Court File and Parties

Court File No.: Brampton 13-4908 Date: May 6, 2015 Ontario Court of Justice Central West Region

Between: Her Majesty the Queen — and — Julian Johnson

Before: Justice Richard H.K. Schwarzl

Heard on: March 13, 2014 and March 16, 2015

Reasons released on: May 6, 2015

Counsel:

• Ms. M. Ward and Mr. P. Quilty for the Crown
• Mr. J. Sandhu for the Defendant

SCHWARZL, J.:

1.0: INTRODUCTION

[1] One April morning, the Defendant's car was pulled over by the police for speeding. During the ensuing investigation the police made a screening demand on the Defendant, who never provided a breath sample. As a result, he was charged with failing or refusing to provide a suitable breath sample.

[2] Two issues arose during the trial. The first is whether or not the screening demand was valid. If it was not valid, there was nothing for Mr. Johnson to refuse. If it was valid, I am asked to consider whether or not the Defendant's rights to counsel was violated.

2.0: ISSUES

2.1: Was the screening demand valid?

[3] The Defendant argued that the officer's demand did not meet the legal requirement that it be made "forthwith." He submits that there was an unreasonable delay between the officer deciding to make the demand and actually making it. The Crown submits that the demand met all legal requirements and was thus valid.

[4] Section 254(2) of the Criminal Code requires that a roadside screening demand must be made forthwith by the police. Once the demand is made, the Defendant has a duty to comply with it forthwith. In R. v. Quansah, 2012 ONCA 123, the Ontario Court of Appeal emphasized that when deciding whether or not the "forthwith" requirements have been met the trial judge must make a careful consideration of all the circumstances of the particular case. The legal context for this consideration is the objective that there be a prompt demand and an immediate response, ultimately taking no more than the time reasonably necessary for the prompt performance of the steps contemplated by the Criminal Code.

[5] Before dealing with the "forthwith" question, there is a factual dispute I must deal with first. Even though the Defendant did not make any submissions regarding this, I feel I owe it to the Defendant to reconcile some conflicts in the evidence. The investigating police officer testified that he stopped the Defendant at 7:22 a.m. for speeding and that when he went to the car window to talk to the driver, the Defendant's breath smelled of alcohol and his eyes were bloodshot and watery. The combination of driving and the smell of alcohol on the driver's breath formed the foundation upon which the screening demand was made a few minutes later.

[6] The Defendant testified that he was not speeding and that he had not been drinking any alcohol.

[7] I do not believe the Defendant. His denial of drinking was never put to the officer. The Defendant's evidence is contradicted by the evidence of two police officers: P.C. Farrell and P.C. Galbraith, both of whom noted that the Defendant's breath smelled of alcohol. The Defendant's denial of speeding was contradicted by P.C. Farrell and was undermined by his own evidence that he was not paying attention to the speed limit which means he had no way of knowing if he was speeding or not. He also said that everything at the scene was calm, which is the opposite of what both officers described.

[8] I believe P.C. Farrell that he smelled alcohol on the Defendant's breath. The officer was a very good witness. His evidence makes sense as there would be no reason to make a screening demand unless he believed the driver had been drinking. Also, P.C. Farrell's evidence is corroborated by P.C. Galbraith who independently detected alcohol on the Defendant's breath.

[9] I also find as a fact that the Defendant was driving too fast; P.C. Farrell's evidence that the Defendant was speeding is not contradicted by any credible evidence. The officer's evidence that he followed the Defendant and paced him over a distance at 75 in a 50 zone is entirely believable.

[10] The Defendant's claim that he was stopped due to his race is unsupported by any evidence and I reject that claim.

[11] I find that the police had a valid basis upon which to make the screening demand because the officer smelled alcohol on the breath of a person who was driving a car.

[12] Returning to the "forthwith" issue, the chronology of the making of the demand is not in dispute. The Defendant was stopped at 7:22 a.m. and the demand was made five minutes later at 7:27 a.m. It is this gap of five minutes that the Defendant submits resulted in an invalid demand. I disagree.

[13] Mr. Johnson was stopped at 7:22 but it took P.C. Farrell a minute or so before he went to the Defendant's car while he radioed his dispatcher with the details of the situation to that point. He then walked to the car and told the driver he was stopped for speeding. The Defendant started arguing with the officer. The officer demanded that the Defendant produce his licence, ownership and insurance. Mr. Johnson took some time to locate then show his licence and insurance. The Defendant failed to produce his ownership so the officer had to make a second demand for that. The officer also spoke to Mr. Johnson about where he was coming from. All of this took time. All of the time that P.C. Farrell took after stopping the Defendant was a reasonable amount to perform the duties engaged when stopping any motorist for an apparent infraction.

[14] Within a minute of dealing with the Defendant, the officer was able to detect the odour of alcohol on the Defendant's breath and noticed that his eyes were red and watery. He did not make any kind of demand right away because that observation was the just the first one of several others. The officer wanted to check the physical coordination and memory of the driver by observing his reaction to being asked for documents. The officer wanted to test the mental acuity of the driver by asking him questions including where he was coming from. In other words, P.C. Farrell wanted to eliminate the possibility the driver was impaired before deciding whether he should proceed with a screening demand and test. This process took time. It was not until 7:27 a.m. that the officer determined that the situation did not rise above mere suspicion to the level of reasonable grounds to believe the driver was impaired. Immediately upon eliminating impairment the officer made the screening demand.

