Court File and Parties

Ontario Court of Justice

Date: June 7, 2013

Court File No.: 11-30465

Between:

Her Majesty the Queen

— and —

Oluwafemi Alaga

Before: Justice J. David Wake

Reasons for Judgment released on: June 7, 2013

Counsel:

• D. Elhadad, for the Crown
• M. Smith, for the defendant Oluwafemi Alaga

Reasons for Judgment

Introduction

[1] The applicant was charged on August 21, 2011 with impaired operation and "over 80". It was acknowledged by the applicant in his Application to exclude the results of the Intoxilyzer that he provided the qualified Intoxilyzer technician, Constable Ferguson, with two samples of his breath measuring 153 milligrams of alcohol per 100 millilitres of blood at 4:23 a.m. and 141 milligrams of alcohol per 100 millilitres of blood at 4:46 a.m.

[2] The applicant alleges that his right to be informed of the reason for his detention pursuant to Section 10(a) of the Charter, his rights to counsel under Section 10(b), his right to be secure against unreasonable search or seizure under Section 8 of the Charter and his right not to be arbitrarily detained under Section 9 of the Charter were all violated by the police and that the evidence of the breath test results ought to be excluded pursuant to Section 24(2) of the Charter.

[3] Essentially the applicant alleges that the police lacked the required suspicion to make a demand pursuant to Section 254(2) of the Criminal Code and that the demand for the sample was not made forthwith pursuant to that subsection. It is further alleged that the applicant was not given an opportunity to consult with counsel at the roadside. Finally it is alleged that the arresting officer did not have reasonable and probable grounds to make a demand for breath samples pursuant to Section 254(3) of the Criminal Code.

The Evidence

Sgt. Mallett's Evidence

[4] An unusual feature of this case is the fact that the officer who conducted the traffic stop of the applicant, Sgt. Mallett, and who detained the applicant until an approved screening device (hereinafter referred to as an ASD) could be brought to his location, was not the same officer who made the ASD breath sample demand under Section 254(2) and yet it was Sgt. Mallett who made the arrest of the applicant after the ASD registered a fail and continued with the investigation.

[5] Sgt. Mallett is a police officer with 24 years experience. He testified that at approximately 2:48 a.m. on August 21, 2011 he observed a silver BMW drive around two vehicles in its lane which were stopped for a red light. The BMW then turned right at the red light and sped away. When the BMW made this manoeuvre around the vehicles stopped in front of it, it was necessary for it to go into the lane reserved for vehicles travelling in the opposite direction, although Sgt. Mallett confirmed that there was no other traffic at the time.

[6] As the BMW sped off after making the right turn Sgt. Mallett decided to investigate. Although the vehicle appeared to him to be speeding he was unable to estimate the speed. He put on his cruiser's flashers and siren. He observed the vehicle make another right turn onto York Street which eventually divides into two lanes separated by parking spaces. The BMW proceeded westbound in the eastbound lane of York Street and pulled into a parking spot halfway down the final block of York Street. Sgt. Mallett placed his cruiser perpendicular to the BMW so that it could not reverse out of the parking space. Sgt. Mallett approximated the time of the stop at 2:49 or one minute after he had first observed the BMW.

[7] The driver of the BMW immediately got out of the vehicle and approached Sgt. Mallett. His dress shirt was undone. He told the officer that he had just been beaten up in a fight. Sgt. Mallett detected an odour of alcohol coming from his breath. The driver produced his licence at Sgt. Mallett's request which identified him as the applicant. Sgt. Mallet also noted slurred speech as they conversed in English.

[8] Sgt. Mallett was asked by the applicant if he could observe any injuries and the officer could not. Sgt. Mallett then testified that he asked the applicant if he had consumed alcohol and received an admission that he had. In cross-examination he maintained that this question and response occurred at the time of the stop at 2:49.

