Court Information

Ontario Court of Justice

Date: 2013-07-30

Court File No.: Regional Municipality of Durham 998 12 13716 & 998 12 PO23456

Parties

Between:

Her Majesty the Queen

— AND —

Thomas Damoff

Judicial Officer and Counsel

Before: Justice J. De Filippis

Heard on: June 5, 2013

Reasons for Judgment released on: July 30, 2013

Counsel:

• Ms. K Pollock — counsel for the Crown
• Mr. K. Mitchell-Gill — counsel for the defendant

Judgment

De Filippis, J.:

Introduction

[1] The defendant was charged with being in care and control of a motor vehicle with a blood alcohol level that exceeded the legal limit, contrary to the Criminal Code of Canada, and with the provincial offence of having a blood alcohol level above zero while being a novice driver, contrary to the Highway Traffic Act. The Defence raised three objections to the admissibility of breath test evidence. For oral reasons given during the trial, I dismissed one objection. The remaining issues are these: Was the "roadside demand" forthwith and were the breath samples taken as soon as practicable? The first issue is linked to a motion to exclude evidence pursuant to sections 8 and 24(2) of the Charter of Rights and Freedoms.

[2] The Crown called three witnesses. The Defence elected not to call evidence. The credibility and reliability of the evidence in this matter is generally not in dispute. For the most part, this case is about the admissibility, not quality, of the evidence.

Evidence

[3] On the night in question, at about 2:30 AM, a motor vehicle driven by the defendant, with two male passengers, was stopped by police as it was about to leave the parking lot of a McDonalds Restaurant. Earlier that morning, the same officers, Constables Crouch and Gibbs, had responded to a noise complaint at a nearby house party. They "broke up the party" because of the number of "youth who were drinking". The officers believed occupants of the motor vehicle may have come from that house.

[4] Cst. Crouch approached the passenger door of the car and learned that the young men had been at a party. He detected a mild odour of alcohol within the vehicle. The officer had the defendant accompany him to his cruiser and observed him to be slightly unsteady. When asked if he had been drinking the defendant stated, "I'm not shit-faced, I'm okay to drive". The officer detected a mild odour of alcohol from the defendant's breath. At 2:31 AM, the officer suspected the defendant "was possibly impaired by alcohol". Cst. Gibbs called for an approved screening device (ASD). It was delivered to the scene by Cst. McMaster at 2:41 AM.

[5] Cst. Crouch testified that he did not "make an ASD demand" immediately upon detecting the odour of alcohol because he obtained the defendant's drivers licence and turned this over to Cst. Gibbs. He observed Cst. McMaster demand and obtain a sample of the defendant's breath. He registered a "fail" which means a blood alcohol level above the legal limit.

[6] At 2:44 AM, the defendant was arrested, cautioned, and informed of his right to counsel. One minute later, a breath demand was made. There is no issue that all this was properly done and that the defendant understood. With respect to his right to counsel, the defendant stated, "I don't have one".

[7] At 2:51 AM, the defendant was transported to the Port Perry police station, arriving at 3:00 AM. Two minutes later, the defendant was reminded of his right to counsel and he responded, "I just want to get on with it". He was placed in a cell and at 3:30 AM, Cst. Crouch brought him to another room where Cst. McMaster was ready to take his breath samples. Before this was done, however, the defendant asked to speak to duty counsel. At 3:38 AM, Cst. Gibbs contacted duty counsel and left a message. Duty counsel called back at 4:00 AM and the defendant had a private conversation with that person. Six minutes later, he was brought back to Cst. McMaster.

[8] Cst. Gibbs also observed the defendant to be unsteady on his feet and added that he noticed his eyes were bloodshot. He testified that when he called for the ASD he thought it would "take a couple of minutes" but, in fact, Cst. McMaster arrived five to ten minutes later. He stated that on arrival at the police station, the defendant was "booked into the cell area and then put into a holding room". During this process the defendant was searched and the "booking form questions were asked. In this regard, the officer explained that "you go through the checklist", including information about medical and other conditions of the detainee.

[9] Cst. McMaster testified that he received a call from Cst. Gibbs at 2:36 AM to bring an ASD to the scene and administered the breath test at 2:43 AM. He said that after the defendant failed the test, he was arrested and taken directly to the nearest police station. Cst. McMaster is a qualified intoxilyzer technician and he seized samples of the defendant's breath using an Intoxilyzer 8000c. He stated that he conducted the requisite diagnostic tests to ensure the instrument was in proper working order. He was ready to take the samples at 3:30 AM. However, at 3:34 AM, in response to a request by the defendant was taken away to talk to duty counsel.

