Court File and Parties

Court File No.: Brampton 12-12271

Date: September 8, 2014

Ontario Court of Justice Central West Region

Between:

Her Majesty the Queen

— and —

Miel Santiago

Before: Justice Richard H.K. Schwarzl

Heard on: March 5 and July 15, 2014

Reasons for Judgment released on: September 8, 2014

Counsel:

Ms. J. Methurin for the Crown

Mr. R. Baran for the Accused

SCHWARZL, J.:

1.0: INTRODUCTION

[1] The Accused, Mr. Miel Santiago, stands trial on a single count of Driving with Excess Blood Alcohol, contrary to section 253(1)(b) of the Criminal Code. There are four issues to be adjudicated. The first three issues involve alleged breaches of the Accused's constitutional rights under sections 8, 9 and 10(b) of the Canadian Charter of Rights and Freedoms. The remaining issue is whether the breath tests were taken as soon as practicable.

2.0: THE EVIDENCE

2.1: Prosecution Evidence

[2] On September 24, 2012 P.C. Matthew Peers parked his police car in a Mississauga plaza parking lot and watched patrons leaving one of the bars located there. At 12:53 a.m. the officer observed the Accused drive away from the bar and onto the street. P.C. Peers followed him for a short distance and pulled the Accused over to check his sobriety.

[3] While speaking with the Accused, P.C. Peers noticed that his eyes were watery and glossy, and that his breath smelled slightly of alcohol, mingled with the strong odour of cologne in the air. The Accused denied drinking. The officer went to his cruiser briefly to do routine checks on the driver, following which he returned to the Accused's car. The officer could smell the odour of alcohol again coming from both the Accused and his car.

[4] At 12:57 a.m. P.C. Peers suspected the Accused had been drinking and driving and escorted him to the police car to administer a screening test. Within three minutes of first observing the Accused get into his car the officer made a screening demand upon the Accused at 12:58 a.m. On the second try using a properly functioning approved screening device, the Accused registered a fail.

[5] P.C. Peers is aware of the mouth alcohol effect in drink/drive investigations. The officer testified that he did not even think about the issue in this case. However, the officer also testified he took into account the Accused's denial of drinking. The officer testified he had no reason to believe the Accused had last consumed alcohol within 15 minutes of the stop.

[6] At 1:01 a.m. the Accused was arrested for the charge now before the court. The Accused was handcuffed and placed in the back of P.C. Peers' car. The officer then called for a tow truck and another officer to deal with it. That officer arrived on scene at 1:04 a.m.

[7] Between 1:06 and 1:08 the Accused was given his rights to counsel, a caution, and a breath demand, all of which he said he understood. The Accused told P.C. Peers that he wished to speak with a lawyer.

[8] At 1:06 a.m., the qualified technician P.C. Glen Leonardo was notified by radio that he would be needed to perform breath tests.

[9] Between 1:08 and 1:13 P.C. Peers spoke to the assisting officer about the situation. He also spent a couple of minutes doing paperwork. He agreed that his conversation with the other officer and his organization took a short time. P.C. Peers did not recall what else, if anything, happened in this five minute period. At 1:13 a.m. P.C. Peers left the scene with the Accused to transport him to a police station for breath testing.

[10] At 1:17 a.m. they arrived at 11 Division of the Peel Regional Police Services where the breath tests were to happen. They did not immediately enter the station because there were one or two other cruisers with prisoners in front of them and the officer knew it was likely going to be quite a few minutes. They in fact waited outside the station for about 25 minutes until 1:42 a.m. The Peel Regional Police Services has a policy that for safety reasons only one prisoner at a time can be brought into the station for booking and lodging and that new arrivals must wait in the sally port until cleared to enter the secured area of the station.

[11] At 1:36 a.m. P.C. Leonardo arrived at the station. He noticed that the booking sergeant and cells officers were dealing with other detainees ahead of the Accused.

[12] While waiting to get inside the station with the Accused, P.C. Peers took no steps or inquiries to facilitate the Accused's access to counsel. He did not ask the Accused if he had a phone, he did not ask another officer to come out and assist, nor did he make any inquiries if time would be saved by taking the Accused to another police station. None of these things occurred to him. While they waited the officer and the Accused chatted, but not about the case. P.C. Peers had his personal cell phone with him. The Accused did not volunteer that he had one.

