Court File and Parties
Ontario Court of Justice
Date: 2014-05-08
Court File No.: Toronto 4817 998 13 70013537-00
Between:
Her Majesty the Queen
— and —
Kirk Biernaskie
Before: Justice W. B. Horkins
Heard on: April 8, 2014
Reasons for Judgment released on: May 8, 2014
Counsel
Craig Power — counsel for the Crown
Carlos Da Cruz — counsel for the defendant Kirk Biernaskie
W. B. Horkins J.:
Introduction
[1] This is yet another case "involving the tension between the right to counsel and the 'forthright' requirement of compelled roadside breath testing."
[2] The facts of the case are not in serious dispute, the admissibility and presumptive value of the breath testing is.
The Facts
[3] PC Dafoska was at a McDonald's restaurant engaged in an unrelated matter when an employee working the "drive-through" window reported that the last customer she had dealt with seemed to be drunk. In order to follow up on that "tip" the officer followed the customer, the accused, and pulled him over a short way down the road. The officer's onboard camera was activated shortly before pulling the accused over.
[4] The onboard video was played at trial. There is no observable bad driving and none alleged. The accused's car was stopped at 2:10 a.m. Within a minute the officer can be heard speaking at the driver's window. PC Dafoska can be heard explaining to the accused that she suspects that alcohol is involved and that she has sent for a screening device to test the accused's blood alcohol concentration (BAC). The precise wording of this advice is unclear and so there is an issue as to whether this informal discussion of the officer's plan amounts to a "demand" within the meaning of the legislation.
[5] At 2:14 a.m., a request is radioed in by the officer's escort for a roadside screening device (ASD) to be sent out to their location. A third officer, a traffic officer, arrives with the ASD at about 2:25 a.m.; about 15 minutes after the stop; 10 minutes after it was called for.
[6] Being a specialized traffic officer, this third officer, who brought the ASD, was more experienced in these investigations than the initial officer and so he guided her through the use of the ASD and the testing process. The roadside screening test was done at 2:28 a.m.; 18 minutes after the stop. The accused was advised that he failed, was arrested and a demand was made for him to accompany the officer to the station for formal breath testing. It was only at this point in time that he was first advised of his rights to counsel.
[7] The accused arrived at the police station at 2:54 a.m. After having been paraded and booked, duty counsel was paged. There is no evidence of when the page was put out for duty counsel other than it was after the booking process was completed. At 3:30 a.m., duty counsel called back and the accused was placed in a private consulting booth. There is no evidence as to when exactly the accused was finished consulting with counsel. However at 3:44 a.m., PC Dafoska came to get the accused and took him directly to the breath technician for testing. The first test was not conducted until 3:57 a.m.; 13 minutes later.
[8] The breath tests evidenced a blood-alcohol concentration (BAC) of 160 mg per 100 mL of blood; twice the legal limit.
The Issues
[9] There are three significant issues raised by the defence.
[10] Firstly, that the roadside demand and test were not made "forthwith" and therefore it was not a lawful demand or test. Failure of the "forthwith" requirement means that the accused was entitled to be advised of his right to access counsel and was not. Therefore there is both a statutory breach and a 10(b) Charter violation, which ought to lead to the exclusion of the BAC evidence.
[11] The second issue arises from a concern that the lead officer relied on the opinion of the traffic officer that the ASD was in proper working order. The lead officer's only evidence with respect to the proper calibration of the device was that it was four days shy of the date it was due for recalibration. She had no evidence of when it had in fact been calibrated. It is therefore submitted that it was objectively unreasonable for the officer to form the necessary reasonable grounds to believe that the accused was over 80 mg and therefore, the subsequent demand was flawed and the subsequent breath tests should be excluded as an unauthorized and unreasonable search and seizure.
[12] The third issue raised on behalf of the accused is an "as soon as practicable" argument. It is submitted that the breath test results do not trigger the evidentiary presumption of identity relating the readings back to the time of driving, because they were not taken pursuant to the necessary statutory condition precedent that they be taken "as soon as practicable." This concern arises out of certain unexplained periods of time in the chain of events leading to the breath tests.
Analysis
The "Forthwith" Requirement
[13] Section 254(2)(b) of the Criminal Code provides that where 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 police officer may, by demand, require that the person "…provide forthwith a sample of breath…" for an approved screening device (ASD) test.
[14] Despite clarification from the Supreme Court of Canada in R. v. Grant and R. v. Woods there continues to be considerable debate on the meaning of "forthwith" in this section.
[15] The "forthwith" requirement is critical; "254(2) depends for its constitutional validity on its implicit and explicit requirements of immediacy;" R. v. Woods. "Forthwith" means that the breath sample is to be provided immediately; R. v. Grant.
