Court File and Parties

Court File No.: Central East - Newmarket 4911-998-12-08429-00 Date: 2013-05-28 Ontario Court of Justice

Between: Her Majesty the Queen — and — An-Hue Tran

Before: Justice Richard Blouin

Heard on: February 4, 2013

Reasons for Judgment released on: May 28, 2013

Counsel:

• B. Juriansz, for the Crown
• M. Herman, for the accused A. Tran

Judgment

BLOUIN J.:

[1] The defendant stands charged that he committed the offence of Drive Over 80 on October 2, 2012.

[2] The proceedings were conducted as a blended trial and Charter voir dire.

[3] The Crown called two witnesses: Constable Kin Wong, the arresting officer, and Constable Richard Senior, a Qualified Technician.

[4] The defence called no evidence. Mr. Herman, counsel for the defendant, admitted certain elements of the Crown's case and focused on two issues. The first was whether P.C. Wong complied with s. 254(2) of the Criminal Code by demanding a breath sample "forthwith" as required to meet constitutional scrutiny. The second issue was whether the police took samples of the defendant's breath "as soon as practicable" after the offence to allow the Crown the benefit of the presumptions contained in s. 258(1)(c) of the Criminal Code.

Arresting Officer

[5] Constable Wong observed the defendant's vehicle veering to the left while travelling northbound on McCowan Road in Markham at 10:27 p.m. The vehicle was stopped at 10:29 to "ensure the sobriety of the driver." After a brief time for the defendant to provide the police his driving documents, the officer detected an odour of alcohol coming from the vehicle. The defendant's eyes were bloodshot and glassy and his face was red.

[6] After deciding the defendant's English was not good, the officer spoke to him in Cantonese and asked how many alcoholic beverages he drank that night. The defendant did not answer immediately, but later said that he had one beer one hour ago. The officer formed the necessary suspicion to demand a breath sample into an Approved Screening Device at that point. However, he then asked the defendant to get out of the vehicle in order to confirm that the alcoholic odour was coming from the breath of the defendant, and to evaluate his motor skills. No concerns regarding the defendant's balance were noted. The officer and the defendant then continued their Cantonese discussion, during which the officer confirmed the smell of alcohol coming from the area of the defendant's mouth.

[7] At 10:36 p.m., P.C. Wong read the s. 254(2) demand. The defendant failed and was arrested at 10:37. Rights to counsel, a caution, and a station breathalyzer demand occurred in the next five minutes. After arranging for a second officer to take over the scene and arrange a tow, the officer and the defendant left the scene at 10:50 p.m.

[8] The booking procedure commenced at 11:05. Constable Wong was not sure how long the booking took, but said it typically takes five minutes, and there was nothing unusual about this case. The defendant was taken right after the booking procedure to an interview room. This was at 11:22. In cross-examination, he simply did not recall what happened during the time taken for the booking procedure and afterwards. Between 11:22 and 12:06 a.m., duty counsel was called and returned the call and the defendant was put in touch with a Cantonese duty counsel for consultation. That finished at 12:06. After giving the qualified technician grounds for the arrest, the defendant was turned over to P.C. Senior at 12:20 a.m. When asked in cross-examination why he waited 14 minutes (12:06 – 12:20) before he turned the defendant over to P.C. Senior, Wong believed that Senior needed that time to get his equipment prepared.

The Qualified Technician

[9] Richard Senior testified that he was already at the police station conducting a breath test on an unrelated subject when he learned his services were required on this matter sometime between 11:00 and 11:04 p.m. Constable Senior was given grounds for the defendant's arrest by Constable Wong at 12:11 a.m. Shortly after Mr. Tran was turned over to Senior at 12:20 a.m., he was read a breath demand by the qualified technician. Two samples were obtained:

• 158 milligrams at 12:24 a.m.
• 147 milligrams at 12:48 a.m.

[10] Senior had performed the first test on the other subject at 12:00, and was set up to do a test on the defendant shortly thereafter. It was not until 12:11 that the defendant was turned over to Senior. Regarding the second breath test on the other subject, the test was conducted at 12:39, and that subject was retrieved by the arresting officer at 12:40. Senior agreed he was ready to do a second breath test on the defendant at 12:40.