[13] P.C. Peers stated that he could not have afforded the Accused any privacy to make a call to counsel while they waited outside because even if he got out, he could still hear someone speaking from within the car. The Accused was cuffed and confined to the squad car. For security reasons, the officer would not have walked the Accused into the station by any public entrance. However, the officer also testified that if the Accused had asked to speak with a lawyer while waiting outside, he would have tried to accommodate the request but did not offer any evidence as to how this could be accomplished.

[14] Once they entered the station, the Accused was booked and lodged in the cells. At 1:45 a.m. P.C. Peers called duty counsel on the Accused's behalf. At 1:48 a.m. P.C. Leonardo allowed the Accused to use the washroom.

[15] Duty counsel called back at 1:57 a.m. and spoke with the Accused in private until 2:01 a.m. at which time the Accused was returned to the cell area awaiting the qualified technician. Sometime between 1:45 and 1:54 a.m. P.C. Peers gave his grounds to P.C. Leonardo.

[16] P.C. Leonardo then set up the video equipment in the breath room. At 2:08 a.m. the Accused was turned over to P.C. Leonardo. At that time, the officer demonstrated to the Accused exactly what was expected of him in order to provide suitable breath samples. P.C. Leonardo also spoke to the Accused about his rights to counsel, who did not express any dissatisfaction with the advice he received from duty counsel.

[17] At 2:22 a.m. the Accused provided a suitable sample of his breath directly into an approved instrument operated by P.C. Leonardo. The result was 192 milligrams of alcohol per one hundred millilitres of blood.

[18] Between breath tests, P.C. Leonardo had the Accused perform a heel-to-toe test.

[19] At 2:46 a.m. the Accused provided a second suitable sample of his breath directly into an approved instrument operated by P.C. Leonardo. The result was 182 milligrams of alcohol per one hundred millilitres of blood.

[20] P.C. Leonardo explained that a second breath test cannot be commenced until at least 22 minutes has passed since the first one. The approved instrument will not permit a second test to be commenced within 17 minutes and in addition the qualified technician must perform further internal tests, which takes a bit of time.

[21] Shortly after 4:00 a.m. the Accused was served with the appropriate paperwork and released.

2.2: Defence Evidence

[22] The Accused testified on the Charter voir dire only.

[23] On the day in question, the Accused had gone to a bar for a friend's birthday party where he had one beer. Later, he went to a restaurant in the same plaza and had some food and a second beer. He was not sure what time he started drinking.

[24] When he started to drive home, the police pulled him over. When the officer asked if he had been drinking, the Accused denied it. He did not know why he lied.

[25] The Accused did not recall receiving rights to counsel at the roadside, but did remember getting them at the station.

[26] The Accused said that the officer did not handcuff him.

[27] The Accused had a cell phone on him at all relevant times. The officer never asked if he had a phone. Had he been told he could do so, the Accused would have called his parents. If the officer had told him that he could call a lawyer, he would have so while waiting outside the police station. However, the Accused agreed that he never told the officer at any time that he wanted to call his parents or a lawyer before entering the station.

[28] The Accused spoke to duty counsel in the station prior to giving breath tests. He was not satisfied with the advice he received but agreed he didn't say anything about this to the police.

3.0: ISSUES AND ANALYSIS

3.1: Did P.C. Peers have a reasonable suspicion to make a screening demand?

[29] The Accused argued that P.C. Peers did not have any reasonable suspicion that the Accused had alcohol in his body, thereby violating the Accused's rights under sections 8 and 9 of the Charter. They submitted that the officer's evidence fell short of establishing reasonable suspicion. I did not call on the Crown to make any submissions regarding reasonable suspicion.

[30] "Reasonable suspicion" means an objectively reasonable expectation by the officer that the targeted individual is possibly engaged in some criminal activity: R. v. Kang-Brown, 2008 SCC 18.

[31] Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience: R. v. Chehil, 2013 SCC 49.

