Court File and Parties

Date: 2014-08-28

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Michael King

Before: Justice J. M. Grossman

Heard on: June 19 and June 20, 2014

Judgment released: August 28, 2014

Counsel:

• B. Cohen, Counsel for the Crown
• P. Calarco, Counsel for the Accused

Judgment

Grossman, J.:

[1] Michael King is charged with the offences of Impaired Care or Control contrary to s. 253(1)(a) of the Criminal Code and Over 80 Care or Control contrary to s. 253(1)(b) of the Criminal Code in consequence of events which occurred on March 26, 2013.

[2] Mr. King brought a Charter Application seeking to exclude evidence pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms on the basis that his rights under s. 8, 9 and 10(b) of the Charter were infringed.

Facts

[3] Officer Paroussoudi testified she was on duty on highway patrol on the Don Valley Parkway and Gardiner Expressway on March 26, 2013. She was travelling northbound on the Don Valley Parkway when she had occasion to observe a vehicle stopped on the right shoulder at about 1:56 p.m. with a male person attempting to change the front right tire. She activated her car lights, stopped behind the vehicle and activated the in-car camera at 1:57 p.m.

[4] As she approached the male, subsequently identified as the Applicant, Mr. King, Officer Paroussoudi testified his speech sounded "odd" and there was a very subtle smell of alcohol coming from his mouth. She also stated he turned his head away when he spoke. He appeared to be fumbling as he looked through his wallet for his CAA card. She testified she developed a suspicion that he had alcohol in his body and at 2:06 p.m. called for an approved screening device (hereinafter referred to as "ASD"). She stated since she was the only car on the highway, she knew it might be fifteen or twenty minutes before it arrived.

[5] She stated a demand was made for a breath sample into an ASD at 2:08 p.m. By 2:12 p.m., she called again to the dispatcher inquiring as to how long it would take. She stated she was told to check neighbouring divisions as Traffic Services was not able to accommodate her request.

[6] The Officer stated when she observed Mr. King moving sand to support the tire jack, in her mind, her grounds became stronger that he was impaired by alcohol. She said as she waited for the ASD, she was building her grounds.

[7] At 2:17 p.m., Mr. King was arrested for impaired care or control. He was given his right to counsel at 2:19 p.m. according to the in-car video time. The Officer said it was 2:16 p.m. He was cautioned at 2:20 p.m. A demand for suitable samples was made. His request to call a lawyer from his cell phone at roadside awaiting the ASD was denied by the Officer.

[8] He was taken to 41 Division which apparently was the closest breath facility and paraded before Sgt. Lockyer. Mr. King was asked a series of questions and responded with a series of answers.

[9] In response to his request, Mr. King spoke to Duty Counsel from 2:10 p.m. to 2:16 p.m. He entered the breath room at 3:23 p.m. and provided two suitable breath samples. At 3:31 p.m., his reading was 127 mgms of alcohol in 100 millilitres of blood. At 3:52 p.m., his reading was 121 mgms of alcohol in 100 millilitres of blood.

[10] He was served with a Certificate of Qualified Technician and released at 5:52 p.m.

[11] Mr. King testified. He stated he was involved in a motor vehicle accident early in the day and was on his way to an auto wreckers to get parts when a tire on his vehicle blew out and shredded on the Don Valley Parkway near Wynford Drive. When he had difficulty changing it, he walked up the Wynford Drive ramp, hailed a cab and went to a bar to ponder what he would do. He consumed two double vodkas.

[12] He decided to call CAA for assistance. Realizing they required him to be with the vehicle, he returned to his car. Within five minutes of his return, he stated Officer Paroussoudi arrived. While she was there, he tried to jack the car up to get the tire off.

[13] Mr. King agreed he turned his head away from the Officer when he was on the phone with CAA because of the noise from passing traffic. He said he had no intention to drive the vehicle as it needed to be towed and it needed repairs.

[14] He agreed he was trying to pack the dirt to make the tire jack more sturdy. He wasn't playing in the sand.

