Court File and Parties

Ontario Court of Justice

Date: 2015-01-13

Court File No.: Halton 121113002473

Between:

Her Majesty the Queen

— and —

John Shields

Before: Justice R.J. LeDRESSAY

Proceedings heard on: September 9 and December 8, 2014

Reasons for Judgment released on: January 13, 2015

Counsel

Arish Khoorshed — counsel for the Crown

Bruce Daley — counsel for the defendant John Shields

Judgment

LeDRESSAY J.:

[1] John Shields is charged that on August 14, 2013 he operated a motor vehicle with a blood alcohol concentration exceeding 80 milligrams of alcohol in 100 millilitres of blood contrary to Section 253(1)(b) of the Criminal Code of Canada.

[2] It was stipulated by counsel that there is only one issue in this case. The issue is whether the "forthwith" requirement in s. 254(2) of the Criminal Code has been met. If not, then the applicant argues that his Charter rights have been breached and he is entitled, pursuant to Section 24(2) of the Charter to have the breath tests results excluded from evidence at the trial.

[3] Section 254(2) reads as follows:

(2) 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:

(a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and

(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.

[4] As noted in R. v. Quansah, 2012 ONCA 123 at paragraph 27, the Constitutional integrity of s. 254(2) depends on interfering with Charter rights but only in a manner that is "reasonably necessary" to keep impaired drivers off the road. The two critical Charter rights are s. 10(b) rights and s. 9 rights, although s. 8 rights are at stake as well.

[5] The facts in this case are straightforward and are not in dispute.

[6] On August 14, 2013 police officer Hexter saw Mr. Shields and a female person exit a bar in Milton. They stopped by their motor vehicles outside the bar and they talked for a short period of time. They then drove away from the bar in separate motor vehicles southbound on Commercial Street. At 4:32 p.m. the officer stopped both motor vehicles.

[7] The officer spoke to Mr. Shields first. He noted that Mr. Shields had a strong odor of an alcoholic beverage on his breath; that Mr. Shields had a reddish complexion; and that Mr. Shields had red, bloodshot eyes. The officer asked Mr. Shields when he had his last drink and was told by Mr. Shields that it was 10 to 15 minutes prior to the stop. Therefore, it was not clearly established that the necessary 15 minute time period had elapsed since Mr. Shields' last drink. The officer testified that because of this response from Mr. Shields and his concern that he did not know what was going on in the other motor vehicle he wanted to deal with that other person as quickly as possible to alleviate his concern that the situation in the other vehicle could go "sideways" quickly. Therefore, Officer Hexter told Mr. Shields that he would be obtaining a breath sample from him and then he went to the other vehicle.

[8] Officer Hexter spoke with the other driver. He formed a reasonable suspicion that she too was operating a motor vehicle with alcohol in her body. She admitted drinking alcohol but told the officer that her last drink was approximately one half hour prior to being stopped. As such, the officer read the approved screening device demand to the female and received a breath sample from her. There was no problem with that breath sample and, as such, she was not arrested and she was allowed to leave the scene.

[9] The officer then returned to the accused's motor vehicle. It was now 4:41 p.m. He read the approved screening device demand to Mr. Shields. At 4:42 p.m. Mr. Shields provided a sample of his breath which registered a fail. He was subsequently arrested, provided with his rights to counsel, cautioned and the breath demand was read to him. He was then transported to the police station where he provided two samples of his breath at 5:39 p.m. and 6:01 p.m. on August 14, 2013. The results of those two tests respectively were 140 and 130 milligrams of alcohol in 100 millilitres of blood.

Legal Framework

[10] The law with respect to the forthwith or immediacy requirement is summed up in paragraphs 45 through 49 in the Quansah decision. The Court said the following in those paragraphs:

[45] In sum, I conclude that the immediacy requirement in s. 254(2) necessitates the courts to consider five things. First, the analysis of the forthwith or immediacy requirement must always be done contextually. Courts must bear in mind Parliament's intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.

[46] Second, the demand must be made by the police officer 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.

[47] Third, "forthwith" connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible interpretation may be given. In the end, the time from the formation of reasonable suspicion to the making of the demand to the detainee's response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2).

[48] Fourth, the immediacy requirement must take into account all the circumstances. These may include a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed to ensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns. These are examples of delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty. Any delay not so justified exceeds the immediacy requirement.

[49] Fifth, 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.

Application to the Facts

[11] In this case, there were unusual circumstances such that Officer Hexter stopped two vehicles at the same time. As noted by the court of Appeal "all the circumstances" must be considered when assessing the immediacy requirement.

[12] The traffic stop took place at 4:32 p.m. The officer briefly dealt with Mr. Shields first. He formed the reasonable suspicion that Mr. Shields had been operating a motor vehicle with alcohol in his body. The immediacy requirement commenced at this point. The officer did not provide Mr. Shields with a formal breath demand but he did indicate to Mr. Shields that he would be taking a breath sample from him.

[13] The officer then went to deal with the second party who had been stopped. The officer testified that he left Mr. Shields to deal with the other party on the basis that this other person was unknown to him and he did not want the situation to get out of control. Second, Mr. Shields had told the officer that his last drink had been some 10 to 15 minutes prior to the stop so the officer thought it was prudent to be sure that 15 minutes had passed since the last drink before taking breath samples into the Approved Screening Device as per his training.

[14] The officer also formed a reasonable suspicion that the second driver had operated a motor vehicle with alcohol in her body, but this person indicated that her last drink was a half hour prior to the traffic stop. As a result he read her the approved screening device demand and received a breath sample from her. This person passed the test and so was allowed to go on her way.

[15] Officer Hexter then returned to Mr. Shields and read him the approved screening device demand. This was at 4:41 p.m. At 4:42 p.m. a breath sample was received from Mr. Shields and it registered a fail on the approved screening device.

[16] There was therefore a delay of approximately 9 minutes from the time the officer formed the necessary suspicion until the actual breath demand was made.

[17] In these circumstances, the delay of some 9 minutes was a reasonably necessary delay to enable the officer to discharge his duty because of legitimate safety concerns enunciated by the officer regarding the necessity of dealing reasonably quickly with the unknown second party that was stopped at the same time. It is also a factor that the officer informed Mr. Shields that he would be returning to take a breath sample from him so Mr. Shields was aware of what was going to transpire and why he had to wait for the officer.

[18] When all of the circumstances are considered in this particular case, the forthwith requirement, in Section 254(2) of the Criminal Code, of a prompt demand and an immediate response has been met. As such, the Charter argument fails.

Conclusion

[19] As agreed by counsel, this was the only issue in the case and, if the Charter argument was unsuccessful, both counsel agreed that the balance of the evidence was sufficient such that the Crown had proven the over 80 case beyond a reasonable doubt. As such, there will be a finding of guilt with respect to the over 80 charge.

Released: January 13, 2015

Signed: "Justice R.J. LeDressay"