[32] In the case at bar, I find that P.C. Peers had a reasonable suspicion to justify a screening demand based on the following:

• The Accused was driving a motor vehicle;
• He drove it away from a bar;
• He drove the car late at night;
• His eyes were watery and glossy; and
• His breath smelled of alcohol.

[33] The Accused's denial that he was drinking and the smell of cologne that co-existed with the odour of alcohol did not in any way diminish either the subjective belief of P.C. Peers or the objective reasonableness of that belief. The Accused's sections 8 and 9 Charter rights were not violated.

3.2: Was P.C. Peer's reliance on the fail by the Accused of the screening test reasonable?

[34] The defence submitted that P.C. Peers administered the approved screening device test in circumstances that should have alerted him to the realistic possibility of a false positive result, thereby violating the Accused's section 8 Charter right. The Accused argued that the admission by the officer that he did not even consider it means that the officer could not reasonably rely on the screening test results in the circumstances of this case. The Crown argued that the mere possibility of recent consumption was no basis to delay taking a screening test in the circumstances of this case.

[35] The crux of the defence position on this issue is the evidence of P.C. Peers that he did not even think about the mouth alcohol effect prior to administering the screening test. Accordingly he could not possibly rely on the screening test result. However, the officer also testified that he was aware of this issue and that when he asked the Accused if he had been drinking the Accused said he hadn't even though it was obvious from the smell that he had.

[36] Where the police make an approved screening device demand, they have a duty to administer the test "forthwith", which means in no more time than is reasonably necessary to enable the officer to do his duty between the stop and the providing of the breath sample: R. v. Quansah, 2012 ONCA 123.

[37] A police officer who is aware that a detainee has recently consumed alcohol is entitled to wait up to 15 minutes to negate the potential of a false-positive screening test result: R. v. Bernshaw at ¶ 51. Where there is no evidence of recent consumption to warrant a delay, the screening test may be properly administered forthwith. The mere possibility of that a driver has consumed alcohol within the past 15 minutes does not preclude the officer from relying on the screening test: R. v. Einarson.

[38] An officer who observes a detainee to leave a bar is not required to wait 15 minutes where the officer has no information as to the time of the detainee's last drink. The central inquiry is whether there was any reason for the officer to question when the Accused had his last drink. Absent such reason, there is no obligation on the officer to determine when the last drink was: R. v. Bernshaw; R. v. Szybunka, 2005 ABCA 422; R. v. Bridgeman, [2005] O.J. No. 5334 (S.C.J.); R. v. Aulakh, [2006] O.J. No. 5034 (O.C.J.); R. v. Brown, [2014] O.J. No. 1021 (S.C.J.).

[39] In R. v. Mastromartino, Durno J summarized the essential points regarding the "mouth alcohol" issue:

1. Officers making ASD demands must address their minds to whether or not they would be obtaining a reliable reading by administering the test without a brief delay.

2. If officers do not, or reasonably could not, rely on the accuracy of the test results, the results cannot assist in determining whether there are reasonable and probable grounds to arrest.

3. Officers making ASD demands may briefly delay administering the test if, in their opinion, there is credible evidence which causes them to doubt the accuracy of the test result unless the test was briefly delayed.

4. Officers are not required to wait before administering the test in every case where a driver may have been in a bar shortly before being stopped. The mere possibility that a driver has consumed alcohol within 15 minutes before taking the test does not preclude an officer from relying on the accuracy of the screening device.

5. Whether or not officers are required to wait before administering the screening test is determined on a case-by-case analysis, focusing on the officer's belief as to the accuracy of the test results if the tests were administered without delay, and the reasonableness of that belief.

6. The fact the driver is observed leaving a bar is a relevant circumstance in determining whether it was reasonable for the officer to delay the taking of the test in order to obtain an accurate sample. However, officers are not required to ask drivers when they last consumed alcohol.

7. If the officer decides to delay taking the sample and that delay is challenged at trial, the court must decide whether the officer honestly and reasonably felt that an appropriately short delay was necessary to obtain a reliable reading.

8. If the officer decides not to delay taking the sample and that decision is challenged at trial, the court must decide whether the officer honestly and reasonably believed that he could rely on the test result if the sample was taken without delay.

