Ontario Court of Justice

Date: 2013-10-22

Court File No.: Regional Municipality of Durham 998 12 14963

Between:

Her Majesty the Queen

— AND —

Michael Viegas

Before: Justice J. De Filippis

Heard on: October 16, 2013

Reasons for Judgment released on: October 22, 2013

Counsel:

• Mr. R. Connolly, counsel for the Crown
• Mr. Y. Tahmassebipour, counsel for the defendant

De Filippis, J.:

The Charge and Issue

[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 (commonly referred to as "over 80"). There is no question that on October 31, 2012, at the Town of Ajax, the defendant committed this offence. His blood alcohol level was determined through the use of an approved instrument at a police station, after he "failed" an approved screening device at the roadside. That fail is what provided the officer with the reasonable and probable grounds to arrest the defendant and demand the seizure of his breath samples through the approved instrument. The defendant argues that the demand made at the roadside was not "forthwith" as required by law and, consequently, the "fail" evidence was obtained in a manner that violated his right pursuant to section 8 of the Charter of Rights and Freedoms. The forthwith requirement is the only issue in this case and counsel focussed on it. I appreciate their professional approach; it appropriately used limited court resources.

Facts

[2] The evidence is not in dispute. Cst. Boileau stopped the defendant's motor vehicle at 11:11 PM because of minor erratic driving. The officer detected the mild odour of alcohol on the defendant's breath and the latter admitted consumption of alcohol, with his last drink being an hour before he was stopped. This caused him to reasonably suspect that, within the preceding three hours, the defendant had operated a motor vehicle with alcohol in his body. The defendant was detained, and at 11:12 PM, the officer demanded that he provide a sample of his breath into an approved screening device (A.S.D.).

[3] Cst. Boileau did not have an A.S.D. with him and radioed for assistance to have another officer bring one to the scene. Cst. Bastien responded to the call and advised that he was at 19 Division and was completing paperwork on another case and "just leaving". The two officers estimated the distance involved to be between 3 and 5 kilometres. At 11:18 PM, Cst. Bastien arrived with the A.S.D. The officer satisfied himself that the device was an approved instrument and was calibrated within the prescribed period. He turned on the device so that it could perform its own internal testing, demonstrated the use of the machine to the defendant and provided instructions on how to provide a suitable sample. At 11:22 PM, the defendant provided a suitable sample and registered a fail. This provided reasonable grounds to believe that the defendant had committed the present offence and supported the arrest and demand to provide breath samples into an approved instrument.

[4] After arrest, the defendant was advised of his right to counsel. He asked to speak to duty counsel. This was facilitated at the police station. The trip there from the roadside took three minutes. At 11:45 PM, the police left a message with duty counsel on behalf of the defendant. At 12:17 AM (i.e. November 1st), duty counsel called back and spoke privately with the defendant. The consultation was completed at 12:25 AM. The defendant later provided breath samples that revealed a blood alcohol level of 110 (i.e. "over 80").

Legal Framework

[5] Section 254(2) of the Criminal Code provides that:

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.

[6] Section 8 of the Charter provides that "Everyone has the right to be secure against unreasonable search or seizure". The defendant also pleads sections on 9 and 10(b) but, in this case, these assertions add nothing. All Charter claims are grounded in the "forthwith" argument.

[7] Cst. Bouleau testified he did not advise the detained defendant of the right to counsel upon making the A.S.D demand because he knew the device was being delivered from a nearby police station and it would not take long – 'a matter of minutes'. The defendant submits that the officer could not know how many minutes it would take because Cst. Bastien had to first complete another investigation. Moreover, the officer admitted most people carry cell phones and could not dispute one was found in possession of the defendant when he was booked at the police station. In these circumstances, it is argued the officer had a duty to advise of the right to counsel.

The "Forthwith" Requirement

[8] In R. v. Quansah 2012 ONCA 123, it was held that section 254(2) necessitates a consideration of five factors:

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.

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.

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).

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.

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.

[9] In R. v. Gill 2011 ONSC 6475, it was stated that:

Finally, the examination of all the circumstances is not limited to what the officer knew at the time of the demand. In Latour, supra, the appellant argued the officer had to have a reasonable basis to believe he or she was in position to require the sample be provided, in effect, within the "forthwith window." The Court of Appeal disagreed, with Charron J.A., as she then was, finding:

In my view, Parliament did not require that the peace officer have this belief. The section simply provides that, prior to making the demand, the peace officer must reasonably suspect that a person who is operating a motor vehicle (or who is engaged in any one of the other named activities) has alcohol in his or her body. If the peace officer forms the required suspicion, he or she may make a demand that the person provide "forthwith" a sample of breath for analysis in an approved screening device. Of course, the peace officer who makes such a demand is under a duty to act upon it within the statutory limits. If, as the events actually unfold, the peace officer is in a position to require the person to provide the sample before there is any realistic opportunity to consult counsel, the statutory requirements are met. The detained person has no cause for complaint as the events will have unfolded in accordance with the legislative scheme and within its constitutional boundaries. I see no sound policy reason for requiring that the statutory requirements be met by design rather than by chance. Compliance is compliance whether fortuitous or otherwise.

It is therefore my view that all circumstances, including the time elapsed between the demand and the taking of the sample, must be considered in determining whether the police officer was in a position to require that a breath sample be provided "forthwith", that is, before there was any realistic opportunity to consult counsel.

[10] "Forthwith" has been interpreted to mean "immediately" and is linked to the opportunity to consult with counsel. Although a motorist is detained when an A.S.D. demand is made, there is no right to counsel prior to giving the breath sample, since s. 254(2) requires that it be given forthwith. The calculation of delay begins when the police acquires grounds to make the demand and ends at the point to when the officer has a functioning screening device to present to the driver. The opportunity to consult with counsel means more than placing a telephone call; it also includes reaching the lawyer and having a conversation with that person: R. v. Torsney 2007 ONCA 67.

Application to the Facts

[11] In the present case, the defendant was subjected to an A.S.D. demand at 11:12 PM, one minute after he was stopped. That device was presented to the defendant at 11:18 PM. Thus, the relevant delay is six minutes; it took that long for Cst. Bastien to arrive with the device. I note that it took three minutes for the reverse trip when the defendant was taken to the station. This supports the evidence that Cst. Bastien told Cst. Boileau he was completing paperwork and "just leaving".

[12] There is no evidence that the defendant had a lawyer of choice that he could contact at the time in question. Indeed, subsequent events suggest otherwise; when given the opportunity to consult with counsel, he asked for duty counsel. In this regard, I note that it took 32 minutes for duty counsel to respond to the call placed on the defendant's behalf and eight minutes for the consultation to be completed. In any event, there is no basis to conclude that, within the six minutes at the roadside, there was a realistic opportunity to find, call, reach and talk to any lawyer, private or duty counsel. In fact, the only appropriate inference to be drawn from the facts is that consultation with counsel was not possible at this time.

Conclusion

[13] 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. It follows that that the defendant must be found guilty.

Released: October 22, 2013

Signed: "Justice J. De Filippis"