Court File and Parties

Court File No.: 14-8464 Location: London, Ontario Date: December 5, 2014

Ontario Court of Justice

Between: Her Majesty the Queen

-and-

Lisa Nicole Martin

Counsel

For L.N. Martin: Daniel Mailer

For Crown: Laura Casey

Reasons for Decision

Justice Jonathon C. George

Facts and Evidence

[1] Lisa Nicole Martin is charged that, on May 13th 2014, without reasonable excuse, she refused to comply with a demand to provide a sample of her breath to enable a proper analysis to be made by means of an approved screening device, contrary to section 254(5) of the Criminal Code of Canada.

[2] The accused alleges that her Charter rights were violated, most notably her right to counsel.

[3] I will summarize the evidence, but little is disputed respecting the facts.

Constable Jane Crosby's Evidence

[4] Constable Jane Crosby testified. She was on patrol on the 13th, uniformed and in a marked cruiser. At or around 10:19pm, as she was driving eastbound on King St. in London, she noticed a vehicle heading towards her. This grabbed her attention as King is a one-way street. Upon noticing the vehicle, it made an immediate right hand turn into a hotel driveway where it stopped. Constable Crosby estimates observing the vehicle in motion for only a second.

[5] With lights activated the officer proceeded into the hotel driveway. There were two female occupants - the accused (who was in the driver's seat) and her friend. Constable Crosby testified that she immediately detected the strong odour of perfume emanating from the driver's side window. The accused told the officer she was just heading home.

[6] The officer interacted with the passenger, Katherine Sadler. Ms. Sadler was described as being "extremely mouthy" and as interfering with attempts to communicate with the accused. The accused indicated she had one glass of wine, and that she had consumed it at least an hour prior to the stop. Then having a reasonable suspicion that alcohol was in the accused' system, the officer made an ASD demand. This occurred at 1027pm.

[7] Constable Crosby called dispatch to request a second car, one which had an approved screening device. She did not have one in her cruiser. Officer Crosby testified she called for the second car prior to formulating the grounds to make the demand, as she wasn't sure what would materialize and wanted to ensure she was prepared should there be a need. While Constable Crosby was still conversing with the accused, and after the demand had been made, Officer Jordan Richardson attended. He provided a working device to Crosby. This device was recently calibrated and was tested by the officer, who determined it was working properly.

[8] After the demand was made, the accused asked what would happen were she to refuse. After the testing and warm-up period, the accused again asked "what happens if I refuse". The officer testified as to the detailed response she provided, which included a description of the various possible test results, what each meant, and that she would be charged with an offence should she refuse.

[9] At this point, even though she was not required to by law, the officer asked the accused if she had a cell phone and if so, whether she would like to call a lawyer. The accused expressed an interest in calling her friend Ms. Sadler. By this point Ms. Sadler had been removed from the vehicle and asked to stand some distance away. The officer did not permit this, insisting that if a call was going to be placed that she would place the call on her behalf to ensure it was a lawyer actually being contacted.

[10] The officer testified that the accused did not appear to be ill or in distress. She described a fairly persistent dialogue whereby the accused continually asked what would happen should she refuse to comply with the demand. The officer recalls specifically demonstrating how the sample should be given and asked whether there was any medical condition that might prevent her from providing the sample. No such reason was provided the officer. The officer also testified to, on several occasions, explaining the repercussions for failing to comply with the demand, advising that several consequences would flow, including arrest, a criminal charge, loss of license, and car impoundment. The officer described this conversation carrying on for about five minutes. Most importantly, even after this exchange the accused indicated that she would not be providing a sample. At 1035pm the officer specifically asked the accused whether she "would like to provide a sample", to which she replied "no I would not".

[11] No sample was provided. The accused was arrested at 1035pm.

[12] Immediately after arrest, and still at 1035pm, the accused was read her rights to counsel. The accused stated that she understood. As indicated already she was given the opportunity to speak to a lawyer on her cell phone, but after being told she couldn't speak to her friend (who was not a lawyer) and after being told the officer would actually place the call, and then hand the phone to her, she declined.

[13] At 1037pm a caution and secondary caution, were read to the accused.

[14] There were two key issues addressed in cross examination. First, it was confirmed that the officer did not, while at the roadside, provide the 1-800 legal aid phone number to the accused. Second, the officer acknowledged that she did not provide what was referred to as the "last opportunity / final chance" to provide the sample.

[15] My impression of the officer's evidence was favourable. It was straightforward and clear. It was presented in a way which minimized the use of notes, except to refresh her memory as to specific times. I accept her evidence, particularly as it relates to her verbal exchanges with the accused.

Officer Jordan Richardson's Evidence

[16] Officer Jordan Richardson testified. He confirmed being present during a part of Constable Crosby's interaction with the accused. He was present when the demand was made; clearly overhearing the accused state she did not wish to provide a sample. The only other role he played was to arrive with the approved screening device and to hand it over to Crosby.

Lisa Martin's Evidence

[17] Lisa Martin testified in her own defence. She testified to having only one glass wine some time prior to the traffic stop. She spoke of meeting up with her long-time friend Katherine and to, after picking her up, leaving for her residence on Tecumseh St. As she was driving in the area near King St., she testified to getting so caught up in conversation that she became distracted, then turning the wrong way onto the one-way street. She testified to immediately realizing her mistake and to pulling into the crescent driveway at a nearby hotel.