[10] The defendant was returned to the custody of Cst. McMaster at 4:13 AM. Three minutes later the defendant provided a suitable sample of his breath with a blood alcohol reading of 1.65. Following this test, the defendant was invited to participate in "the breath test interview". He agreed to do so and answered all questions. At 4:27 AM he was taken back to his cell to await the second test. This was administered at 4:43 AM with a reading of 1.55. Both readings are well above the legal limit of 0.8. Cst. McMaster confirmed the practice of waiting 17-20 minutes between tests and that, in this case, the delay was 27 minutes. He explained the additional minutes delay by his practice of removing a detainee from the breath room between tests and checking the instrument once again to ensure it is in working order.

Legislative Provisions

[11] Section 254 of the Criminal Code provides that:

(2) 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 …. the peace officer may, by demand, require the person….(b) 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.

(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person

• (a) to provide, as soon as practicable,
• (i) samples of breath that, in a qualified technician's opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person's blood,

[12] Section 8 provides that "Everyone has the right to be secure against unreasonable search or seizure".

Was the ASD Demand "Forthwith"

[13] The Defence submits that there was an 11 minute delay between the time Cst. Crouch detected the odour of alcohol on the defendant's breath and the ASD demand. In fact, the officer testified he detected the odour at 2:31 AM and that the demand was made at 2:41 AM. In any event, according to Cst. McMaster, he received a call to bring the ASD to the scene at 2:36 AM and obtained the breath sample, seven minutes later at 4:43 AM.

[14] The Defence argues that the delay means the demand was not made "forthwith" and cited R v Kerr 2010 ONCJ 189. The following head note accurately summarizes the decision:

Accused charged with driving while over the legal limit. On the day of the incident, the accused was pulled over for speeding, and the officer approached her at 2:11 a.m. At 2:12, when asked if she had had any drinks, the accused replied: "a few". The officer, Tristao, requested an ASD device and was advised one was on its way. Meanwhile, the officer's partner had asked the three passengers in the vehicle to exit the SUV while Tristao spoke with the accused. Tristao stated that for reasons of officer safety, she did not make the ASD demand until she was satisfied her partner was safe. She made the ASD demand at 2:18 a.m. At 2:22, the accused was advised she had failed the test, and she was arrested for driving while over the legal limit. The accused was read her Charter rights at 2:27 a.m. At 3:12 a.m., when reminded of her right to counsel by the breath technician, the accused indicated for the first time she wished to avail herself of the opportunity. After speaking with counsel, she was back in the breath room at 3:24 a.m. and completed her first and second tests at 3:24 and 3:48 a.m. The defence presently sought to exclude the breathalyzer evidence from trial, arguing the accused's Charter rights were breached in that the police failed to comply with the implicit immediacy imperative of s. 254(2) of the Code by not demanding that the defendant provide a sample of her breath for purposes of a roadside screening analysis until approximately six minutes after the predicate reasonable suspicion crystallized….

HELD: Accused found not guilty. The accused's Charter rights were violated and the evidence of her breath test readings was excluded from trial, with the result that there was no admissible evidence that her blood alcohol concentration exceeded the legal limit at the time of her driving. At 2:12 a.m., the officer formed a reasonable suspicion the accused had alcohol in her body. Her primary investigative focus shifted from speeding to drinking and driving. The ASD demand was not made forthwith. It was not first made until some six minutes after Tristao formed the reasonable suspicion contained in s. 254(2) and determined she intended to make the demand. Although there might well be situations where immediacy might have to yield to legitimate concerns for public or officer safety, such a claim could not be indiscriminately or universally invoked so as to pre-empt constitutional compliance. The instant situation did not afford an objective basis for a claim of officer safety. There was nothing exigent or menacing about the stop or the behaviour of any of the occupants of the car. All were co-operative and compliant. Tristao's partner did not seek her assistance or signal any kind of distress. No cognizable justification emerged for the officer's failure to immediately make the ASD demand. In the absence of the demand under s. 254(2) of the Criminal Code, the accused was independently and arbitrarily detained once Tristao formed the reasonable suspicion predicate to making an ASD demand and the concurrent intention to do just that. She was entitled to be immediately informed of the informational component of her s. 10(b) right to counsel. The failure to comport with the implicit requirements of s. 254(2) rendered the seizure of her roadside breath samples unreasonable….

[15] As pointed out in Kerr, section 254(2) authorizes roadside testing for alcohol consumption in violation of sections 8, 9 and 10 of the Charter. The "forthwith" requirement in the section is inextricably linked to its constitutional integrity and represents Parliament's intention to strike a balance between the public interest in eradicating impaired driving and the need to safeguard individual rights. In this regard, "forthwith" has been interpreted to mean "immediately".