Analysis

Forthwith

[11] The defendant submitted that the demand on the roadside screening device was not made "forthwith", as required by s. 254(2), because the arresting officer waited several minutes after forming a reasonable suspicion the defendant had alcohol in his body before he made the demand.

[12] In furtherance of the "as soon as practicable" argument, the defendant points to three time periods where the delay is not explained:

• 12 minutes after the booking procedure was completed from 11:10 (approximately) to 11:22 p.m.;
• 14 minutes from 12:06 a.m. to 12:20 after consultation with counsel until the defendant is turned over to the qualified technician; and
• 7 minutes between 12:41 and 12:48 a.m. where the qualified technician is able to take the defendant to perform his second breath sample, and when he actually received him for that purpose.

[13] The meaning of "forthwith" was yet again analysed recently by the Ontario Court of Appeal in R. v. Quansah, 2012 ONCA 123. In paragraph 44, Justice LaForme concludes:

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 person to whom that demand is addressed.

[14] Then Justice LaForme summarizes in paragraphs 45 – 49:

45 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.

46 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.

47 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).

48 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.

49 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.

[15] R. v. Smith, [1996] O.J. No. 372 stands for the proposition that officers may continue to investigate to determine whether there are grounds for a s. 254(3) (breathalyzer) demand even after forming a s. 254(2) suspicion. A delay in making the s. 254(2) demand is permitted to allow the investigation.

[16] R. v. Fildan, [2009] O.J. No. 3604 outlines other examples where a delay between forming suspicion, and the making of the demand, may be reasonable. And, of course, it is not only permissible, but required, to delay the approved screening demand if there is credible concern regarding mouth alcohol.

[17] In this case, while I am not certain the officer's approach to engage the defendant in conversation to confirm the origin of the smell of alcohol, and to view the defendant's motor skills, took the full seven minutes, it easily could have. In this fact situation, I find the delay was reasonably necessary to enable the officer to discharge his duty. Accordingly, I find no breach not saved by s. 1 of the Charter.

As Soon as Practicable

[18] The leading case in this area is R. v. Vanderbruggen, 206 C.C.C. (3d) 489 wherein the Ontario Court of Appeal states at paragraph 12:

There is no requirement that the test be taken as soon as possible. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably.

[19] Also, from paragraph 13:

In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The "as soon as practicable" requirement must be applied with reason. In particular, while the Crown is obligated to demonstrate that - in all the circumstances - the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody.

[20] Vanderbruggen indicates that the Crown does not have to account for every minute that the defendant is in police custody, but must establish that the police acted reasonably promptly. In my view, there are significant periods of time, perhaps not individually fatal, where I am unable to conclude the police were acting reasonably promptly because no explanation materialized for the passing of time during those periods.

[21] Other than a booking procedure which normally takes five minutes (and this was an ordinary case), Constable Wong simply does not recall what occurred between 11:05 p.m. and 11:22 p.m. He also was of the view that the reason he did not transfer the defendant to the qualified breath technician at 12:06 a.m. (when the defendant was finished with duty counsel) was that he believed the qualified technician needed to prepare his equipment. Constable Senior contradicted that by indicating that, except for getting grounds and other information, he was ready at 12:00. There was no explanation as to why the defendant was not brought to Senior until 12:20 p.m.

[22] In addition, while not by itself a significant delay, the defendant was not returned to Senior for his second sample until 12:48 a.m. Since the first sample was at 12:24 and there must be at least a 15-minute interval, Senior could have conducted the second sample at 12:41 (he cleared his other test with the other subject at 12:40). In my view, these seven minutes are emblematic of an attitude that time is not that important, when, in fact, it is. When I combine all of the periods of unexplained delay, I conclude the police did not act reasonably promptly.

[23] Accordingly, the tests were not taken as soon as practicable as required by s. 258(1)(c) to allow the readings obtained to relate to the time of driving.

[24] The defendant must be acquitted.

Released: May 28, 2013

Signed: "Justice Richard Blouin"