[16] More recently, the Ontario Court of Appeal reviewed the law regarding the "forthwith" requirement in R. v. Quansah. The accused in that case was observed with his eyes closed in his vehicle, facing a green light but not moving. When the police officer woke him up, he proceeded through the intersection. The officer returned to his vehicle and pursued him. Once stopped, the officer observed signs of impairment and made an ASD demand. Seventeen minutes elapsed between the time that the officer formed his initial suspicion that the accused had consumed alcohol and the time of the ASD test. Fifteen minutes elapsed from the actual stop until the test was done.
[17] The trial judge convicted Quansah under section 253(b). In response to the accused's argument that the ASD test was not completed "forthwith," the trial judge indicated that "forthwith means within a reasonable time." Quansah was subsequently granted a new trial on the basis that the trial judge misinterpreted the forthwith requirement. On appeal by the Crown, the Court of Appeal held that the trial judge had erred in stating the law, but that the 17-minute delay was reasonable in the particular circumstances of that case given the accused's bizarre behavior and the need to stop, search and secure the accused prior to conducting further investigative steps.
[18] Justice LaForme, for the court, affirmed that "forthwith" in this section means "immediately" and not just "within a reasonable time." The court did recognize that the forthwith requirement needs to be interpreted flexibly in "unusual" situations. For example, there may be a delay because the officer has concerns about the accuracy of the results, such as when the driver has recently consumed alcohol; or, because the officer needs to ask further questions or perform physical coordination tests to determine if there are grounds for a test; or, where there are public safety concerns that may justify a brief delay.
[19] The Court of Appeal set out five factors to be considered when assessing the forthwith requirement:
The analysis is contextual, and should balance the public interest in eradicating impaired driving and the need to protect Charter rights.
The demand should be made promptly once the officer has a reasonable suspicion that the driver has alcohol in his or her body.
There should be a prompt demand and an immediate response, albeit given some flexibility in special circumstances. "In the end, [the elapsed time] must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2)."
The forthwith requirement should consider all the circumstances, including delays that may be necessary to ensure an accurate result, where an ASD is not immediately available, or where there are safety concerns.
If the police could realistically have provided the driver with his or her right to counsel before requiring the sample, the forthwith criterion is not met.
[20] R. v. Degiorgio introduced the language of a "forthwith window." This window refers to the period of time within which it is constitutionally justifiable to detain a driver without the right to counsel. If the delay in taking the sample is too long, then the forthwith window "closes" and the suspension of section 10(b) will no longer be saved by section 1 of the Charter.
[21] Applying these principles to the facts of the case before me, I would first of all conclude that the demand itself was made "forthwith." The information and advice given by PC Dafoska immediately upon stopping the accused not only fulfilled her obligations pursuant to section 10(a) of the Charter to advise the accused immediately upon detention of the reason for his detention, but also amounted to a "demand" for the roadside screening test. The accused was clearly informed that he was not free to leave and was going to be tested. He was being detained pursuant to the authority in s. 254(2) to detain a driver for compliance with a 254(2) ASD demand.
[22] I find the recent decision of Justice Paciocco in R. v. Dumont to be of great assistance in reaching this conclusion. In that case, the investigating officer had to call for an ASD to be sent to the roadside but, as here, immediately explained to the driver that an ASD was being brought and that he, the driver, would be required to perform the roadside test once it got there. When it arrived, as here, a more formal ASD demand was read to the accused. Justice Paciocco concluded that the conversation prior to the making of the formal demand constituted a sufficient demand to comply with that aspect of the "forthwith" requirement. In the case before me, I am satisfied that the initial conversation sufficiently communicated to the accused that he was compelled to stay until the ASD arrived and a screening test was completed. I therefore conclude that the ASD demand was made "forthwith."
[23] The second part of the "forthwith" requirement concerns delay in the actual testing. It is a statutory requirement that the test be administered forthwith. In order to justify the suspension of the accused's right to consult counsel, it is a constitutional requirement that the officer be in a position to administer the test in circumstances where there is no realistic opportunity to contact counsel. The forthwith requirement in section 254(2) applies to the entire time prior to the administration of the test. The ASD test that was administered here was delayed for about 18 minutes after the initial detention. About 15 minutes of that delay arises solely from the fact that an ASD had to be brought from the station.
[24] In R. v. George, Justice Moore's acquittal of the accused in similar circumstances to this case was upheld by the Court of Appeal. In George, the accused was stopped, a demand was made, an ASD was sent for, it arrived 16 minutes later and the test was done two minutes after that.