[16] The immediacy requirement cannot be considered in a vacuum. As the facts of Kerr amply demonstrate, context is critical to the application of the constitutional and statutory principles. Kerr is about two police officers who stopped a motor vehicle driven by the accused and containing three other men. The stop occurred in darkness in the early hours of the morning. In these circumstances, even with the benefit of hindsight, I question the finding that taking up to six minutes to address officer safety was unreasonable. Moreover, I have difficulty with the proposition that before taking these minimal security precautions, the officers were required to inform the detainee of the right to counsel, including the availability of free advice by legal aid, and facilitate access to counsel.

[17] In my respectful view, Kerr fails to recognize that the forthwith requirement is linked to the opportunity to consult with counsel. Although a motorist is detained when a roadside breath demand is made, there is no right to counsel prior to giving the breath sample, since s. 254 requires that it be given forthwith. Delay is calculated from when the police acquire grounds to make the demand to when an officer has a functioning screening device to present to the driver. Factors relevant to whether there was a reasonable opportunity include the availability of a telephone and the arrival of the device. The amount of time in question is that needed to consult with counsel; that is, not simply to telephone a lawyer, but also to have a conversation with that person: R. v. Torsney (2007) 2007 ONCA 67, 217 C.C.C. (3d) 571 (Ont. C.A.).

[18] In making these observations about the forthwith issue, I am mindful of the fact that the Defence in this case rests its submission on section 8 of the Charter, not the right to counsel as protected by section 10(b). That was also the case in R v Gill 2011 ONSC 6475 in which Justice Dawson stated as follows:

I pause to add that in the present case the respondent alleged that his s. 8 Charter rights were violated, not his s. 10(a) or 10(b) Charter rights. However, there is nothing incongruous about referring to s. 10(b) considerations to determine whether there was a s. 8 violation in the circumstances of this case. When the police obtain an ASD breath sample they are involved in a search. Leaving consent samples aside, that search will not be reasonable unless it was carried out pursuant to a constitutionally valid law. In the case of a breath sample obtained pursuant to an ASD demand under s. 254(2), that demand and the provision of the resulting sample must both take place within the forthwith window for the search to be reasonable. The courts have held that the determination of the length of time that the forthwith window will be open will depend upon an evaluation of whether there was a realistic opportunity to consult counsel, having regard to all the circumstances of the case.

[19] In the present case, there is delay of 10 minutes from the time Cst. Crouch first detected an odour of alcohol from the defendant's breath and the point at which Cst. McMaster made the ASD demand. However, the relevant period of delay is less; it includes the initial interaction between Cst. Crouch and the defendant, the walk to the cruiser, the review of the driver's licence, and the relaying of information by Cst. Crouch to Cst. Gibbs. It is at this point that the grounds to make the ASD demand crystalized. Cst. Gibbs contacted Cst. McMaster to bring the ASD. Cst. Gibbs said he thought the device would arrive in "a couple of minutes" but, instead, it took "5 – 10 minutes". There is no evidence before me about whether, within this time, there was a realistic opportunity to contact and consult with counsel. I find that the police complied with [section 254(2)]; the application to exclude evidence because of a violation of s. 8 of the Charter is dismissed.

Were the Breath Samples Taken "As Soon As Practicable"?

[20] Defence counsel submitted that the breath samples were not taken in compliance with section 254(3) of the Code. This argument was particularly pressed with respect to the delay between tests. In this regard, it is not disputed that the common practice is to wait 17 – 20 minutes between tests.

[21] The requirement that the breath samples be taken as soon as practicable includes the period up to the first test and the time between tests. With respect to the first period, the following evidence is relevant: The defendant was arrested at 2:44 AM. Within the next seven minutes, he was cautioned, advised of his right to counsel, and told he must provide a breath sample. He was transported to the nearest police station, arriving at 3:00 AM. During the next 30 minutes, the defendant was subjected to the booking procedure as noted by Cst. Gibbs. Meanwhile, Cst. McMaster prepared the approved instrument to conduct the breath tests. This did not proceed as planned as the defendant wished to speak to duty counsel. The police telephoned the latter and left a message. Duty counsel called back at 4:00 AM and spoke to the defendant for six minutes. At 4:16 AM, the first breath test was conducted, following which the defendant was interviewed. At 4:27 AM, he was returned to the holding cell, while the qualified intoxilyzer technician waited the standard 17 – 20 minutes and also re-checked that the instrument was in proper working order. The second test was taken at 4:43 AM.