[9] Sgt. Mallett's evidence then becomes somewhat confusing. He testified that he asked the applicant the time of his last drink and received a response that it was 30 minutes ago. His investigative action report indicated that this exchange took place at 3:05 a.m. which flies in the face of testimony of other witnesses which I will come to later.

[10] Sgt. Mallett called dispatch for an officer to bring an ASD to his location. He had no note as to when he made this request or when Constable Bell arrived with the ASD, although he agreed with counsel in cross-examination that it was after he asked the applicant about the timing of his last drink which he had noted as being 3:05. Mr. Smith, counsel for the applicant, drew Sgt. Mallett's attention to his investigative action report which recorded the sequence as follows:

"Sergeant Mallett asked the male when his last drink of alcohol was. ...The driver stated, "30 minutes – 30 minutes ago". ...The officer could detect the suspect's speech was slurred. ...The officer asked dispatch for an alcotest."

[11] After an ASD was requested from dispatch Constable Bell arrived with one. Sgt. Mallett had no note as to when Constable Bell arrived but it was not long after he called because he could see his cruiser at the corner of York and Byward, a block away. The first time he recorded in his investigative action concerning Constable Bell was 3:06 when he noted that Bell demonstrated the use of the ASD to the applicant.

[12] Sgt. Mallett denied handcuffing the applicant shortly after the traffic stop and placing him in the rear of his cruiser. His recollection was that he and the applicant remained outside the cruiser while they waited for the ASD. He was uncertain as to whether Constable Bell conducted the ASD tests with the applicant in or partially in a cruiser. His evidence was that the applicant was not handcuffed and placed in the cruiser until after he was arrested.

[13] A series of photos were shown to Sgt. Mallett taken by the applicant's girlfriend, Lillian Lewis, on her cell phone which were date stamped. One of the photos, number three, was time stamped 2:53 and shows an officer at the back of the cruiser. Mr. Smith suggested to Sgt. Mallett that he was the officer depicted in the photo and that the applicant must have been inside the cruiser. Sgt. Mallett readily disagreed with that suggestion and insisted that the photo was of Constable Bell.

[14] Sgt. Mallett confirmed that he never read an ASD demand to the applicant and did not perform the test himself. When asked why he explained as follows:

"I was the supervisor for Elgin Street – the division – I was running a staff Sergeant's desk, I was answering the phone – because we were shorthanded – I took the phone and I put it on forwarding and I went out on the road and to assist me I asked Constable Bell to continue the investigation."

[15] He did, however, testify that he told the applicant that they were going to have an officer come to their location with an alcotest to verify whether he was under the legal limit and able to drive. There was, however, no note to that effect.

[16] Upon Constable Bell's arrival Sgt. Mallett provided him with his grounds for making an ASD demand, being the irregular driving, the odour of alcohol from his breath, slurred speech and an admission as to the consumption of alcohol.

[17] Sgt. Mallett remained on scene as Constable Bell administered the ASD test and observed that the applicant "was not blowing hard enough or long enough for the machine to register a proper sample" and that he was given several opportunities to do so.

[18] At 3:07 he noted that he cautioned the applicant concerning a charge of refusal to provide a breath sample. Eventually, after a few more unsuccessful attempts, a suitable sample was provided which registered a fail, which meant to him that the applicant had over 100 milligrams of alcohol per 100 millilitres of blood. Consequently he arrested the applicant for "over 80" at 3:11 a.m., handcuffed him and lodged him in the rear of his cruiser.

[19] Rights to counsel were read for the first time at 3:14 followed by a breathalyser demand at 3:16. He transported the applicant in his cruiser to the police station at 474 Elgin Street, leaving at 3:21 and arriving at 3:31.

[20] The applicant was given an opportunity to call a lawyer at 3:50 when he was placed in a phone booth room. The applicant did not know any lawyers and agreed to allow Sgt. Mallett to pick a lawyer – Ms. Lafleur, to whom he spoke in privacy for eight minutes from 3:51 until 3:59.

