Court File and Parties
Court File No.: Newmarket File No. 12-07936 Date: 2013-03-22 Ontario Court of Justice
Between: Her Majesty the Queen — and — Joseph Howe
Before: Justice P.N. Bourque
Counsel:
- Ms. Shambavi Kumaresan for the Crown
- Mr. Michael Neziol for the accused Joseph Howe
Judgment
Released on March 22, 2013
BOURQUE J.:
Facts and Initial Stop
[1] The defendant was stopped at a ride program in the early morning hours of September 5, 2012. As a result of a discussion with a police officer (who was performing his first drinking and driving investigation), he was asked to take a road side test. As a result of further information received by the officer, he was asked to repeat the test 15 minutes later.
[2] The defence asserts that there were a series of errors made by the officer in his investigation from that point on which have led to numerous charter breaches for which I should exclude the evidence of the breath results. It is left to me to make findings of fact about this incident and apply the law as I understand it to this case.
Evidence
Chris Morrison
[3] P.C. Morrison is a York Regional Police officer of some two years experience. He set up a Ride program on Main Street in Newmarket and at 00:22 hours, a car driven by the defendant came around a bend and slowed quickly. The officer stopped the car and spoke to the driver. The driver said he had two beers that evening and the officer smelled alcohol on his breath. The officer asked him to get out of the car and the defendant got out, swaying a little. The officer said the defendant's speech was slurred but the defendant explained that he had a speech impediment. The defendant admitted to drinking two drinks and stated that his last drink was at 10:40 p.m. The officer stated that the defendant "was impaired by alcohol" and thus asked him to take the approved screening test. As there is no need for specific words to understand the grounds for requesting the test, I will take those words as giving the officer a "reasonable suspicion that the defendant had alcohol in his body and was operating a motor vehicle."
[4] The officer obtained an Alcotest 7410 ("ASD") from his partner who had told him he had tested the machine earlier in the evening. The officer was cross-examined about his knowledge of the breath device. He did not know when the device had been last calibrated. He misstated the point at which a fail would be produced, but was aware that the failure was over the point of the legal limit. He did, however state, that he believed that the device was functioning properly.
[5] The officer read the ASD demand from the back of his book. After three tries the defendant blew an "F" for fail and at 00:22 hours, the officer arrested the defendant. About a minute after the arrest and before rights to counsel was provided, the officer received information from another passenger (through his partner) that the defendant had just had a drink within 10 minutes of being stopped. The defendant was sitting in the back of the police cruiser.
[6] The officer decided to wait 15 minutes and perform the test again. The officer re-read the ASD demand and at 00:44, the defendant performed the breath test again and registered an "F" on the first attempt. The officer re-arrested him at 00:44 and gave his rights to counsel at 00:46. The officer stated that the defendant, in reply to the reading of the rights to counsel stated that "maybe a free one". He did not give the defendant a breath demand.
[7] He left for 1 District and arrived at 00:58 and was paraded and put in a cell. At 01:18 the officer put in a call to duty counsel, and at 01:22, the defendant spoke to duty counsel. At 02:00 the defendant was taken to the breath technician.
[8] His timelines are as follows:
| Time | Event |
|---|---|
| 23:59 | Set up a spot check RIDE program |
| 00:20 | Noticed the defendant vehicle approaching |
| 00:22 | Formed belief that defendant may be impaired by alcohol |
| 02:22 | Issued the roadside screening demand |
| 00:29 | After three attempts an "F" fail was registered on the ASD- defendant arrested and placed in rear of police car. Discussion with officer Skathemko about timing of last drink - decided to wait 15 minutes and perform a second ASD test |
| 00:44 | A second demand for ASD made - first attempt a "F" fail |
| 00:46 | Defendant arrested (no breath demand provided) - read rights to counsel |
| 00:47 | Read caution |
| 00:54 | Left scene for 1 District |
| 00:58 | Arrive 1 District. Booked before duty sergeant and defendant lodged into cell #1 |
| 01:18 | Placed a call to duty counsel |
| 01:22 | Duty Counsel returned the call and defendant taken to speak to duty counsel |
| 01:27 | Returned defendant to cell |
Yevgen Skathemko
[9] Constable Skathemko is a York Regional Police constable and was on duty that evening. He had an Alcotest 7410 device and he self-tested it before his shift. He noted it was calibrated some two days before this incident.
