Court File and Parties

Court File No.: St. Catharines - 2111-998-12-F1637-00

Date: 2013-08-16

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Shawn Falkiner

Before: Justice D.A. Harris

Heard: April 16 and July 12, 2013

Reasons for Judgment delivered: August 16, 2013

Counsel:

J. Richardson, for the Crown

D. Hurren, for the Defendant, Shawn Falkiner

Reasons for Judgment

HARRIS J.:

Introduction

[1] Shawn Falkiner is charged with operating a motor vehicle when the concentration of alcohol in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood.

[2] He is also charged with possessing cocaine.

[3] Crown counsel elected to proceed by summary conviction. Mr. Falkiner entered pleas of not guilty. A trial was conducted. At the conclusion of the trial, counsel for Mr. Falkiner conceded that there was sufficient evidence to warrant a finding of guilt with respect to both charges. He argued however that I should exclude that evidence pursuant to the Canadian Charter of Rights and Freedoms on the basis that Mr. Falkiner's rights, as guaranteed by sections 8, 9, and 10(b) of the Charter had been infringed.

[4] Mr. Falkiner is before me today to receive judgment with respect to that issue.

The Issue

[5] Counsel for Mr. Falkiner argued that the demand for an approved screening device test was not proper in that the demand was not made "forthwith" and that the test itself was not conducted "forthwith" as required by the Criminal Code. He argued further that I should therefore exclude the results of that test and also exclude the results of the subsequent approved instrument tests and finally also exclude the evidence of the discovery of the cocaine during a search incidental to arrest.

[6] All other arguments were abandoned.

The Evidence

[7] The following is a summary of the evidence relevant to the Charter argument.[1]

[8] Constable Neufeld saw Mr. Falkiner driving a motor vehicle in Fort Erie at 11:16 p.m.

[9] The motor vehicle crossed the centre line once. It stopped at an intersection where Constable Neufeld observed that the vehicle validation tag was expired.

[10] Constable Neufeld followed the vehicle another 500 to 700 metres before it entered a driveway at the rear of Mr. Falkiner's residence.

[11] Constable Neufeld approached the vehicle, observing that Mr. Falkiner was in the driver's seat, Ms. S[2] was in the front passenger seat and another male was in the rear passenger seat.

[12] Constable Neufeld told Mr. Falkiner that he had stopped him in order to check his sobriety in light of him crossing the centre line and to deal with the expired validation tag.

[13] Constable Neufeld noted the odour of an alcoholic beverage at that time.

[14] Mr. Falkiner informed Constable Neufeld that he was coming from the Alley Bar, about a three to four minute drive from there. He had consumed a few beers.

[15] Constable Neufeld returned to his vehicle where he did police computer inquiries regarding all three people and he prepared an approved screening device for use. During cross-examination, he said that he prepared the latter in case he needed it. At that time he was still formulating his grounds with respect to any suspicion that Mr. Falkiner had alcohol in his body. Constable Neufeld wanted to speak to Mr. Falkiner outside of his vehicle and obtain more information as to when he had been drinking before making a final decision.

[16] The computer check revealed that Ms. S was breaching a probation order that prohibited her from consuming alcohol. Constable Neufeld was already aware of a prior incident in which it had been alleged that Ms. S had resisted arrest. He decided to deal with her first for officer safety reasons.

[17] He arrested her at 11:23 p.m. He handcuffed her and placed her in the rear seat of his police car.

[18] He then went back to the driver's side of Mr. Falkiner's vehicle and asked Mr. Falkiner to get out of that car and then to walk to the front of the police car.

[19] Constable Neufeld then observed the odour of an alcoholic beverage specifically coming from Mr. Falkiner's breath and noted that his eyes were red.

[20] In the conversation that followed, Mr. Falkiner explained problems that he was having with renewing the validation tag. He also repeated that he had come from the Alley Bar after drinking six Red Bull beers. The last one was "about 10 minutes ago".

[21] Constable Neufeld then formed the reasonable suspicion that Mr. Falkiner had alcohol in his body and therefore read the approved screening device demand from his notebook at 11:25 p.m. He then explained to Mr. Falkiner that they would have to wait 15 minutes before taking the test as a result of the short time that had elapsed since his last drink.

[22] At 11:31 p.m., he instructed Mr. Falkiner as to how to provide a proper sample of his breath into the device and Mr. Falkiner did provide such a sample on his second attempt.

[23] The result, at 11:32 p.m. was an "F" or "Fail". That gave Constable Neufeld reason to then believe, on reasonable and probable grounds that Mr. Falkiner had a blood alcohol concentration greater than 80 milligrams of alcohol in 100 millilitres of blood and he arrested Mr. Falkiner for the "over 80" offence.

[24] Eventually, this led to breath tests involving an approved instrument that established that his blood alcohol concentration was 130 milligrams of alcohol in 100 millilitres of blood. It also led to a search that revealed a small quantity of cocaine in his possession.

[25] Mr. Falkiner testified that he had not crossed the centre line with his motor vehicle and that Constable Neufeld had never been close enough to observe his validation tag.[3]

[26] Other than that, he said nothing to contradict the police officer.

Law

[27] The relevant portion of section 254(2)(b) of the Criminal Code states that:

(2) If a peace officer has reasonable grounds to suspect that a person has alcohol … 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.

[28] This section clearly requires that the sample be provided "forthwith". Unlike other similar sections, there is no express requirement that the demand must be made "forthwith" or "as soon as practicable" or within any other time period.

[29] However, in R. v. Pierman, [1994] O.J. No. 1821 (Ont. C.A.), Arbour J.A. stated at para. 5 that:

… it seems clear to me that although the section merely requires that the sample be provided "forthwith" after the demand is made, and does not require that demand itself be made "forthwith" after the person is stopped, it is implicit that the demand must be made by the police officer as soon as he or she forms the reasonable suspicion that the driver has alcohol in his or her body.