[15] He testified he wanted to speak to a lawyer and had the name and number of a lawyer who he knew had normal business hours from Monday to Friday from 9:00 a.m. to 5:00 p.m. He said he never had any problem contacting his lawyer before. Her phone number was programmed into his cell phone. She was the citizenship lawyer who eventually referred him to a lawyer who practiced criminal law. He did not know he was allowed to speak to a lawyer and would have called. It was only later when Duty Counsel was mentioned that he said he wanted to speak to a lawyer. He stated he made it "pretty clear" he wanted to speak to a lawyer right away.

Charter Analysis

[16] The Charter argument raises allegations of breach relating to Section 8, 9 and 10(b) of the Charter.

[17] Section 8 states:

"Everyone has the right to be secure against unreasonable search or seizure."

[18] Section 9 states:

"Everyone has the right not to be arbitrarily detained or imprisoned."

[19] Section 10(b) states:

"Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right."

Detention

[20] There is no doubt on the evidence, Mr. King was detained. He testified he knew he could not leave the scene. He knew he could not walk away. Officer Paroussoudi testified as soon as the ASD demand was made at 2:08 p.m., he was not free to leave. She stated: "he is detained theoretically, he can't run away."

[21] The case law supports the view once a demand is made, the person is detained. In R. v. George (2004), 187 C.C.C. (3d) 289, 23 C.R. (6th) 181 (Ont. C.A.), Gillese J.A. stated at p. 187 of the C.R. citation as follows:

"… To begin, it is accepted that where a roadside breath demand is made, the driver is detained and his or her s. 10 rights under the Charter are prima facie triggered."

[22] Once detained, Mr. King had the constitutional right to retain and instruct counsel without delay and to be informed of that right upon his initial detention while awaiting the arrival of the ASD. See R. v. Grant (1991), 67 C.C.C. (3d) 268 at 277-278.

The "Forthwith" Requirement

[23] The Officer placed the first call requesting an ASD at 2:06 p.m. The demand was made at 2:08 p.m. The Officer agreed she knew immediately there would be a problem securing the device when she first called at 2:06 p.m. She testified she was the "only car on the highway" and this caused her to believe it might be 15 to 20 minutes before the device arrives.

[24] She called again at 2:12 p.m. and was invited to call neighbouring divisions.

[25] Mr. King was arrested for impaired driving at 2:17 p.m. Officer Paroussoudi stated the period of time between arrest and arrival of the ASD was 21 minutes. That would place time of arrival at 2:38 p.m. The in-car video shows the Officer leaving the scene with Mr. King at 2:28 p.m. Whether the Officer's watch or the in-car camera time are significantly incorrect matters not as much as the reality that Mr. King was detained for a reasonable period of time awaiting the arrival of the approved screening device.

[26] To make a roadside screening device demand, the Officer need only have a reasonable suspicion of alcohol in the body. The Officer detected the smell of alcohol coming from Mr. King's breath moments after her arrival on scene at 1:56 p.m. and turning on the in-car camera at 1:57 p.m. Indeed, she testified she smelled the odour of an alcoholic beverage coming from his mouth as she approached him. Yet her demand was not made until 2:08 p.m. She testified she waited only 6 or 7 minutes before making the demand.

[27] "Forthwith" means "immediately" or "without delay". (See R. v. Woods (2005), 2005 SCC 42, S.C.C. 42, [2005] 2 S.C.R. 205 at para. 13.) Furthermore, "the 'forthwith' requirement of s. 254(2) of the Criminal Code is inextricably linked to its constitutional integrity." (See R. v. Wood supra at para. 29.)

[28] In R. v. Quansah, [2012] O.N.C.A. 123 (OCA), H.S. LaForme J.A. stated at para. 46 as follows:

"… the demand must be made by the police officers 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."

[29] He continues at para. 49:

"… 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."

