a.m. P.C. Lai read the ASD demand to Mr. Mehta and explained how to perform the test. After a few unsuccessful attempts to blow, the accused provided a suitable sample at 12:53 a.m. and registered a "fail". He was arrested for drive over 80 mgs and at 12:55 a.m. was given his right to counsel. P.C. Lai transported Mr. Mehta to 41 Division for approved instrument testing. Mr. Mehta provided samples with readings of 131 mgs at 2:21 a.m. and 124 mgs at 2:45 a.m. He declined the opportunity to contact private counsel or duty counsel prior to providing samples.

[5] It was agreed that Mr. Mehta had a cell phone in his possession throughout the investigation. The defence agreed to the admission of a report of a forensic toxicologist. The relevant findings based on the readings and information were that at the time of driving at 12:25 a.m. the accused's projected blood alcohol concentration was between 120 and 165 milligrams of alcohol in 100 millilitres of blood.

The Issues

[6] The defence submits that Mr. Mehta's ss. 8, 9, and 10(b) Charter rights were violated and that, as a result, the ASD and Intoxilyser results should be excluded pursuant to s. 24(2). It is submitted that the ASD demand was not made "forthwith" and therefore invalid. It is submitted that Mr. Mehta's detention was therefore arbitrary, contrary to s. 9 of the Charter. Also, any subsequent seizure of breath samples contravened s. 8 of the Charter. It is submitted that since there was a significant delay between the officer forming his grounds and the arrival of the approved screening device, the officer had an obligation to advise the applicant of his right to retain and instruct counsel. Because Mr. Mehta was not advised of his right to counsel, it is submitted that his s. 10(b) Charter right was violated. It is submitted that the test results should be excluded under s. 24(2) since the admission of such evidence would bring the administration of justice into disrepute.

Analysis

[7] The Charter issues in this case relate to the interpretation of "forthwith" found in section 254(2) of the Criminal Code which provides:

If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle ... or had the care or control of a motor vehicle, ... whether it was in motion or not, the peace officer may, by demand, require the person to ... to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

[8] The last word from the Ontario Court of Appeal on the interpretation of "forthwith" found in s. 254(2) is R. v. Quansah, 2012 ONCA 123. Justice Laforme said the following at paras. 20-23:

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.

[9] At paras. 45-49 of Quansah, Justice Laforme summarized the immediacy requirement in section 254(2) as follows:

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.

[10] In the above passage, Justice Laforme indicates that there may be a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available. I do not consider this statement to constitute a departure from the state of the law preceding Quansah. It was already the case that in order to meet the statutory standard of being able to take the sample "forthwith", a police officer did not need to have an approved screening device in his immediate possession: R. v. Grant; R. v. Cote. Any delay awaiting the arrival of the ASD to the roadside must be short and "reasonably necessary" in order to comply with the "forthwith" requirement in s. 254(2). In R. v. Gill [2011] O.J. No. 3924 (S.C.J.) at para. 36, Justice Durno reviews some of the leading cases in this area where courts have viewed various time frames within the "forthwith" window and determined whether or not there was a realistic opportunity to consult counsel:

Cases where a realistic opportunity to consult counsel existed:

• R. v. Fildan, [2009] O.J. No. 3604 (S.C.J.) – 15 minutes
• R. v. Beattie, [2009] O.J. No. 4121 (Ont. C.J.) – 20 minutes
• R. v. Grant, (1991) – 30 minutes
• R. v. Najm, (2006), 32 M.V.R. (5th) 204 (Ont. C.A.) – 12 minutes
• R. v. Cote – 14 minutes
• R. v. George (2004) – where the officer knew in advance the device would not arrive for 15 to 20 minutes and it arrived in 18 minutes

Cases where there was no realistic opportunity to consult counsel:

• R. v. Pillon, [2006] O.J. No. 701 (S.C.J.) – 7 minutes
• R. v. Torsney, (2007) – 6 or 7 minutes
• R. v. Yamka, (2011), 2011 ONSC 405 – 10 minutes
• R. v. Latour – 12 minutes
• R. v. Singh (2004), 4 M.V.R. (5th) 252 (S.C.J.) – 11 minutes
• R. v. Au-Yeung, 2010 ONSC 2292 – 8 minutes
• R. v. Singh, [2005] O.J. No. 4787 (C.A.) – where the officer believed the ASD would arrive in 5 to 10 minutes and it arrived in 10 minutes

Application of the Principles to This Case

[11] There is no dispute that at 12:25 a.m., within a minute of encountering Mr. Mehta, P.C. Levy formed a reasonable suspicion that the accused had consumed alcohol. Mr. Mehta had bloodshot eyes, smelled from alcohol, was unsteady on his feet and appeared unable to comprehend the officer's simple directions how he could get home. The s. 254(2) ASD demand should have been made at the time P.C. Levy formed his suspicion. There was nothing to prevent the officer from doing so. No exigent circumstances connected to guarding the crime scene had arisen. Instead, the officer told Mr. Mehta that he was going to be "investigated for a drinking and driving offence, impaired operation". That, of course, did not amount to a valid s. 254(2) demand. The officer required Mr. Mehta to remain at the scene and sit in his own car. P.C. Levy testified that at this point, Mr. Mehta was not free to leave as he was being detained for further investigation. At 12:32 a.m. the officer finally read the ASD demand to the accused. Between 12:25 a.m. and 12:32 a.m., a period of seven minutes, there was a breach of Mr. Mehta's s. 9 Charter right. After making the s. 254(2) demand, P.C. Levy advised Mr. Mehta that another officer was on route with an approved screening device and that he would be required to provide a sample. The detention of the accused continued until 12:44 a.m. when P.C. Lai made a further s. 254(2) demand and was in a position to administer the ASD. In my view, the police did not comply with the "forthwith" requirement for the taking of the sample when the delay here between the time of the forming of the suspicion to the time the ASD could be administered amounted to 19 minutes.

