Court File and Parties

Court File No.: 12-07179 Date: 2013-03-05 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Yunhua T. Su

Before: Justice P.N. Bourque

Judgment

Released on March 5, 2013

Counsel:

• Brian McCallion for the Crown
• Peter Lindsay for the accused Yunhua T. Su

BOURQUE J.:

OVERVIEW

[1] Sometime between 3:15 and 3:20 a.m. on August 26, 2012, an officer took note of a vehicle as he was leaving the police parking lot. He stopped the vehicle and as a result of an ensuing investigation, the defendant was charged with driving with excess alcohol. The resulting breath tests showed 110 milligrams of alcohol in 100 millilitres of blood.

THE EVIDENCE OF CONSTABLE ANDRE WEST

[2] Constable West has been an officer with the York Regional Police for two years. He was leaving in his cruiser and saw the defendant's Honda Civic and it seemed to be tailgating a vehicle in front. He saw it move in front and he followed and paced the vehicle as going 75 kilometres in a 60 kilometre zone. He came close and the driver tossed out a cigarette but which hit the officer's cruiser. He activated his lights and siren and the defendant vehicle pulled over.

[3] The officer went up to the car and smelled the cigarette smoke from the car. He asked for her documents and she retrieved them and he smelled alcohol from her mouth. He asked if she had been drinking and she said that she "yes, one or two drinks". He stated that her eyes were glassy and bloodshot. The officer stated he believed that she had been drinking. His approved screening device ("ASD") was not working and he told the defendant that he had to get another device so he could have her blow into the device to determine whether she had been drinking too much to be driving.

[4] At 3:25 a.m., he called for another unit to bring an ASD device. At 3:28 P.C. Singh came to the scene with an ASD. The officer stated that he got the calibration date (Aug 12, 2012) and the serial number from the officer, and Officer Singh actually performed the roadside test. The results of the test were communicated to Officer West and he was standing beside Officer Singh. Before performing the test, the officer read the breath demand from the back of his book. The defendant blew an "F" and at 3:33 a.m., the officer arrested the defendant, gave her rights to counsel, caution and the breath demand. All were read from the printed form on the back of his notebook.

[5] The officer explained that readings on the ASD device between 50 to 100 is a warn and over 100 is a fail. The officer was extensively cross-examined about the fact that he did not inquire as to when her last drink was. He felt that there was a 10-minute time from his training and he would be beyond that.

[6] The officer asked her if she wanted to speak to a lawyer and she stated she wanted the "free one" and he told her she could call him from the station. The officer testified that she never asked for any specific lawyer. At 3:39 a.m., the officer began to transport her to 5 District. At 3:44 a.m., he arrived and paraded her before the duty Sergeant. After parading, he lodged her in cell number 4. Officer Singh called for duty counsel at 4:20 and the duty counsel called back. After some difficulty getting the proper extension number for the private room, the defendant spoke to the duty counsel at 4:28 a.m.. At 4:43 a.m., the officer stated that he took the defendant from the telephone room to the breath tech who was ready to perform the test.

[7] The officer received her back from the breath tech at 5:12 and he completed the paperwork and served a true copy of the breath certificate (Exhibit 1) upon the defendant.

[8] Defence raised two issues in cross-examination which may have some effect on the officer's credibility. The officer stated that once the defendant was finished speaking to duty counsel he took her directly to the breath room. Upon review of Exhibit 2 (the 4 frame video of the hallway of the station), it is clear that the defendant was removed to the cell for about 90 seconds before being taken to the breath technician. In addition, the officer stated that the defendant at the roadside stated that she had had one or two drinks. In a written report and in the notes of the breath tech, the arresting officer stated that the defendant had a couple of drinks.

[9] I am not really concerned with what may be two lapses in the officer's memory. There was no evidence offered to negate the essential evidence of the officer that the defendant indicated that she had been drinking alcohol. In addition, the movement of the defendant to the cell for some 90 seconds did not in any way change the sequence of events, or add to any real delay in taking the breath test.

WERE THE TESTS TAKEN AS SOON AS PRACTICABLE?