[25] George was not advised of his rights to counsel at any point during the wait for the ASD. George didn't tell the officer that he had a cell phone or ask to use it. The evidence was that if he had he been told that he could, he would have taken the opportunity to contact a lawyer. The accused was not given the rights to counsel until after failing the ASD test. This was held to be a breach of s.10(b) and the resulting breath test evidence was excluded without further debate.
[26] In R. v. Cote, the officer made an ASD demand and then, instead of waiting at the roadside, simply drove to the station nine minutes away. At the station there was a further five-minute delay in getting the ASD ready. During the 14-minute delay following the demand, the accused was never advised of his rights to counsel and then refused to do the test. The Court of Appeal found that the "forthwith" requirement had not been met. Once at the station there was a realistic opportunity to use the phone to contact counsel and so the suspension of the accused's 10(b) Charter rights could not be justified.
[27] In the case before me, I know that the accused had a cell phone with him. I know that when he was eventually advised of the right to speak to a lawyer, he did. We also know from the in-car video that while waiting for the ASD to arrive he was allowed to stand outside his vehicle, on his own, for a significant period of time. We can see on the video that he spent part of this time eating his take-out meal. There is no doubt that he could have called a lawyer for advice during the delay occasioned by having to have the ASD sent out from the station. This roadside screening test was not done "forthwith" and the suspension of the accused's Charter rights was not justified.
[28] It follows from my analysis that the ASD demand in this case falls outside of the authority granted by s. 254(2). The detention of the accused and the testing done pursuant to the invalid demand were not authorized by law and so it follows that the accused was subject to an arbitrary detention and an unreasonable search and seizure, contrary to ss. 9 and 8 of the Charter. The accused should have been given his rights to counsel during the delay identified here and so his s. 10(b) rights were also violated.
The Section 24(2) Analysis
[29] In Grant, the Supreme Court articulated the following analytical framework:
When faced with an application for exclusion 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.
[30] In R. v. Mehta, in circumstances sufficiently similar to this case, Justice Lipson applied the s. 24(2) analysis as framed in Grant and reached the conclusion that the evidence obtained had to be excluded. His framework of analysis is a useful template.
The Seriousness of the Charter-Infringing Conduct
[31] The violations of the accused's Charter rights flow from the officer's error in not advising the accused of his right to counsel. The immediacy requirement of the ASD procedure is now well established and uncomplicated. The delay here, as in so many cases in Toronto, was as a result of the officers not having an ASD with them in their patrol car. Having to send to the station for an ASD to be brought out does not amount to a sufficiently unusual or exigent circumstance to afford an exemption from Charter compliance. The conduct here impacted three of the accused's Charter-protected interests.
[32] The seriousness of the conduct in this case favours exclusion of the evidence.
The Impact of the Breach on the Charter-Protected Interests of the Accused
[33] The second stage of the inquiry calls for an evaluation of the extent to which the breaches actually undermined the interests protected by the infringed rights. The impact on this accused was minimal in real terms. He was treated very politely and professionally throughout; he was even allowed to eat his McDonald's take-out food while they all waited for delivery of the ASD. He was not cuffed until after failing the ASD. He was given his rights to counsel after the ASD test and accessed counsel for advice once he was taken to the station. The appellate courts have characterized the whole breath testing regime as being, in the grand scheme of investigative measures, minimally intrusive. The relatively minor impact of the offending conduct on this accused, in this case, favours admissibility of the evidence.
Society's Interest in the Adjudication of the Case on Its Merits
[34] This third line of inquiry includes a consideration that the enforcement of drinking and driving laws is a societal priority and that breath test evidence is generally acknowledged as being very reliable. This third aspect of the analysis favours the admissibility of the evidence.
Balancing of the Grant Factors
[35] The final stage of the Grant analysis requires a balancing of all the considerations canvassed above. This exercise is not a mathematical equation; it is a qualitative assessment focused on the overriding purpose of section 24(2), which is to maintain the good reputation of the administration of justice. Confidence in the justice system is the key objective. This objective is achieved by the court, when necessary, disassociating itself from conduct that violates the Charter. Excluding evidence is not aimed at either punishing the police or at compensating the accused. The object is to preserve the reputation of the administration of justice itself.
[36] In R. v. Delaney, our Court of Appeal acknowledged the need to communicate concerns through providing meaningful enforcement of Charter values:
"the significance of an individual's right to counsel on arrest or detention must be communicated to policing agencies: it is one key feature that differentiates constitutional democracies from regimes in which individuals are detained and held incommunicado for lengthy periods while state agents attempt to procure incriminating evidence."