[12] The next issue is whether the police could realistically have fulfilled their obligation to implement the detainee's s. 10(b) Charter right before requiring the sample. Mr. Mehta had a cell phone. He was not a security risk since P.C. Levy was content to have him wait at the scene in his own vehicle until the second officer arrived. The officer testified that Mr. Mehta was pleasant and cooperative throughout the investigation. There was a delay from 12:25 a.m. when P.C. Levy formed his suspicion until at least 12:44 a.m. when P.C. Lai had arrived at the scene with the ASD and was ready to begin the test procedure. I am satisfied that the officer could and should have advised Mr. Mehta of his section 10(b) right to counsel. Had this been done, Mr. Mehta would have had a realistic opportunity to consult with counsel during this nineteen minute delay. I appreciate that the accused chose not to exercise his right to counsel later after being given his 10(b) right to counsel. This is but one factor in the analysis. P.C. Levy did not know when the ASD would arrive at the scene. Mr. Mehta was in a position to consult with counsel, particularly duty counsel if he wished. In R. v. George, an 18 minute delay in the early morning hours where a cell phone was at hand was held to have amounted to a reasonable opportunity to consult counsel. In R. v. Fildan, [2009] O.J. No. 3604 (S.C.J.), a fifteen minute delay was held to give the detainee a realistic opportunity to consult counsel. I am satisfied that Mr. Mehta has established a breach of his s. 10(b) right to counsel in this case.

In summary, I find that the ASD demand was made outside the authority of s. 254(2) and, therefore, the accused's detention and testing pursuant to that invalid demand were not authorized by law. I conclude that Mr. Mehta was subject to arbitrary detention and an unreasonable search and seizure contrary to ss. 9 and 8 of the Charter. I also find that during the 19 minute delay between P.C. Levy forming his grounds to make the demand and the time P.C. Lai was ready to administer the ASD, the accused should have been given his s. 10(b) right to counsel. Mr. Mehta had a cell phone with him and would have had a reasonable opportunity to consult counsel since the ASD could not be done "forthwith".

The Section 24(2) Analysis

Should the Evidence of the ASD and Intoxilyser Results be Excluded?

[13] The Supreme Court of Canada in R. v. Grant, 2009 SCC 32 sets out the following analytic framework at para. 71:

When faced with an application for exclusion under S. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the appellant (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

[14] Let me first address the seriousness of the Charter infringing state conduct. The Charter violations flow from the officer's mistake in delaying for seven minutes the making of the demand as well as not informing the accused of his right to retain and instruct counsel for some nineteen minutes before P.C. Lai was in a position to administer the ASD. I appreciate that P.C. Levy was likely distracted by other duties involving guarding the crime scene. At the same time there is no evidence that he was faced with such exigent circumstances or issues of public or officer safety that would have prevented him from making the demand. Nevertheless, the immediacy or near immediacy requirement of the ASD procedure is by now well established and uncomplicated.

[15] I recognize that P.C. Levy had the requisite grounds to make the ASD demand. P.C. Levy's conduct cannot be characterized as deliberate effort to contravene the requirements of s. 254(2) or in any way flagrant or abusive. While the investigation of Mr. Mehta did not appear to be a priority for P.C. Levy, this, of course, cannot justify his non-compliance with the "forthwith" requirement of section 254(2) and the resulting violation of three of the accused's Charter protected interests. The important link between the forthwith requirement and those constitutional protections was set by Fish J. in Woods as follows:

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.

[16] The seriousness of the Charter infringing conduct in this case favours exclusion of the evidence.

[17] The second stage of the inquiry calls for an evaluation of the extent to which the breaches actually undermined the interests protected by the infringed rights.

[18] The obtaining of the breath sample was minimally intrusive both in terms of the procedures used and the information obtained thereby. With respect to Mr. Mehta's section 9 Charter right, the interference with his liberty was relatively minor. He was able to sit in his own car until P.C. Lai arrived was relatively brief. Although he was not informed of his right to counsel, he had a cell phone with him and nothing prevented him from calling a lawyer if he wished to.

[19] I conclude that the impact on Mr. Mehta's Charter protected interests was at the lower end of the scale. This factor militates toward admission.

[20] The third stage of the inquiry requires the court to consider whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion. The results of the approved screening device and Intoxilyzer sought to be excluded are reliable. The truth seeking function would be better served by the admission of the evidence than by its exclusion.

[21] Two of the three areas of the Grant inquiry favour admission over exclusion. Yet it is also true that the overriding purpose of section 24(2) is to maintain the good repute of the administration of justice by both upholding the rule of law and Charter rights. The focus is both on the long-term and the prospective, not on the immediate reaction to admission or exclusion in a particular case. The purpose of s. 24(2) is to further the long term interests of society and the justice system. In balancing the effect of admitting the evidence on society's confidence in the justice system having regard to three lines of inquiry set out in Grant, it seems to me that the seriousness of the Charter infringing conduct in this case is such that the court cannot be seen to condone the disregard of the law by those charged with its enforcement. I am satisfied that the long term interests of the administration of justice are better served by exclusion of the ASD results. The exclusion of this evidence means that there was an absence of reasonable and probable grounds for Mr. Mehta's subsequent Intoxilyser testing. Pursuant to section 24(2) the evidence of the accused's breath test readings is excluded. There is no admissible evidence that Mr. Mehta's blood alcohol concentration exceeded the legal limit at the time of driving.

[22] In the result, I conclude that the Crown has not proven the charge beyond a reasonable doubt. The charge is therefore dismissed.

Released: November 26, 2012

Justice T. Lipson