[10] He stated that he gave it to Officer Morrison to perform the breath test on the defendant. He stated that he would not have given the device to the officer if he could not guarantee that it was working properly. He stated that he saw Constable Morrison interacting with the defendant and confirmed the same indices of impairment as Constable Morrison. He advised that he heard the defendant say he had been last drinking at 10:40 p.m.
[11] He advised that after Constable Morrison completed the first ASD test (he thought the defendant made a total of 4 tries), the officer was speaking to one of the passengers of the car who said that the defendant had had something to drink just before leaving. The officer believed that the person meant that the drink was about 10 minutes from their conversation. The officer went up to Officer Morrison, who was in his cruiser with the defendant in the rear of the cruiser. He told Constable Morrison of this fact and after some discussion, they decided to wait 15 minutes and then perform the test again.
Todd Stewart
[12] Constable Stewart is a police officer of some 14 years experience. He was the breath technician that evening. His timelines are as follows:
| Time | Event |
|---|---|
| 00:56 | Notified by dispatch that a breath tech was required at 1 District. |
| 01:12 | Arrived at 1 District, the Intoxilyzer 8000C was already warmed up - he turned on the simulator and took it out of standby and checked the solution. |
| 01:18 | He attended the CIB room to see that the date of the solution change matched the log entry. Noted that Constable Morrison was arranging a duty counsel call for the defendant. |
| 01:42 | Attended back to the breath room - noted temperature within acceptable range. |
| 01:43 | Performed diagnostic test. |
| 01:49 | Did a self test. |
| 01:50 | Attended the CIB office and had Constable Morrison set out his grounds on the alcohol influence report. |
| 01:56 | Got the alcohol influence report from Constable Morrison. |
| 01:56 | Entered data on the Intoxilyzer 8000C. |
| 02:00 | Retrieved the defendant from the cells. |
| 02:03 | Demand made. |
| 02:10 | First sample results 160 milligrams of alcohol in 100 millilitres of blood. |
| 02:32 | Second sample results were 160 milligrams of alcohol in 100 millilitres of blood. |
| 02:34 | Returned the defendant to his cell. |
Joseph Howe
[13] The defendant testified that he had a cell phone and would have wanted to speak to a lawyer if he had been given the opportunity. He confirmed that he was sitting in the back of the police cruiser from the first failure (00:44) until he got to the police station at 00:58. He stated that he recalled getting his rights to counsel from the officer after the second test.
Charter Application
Was the defendant denied his rights to counsel?
[14] The defendant was stopped at the ride program at 00:20. The officer spoke to him at 00:22 and within the minute formed the grounds to ask him to provide a breath sample into the roadside screening device. He made an ASD demand and pursuant to the demand, the defendant provided a suitable sample at 00:29. The defendant was arrested and placed in the back of the police cruiser. He was not provided rights to counsel.
[15] Officer Skathemko came up to Constable Morrison and told him that one of the passengers told him that the defendant had had a drink just before leaving, some 10 minutes before. The officers decided (notwithstanding that the defendant himself said he had his last drink at 10:40) to wait a further 15 minutes and make the demand again and then perform the test. At 00:44, the test was repeated and upon the fail, the defendant was arrested and given his rights to counsel.
[16] The question simply is whether the defendant should have been given his rights to counsel upon the first arrest and then in the 15 minute delay, provided an opportunity to consult with counsel.
[17] Unlike the more common situation where officers are waiting for the ASD to arrive, I believe that the case of R. v. Bell, is authority for the proposition that waiting 15 minutes for the clearance of mouth alcohol, the demand is valid and the delay is a justifiable limitation on the right to counsel. As stated in the endorsement: "the fact that the detainee or the officer had a cell phone is irrelevant".
[18] As further stated by Durno J. in R. v. Yamka, at paragraph 39:
While the occasions when officers are not required to give the rights to counsel are apparently not closed, the only occasion that appellate courts have identified is when the officer delays the taking of the sample to permit recently consume alcohol to dissipate from the detainee's mouth. In that situation, there is no obligation to provide the rights to counsel. This generally results in a delay no longer than fifteen minutes.