[37] The focus in the 24(2) analysis is both long-term and prospective, not on the immediate reaction to admission or exclusion in a particular case. In balancing the effect of admitting the evidence on society's confidence in the justice system, having regard to the three lines of inquiry set out in Grant, it seems to me that the seriousness of the Charter-infringing conduct in this case is such that the court cannot be seen to condone the disregard of the law by those charged with its enforcement. I am satisfied that the long-term interests of the administration of justice are better served by exclusion of the ASD results.
[38] Although the exclusion of the breath test evidence is fatal to the Crown's case, I think it is still important to briefly outline my findings on the other issues raised by counsel.
Reasonable Reliance on the ASD Results
[39] I reject the accused's submission that it was objectively unreasonable for the officer to rely on the ASD result.
[40] PC Dafoska was entitled to rely on her colleague, a designated traffic officer, to form an objectively reasonable belief that the ASD device was operating properly. The information that the ASD was due to be calibrated in four days would also support the conclusion that it was still shy of its recalibration due date. The Court of Appeal has held that there is no onus on the Crown to prove that the ASD is working properly. There is no onus on the Crown to prove the accurate calibration of the ASD so long as the operator has a reasonable and subjectively honest belief that it is working properly, and that the registered "fail" indicates a BAC over the legal limit.
[41] The traffic officer that attended the roadside with the ASD not only brought the device to the roadside, but he supervised the lead investigator in operating the device and administering the test. She was entitled to rely on the express and implied assurances of the traffic officer as the foundation for her belief the device was working properly in providing evidence of an unlawful BAC. This issue is therefore resolved against the accused.
The "As Soon as Practicable" Issue
[42] Section 258(1)(c)(ii) of the Criminal Code provides that where breath samples are taken "as soon as practicable" and in the case of the first sample, not later than two hours after the time of driving, then, provided certain other conditions are fulfilled, the prosecution may rely upon the "presumption of identity," which deems the results of the breath tests to be proof of the accused's BAC at the time of driving. It is submitted that the breath test results in this case cannot trigger that evidentiary presumption because they were not taken "as soon as practicable." This concern arises out of certain unexplained periods of time, in the chain of events leading to the breath tests.
[43] The first "gap" in the timeline exists following the booking procedure and leading into the consultation with duty counsel. The accused arrived at the station, in custody at 2:54 a.m. The booking was the next event and following that, a call was put out for duty counsel. There is no direct evidence as to when that call was put out. The call back came at 3:30 a.m. The booking process is a necessary step. Any delay dedicated to waiting for duty counsel is reasonable and for the benefit of the accused. However, without knowing when the call went out, I can't know how much of those 36 minutes is attributable to reasonable steps in the investigation. Ten minutes? Fifteen minutes? Twenty minutes? The whole 36 minutes?
[44] The second "gap" in the timeline is between 3:30 a.m., when the accused is placed in the privacy booth to speak to duty counsel and 3:44 a.m., when he is picked up and taken to the breath room. PC Dafoska was unable to say when the accused had actually finished speaking to counsel, only that she went to get him at 3:44 a.m. So it is open to reasonable speculation that some significant portion of those 14 minutes is not attributable to the accused consulting with duty counsel but perhaps just simply waiting. I have heard cases where the actual consultation was less than two minutes.
[45] The third "gap" pointed to in submissions is from 3:44 a.m., when the accused is taken directly from the "phone booth" to the "breath room" and 3:57 a.m., when the first test is done. There is no evidence as to what transpired during those 13 minutes. I can take judicial notice that a breath technician needs to be briefed by the arresting officer as to certain facts and then has to instruct the accused as to what is required of him in the testing process. It would be unusual for the preliminaries to take more than a couple of minutes and certainly very unusual for it to require as much as 13 minutes.
[46] In Vanderbruggen, the Court of Appeal instructed trial courts that these provisions are to be interpreted in a reasonable manner consistent with Parliament's purpose in facilitating the use of this generally accepted reliable evidence.
[47] A purposive and contextual approach is mandated. It was in recognition of the fading reliability of breath testing evidence that Parliament crafted strict conditions precedent to triggering the extraordinary evidentiary presumptions contained in the legislative scheme. The fact that the first sample was taken very late in the two-hour timeframe required by the statute, amplifies the necessity of a critical review of every phase of the time spent getting the accused to the testing instrument.
[48] The missing minutes in the chronology of events in this case taken individually, may seem relatively minor. However taken cumulatively, because it is the entire chronology that is important, they leave considerable room to doubt that the breath tests were taken as soon as practicable.
[49] Even if I had not excluded the breath test results, without the presumption of identity the Crown would have no evidence of the BAC at the time of driving.
[50] In any event, in light of my decision to exclude the readings under s. 24(2) the Crown is left with no case and the charge is dismissed.
Released: May 8, 2014
Signed: "Justice W. B. Horkins"