[22] The relevant delay in taking both tests is just under two hours; that is, 92 minutes up to the first test and another 27 minutes between tests. The meaning of "as soon as practicable" is clear: In R. v. Vanderbruggan (2006), 206 C.C.C. (3d) 489, the Court of Appeal for Ontario stated that the tests must be taken within a reasonably prompt time in all the circumstances. The touchstone for determining this is whether the police acted reasonably. It is not necessary for the Crown to account for every minute.

[23] In R v Blacklock, [2008] O.J. No. 1472, the delay between tests was 32 minutes. The trial judge found that to be reasonable. In reversing, the Summary Conviction Appeal Court, noted as follows:

Although the Criminal Code requires that there be at least 15 minutes between the two tests, the common practice is to see a gap of 17 to 20 minutes between the two tests; and no exception is taken to that minor time period. When the delay is in excess of 20 minutes, an explanation is in order. See R. v. Kunsenhauser,…In R. v. Bugler, supra, the Ontario Court of Appeal, in a short endorsement, set aside the conviction where there was a 40-minute delay between the first and second breath tests. The conviction was set aside on the basis that there was " no evidence to account for the 40 minutes " that elapsed between the two breath tests, and therefore, " the presumption of the level of alcohol was not available " to the Crown.

Several cases in the Ontario Court of Justice which have followed Bugler dealt with delays ranging from 29 to 38 minutes, and where no evidence was led to show that the second test was taken as soon as practicable….

The learned trial Judge refused to follow the law as set out in Bugler on the basis that it was a " short endorsement ... lacking in any meaningful analysis of the case at hand ." He found, therefore, that Bugler " gives only very limited direction to the trial courts ".

The learned trial judge further chose not to accept the reasoning of his fellow judges in the cases which applied the Bugler decision.

Instead, the learned trial Judge relied on the decision of the Ontario Court of Appeal in R. v. Vanderbruggen, supra, in concluding that the accused's breath tests were taken as soon as practicable.

It is the Crown's position that the Vanderbruggen decision and cases which follow are the law in the area of " as soon as practicable ".

The decision in Vanderbruggen reviews the meaning of " as soon as practicable ". The trial judge is required to look at the whole chain of events in deciding whether the tests were taken as soon as practicable. The " as soon as practicable " requirement must be applied with reason. According to the court, " The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably ." The Crown bears the onus of proving that the police indeed acted reasonably and performed the breath tests as soon as practicable. Where the breath tests are not taken as soon as practicable, the Crown must provide a satisfactory explanation for the delay. See Vanderbruggen, supra at paras. 12-14 …..

In the case at bar there was no explanation provided at trial as to the reason for the 32-minute delay between the two tests, just as there was no explanation as to the 40-minute delay in Bugler. In such circumstances, the Court of Appeal found that there was no basis upon which to support a statement that the second test was taken as soon as practicable and the Crown was no longer able to rely on the presumption.

However, in Vanderbruggen the Court of Appeal found that there was some reasonable and satisfactory evidence upon which the trial judge found the delay was explained.

Absent such explanation, there is no evidentiary basis upon which to support a statement that the test was taken as soon as practicable, and therefore the Crown should not be able to rely on the presumption.

The circumstances of Bugler are parallel to the case at hand, while the facts in Vanderbruggen are clearly distinguishable.

[24] I am satisfied that the time taken to seize the breath samples has been adequately explained by the Crown and that they were taken as soon as practicable. The three officers called by the Crown accounted for their actions leading up to the first test. I find the first sample was taken in a reasonably prompt time. The delay between the tests was explained by Cst. McMaster. He acknowledged the common practice of waiting 17 - 20 minutes between tests and noted that it is his practice to remove the defendant from the breath room after the first test and any interview while he re-checks the machine to ensure it is in proper working order. This caused the additional delay. There is no evidence to suggest that the practice adopted by Cst. McMaster is inappropriate. In any event, I am not troubled by the fact that it added 7 – 10 minutes to the time that would otherwise elapsed. In all the circumstances, I find the sample was taken in a reasonably prompt manner.

[25] The defendant's challenge to the admissibility of the evidence is dismissed. It follows that the Crown has discharged its burden of proof with respect to the Criminal Code offence of "over 80". This result does not follow with respect to the provincial offence. Although not argued by either counsel, I find that there is no evidence that the defendant is a novice driver. Cst. Gibbs testified that he must have had this status since he was charged with the offence. Needless to say, that is not sufficient.

[26] The defendant is found guilty of being in care and control of a motor vehicle with a blood alcohol level that exceeded the legal limit. The Highway Traffic Act charge is dismissed.

Released: July 30, 2013

Signed: "Justice J. De Filippis"