WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. Identity of offender not to be published.—(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. Identity of victim or witness not to be published.—(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

112. No subsequent disclosure.— No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. Offences.—(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1, as amended;

DATE: 2014·07·08

COURT FILE No.: Y125806

Citation: R. v. N.(A.), 2014 ONCJ 331

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

A.N., a young person

Before Justice Brian Weagant

Heard on August 26, 2013; January 27, April 23, 2014.

Reasons for Judgment released on July 08, 2014.

Ms. Jody Milstein ................................................................................... counsel for the Crown

Mr. Jeff Mass .......................................................................... counsel for the defendant A.N.

WEAGANT, J.:

[1] A.N., a young person within the meaning of the Youth Criminal Justice Act, stands charged that in the early hours of February 16, 2012, in the City of Toronto, that she drove a motor vehicle having more than the limit of 80 milligrams of alcohol per 100 millilitres of blood, and also that she operated a motor vehicle while she was impaired.

[2] The evidence necessary to make a finding of guilt on either charge, was gathered after A.N. provided a sample of her breath into an approved roadside testing device. It is A.N.'s claim that this sample was collected in a way that offends her s. 8 Charter right (and consequently her s. 9 and 10 rights) and that all evidence gathered after that violation should be excluded from evidence under s. 24(2) of the Charter.

[3] For what I say below, I agree with the accused young person concerning the constitutionality of the roadside demand. Further, after weighing the factors set out in the analytic framework contained in R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32, it is my view that all of the subsequently collected evidence, if admitted, would bring the administration of justice into disrepute.

The Facts

[4] Sometime around 1:00 a.m. on February 16, 2012, Khaldoun Abu-Alhaija was stopped at a red light going westbound on Eglinton Avenue at Spadina. He was going home in an airport limousine, which he drives for a living. When the light turned green the two cars ahead of him moved away slowly and as he was beginning to accelerate, he was rear ended. It was his belief that the car behind him was not stopped at the light, but was travelling westbound and obviously misapprehended the speed of the vehicles responding to the green light.

[5] After the accident, the driver of the offending vehicle came to the window of Mr. Abu-Alhaija's car. The driver was a young woman and she was upset and irate. She accused Mr. Abu-Alhaija of doing this for the insurance and she expressed, loudly, her concern for how her father was going to react. Mr. Abu-Alhaija remembers smelling an odour of what he believed to be alcohol.

[6] The police were called, but not by Mr. Abu-Alhaija.

[7] At 1:10 a.m. Officer Adrian Terzo of the Toronto Police Service received a radio call to attend a two auto collision at Eglinton Avenue West and Chaplin Crescent. He was working on a RIDE program at Avenue Road and Lawrence, roughly five-plus minutes away. He 'wrapped up' the RIDE detail and went to the collision, arriving at 1:24 a.m., according to his notes. There he saw a Lincoln limousine and a Hyundai Elantra. He did not observe significant property damage. He noted that the Hyundai was registered to a Food Equipment business and the other car was a 2007 Lincoln airport limousine.

[8] He spoke first to A.N. to check if she was alright (on his second day of testimony, Officer Terzo said he checked on the health of the other driver first; but, this is of little consequence). A.N. was standing outside of her car for the conversation. The Officer enquired as to her state of health and got a brief statement of what occurred. She was asked to identify herself at this time and she produced a driver's licence indicating her date of birth being April 11, 1994, making her 17 years at the time. Officer Terzo made no observations of any signs of impairment during his conversation with A.N. However, he did smell what he believed to be an alcoholic beverage on her breath. Officer Terzo, not having an approved roadside screening device with him, radio called for his RIDE partner, Dennis Bossert to come to the scene. Officer Terzo testified that this call was made at 'about' 1:27 a.m.. Officer Bossert testified that he was dispatched from the RIDE location before 1:24 a.m., thus raising the possibility that Officer Terzo's times are off, or that the watches used to give the court times were out of synchronicity by as much as 5 minutes.