[10] The defendant's last driving was at 3:20 a.m. The first breath test was completed at 4:46 a.m., some 1 hour and 26 minutes later. It was within the two-hour limit.

[11] I have already reviewed some issues in the arresting officer's evidence. Even if he was mistaken about whether he took her to the cells after speaking to duty counsel, the time was so short, that such an error does not impact upon his credibility. I find him overall to be a credible witness and accept his recitation of events and the timelines in which events happened. They are as follows:

Time	Event
3:20	First observation and stop
3:25	PC West requests second ASD
3:28	The ASD arrives
3:33	Fail result and arrest
3:36	Caution read
3:38	Rights to counsel read
3:39	Transport to 5 District commences
3:44	Arrival at 5 District
4:20	Duty counsel calls back
4:36	Consultation is complete
4:38	Custody of accused given to QBT
4:46	First BAC reading of 118 mg/100 ml
5:07	Second BAC reading of 110 mg/100ml

[12] The longest period of time to review is from 3:44 to 4:20 a.m. In his evidence he indicated that in that period of time, the defendant was paraded before the duty sergeant, (who asks her all the questions again), she is searched by a female officer, he property is placed in a property bag, and she was placed in cell number 4 (page 20). The officer had P.C. Rajpaul Singh call duty counsel for the defendant and the officer began to complete some of the paper work. (page 20)

[13] At 4:20 he takes her to duty counsel.

[14] R. v. Vanderbruggen is now well settled law. Every minute need not be accounted for. The time to perform the test is not the soonest possible time but within a reasonable prompt time under the circumstances. The difficulty with the phone does not in my opinion take away from the reasonableness of the police actions.

[15] The duties performed from the time of arrival at the station to the time of the speaking with duty counsel have been accounted for.

[16] In sum total, I do not find that the tests were taken outside of the period that would be considered practicable.

CHARTER APPLICATION - SEC. 8 AND 9

Issues

Should the officer have made inquiries of the defendant for the presence of mouth alcohol?

[17] In R. v. Mastromartino, Durno J. of the Superior Court dealt with this issue (and several others) in the course of deciding 4 separate appeals. In his opinion the law consisted of the following:

[18] In summary, I take Bernshaw and Einarson to establish the following:

1. Officers making ASD demands must address their minds to whether or not they would be obtaining a reliable reading by administering the test without a brief delay.

2. If officers do not, or reasonably could not, rely on the accuracy of the test results, the results cannot assist in determining whether there are reasonable and probable grounds to arrest.

3. Officers making ASD demands may briefly delay administering the test if, in their opinion, there is credible evidence which causes them to doubt the accuracy of the test result unless the test was briefly delayed.

4. Officers are not required to wait before administering the test in every case where a driver may have been in a bar shortly before being stopped. The mere possibility that a driver has consumed alcohol within 15 minutes before taking the test does not preclude an officer from relying on the accuracy of the screening device.

5. Whether or not officers are required to wait before administering the screening test is determined on a case-by-case analysis, focusing on the officer's belief as to the accuracy of the test results if the tests were administered without delay, and the reasonableness of that belief.

6. The fact the driver is observed leaving a bar is a relevant circumstance in determining whether it was reasonable for the officer to delay the taking of the test in order to obtain an accurate sample. However, officers are not required to ask drivers when they last consumed alcohol.

7. If the officer decides to delay taking the sample and that delay is challenged at trial, the court must decide whether the officer honestly and reasonably felt that an appropriately short delay was necessary to obtain a reliable reading.

8. If the officer decides not to delay taking the sample and that decision is challenged at trial, the court must decide whether the officer honestly and reasonably believed that he could rely on the test result if the sample was taken without delay.

[19] In our case the officer stopped a woman whom he had observed driving for several minutes. She had been smoking a cigarette and threw the butt out the window. He first saw her between 3:15 and 3:20 a.m. He did not see her come from any specific location and certainly did not see her come from a bar. At the roadside he could smell a strong odour of alcohol from her breath. There were no alcohol bottles in the car in view. The officer did not search the car. The defendant said that she had been drinking at a friend's and had upwards of two drinks.