[48] Within three minutes of first seeing the Accused, P.C. Peers made a screening demand. Within eight minutes of being seen leaving a bar, getting into a car, and driving it, the Accused failed a screening test. P.C. Peers was aware of the "mouth alcohol effect." He did not explicitly turn his mind to the mouth alcohol issue but I find he did so implicitly when he asked the Accused if he had been drinking as it is the first question to be asked in this issue.

[49] Beyond the mere possibility that the Accused had last consumed alcohol within 15 minutes of the screening test there was no information demanding an inquiry by P.C. Peers. In this case, when the Accused denied drinking he wished the officer to believe that he had not consumed alcohol, whether recently or otherwise. Given the denial and the absence of any other factor giving rise to more inquiry, there was no reason for P.C. Peers in these circumstances to turn his mind any further to the issue.

[50] I find that P.C. Peers properly relied on the screening test result. The failure of the screening test gave rise to a lawful section 254(3) Criminal Code breath demand. The Accused's section 8 Charter right was not breached in this case.

3.3: Was the Accused's section 10(b) Charter right violated in this case?

[51] The defence argued that by failing to facilitate access to counsel while waiting at the police sally port, the police violated the Accused's section 10(b) Charter right. The defence argued that P.C. Peers slavishly adhered to protocol and failed to adapt to the situation. The defence submitted that the officer's failure to do anything to facilitate access to counsel while waiting in the sally port amounted to an unreasonable delay in implementing the Accused's rights to counsel. The Accused strongly argued that police policy, especially where followed blindly, should not trump a citizen's constitutional rights. The Crown submitted that there was no reasonable opportunity to provide access to counsel prior to entering the police station. The Crown also argued that in any event no evidence was gathered while in the sally port and further that the Accused actually spoke with counsel prior to the breath test procedure.

[52] Police must give rights to counsel before breath or blood samples are provided and must give the detainee (a) sufficient information concerning those and (b) a reasonable opportunity to exercise those rights. The rights to counsel include the right to speak with counsel in private: R. v. Brydges.

[53] Where a detainee wishes to exercise his right to counsel, the police have a duty to provide phone access as soon as practicable to reduce the possibility of accidental self-incrimination and a duty to refrain from eliciting evidence from the individual before access to counsel had been facilitated. The burden is on the Crown to show that any delay in accessing counsel was reasonable in the circumstances: R. v. Taylor, 2014 SCC 50.

[54] When the police facilitate the detainee in the exercise of his rights to counsel, the police must be reasonably diligent: R. v. Wilding, 2007 ONCA 853. However, the police are not required to exhaust all reasonable means for a detainee to speak with a lawyer: R. v. Winterfield, 2010 ONSC 1288 ¶ 46 – 67; R. v. Sharma, [2004] O.J. No. 2991 (S.C.J.).

[55] The test is not whether the police could have done more, but rather did the police provide the accused with the necessary information and assistance to allow the detainee to exercise his rights: R. v. Gentile, [2008] O.J. No. 3664 (S.C.J.) at ¶ 24; R. v. Blackett, [2006] O.J. No. 2999 (S.C.J.) at ¶ 23 - 24.

[56] The detainee is required to be reasonably diligent in the pursuit of his rights: R. v. Leclair and Ross; R. v. Littleford; R. v. Richfield; R. v. Clarke at ¶ 31-33; R. v. Van Binnendyk, [2007] O.J. No. 2899 (C.A.).

[57] Unless the detainee expresses to the police dissatisfaction with advice received, he is not entitled to Charter relief: R. v. Neziol, [2001] O.J. No. 4372 (S.C.J.); R. v. Kumarasamy, [2002] O.J. No. 303 (S.C.J.); R. v. Lachappelle, [2003] O.J. No. 5274 (S.C.J.) at ¶ 94-100; R. v. Cairns; R. v. Burley; R. v. Clarke at ¶ 31- 33; R. v. Traicheff, [2008] O.J. No. 4361 (S.C.J.).

[58] In the case at bar, the Accused was given his rights to counsel upon his arrest and he told the officer right away that he wished to speak with counsel. The officer not only intended, but in fact did, facilitate access to a lawyer before breath tests were taken.