[21] Sgt. Mallett provided his grounds to a qualified breathalyser technician, Constable Ferguson, following which he turned the applicant over to her for the tests to be performed. Subsequently he received custody of the applicant and served him with a notice of intent to produce a certificate and the qualified breathalyser technician's certificate of analysis which were introduced into evidence subject to the Charter arguments.

Constable Greg Bell

[22] Constable Bell has been a police officer since April 2010. He stated that on August 21, 2011 at 2:51 a.m. he was dispatched to assist Sgt. Mallett who had requested a roadside screening device. He arrived on scene at 2:54 a.m. and spoke to Sgt. Mallett who immediately provided him with grounds to administer the alcotest to the person who was currently sitting in the back of Sgt. Mallett's cruiser. Constable Bell could not remember if he was handcuffed at that time but did not believe he was when the tests were conducted.

[23] The grounds provided included erratic driving, the admission to the consumption of alcohol and detection of an odour of alcohol on the subject's breath, although in cross-examination he acknowledged that he had not noted the odour of alcohol. Constable Bell formulated his own opinion that the applicant had alcohol in his body and at 2:57 he turned on the ASD-Drager alcotest 7410GLC which he stated was working properly. He noted that it had been last calibrated on August 14, 2011. He checked it at the beginning of his shift as well.

[24] Constable Bell then approached the applicant and made an ASD demand for a sample of his breath at 2:59 a.m.

[25] Constable Bell testified that he then explained to the applicant in detail what was required and how to make a proper seal around the mouthpiece and blow continuously until he was directed to stop.

[26] Initially he did not demonstrate how to blow into the device but after the applicant made several unsuccessful attempts to provide a sample beginning at 3:00 a.m. the officer, following the fourth such attempt at 3:06 removed the mouth piece, inserted a new one for himself, and blew into the device which registered 0.00 which meant that there was no alcohol and that the machine was working properly.

[27] Constable Bell stated that as the tests were administered the defendant was seated in the rear of the cruiser with his feet on the pavement and that he did not believe he was handcuffed at that point.

[28] The officer noted that with each unsuitable sample, the device registered "E". In cross-examination Mr. Smith suggested that there should have been a number in addition to the "E" to identify the precise reason why the sample was not registering. Constable Bell testified that he did not record a number beside the "E" because his observations led him to conclude that the applicant either failed to provide a seal or he was not providing a continuous breath so that there was insufficient air being provided to the device.

[29] Following the third test taken at 3:03 a.m. Constable Bell asked the applicant when he had consumed his last alcoholic beverage and received a response "30 minutes ago". Constable Bell had not noted whether Sgt. Mallett had asked that question so he wanted to have it documented.

[30] Finally, after the 11th attempt at 3:10 a.m. a suitable sample was obtained which registered an "F" which meant to Constable Bell that the applicant had over 100 milligrams of alcohol per 100 millilitres of blood in his body. He noted that Sgt. Mallett arrested the applicant at that time and had no further dealings with him.

[31] Constable Bell was asked to identify photo number three with the time stamp of 2:53 and he readily identified himself as the officer in the picture standing outside the cruiser. He believed that Sgt. Mallett was sitting in the front of his cruiser.

[32] Constable Bell confirmed that he never read rights to counsel to the applicant.

Sarah Ferguson

[33] Sarah Ferguson is a qualified breathalyser technician who took two suitable samples of the applicant's breath directly into an approved instrument which registered 153 milligrams of alcohol per 100 millilitres of blood at 4:23 a.m. and 141 milligrams of alcohol per 100 millilitres of blood at 4:46 a.m. She noted that his walk was sure, that his eyes were slightly red, he spoke with slurred speech and ran his words together. She noted an odour of alcohol on his breath. She also recorded that the grounds received from Sgt. Mallett were: erratic driving including driving around a vehicle stopped at a red light; a high rate of speed and proceeding the wrong way down York Street; an odour of alcohol on his breath; and an admission of consumption of alcohol. She also noted that the applicant had scrapes on his forehead.