[20] I will quote, in full the following two pages of transcript of the evidence of the officer as it dealt with the presence of mouth alcohol:

Q. Okay, and there was a strong odour of an alcoholic beverage coming from her breath, is that right?

A. Yes, sir.

Q. Okay, and I take it that would suggest to you that there had been very recent consumption of alcohol, is that fair?

A. Yeah.

Q. Okay, and she, in fact, I'm going to suggest, indicated that she had had some alcohol at a friend's house. Do you recall that?

A. Yes, she was at a friend's place.

Q. Right, and from where you first observed her, there's all kinds of residence within a minute or two drive, is that fair, sir?

A. Yes.

Q. Okay, and you followed her, after first observing her for about 2 minutes, five or take?

A. Yes.

Q. Okay. So, within about three minutes of where you stopped her, there were all kinds of residence where she could have been drinking, fair?

A. Yes.

Q. Okay, and you knew all that at the time of deciding to do the screening device test, fair?

A. Yes.

Q. Okay, and you never asked her when she had had her last drink, is that fair to say, sir?

A. Yes.

Q. Okay, and in fact, you never considered the issue of last drink, or "fresh mouth alcohol", prior to doing the screening device test, is that fair, sir?

A. I didn't see it as an issue.

Q. Didn't see it as an issue. You didn't - I'm going to suggest you didn't think about it all, is that fair to say, sir?

A. It's a 10 minute rule normally for us, for the - for our devices, from what I've been told.

Q. So, you're supposed to, according to your understanding, find out if the person's had a drink within the last 10 minutes?

A. Yes, sir.

Q. And you never asked her that, or determined one way or another whether that was true, fair?

A. True.

Q. Okay. Your training is, your (sic) supposed to ask when they've had their last drink, correct?

A. Yeah.

Q. Sorry?

A. Yes.

Q. And you failed to follow your training in that regard, in this particular case, fair?

A. I believe that the - from the time of observation to the time of the test, it was over 10 minutes so it wasn't an issue, in this case.

Q. So, that's - that's your basis for why you did it the way you did it?

A. Yes, sir.

[21] It is clear that at the suggestion of defence counsel, the officer admitted that the strong odour of alcohol would suggest to him that there had been a very recent consumption of alcohol. In addition the officer's evidence was that he did not ask any further questions and did not pursue the issue of mouth alcohol because he felt that he was only supposed to pursue the issue if the drinking had happened within the last 10 minutes. He excluded that possibility solely because of the passage of 10 minutes.

[22] While I am not sure that objectively, a strong smell of alcohol would necessarily require an inquiry, it is clear that this officer felt that on that information, an inquiry would have been necessary, if the time of his observation of her was over 10 minutes. I believe that it is his subjective actions that are important. He was incorrect in believing that 10 minutes was adequate. The test was taken between 13 and 18 minutes of his observations of her.

[23] Ultimately, having admitted that he believed that mouth alcohol could be an issue on the facts as he knew them, and knowing that, used the incorrect understanding of the waiting period for that issue, can I find that he has adequately addressed the issue. I don't think that I can. As stated by Pugsley J. in R. v. Froude:

Here the officer understood the mouth alcohol problem but confabulated his training and hearsay from other officers and made a mistake in how long he had to wait…The officer did not put his mind to the time necessary to ensure an accurate test.

[24] The arrest by the officer in this case was based on the resulting failure of the ASD. I believe that there has been a section 8 breach using the test as set out in R. v. Mastromartino. The officer turned his mind to the issue but was incorrect in coming to the right time for the delay. It is implicit in his evidence that he thought there should be a delay, but he was incorrect in the amount of the delay. If he therefore could not reasonably rely on the accuracy of the test results, the results cannot assist in determining whether there are reasonable and probable grounds to arrest.

Has the officer complied with section 254 (2) in the demand and taking of the roadside breath sample?

[25] The officer initially did not make a "formal" demand for a breath sample but informed the defendant to wait in her car while he obtains the ASD device so that he can test her breath to determine if she is over the limit. He formed his suspicion and made this statement at sometime between 3:22 and 3:25 a.m. The unit arrives and the formal demand is made to her at 3:28 a.m.