[19] Because the officers could have attempted a calculation of the shortest possible time they could wait so a total of 15 minutes had passed, does not in my opinion change this. I do not think that they were wrong to err on the side of caution when the issue is presented to them. They clearly felt that because the issue had been raised before them, they had to respond to it. I do not think that waiting a full 15 minutes from the time of the first test adds an unreasonable amount to the total delay. In any event, they waited no more than 15 minutes from the time the issue was presented to them. I do not think that was wrong and I do not think that changes the facts away from the principle in Bell.
Was the defendant given the second demand for the ASD "forthwith"?
[20] The defence argues that once the first sample was completed, and the officer got the information which put the results in doubt, then the process was, in effect, starting again. He points to the fact that even if I agree that it was reasonable for the officer to wait the 15 minutes (rather than parsing portions of the time he knew the person did not drink from his first contact), then the demand was not made until 15 minutes later, that is a 00:44. Therefore the forthwith requirement has not been met and there is a section 8 Charter breach.
[21] The Crown argues that the two actions cannot be seen in isolation. The defendant had been given a valid demand. He knew why he was in the back of the cruiser. The fact that the officer had new information accrued to the defendant's benefit in that the officer wanted to be sure there was no mouth alcohol issue. The law provides that the wording of the ASD demand not be in any particular form, but just that the information is given to the defendant as to what is expected of him.
[22] This is a highly unusual situation. (I could find no case law with a similar fact situation). The defence did not argue that the police did not have the authority to proceed with a second test. They object to the way it was carried out.
[23] In the recent case of R. v. Macmillan, the court held that the "forthwith" requirement to make the ASD demand after forming grounds, only starts to run when the defendant is under detention. Clearly the defendant was under detention (he had been formally arrested and was still sitting in the back of the police car). The question is whether the section 8 and 9 rights have been infringed because of this. I would have to say that they were infringed. Because of R. v. Bell (cited above), that does not however involve any consideration of any 10B issues.
[24] I believe that the defendant had received the first ASD demand and had "complied with the demand." In my opinion, that demand was exhausted when he complied. I don't think that it can be merged into the second demand. A second demand was required and I find that the demand should have been made at the time the officer decided to do a second test. I believe that this is reinforced by the reasoning in Macmillon. The defendant was not only detained at that point, he was under arrest.
[25] Whether the total circumstances of this case, in the context of the section 24 analysis leads to a rejection of the breath test evidence is a consideration I will refer to below.
Did the officer lack the requisite objective knowledge of the ASD device to be able to rely upon the results?
[26] The officer probably did not know the date of the calibrating of the device. He misstated the amount of alcohol in the blood over which a "fail" would be registered. He relied upon his partner having a tested device with him. Do these factors rob the officer of his grounds (the "F") to make an arrest for driving with excess alcohol (I note that he arrested for impaired and I also note that the defendant was never formally charged with anything other than excess alcohol).
[27] There are many cases which stand for the proposition that the officer need only have a reasonable belief that the device is properly calibrated and in working order before relying on a "fail" result to confirm his suspicions. There is no requirement the officer knew the calibration setting of the device, when it was last calibrated, or whether the device was, in fact, working properly. I find that the officer had a reasonable belief in the operation of the device and thus could rely upon the result.
The demand for the breath test
[28] The officer admitted that when the defendant failed the second breath test, he gave him his rights to counsel and caution but did not provide the breath demand. He could only point to his inexperience.
[29] The breath tech ultimately received the grounds for arrest from Officer Morrison at 01:56. He then made a breath demand to the defendant at 02:03, some 7 minutes later. The Crown states that the requirement of section 254(3) has been met by the fact that the breath technician who made the demand did so (within 7 minutes of getting his grounds) and thus it was made as soon as is practicable.
[30] In support of this interpretation she cites R. v. Chilton, a decision of the Superior Court. The decision is not as clear as the Crown would want. In that case, at trial, the evidence was that the arresting officer gave the demand 41 minutes after the arrest, and the breath technician then made on 6 minutes after getting his grounds.
[31] A new trial was ordered because the trial judge did not consider whether the "timing of the demand by the breathalyzer officer was made forthwith or as soon as practicable."