[30] From time of demand to time of arrival of the device, 30 minutes passed. In R. v. Grant (supra) at p. 277, Lamer C.J.C. states as follows:

"In my opinion, the actions of the officer in this case fell outside of the ambit of s. 238(2). The demand made was not the demand authorized by s. 238(2), that Mr. Grant provide a sample of his breath "forthwith." Instead, the demand made was a demand that he provide a breath sample when the required apparatus arrived, which turned out to be half an hour later. It follows that Mr. Grant was under no obligation to comply with the police officer's demand, and did not commit the offence under s. 238(5) when he failed to do so. The context of s. 238(2) indicates no basis for departing from the ordinary, dictionary meaning of the word "forthwith" which suggests that the breath sample is to be provided immediately. Without delving into an analysis of the exact number of minutes which may pass before the demand for a breath sample falls outside of the term "forthwith", I would simply observe that where, as here, the demand is made by a police officer who is without an A.L.E.R.T. unit and the unit does not, in fact, arrive for a half hour, the provisions of s. 238(2) will not be satisfied."

Building Grounds During Detention

[31] The tension between the right to counsel and the right to demand that a breath sample be supplied "forthwith" by means of an approved screening device has been previously addressed in the case law. Compounding this issue is the apparent evidence that upon realizing the device was not on its way and having been cautioned there may be a timing problem in getting the device, the Officer begins "building my grounds". The Officer conceded she was told there would be too much traffic, it would be way too long and "your time will be a mess". So she begins building her grounds.

[32] As I listened to her testimony, I was troubled by her comment that there were quite a few moments which unfortunately could not be seen. The in-car camera was started 1 minute after her arrival and portrayed a true picture of events.

[33] The Officer testified Mr. King was mumbling and she couldn't clearly understand what he was saying. I found his speech appeared to be clear and understandable. She stated he did not answer her questions directly. I heard his answers to be responsive to questions. In Cross-examination, she agreed he was responsive to all her questions. In the booking hall, he was responsive as well.

[34] She referred to Mr. King playing with soil from the ground "like a child in a sandbox". Mr. King stated he was compacting the soil to steady the tire jack for the blown tire for which the CAA tow truck called by him eventually arrived on scene.

[35] The Officer spoke of her experience investigating collisions as the number one thing that she does. She also stated she has worked in Traffic Services for a few years and has dealt with impaired offences very often. Yet she was not aware of the location of 41 Division where the breath tests were to be conducted and needed assistance from other officers. She mentioned she observed him swaying. I saw no evidence of that at roadside, in the booking hall or breath room.

Right to Counsel Violation

[36] She did not inform Mr. King of his right to counsel after she made the roadside approved screening device demand at 2:08 p.m. She first advised him of his rights after arrest at 2:17 p.m. some time after recognizing the arrival of the ASD would be delayed.

[37] She knew Mr. King had a cellular phone. She saw him using it when he was speaking with CAA. She conceded this in her testimony. She also agreed she did not allow him to contact counsel until he was at the station. She stated she was not going to let him make a call at the side of the road. She said the option of talking on the cell phone "is out of the circumstances". She said she was "not going to allow him to get in touch with counsel".

[38] Was there a realistic opportunity for Mr. King to consult with counsel? I look to all the relevant circumstances.

[39] In R. v. Torsney, [2007] O.N.C.A. 67; 2007 ONCA 67, 217 C.C.C. (3d) 571 (Ont. C.A.) at para. 8, the Court commented on the difference between "a realistic opportunity to consult with counsel" with the "mere chance to place a call to a lawyer".

[40] In many cases, the relevant time is some time after midnight and before early morning and realistically challenges the likelihood of reaching and consulting with counsel. In Torsney (supra), it was 2:32 a.m. In R. v. Devji, [2008] O.J. No. 1924 (S.C.J.), it was 3:15 a.m.

[41] Mr. King had his lawyer's phone number programmed into his cell phone. It was mid-afternoon on a Tuesday and he testified his lawyer had always been reachable during weekday business hours. The Officer clearly stated she was not going to allow him to get in touch with his counsel even though she was aware the arrival time of the ASD was uncertain and clearly delayed.