[26] In this case the delay between the forming of the reasonable suspicion and the demand was the time it took for the ASD to arrive, that is some 3 minutes. Even if there cannot be an exact determination made of the time, from the forming of the suspicion to the actual demand (3 minutes or more), the only delay in the demand was the 3 minutes it took to have the ASD arrive. With a delay of some 3 minutes in the process and perhaps a total time from formation to demand of 11 minutes there is in my opinion no opportunity to consult with counsel. I do not think that the officer's mistaken belief that there are no situations that would result providing an opportunity to consult with counsel before arrest changes this. In the facts of this case, I find there was no opportunity to consult with counsel.

[27] However does the delay of some 3 minutes to no more than 11 minutes in total, give rise to a charter breach?

[28] The recent pronouncement of the Court of Appeal in R. v. Quansah requires that the determination of "forthwith" in s. 254 (2) requires a five part series of considerations:

1. The analysis must be done contextually. Parliament intended to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights;

2. The demand must be made promptly once she forms the reasonable suspicion. The immediacy requirement commences at the stage of reasonable suspicion;

3. Forthwith connotes a prompt demand and immediate response, "although in unusual circumstance a more flexible interpretation may be given". The total time from formation of reasonable suspicion, to making the demand, to the detainee's response to the demand by providing (or refusing) to provide a sample, "must be no more than is reasonably necessary to enable the officer to discharge her duty as contemplated by s. 254 (2);

4. Immediacy must take into account all circumstances including reasonable necessary delay when the ASD is not immediately available or short delay needed to ensure an accurate result, or where a short delay is required due to articulated and legitimate safety concerns. Any delay that not reasonably necessary to enable the officer to properly discharge her duty exceeds the immediacy requirement;

5. One circumstance for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee's s 10 (b) Charter rights before requiring the sample. If so, "the forthwith requirement is not met".

[29] As I have found the delay was not enough to allow the defendant to consult counsel, the item in number 5 above is not triggered. (I note the same conclusion of Ducharme J. in R. v. Au-Yeung) Cleary waiting for an ASD device is a relevant consideration. Waiting 3 minutes for an ASD device is not so great as to trigger a failure in the "forthwith requirement". I also note that the officer did explain to the defendant that he was going to ask her to blow into a device to determine whether she's had too much to - driving at the time and that he had to get another officer there. Because it was formed as a "request" rather than a demand, it probably does not comply strictly with the requirement as a demand and I do not consider it as such.

[30] The most recent Court of Appeal decision in R. v. MacMillan, in my opinion, may change the landscape considerably when considering the issue of the timing of the demand after the suspicion crystallizes. The court decided that there has to be a detention before the time becomes important, and there is only a detention after the demand is made. As noted in paragraphs 37-39:

…Until the demand was made, the psychological detention did not materialize. As was said in R. v. Clayton, 2007 SCC 32, at para. 48, it is not until the officer's subjective intent is accompanied by actual conduct that the intent becomes relevant for constitutional purposes.

Since the respondent was not detained until the demand was made, her rights under ss. 9 and 10(b) were not infringed in the period before the demand was made.

...In light of the fact that the respondent was not detained, the forthwith requirement should have been applied flexibly.

[31] In our case there was probably a detention at the roadside, but that may not be the case in all traffic stops. I believe that the total time here, including the wait for the ASD does not trigger a breach of the defendant's Charter rights.

[32] The transcript of the evidence (at page 16) indicates that the demand read by the officer for the roadside sample actually used the words normally used by an officer in requesting the person return to the station for the Breathalyzer test. The question arises, does this render the results of the ASD test such that the officer can no longer rely upon the results in forming his reasonable and probable grounds for an arrest for driving with excess alcohol? The cases are clear that it is not necessary that a demand be made in any particular form. The words must give the defendant an understanding of what is required.