[18] After noticing the police lights and upon the officer approaching her vehicle, she described feeling overwhelmed by the situation. She said she was feeling 'frazzled'. She confirms much of the chronology presented by the officer, recounting how she asked to speak with her friend, although she doesn't recall being told that if a lawyer was going to be contacted the officer would have to place the call on her behalf. She confirms that at no point, before being charged with the refusal, was she advised of a toll free legal aid phone number. She agreed as well that her friend would likely come across as being argumentative and abrasive in her interactions with the officer, describing it as her way of being protective.

[19] She spoke of having post-traumatic stress disorder; the result of a serious car accident. I took from her evidence that this was, in part, an explanation for the way she interacted with the officer. This, however, wasn't entirely clear to me other than this was perhaps why she became overwhelmed and frazzled. On this point, there was no clear link drawn between a condition she was suffering from, and an inability to understand what was being communicated to her. In fact, this was a focus of the Crown's cross-examination with the accused indicating that everything was quite clear to her, stating "I knew I would be charged if I didn't provide a sample".

Katherine Sadler's Evidence

[20] Katherine Sadler testified, speaking both to the accused' alcohol consumption that evening, and to her interaction with the police. Not much turned on her evidence.

Analysis

Post-Traumatic Stress Disorder Defence

[21] I conclude there is no basis, founded in the accused disorder, which could lead me to believe she failed to understand the request put to her. This part of the defence fails.

Charter Issues

[22] I conclude as well that there are no legitimate Charter issues relative to section 8, and that the only live issue is respecting section 10(b). The defence also raises the issue of timing of the demand which, it is argued, requires close scrutiny.

Timing and the "Forthwith" Requirement

[23] First, as to timing. At 1019pm Constable Crosby first notices the vehicle and pulls it over. At 1027pm the demand was made, a point at which the officer was not in possession of an ASD. At 1035pm the accused is arrested. The defence, I think, concedes that the officer had a reasonable suspicion that the accused had alcohol in her body and that she had just operated a motor vehicle.

[24] Section 254(2) 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 or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol

(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.

[25] The defence argues that the police did not satisfy the forthwith component. The Crown, obviously, takes a different view. I agree with the Crown. I must assess the time period that begins with the forming of the suspicion. Clearly the demand was made and verbalized forthwith. The defence focused on the availability of the device. The Crown argues that I must assess this having regard to all of the circumstances. Again, I agree. To do otherwise would be to place a requirement on an officer to have in hand, as they interact with an accused at a vehicle, a device. This is impractical and contrary to the state of the law. To the defence point that the forthwith requirement applies not just to the making of the demand but to the providing of the sample, I agree that while there was a passage of some seven minutes from the formation of the suspicion to the point Constable Richardson makes the roadside device available, that the officer was able to explain what was occurring throughout that entire time. There was a proper accounting which explained a delay that was reasonable in the circumstances. This included a lengthy exchange with the accused; the interaction with Constable Richardson; as well as the officer's dealings with the passenger Ms. Sadler. There being no unnecessary delay, this part of the defence fails.

Right to Counsel

[26] Respecting the right to counsel, the defence argues that once Constable Crosby decided to allow the accused to contact counsel, at the time she was detained for the purposes of administering a roadside screening test, that there arose a duty to fully implement and facilitate that right by informing her of the 1-800 legal aid phone number. And not just that, that she had to allow her the time and opportunity to place that call, right then and there, using her cell phone.

[27] Upon my review of the evidence, I am prepared to find that:

• first, the precondition for the demand was met. That is, the officer formed a reasonable suspicion before making a demand.

• second, that the device presented by the officer was in fact an approved screening device. I heard evidence as to the make, model, serial number and date of calibration, which satisfied me on this point.

• third, as already indicated, given there is no unexplained or unreasonable delay in the time from the forming of the suspicion to the device being made available for testing, the forthwith requirement has been met.

• lastly, as part of the forthwith requirement, I am also satisfied that the officer made the demand immediately upon forming the suspicion.

[28] The Crown argues that, at this point, unless there is an unnecessary delay in administering the roadside test, there is no right to counsel. It is suspended. The defence agrees with that, but argues that because the officer raised the issue and offers, at least initially, the opportunity to exercise that right, that by not giving the offer meaning and effect, she violated the accused' Charter rights. Put another way is to say that, although it would have been suspended, the officer's conduct essentially removes the suspension and reengages the right.

[29] To supplement oral argument the defence filed authorities, all of which stand for the proposition that one's right to counsel is an important fundamental right and includes a positive duty on the police to take steps to implement and facilitate access to counsel. This is obviously true, but in this context applies only if I accept the defence argument that there was no suspension of the right.

[30] I was provided the Supreme Court decision in R. v. Taylor 2014 SCC 50, which is not dispositive on this point. It is a binding authority and details general principles respecting the right to counsel and nothing more.

Findings and Conclusion

[31] I believe and am prepared to conclude that Constable Crosby had a reasonable suspicion which enabled her to make the demand. I also conclude that she complied with the forthwith requirement. I accept that the device ultimately presented was in fact an approved screening device. I do agree that the officer did not fully comply with the informational and implementational duties respecting the right to counsel. This, however, occurred at a time when there was no obligation on her part to facilitate the exercising of that right. The actus reus of the offence has been established.

[32] As to mens rea, I find that the accused understood what was being asked of her and that she clearly and unequivocally refused to comply.

Potential Remedies

[33] Should I be wrong, with respect to potential remedies, I conclude that this is not one of the 'clearest of cases' which would warrant a stay of proceedings pursuant to section 24(1) of the Charter. It is also not clear that I would even have had the ability to exclude the very evidence that forms the actus reus of the offence. This is far different from an instance where the violation led to conscriptive or self-incriminating evidence, which in most circumstances would be excluded.

Verdict

[34] There will be a finding of guilt.

December 5, 2014

Justice Jonathon C. George