Oluwafemi Alaga

[34] The applicant is a student at the University of Toronto who was visiting his girlfriend, Lillian Lewis, who lives and works in Ottawa. They went to a restaurant in the market where they left Ms. Lewis's vehicle following dinner and walked to a bar known as the Lobby Bar at Rideau and Dalhousie where they remained from approximately 12:30 to 2:30 a.m.

[35] The couple left the bar and walked back to their vehicle which was located back at the restaurant. Along the way the applicant approached a group of persons and requested a cigarette. An altercation took place which led to the applicant being taken to the ground and struck. He got up and ran to his girlfriend who had preceded him while making a phone call and together they ran to their vehicle. Although it was Ms. Lewis who had not had anything to drink and was the designated driver and who owned the vehicle, the applicant decided to drive because of the incident which had just taken place and because he felt it was his role as a man to drive in that situation.

[36] The applicant drove to the corner of Clarence and Dalhousie. He did not remember any vehicles in front of him although he testified that at that point he was focused on getting away from the scene. He recalled first seeing the police car while he was on York Street just before it splits into eastbound and westbound lanes. He knew he was being pulled over but was unfamiliar with the street and just pulled ahead into a parking spot.

[37] The applicant confirmed Sgt. Mallett's evidence that he, the applicant, got out of the vehicle and approached Sgt. Mallet. He tried to relate the incident concerning his beating but the officer was not interested and asked him whether he had been drinking. He responded that he had consumed three drinks and the last one was 30 minutes earlier. He then claims that he was handcuffed and placed in the rear of Sgt. Mallett's cruiser where he waited for 10 to 15 minutes until Constable Bell arrived.

[38] He confirmed that he did not ask to speak to a lawyer while waiting at the scene and nor was he told by Sgt. Mallett why he was being detained.

Lillian Marengo-Lewis

[39] Ms. Lewis is a public servant who has been the applicant's girlfriend for the past five years. She testified that she and the applicant went out for dinner on August 20, 2011. She is the owner of the silver BMW and was to be the designated driver. She parked her vehicle at the restaurant lot located at Clarence and Parent. They ate at the restaurant from 9 p.m. and when finished walked to the Lobby Bar on Rideau Street and Dalhousie where they met friends. She testified that they left the Lobby Bar around 2:15 a.m., parted company with their friends and began walking back to her vehicle, which, according to the Google map filed of the market area, was five city blocks away.

[40] As they made their way along Dalhousie towards Clarence she made a phone call and the applicant approached a group of people. When her attention returned to the applicant she noted that he was being struck by members of the group and that he then began running towards her. They then ran together to her vehicle on Clarence Street.

[41] The applicant wanted to drive so she got into the passenger seat. She did not see him drive around two stationary vehicles and she thought he was driving at a regular speed.

[42] She saw the applicant exit his vehicle to talk to an officer while she remained in the vehicle. She then observed the officer handcuff the applicant and place him in the rear of his cruiser. Another officer arrived about 10 minutes later. She took several photos on her cell phone. The one taken at 2:53 a.m. she claimed was of the first officer who would have been Sgt. Mallett.

Analysis

[43] Since many of the applicant's Charter breach allegations are premised on certain findings of fact e.g. the length of detention before the demand was made, I propose to deal with the conflicts between the testimony of the various witnesses, make findings of fact and then deal with the Charter arguments on the basis of those findings.

A Chronology of Events

[44] An accurate chronology of events was rendered problematic by the evidence of Sgt. Mallett who made sparse notes of what occurred that evening. He had no note as to when he called dispatch for an ASD or when Constable Bell arrived with it. Although he may have asked the applicant the time of his last drink during the time immediately after the traffic stop, in fact