[9] In any event, Officer Bossert, according to his timepiece, arrived at the scene at 1:28, 5 minutes after being cleared by the radio room. The Officers notes reveal that at 1:35 A.N. was placed in Officer's Bossert's cruiser. At that point Officer Bossert instructed Officer Terzo to give the screening device demand if he had not already done so. The demand was then given.

[10] When these times are pieced together using Officer Bossert's watch alone, the time between Officer Terzo forming his 'reasonable suspicion and the Criminal Code demand being made was not less than the time between 1:23 a.m. to 1:35 a.m. -- at least 12 minutes and perhaps more. The test itself was completed 2 minutes later.

[11] A.N. failed her roadside test and was arrested for 'over 80’. The Officer testified that he had insufficient grounds to arrest her for impaired driving. She was read her rights to counsel and she indicated she wanted to speak to counsel. A demand for a breath sample was also made by Officer Terzo. After being placed under arrest, A.N. started to cry and in the police car she sat slumped over. The Officer testified that she slurred her words in the police car, although he made no note of this at the time. This piece of testimony must be placed between the evidence that there were no signs of impairment prior to arrest and the fact that the police booking video reveals a young woman in normal control of her language. On this issue of 'slurred speech', the officer’s testimony is unreliable.

[12] At the police station A.N. requested to go to the washroom. She was heard vomiting. This could be due to nervousness, drunkenness, or even that A.N. wanted to purge her stomach of any undigested alcohol in preparation for the breathalyser test. I do not know and can therefore not conclude that the vomiting is consistent with impairment and impairment only.

[13] A.N. asked to speak to her mother and although the Officer tried, she could not be reached. She did speak with Duty Counsel and she was brought to the 'breath room' at 2:59. Her first test result was obtained at 3:05. She blew 163. The next test was administered at 3:28 and she blew 151. The unexplained discrepancy in times on various watches, noted above, certainly puts into issue whether the first test was administered within two hours of A.N. driving a car. However, this case is being decided on other grounds.

[14] I note A.N.'s father was on the scene fairly quickly, raising the inference that A.N. had a cellphone which she used to call her father before the police arrived. Although he was observed speaking with his daughter early on in the narrative, after her arrest A.N.'s father specifically asked to speak to her and was told he could not by Officer Bossert.

Analysis

[15] It is well settled that the "forthwith" contained in section 254(2) of the Criminal Code (roadside testing demand) means something close to "immediately" after forming the suspicion that the driver has alcohol in her system. Indeed, 254(2) "...depends for its constitutional validity on its implicit and explicit requirements of immediacy." (R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205 per Justice Fish.).

[16] Since A.N. was effectively detained at the moment Officer Terzo formed his suspicion and set on a plan of action to test A.N. at the roadside, the failure to comply with the immediacy requirement in making the demand strips the demand of its constitutionality, and thus leads to violations under s. 8, 9 and 10 of the Charter. The moment Officer Terzo formed his reasonable suspicion, this became a criminal investigation.

[17] That being quite easy to decide, I must move to the more difficult part of the analysis, and that is whether the evidence flowing from the unconstitutional detention should be admitted into evidence. Following Grant (supra), I must balance and assess the effect of admitting the evidence having regard too 1) the seriousness of the Charter infringing police conduct, 2) the impact of the breach on the rights of the accused, and 3) society's interest in the adjudication of the case on its merits.

[18] The caselaw is interesting, as in most of the cases with similar fact situations, the impact on the citizen and society's interest in the proper disposal of the litigation favour admission of the evidence. Where judges seem to differ the most is on the question of the seriousness of the breach and how it should be weighed in the balance (see R. v. Beattie, [2009] O.J. No. 4121 per Duncan J.; R. v. Rambissoon, [2009] O.J. No. 6354; and R. v. Mehta, [2012] O.J. No. 5587 per Lipson J.).