[42] In R. v. George (supra), Gillese J.A. refers to R. v. Cote, (1992), 11 C.R. (4th) 214 (Ont. C.A.) as follows:

"In Cote, Arbour J.A. explicitly stated that the ready availability of a telephone was a relevant factor for the court to consider in determining whether a detainee had a realistic opportunity to consult counsel during the period of delay between the issuance of the demand and the production of the breath sample."

[43] The time from the demand until the arrival of the device was approximately 30 minutes. In R. v. George (supra), it was 16 minutes. In R. v. Singh, [2005] O.J. No. 4787 (C.A.), it was 11 minutes from demand to the arrival of the ASD and a further 6 minutes to testing. In R. v. Pilon, [2006] O.J. No. 701 (S.C.J.), it was 5 minutes to arrival of the ASD and a further 2 minutes to testing. In R. v. Latour, (1997), 116 C.C.C. (3d) 279 (Ont. C.A.), it was 8 minutes from demand to the arrival of the ASD and a further 4 minutes to testing.

[44] Officer Paroussoudi chose not to administer the ASD testing. Rather, she relied on her observations before its arrival which I have already commented on.

[45] I am satisfied there was a realistic opportunity for Mr. King to consult with counsel after being detained. The Officer also stated she would not let Mr. King phone "for my safety". Yet she qualified that comment by adding "unless forty minutes passes". In other words, if the delay in her mind reached forty minutes, she would allow him to phone his lawyer and apparently, with the passage of time, her safety concerns would dissipate. This reasoning is difficult to discern.

Limited Use of Screening Evidence

[46] The Officer detained Mr. King using the time to build her grounds and obtain evidence. I refer to R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3, [2005] S.C.J. No. 37 at para. 58 relating to the limited use that can be made of compelled evidence collected during the screening process:

"58 Finally, the limitation meets the proportionality test. As the Crown concedes, the evidence obtained as a result of the motorist's participation without the right to counsel can only be used as an investigative tool to confirm or reject the officer's suspicion that the driver might be impaired. It cannot be used as direct evidence to incriminate the driver: see R. v. Milne, (1996), 107 C.C.C. (3d) 118 (Ont. C.A.), at pp. 128-31, leave to appeal refused, [1996] 3 S.C.R. xiii; R. v. Coutts, (1999), 45 O.R. (3d) 288 (Ont. C.A.); R. v. Ellerman, 2000 ABCA 47, [2000] 6 W.W.R. 704 (Alta. C.A.); and R. v. Roy, (1997), 117 C.C.C. (3d) 243 (Que. C.A.). The rationale for this limitation was first set out in Milne and is founded on the purpose of the s. 10(b) right to counsel. This Court described the purpose of the right to counsel in R. v. Bartle, [1994] 3 S.C.R. 173, in these words, at p. 191:

The purpose of the right to counsel guaranteed by s. 10(b) of the Charter is to provide detainees with an opportunity to be informed of their rights and obligations under the law and, most importantly, to obtain advice on how to exercise those rights and fulfil those obligations: R. v. Manninen, [1987] 1 S.C.R. 1233, at pp. 1242-43. This opportunity is made available because, when an individual is detained by state authorities, he or she is put in a position of disadvantage relative to the state. Not only has this person suffered a deprivation of liberty, but also this person may be at risk of incriminating him- or herself. Accordingly, a person who is "detained" within the meaning of s. 10 of the Charter is in immediate need of legal advice in order to protect his or her right against self‑incrimination and to assist him or her in regaining his or her liberty: [Brydges, [, [1990] 1 S.C.R. 190]](https://www.canlii.org/en/ca/scc/doc/1990/1990canlii123/1990canlii123.html) at p. 206; R. v. Hebert, [1990] 2 S.C.R. 151, at pp. 176-77; and [Prosper [, [1994] 3 S.C.R. 236]](https://www.canlii.org/en/ca/scc/doc/1994/1994canlii65/1994canlii65.html). [Emphasis in original.]"

[47] The Officer testified she was building her grounds after detaining Mr. King and awaiting the ASD. The use to which investigative tools and evidence gathered at the roadside may be used is discussed by Moldaver J.A. (as he then was) in R. v. Milne (1996), 107 C.C.C. (3d) 118.