[59] When the police and Accused arrived at the station at 1:17 a.m. they both expected to enter the station without delay at which point Duty Counsel would be called. This did not happen because there were one or two other police cars with prisoners ahead of them. The Peel Police have a safety protocol that mandates only one prisoner at a time be in the station while being booked then lodged in the cells. I find that this is a reasonable policy. It maintains control and bureaucratic efficiency within the station. It reduces potential conflicts with multiple detainees. It reduces the risk to detainees who may not be involved with conflicts between police and other prisoners. However, the policy has the potential, realized in this case, of delaying proceedings for incoming prisoners, which can be problematic where the police are under some pressure to move investigations along expeditiously.

[60] The law is settled that the police do not have to provide rights to counsel prior to administering a screening test unless there is a reasonable opportunity to do so prior to the test. The rationale is that where the police are not in a position to conduct the test right away, the detainee ought to be given the chance to receive legal advice before participating in a procedure that has the potential to incriminate him. This principle also applies where a detainee is subject to a breath or blood demand in that he is entitled to access a lawyer prior to engaging in a potentially incriminating investigative step.

[61] In the case at bar, the Accused wanted to speak to a lawyer before participating in the breath tests. While they sat outside in the squad car for nearly half an hour waiting, literally nothing happened except idle chit-chat. The police undertook no investigative steps and did not in any way seek to have the Accused provide any information that could interfere with his interests. Nor did the Accused say or do anything to incriminate himself.

[62] The officer did little or nothing regarding immediate facilitation of rights to counsel while in the sally port for two reasons. The first reason is that he was following instructions to wait until he received clearance to bring the Accused inside. This caused him to not consider alternatives. This is what the defence calls the blind, and unreasonable, devotion to protocol. Although the officer said he would have tried to accommodate the Accused if he had asked to make a call from the cruiser, I find that there was little the officer could have done if he had been so asked. He could not jump the queue as it was not his call to make. It would be unreasonable to march the Accused into the station through public or otherwise unsecured areas even though the Accused was cuffed and not a safety risk at the moment because that risk could easily change when placed in a less secure environment. Unfortunately, people in stressful situations can sometimes act unpredictably. Furthermore, even if the officer called around for another station with shorter or no waiting times, there would be no guarantee that a qualified technician would be at that other station or that the travel time would not in itself cause further delays. The second reason that P.C. Peers made no efforts to access counsel in the sally port is that he could do little to ensure privacy for any phone call the Accused might be capable of making while waiting. I accept the officer's evidence that even if he were to step out of the car there was every prospect he could still hear the Accused while he was on the phone.

[63] I find that P.C. Peers did not comport himself in a mindless way or in slavish adherence to protocol. He behaved in a reasonable fashion in the circumstances. In particular, he was at all times cognizant of the Accused's desire to speak with a lawyer and he in fact facilitated that contact shortly after entering the station, which was as soon as he reasonably could. In the circumstances of this case, I find that the police provided that Accused access to a lawyer as soon as practicable.

[64] In R. v. Taylor, supra, the police officer never turned his mind to facilitating access to counsel for the detainee before executing a blood demand. The Supreme Court found that it was not a case of delayed access, but rather denied access. Here, access was not denied, but delayed. That delay had no impact whatsoever on the Accused or his rights. The police did not attempt to elicit any incriminating evidence from him and in these circumstances there was no risk that the Accused could or would accidentally incriminate himself. Perhaps the police could have possibly done more – perhaps not - but they were nevertheless reasonably diligent in implementing the Accused's right to counsel.

[65] I did not find the Accused to have been a reliable or credible witness. He said he was not given rights to counsel until he got into the station and said he was not handcuffed both of which are at odds with the police evidence. He lied to the police. Given all of the evidence, I do not believe him. Where there is a difference between the evidence the Accused and the police, I accept their evidence which was given in a consistent, neutral, sober, and careful way.

[66] I also find that the Accused was not reasonably diligent in pursuing his rights to counsel. He said he was dissatisfied with the advice he got from Duty Counsel, but never said anything to the police about it. His choice to remain silent was made at his own peril. Given the conduct of both police officers in this case, I am sure that if the Accused had said he was unhappy with Duty Counsel, one or the other of the officers would have given him further access to legal advice before taking the breath tests.