[19] There was nothing preventing Officer Terzo from making a roadside breath test demand immediately after he formed his suspicion. In fact, he was rather nonchalant in his approach to this, testifying it was his belief that he simply had to give the demand as soon as possible or practicable or even "... when the circumstance is warranted, as soon as possible, as soon as I can, then I give the demand." It was quite clear from this testimony that Officer Terzo had no idea what the law is on this point. When cornered with a statement of the law from counsel, Terzo came up with an explanation for the delay that made no sense -- he had to direct traffic, he had to phone his partner, and he had to confer with his partner when he arrived so that Officer Bossert would not be taken by surprise. None of these activities, if they indeed are the genuine explanation for the delay, created impediments to the Officer complying with the requirement of immediacy. Officer Terzo actually had to be directed by Officer Bossert to make the demand, if he had not done so, at 1:35. I ascribe no ill-will to this constitutional sloppiness, but it is serious when an officer that routinely detains motorists at the roadside (he was working the RIDE program earlier), is not well instructed in the law that governs police conduct.

[20] For me, that would be enough to decide this case and to say that if I were to look the other way and admit the evidence, I would certainly be participating in disreputable justice. However, there is a much more compelling reason why the conduct of the Officer was serious -- so serious that when weighed against the factors that favour admission of the evidence, there is little contest.

[21] My last statement stems from the fact that the citizen in this case was a young person within the meaning of the law and that fact separates this case from all those put to me by counsel.

[22] The Youth Criminal Justice Act's preamble contains the following statement:

WHEREAS Canada is a party to the United Nations Convention on the Rights of the Child and recognizes that young persons have rights and freedoms, including those stated in the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights, and have special guarantees of their rights and freedoms.

[23] The preamble is part of the legislation. However, lest there be any controversy over the role played by the philosophy of the preamble, the Declaration of Principle, section 3, explicitly imports and rearticulates this philosophy:

(i) young persons have rights and freedoms in their own right, such as a right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of their rights and freedoms.

Further, the youth justice system is charged with the obligation of ensuring this principle is brought to bear, and courts are given explicit instruction to construe the Act such that this will happen:

(2) This Act shall be liberally construed so as to ensure that young persons are dealt with in accordance with the principles set out in subsection (1).

[24] Justice Abella, writing for the Supreme Court in R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3, found that the guarantees of section 7 of the Charter embraced a presumption of diminished moral blameworthiness or culpability for young persons; because of their age, young people have heightened vulnerability, less maturity and a reduced capacity for moral judgment (at para. 41).

[25] In R. v. S.J.L., 2009 SCC 14, [2009] S.C.J. No. 14, Justice Abella, writing in dissent, said that “… Parliament intended that procedural rights of young people be emphatically protected, and supports an interpretive approach that respects, rather than derogates from, their enhanced protection and special guarantees.”

[26] It is the notion of 'heightened vulnerability' that is the basis for all of the law and principle quoted above.

[27] If the Preamble and the Statement of Principle are to have any meaning, then it is the adults, law enforcement officers and lawyers who deal with young persons that must take responsibility for ensuring the 'special guarantee of their rights'. This means, in my opinion, that even a police officer investigating a possible 'over 80' must guard most jealously the rights of the young person being investigated.

[28] In the present case and simply put, nothing even approximating jealous guarding was brought to bear. In fact, there seemed to be a certain nonchalance associated with the investigation.

[29] On this notion of the 'nonchalance' of the investigation, I noted a seemingly irrelevant fact earlier on -- that A.N.'s father was told he wouldn't be able to speak to his daughter since she was under arrest. It must be asked why that had to happen in this case (other than because it is police routine) when A.N. had, arguably, a right to have a parent, lawyer or other adult present while complying with the breath demand, an exercise of collecting conscriptive evidence that is not too different from making a statement to the police (from the point of view of the young person). Where is it written that parents must be separated from their children at police stations? I only raise this point to underline the fact that routine police work does not concern itself with the obligation on the police to ensure that A.N.'s rights were given a special guarantee because of her age.

[30] In my view, all of the evidence collected after the faulty demand for roadside testing should be excluded under 24(2), lest the reputation of the justice system would be brought into disrepute.

Released: July 8, 2014.

Justice Brian Weagant