[33] The defence has cited several cases, that where the converse happens, namely, the ASD demand is made when the demand for the breath sample is required, that then the demand is not in accordance with the code requirement and the breath readings are not admissible. Notwithstanding comments in the cases about the distinctiveness of the two situations, I do not believe that the same results come where the ASD demand is made. In R. v. Dixon, a decision of Taylor J., he held that the reading of the intoxilyzer demand in place of the ASD demand was not fatal, as long as there is no evidence that the defendant was mislead. There is no such evidence in this case.

Is the breath demand defective in that the officer made a demand for a suitable sample rather than "suitable samples"?

[34] This issue was considered in R. v. Rentoul. The use of the word "sample" as opposed to "Samples" was not fatal to the sufficiency of the demand. Taking into account that even with the Breathalyzer demand, no formal words need be used, that would seem to satisfy the demand of the section.

Are there any other factors that put into doubt whether the officer could objectively rely on the results of the ASD test before forming his reasonable suspicion?

[35] The arresting officer did not perform the breath test. I find that the arresting officer was informed that the officer performing the test had informed the arrested officer that the device was tested (page 73) and that it had been calibrated some 12 days previously (page 49). The arresting officer stated that he was "standing right there" when the ASD testing was performed. (page 74), he received the result of the test from the officer (page 74 -page page 16), and that "it came up with a reading of "F" which is a fail.

[36] The officer was questioned extensively about his knowledge of times of calibration and other issues with the device. I find that he had information from the officer who was performing the test that it was operating properly and other information (calibration et cetera.) that strictly speaking was not necessary. The totality of the evidence leads me to believe that the officer had a subjective belief that the ASD was operating properly and such belief was objectively reasonable.

SECTION 24 ANALYSIS

[37] I have found that the defendant's section 8 rights were breached because the officer was in error in thinking that he no longer had to consider the possible effects of mouth alcohol because of a 10-minute wait. The test in this matter could have occurred within 15 minutes and definitely occurred within 20 minutes of the officer's observations of the defendant.

[38] The officer made other errors in this case, but I did not find that they amounted to breaches of his Charter rights. I can consider these matters in the context of the larger section 24 issue. This breach speaks to a lack of training and experience for this officer. It is not an intentional attempt to usurp the constitutional rights of this defendant. However, I feel that the formation of the reasonable and probable grounds for the arrest of a person and making a breath demand, go beyond a mere technical error in some act of the processing of a suspect. Like the right to counsel, it is a quite fundamental right which in its breach even through error, leads to a significant finding of breach.

[39] I note in MacMillan, the court restated the applicable concerns dealing with the charter protected interests of the accused. It restates the comments in Grant that breath samples fall at the "relatively non-intrusive end of the spectrum". The court stated at paragraph 79: "…Properly understood, the impact of the s. 8 violation was minimal."

[40] In assessing the third factor I must assess the importance of the evidence to the Crown's case, the reliability of the evidence and the seriousness of the offence. There is always a strong societal interest in having alcohol and driving cases adjudicated by the courts. Breath test evidence is inherently reliable and of course, the breath test results are essential to the Crown's case.

CONCLUSION ON CHARTER ISSUES

[41] Based on the charter breach that I have found in this case, and weighing the factors as noted above, I am persuaded that admitting the breath sample evidence in this case would bring the administration of justice into disrepute.

CONCLUSION

[42] Having found that the results of the breath test cannot be admitted into evidence, I find the defendant not guilty.

[1] , [2006] O.J. No. 1138 (C.A.).

[2] [2003] O.J. No. 127 (Ont. S.C.J.).

[3] (1995), 95 C.C.C. (3d) 193 (SCC), rev (1993), 85 C.C.C. (3d) 404 (BCCA).

[4] , [2004] O.J. No. 852 (ONCA).

[5] [2007] O.J. No. 1229.

[6] 2012 ONCA 123, [2012] O.J. No. 779.

[7] 2010 ONSC 2292, [2010] O.J. No. 1579.

[8] 2013 ONCA 109.

[9] R. v. Nicholson (1970), 8 C.C.C. (2d) 170.

[10] [2007] O.J. No. 2981.

[11] (1977), 37 C.C.C. (2d) 78 (Alta).

[12] Supra.