[67] I find that the Accused's rights under section 10(b) of the Charter were not violated in this case.

3.4: Were the breath tests taken as soon as practicable?

[68] The defence submits that the Crown cannot rely on the statutory presumption of identity regarding the breath test results because the tests were not taken as soon as practicable given the queue outside the police station. The defence argued that the bald statement that there was a lineup outside the station is inadequate to explain the delay. The Crown submitted that in the circumstances of this case the tests were taken as soon as practicable because the police acted both promptly and reasonably in the face of an irregular situation.

[69] Sections 258(1)(c)(ii) and 258(1)(d)(ii) of the Criminal Code require that both breath tests be taken as soon as practicable after a breath demand has been made. These requirements are important for two reasons. The first is the protection of trial fairness by ensuring that the statutory presumption of identity operates both fairly and accurately. The second is to minimize the period of detention endured by the arrestee: R. v. Forsythe, [2009] M.J. No. 438 (C.A.) at ¶ 16 – 25; R. v. St. Jean, [2012] O.J. No. 2684 (O.C.J.) at ¶ 6 – 10.

[70] The phrase "As soon as practicable" means "within a reasonably prompt time in all of the circumstances": R. v. Singh, 2014 ONCA 293; R. v. Vanderbruggen. It does not mean immediately or as soon as possible: R. v. Singh at ¶ 14; R. v. Vanderbruggen; R. v. Squires; R. v. Letford, [2000] O.J. No. 4881 (C.A.); R. v. Price, 2010 ONSC 1898 at ¶ 14 – 21.

[71] There is no burden on the Crown to account for every minute when considering this issue: R. v. Singh; R. v. Vanderbruggen; R. v. Carey, [2006] O.J. No. 3821 (C.A.); R. v. Persaud, [2006] O.J. No. 5363 (S.C.J.) at ¶ 16 – 22. However, the absence or inadequate reasons for the delay may render the delay unreasonable: R. v. Robinson, [2010] A.J. No. 953 (Prov. Ct.). If the passage of time was long or of unusual duration in the circumstances, the Crown must provide an explanation for the delay. The Crown need not prove that other options would have been less reasonable. The Crown must offer cogent evidence of reasonable diligence and the absence of inordinate delay: R. v. Myrick, [1995] N.J. No. 154 (Nfld. C.A.); R. v. Letford, supra.

[72] Here, the Accused was given a breath demand at 1:08 a.m. He completed providing his second breath sample 1 hour and 38 minutes later at 2:46 a.m. This overall time does not appear at first blush to be inordinate for such cases. The question here is whether the delay occasioned in the sally port awaiting entry into the police station caused the entire time to be unreasonable.

[73] I have already concluded that the police practice of processing only one detainee at a time is reasonable. The delay in this case was irregular in that there was one, maybe two, police cars ahead of the one transporting the Accused. The delay is therefore explained and the explanation was reasonable, too. P.C. Peers was at all times attentive to his duties and responsibilities to the Accused and to the case. He was not distracted or diverted from these duties. P.C. Peers acted as expeditiously as he could in the circumstances. The delay was beyond his control. It would unreasonable for the community to devote resources into law enforcement to such an extent as to guarantee a "no waiting" regime. Sometimes unexpected, though reasonable, delays happen. This case is one such instance.

[74] Assessing the evidence as a whole, I find that the breath tests were taken as soon as practicable.

5.0: CONCLUSIONS

[75] On the evidentiary record before me, I find that all of the Accused's constitutional rights were preserved. His Charter applications are therefore dismissed. Additionally, I have found that the breath tests were conducted as soon as practicable. There being no other issues, I find that that the Crown has proven beyond a reasonable doubt that the Accused is guilty of the single count of Driving with Excess Blood Alcohol.

Original signed by The Honourable Richard H.K. Schwarzl

Richard H.K. Schwarzl, Justice of the Ontario Court of Justice

Footnote

[1] The presumption of identity presumes that the blood alcohol concentration at the time of testing is the same as the blood alcohol concentration at the time of driving. The physiology of the absorption and elimination of alcohol can create significant differences between actual and tested blood alcohol concentrations the longer the time between driving and testing.