[48] At p. 128 in reference to roadside coordination tests meant to be an investigative tool, he states:

"These tests were not meant to provide the police with a means of gathering evidence that could later be used to incriminate and convict the motorist of impaired driving at trial. Indeed, in my view, had that been their purpose, s. 48(1) would not pass s. 1 Charter scrutiny. This distinction requires elaboration, since it plays an important role in my conclusion that admission of the test results at trial to incriminate the motorist would render the trial unfair."

[49] At p. 129, he continues:

"I am not prepared to accept that s. 48(1) would survive s. 1 Charter scrutiny if it were found to be a device by which the police could gather evidence for the purpose of incriminating a motorist at his or her impaired driving trial. In my view, such a scheme would impermissibly broaden the scope and purpose of the testing procedures contemplated by s. 48(1). It would also render it constitutionally permissible for the police, acting on mere suspicion, to compel a detained motorist to participate directly in the creation of self-incriminating evidence that could later be used to convict the motorist at trial, absent any requirement that the motorist be advised of his or her s. 10(b) Charter rights. To my mind, such a scheme would not pass s. 1 Charter scrutiny."

[50] At p. 131, he states:

"I find it difficult to comprehend how the right to counsel, as it relates to the self-incrimination component, could be said to have been impaired as little as possible if the compelled and self-created incriminatory evidence gathered at the roadside could be used for trial purposes to convict a motorist."

[51] I acknowledge no such coordination tests were administered to Mr. King. However, he was detained awaiting an ASD which was never used on arrival. The delay period was used to gather evidence and the Officer conceded she used the time to build her grounds. The observations she relied upon do not appear to be corroborated by the in-car camera which recorded the events.

Conclusion on Charter Violation

[52] I am satisfied Mr. King was detained and there was a realistic opportunity available to reach and consult with counsel. Crown counsel referred to this as "the luxury of a phone call to counsel". I refer to it as entitlement to the full protection of the Charter right to counsel of which he was intentionally deprived.

[53] In R. v. George (supra), the Officer did not inform the accused of his right to counsel at any point waiting for the ASD. The Officer was not aware the accused had a cell phone. Officer Paroussoudi was aware Mr. King did have one. In George, the accused testified on the voir dire that if the officer had given him the opportunity to call a lawyer, he would have done so. Mr. King testified likewise.

[54] At para. 42 of George, Gillese J.A. states:

"In the instant case, the officer was aware that there would likely be a delay of fifteen to twenty minutes before the screening device arrived. In the face of that information, it was incumbent upon the officer to take reasonable steps to facilitate the respondent detainee's right to consult counsel. Such steps would involve asking the detainee whether he had a cellular telephone. In this case, the evidence is that the respondent would have used his cellular telephone and called his lawyer. I consider the proximity of the cellular telephone more fully below."

[55] In George, the trial judge and summary conviction appeal judge were upheld in finding a violation of the right to counsel under s. 10(b) of the Charter and excluding the breathalyzer evidence and acquitting Mr. George.

[56] I share the same view taking into account all of the circumstances as they relate to Mr. King. I have troubling apprehension in relation to Officer Paroussoudi's evidence particularly where her observations differ from those depicted on the in-car camera.

[57] The rights of any individual guaranteed under the Canadian Charter of Rights and Freedoms are to be cherished, respected and upheld. Denying one's right to consult counsel when there was a realistic opportunity available to do so with a cell phone present during a significant delay on a Tuesday afternoon challenges that entitlement.

Final Decision

[58] Accordingly, I am satisfied Mr. King's Charter rights have been violated and in considering the guidelines in R. v. Grant (2009), 2009 SCC 32, 245 C.C.C. (3d) 1 (S.C.C.), the appropriate remedy pursuant to s. 24(2) is to exclude the observations and Certificate of Qualified Technician. There being no resultant admissible evidence, I find Mr. King not guilty on both counts of Impaired Care or Control and Over 80 Care or Control.

Released: August 28, 2014

Signed: "Justice J. M. Grossman"