[32] It does not stand for the proposition that the breath technician's demand will always be so found.
[33] Wein J. in R. v. Laws considered the Chilton decision. In Laws, the officer did not make a demand at the roadside but the breathalyzer officer did so some 40 minutes later at the station. The trial judge ruled that this demand was not sufficient and dismissed the over 80 charge. In denying the appeal by the crown on the over 80 charge, Justice Wein stated at paragraph 14:
In this case the trial judge appears to have reviewed Chilton and distinguished it, saying that if a demand was going to be made it should have been made at that time, meaning at the time that the respondent failed the roadside instrument test.
That decision was within his discretion.
[34] Looking at the facts of this case, I find it difficult to find that the demand was made as soon as practicable. The officer forgot to do it. He did not realize his error until the next day. The defendant was taken into custody from 00:46 to 02:03 (some one hour and 17 minutes before he was formally told why he was being detained at the station (he had actually been in police custody since 00:29). The only explanation was the officer's inexperience. That is an explanation, but not a good one. I realize that the investigation for drinking and driving offences are getting more complex and filled with minefields for officers on the street. However, as stated by Ducharme J. in R. v. Au-Yeung at paragraph 61:
…public support cannot extend to police actions that involve the detention and arrest of drivers without the requisite statutory and constitutional grounds.
Was the breath test taken as soon as is practicable?
[35] If the tests were not taken as soon as is practicable, the Crown cannot rely upon the presumption of identity, and without expert evidence from a toxicologist, the breath results at the time of the test cannot be presumed to be the level of alcohol in the blood of the defendant at the time of last driving. The timelines are noted above.
[36] The defendant was stopped at 00:22. The first breath test was taken at 02:10, one hour and 48 minutes later.
[37] The time for the most part has been accounted for. The periods of time which may cause concern are the time from the arrival at the station and the calling of duty counsel, from 00:58 to 01:18 some 20 minutes. The officer indicated that the defendant was arraigned before the duty sergeant and then placed in the cells. That certainly occupies some or perhaps all of the time. There was not detailed explanation as to what he was doing throughout this time.
[38] The second period of time is from 01:18 to 01:42. That is the period of time from Officer Stewart going into the CIB room to then returning to the breath room and finishing the set up. The defendant was not finished his discussion with duty counsel until 01:27. The possible unexplained time would then be 15 minutes.
[39] As per R. v. Vanderbruggen, the requirement for taking the tests as soon as practicable is not the same as "as soon as possible." The Crown need not account for every minute of time as long as the officers are attentive to their duties.
[40] This is a close issue as there some 15 minutes unaccounted for. However, reading Vanderbruggen in its broadest context, I believe that the tests were taken as soon as is practicable.
Conclusion
[41] I have found 2 Charter breaches. I have also found that the officer made (probably through inexperience) several errors (rights to counsel at first instance, and lack of understanding of the ASD device and the significance of the "F"), confusing an arrest for impaired and a detention on reasonable suspicion of alcohol in the body.
[42] I do find that the officer's instincts were good. I commend him for recognizing that there was a mouth alcohol problem and realizing that he no longer had sufficient grounds and had to take the ASD test again.
[43] In reviewing the three part test of R. v. Grant, I find no lack of good faith on the part of the officer, but I do find a lack of training and experience. That has led to several errors, two of which have led to Charter breaches, namely the failure to give the ASD demand forthwith for the second demand, and a failure to give the breathalyzer demand "as soon as practicable".
[44] The effect upon the Charter protected rights of the defendant is not insignificant. As Ducharme J. stated in R. v. Au-Yeung at paragraph 69:
...even more importantly, the public must have confidence that those officers who are charged with exercising the important powers under s. 254 have the necessary skills and training to do so in a matter that complies with both the Criminal Code and the Charter.
[45] The third ground in Grant would favour admission of the evidence. Breath test evidence is reliable and minimally intrusive.
[46] Taking all of these factors into account, I find that the infringement of the defendant's rights in this case are such that the evidence of the breath results will be excluded from the case.
[47] I therefore find the defendant not guilty on the charge of driving with excess alcohol.
Signed: "Justice P.N. Bourque"
Released: March 22, 2013