[30] It is settled law as well that the "forthwith" requirement applies to the entire time prior to the administration of the screening test. That would of course include the time leading up to making the demand.

[31] In R. v. Bernshaw, [1994] S.C.J. No. 87 (S.C.C.), Sopinka J., writing for the majority, stated that it is appropriate "to give a broad interpretation to the meaning of forthwith"[4] and that courts should adopt a "flexible approach" in determining whether the police had complied with this requirement.[5]

[32] He expressly provided that a police officer was entitled to wait 15 minutes prior to taking a screening sample when the officer had concerns about possible residual mouth alcohol being present.

[33] In R. v. Quansah, 2012 ONCA 123, [2012] O.J. No. 779 (Ont. C.A.), LaForme J.A. stated at para. 31 that:

This court has made it very clear that Bernshaw is not authority for the principle that any delay of 15 minutes or less before making the demand meets the forthwith requirement, "no matter what the reason for the delay": …

[34] He went on to examine and approve several examples where the immediacy requirement would be met. In para. 40 he specifically approves three examples suggested by Hill J. in R. v. Fildan, [2009] O.J. No. 3604 (Ont. S.C.J.) at para. 39. These examples are:

(1) Where the police officer takes further reasonable steps (such as sobriety and physical coordination tests) to determine whether there are reasonable grounds for an intoxilyzer demand, or

(2) Where the officer asks questions to learn the amount of alcohol said to have been consumed – with confidence that only one drink was consumed, the constable may direct the motorist on his or her way, or

(3) Where a legitimate public safety or similar exigencies arise justifiably explaining a brief delay preventing immediate communication of a formed intention to demand and undertake ASD testing.

Analysis

[35] In Quansah, supra, LaForme J.A. concluded at para. 52 that:

In my respectful opinion, articulation of the precise linguistic equivalent for "forthwith" is less important than a careful consideration of all the circumstances of the particular case. The legal context for this consideration is the objective that "forthwith" sets out, namely a prompt demand and an immediate response, ultimately taking no more than the time reasonably necessary for the prompt performance of the steps contemplated by s. 254(2).

[36] In this case, the initial direct contact between Constable Neufeld and Mr. Falkiner was at 11:16 p.m. A suitable screening sample was obtained at 11:32 p.m. In the intervening 16 minutes, Constable Neufeld investigated and arrested Ms. S for breaching her probation order and restrained her in his police car for officer safety reasons.

[37] He also activated his approved screening device, asked further questions of Mr. Falkiner while Mr. Falkiner was outside of his vehicle, discovered a possible residual mouth alcohol issue and waited the requisite time to remedy that last issue.

[38] There is absolutely no doubt in my mind that, under these circumstances, no more than the time reasonably necessary to enable Constable Neufeld to do his duty elapsed between the stop and the providing of the screening sample.

[39] Constable Neufeld made the demand forthwith and the screening sample was provided forthwith.

[40] Had Constable Neufeld not asked Mr. Falkiner to step out of his vehicle for further investigation, counsel for Mr. Falkiner would have been able to argue that Constable Neufeld could not say for sure that Mr. Falkiner and not Ms. S was the source of the odour of an alcoholic beverage present in the car.

[41] Had he not waited for 15 minutes to elapse before conducting the screening test, counsel for Mr. Falkiner would have been able to argue that he should have.

[42] The steps taken by Constable Neufeld in order to ensure officer (and public) safety were reasonable ones and done in a timely manner.

[43] Constable Neufeld did not infringe Mr. Falkiner's rights in any way.

Exclusion of Evidence

[44] In any event, even if I found that there was such an infringement, I would not have excluded the evidence.

[45] In order to determine whether I should exclude the evidence pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms, I would have to apply the test set out in R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32 (S.C.C.), at para. 71, that:

… under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to:

(1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct),

(2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and

(3) society's interest in the adjudication of the case on its merits.

The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

[46] After balancing the assessments under each of these lines of inquiry, I have determined that admission of the evidence here would not bring the administration of justice into disrepute and I would not have excluded the evidence even if I had found that Mr. Falkiner's rights had been infringed.

[47] I should point out that in reaching that conclusion, I have taken note of the obiter comments at para. 111 in Grant that:

While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused's privacy, bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability. On the other hand, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused's body may be admitted. For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive. [Emphasis added.]

[48] Previously, it often seemed that any infringement of the rights of those accused of drinking and driving would result in the automatic exclusion of the breath results. This passage would appear to indicate that this will not always be the case now and in the future.

Conclusion

[49] The application to exclude evidence is dismissed.

[50] That being the case, I agree with counsel for Mr. Falkiner that the Crown has proven guilt here beyond a reasonable doubt. Accordingly, I find Mr. Falkiner guilty of both charges and convictions are registered.

Released: August 16, 2013

Signed: "Justice D.A. Harris"

Justice D.A. Harris

Footnotes

[1] A good portion of the evidence in this case dealt with other issues, including possible "bolus drinking". In light of the concessions by counsel, which were well supported by the evidence, I will not be repeating any of that evidence here.

[2] I see no reason to identify this person further and will use the initial instead.

[3] Counsel for Mr. Falkiner never asked me to accept the evidence of Mr. Falkiner on these points. Had he done so, I would have declined. By his own admission, Mr. Falkiner had been drinking and his recollection of events was imperfect. In addition he was in no position to observe, let alone to comment on, his own driving that night. I did not believe him with regard to this.

[4] R. v. Bernshaw, [1994] S.C.J. No. 87 (S.C.C.), at para. 70.

[5] Ibid, at paras. 72–74.