[15] In considering the totality of the evidence that I have accepted, I find that P.C. Farrell's screening demand was based on good reasons to make it. I also find that his demand was made forthwith within the meaning of the Criminal Code.

2.2: Were the Defendant's rights to counsel violated?

[16] In the context of drink/drive investigations the police are not generally required to provide rights to counsel prior to arrest even though the person is detained: R. v. Thomsen (1988), 40 C.C.C. (3d) 411 (S.C.C.); R. v. Grant (1991), 67 C.C.C. (3d) 268 (S.C.C.); R. v. Bernshaw (1995), 95 C.C.C. (3d) 193 (S.C.C.); R. v. Elias; R. v. Orbanski (2005), 2005 SCC 37, 196 C.C.C. (3d) 481 (S.C.C.); R. v. MacMillan, 2013 ONCA 109.

[17] The absence of rights to counsel is contingent upon the police acting within the screening demand scheme of the Criminal Code. Rights to counsel must thus be given where there is a realistic opportunity to consult with counsel prior to requiring the subject to provide a breath sample into an A.S.D.: R. v. Pierman and Dewald (1994), 92 C.C.C. (3d) 160 (Ont. C.A.); R. v. Latour (1997), 116 C.C.C. (3d) 279 (Ont. C.A.); R. v. George (2004), 187 C.C.C. (3d) 289 (Ont. C.A.); R. v. Torsney (2007), 2007 ONCA 67, 217 C.C.C. (3d) 571 (Ont. C.A.); R. v. Quansah, 2012 ONCA 123; R. v. Taylor, 2014 SCC 50.

[18] The police do not have to allow a detainee to use a phone at the roadside to exercise rights to counsel unless there is a realistic opportunity to consult with counsel prior to requiring the subject to provide a sample into an approved screening device, for example where the police are aware that there will be an unreasonable delay in the arrival of the approved screening device: R. v. Smith (1996), 105 C.C.C. (3d) 58 (Ont. C.A.); R. v. Quansah, 2012 ONCA 123; R. v. Taylor, 2014 SCC 50.

[19] In this case, I find the following facts: Mr. Johnson's car was stopped by P.C. Farrell at 7:22 a.m. At 7:25 P.C. Farrell requested that an approved screening device be brought to him. His request was made when he realized that the investigation might go one of two ways: first by finding reasonable grounds to believe the driver was impaired, or second by finding only a reasonable suspicion to require compliance with a screening test. P.C. Galbraith left the scene at 7:25 to retrieve the screening device.

[20] After P.C. Galbraith left for the station, P.C. Farrell continued his investigation and made his valid screening demand at 7:27 a.m. The Defendant was upset, angry, and argumentative with P.C. Farrell throughout. The Defendant outright refused to provide a breath sample because he felt he was stopped unjustly. P.C. Farrell cautioned the Defendant that it was a crime to refuse the demand and tried to reason with the Defendant and calm him down but Mr. Johnson refused to listen. P.C. Farrell made a "soft demand" by explaining the demand informally to which the Defendant replied, "Lock me up, then." The defendant also refused to come to the cruiser to take the screening test. P.C. Farrell reasonably believed the Defendant would not blow and at 7:31 a.m. he arrested the Defendant for failing to comply with the screening demand. P.C. Galbraith arrived with the approved screening device at 7:38 a.m., being 13 minutes after it was requested, 11 minutes after the demand, and 7 minutes after the Defendant was arrested.

[21] I believe P.C. Farrell's testimony that he thought the approved screening device would arrive within 10 and 15 minutes. There is nothing in the evidence that either his belief or this period was unreasonable. Nor is there any evidence to believe that there was a reasonable opportunity for the Defendant to consult counsel prior to the device's arrival. To the contrary, the evidence is that the Defendant was so upset and unreasonable that it is more likely than not that it would have been difficult to facilitate any contact with a lawyer while he was in that state of mind.

[22] Between 7:27 a.m. when the demand was made and 7:31 a.m. when the Defendant was arrested for refusing to provide there was no reasonable opportunity to consult with counsel. The Defendant's right to counsel was not violated prior to his arrest.

[23] After the Defendant was arrested, the approved screening device arrived at 7:38 a.m. P.C. Farrell tried to get the Defendant to blow into the device because he hoped the Defendant would pass the test and be released without charge. The Defendant continued to refuse despite P.C. Farrell's fair and generous continuing efforts. The Defendant was not given his rights to counsel until 7:41, some 10 minutes after his arrest.

[24] The Defendant was entitled to be given his rights to counsel upon his arrest but this didn't happen because the officer hoped against hope the Defendant would in fact blow despite being under lawful and justified arrest for refusal. His right to counsel was thus breached by the delay in reciting them. The police did not, nor did they attempt to, elicit any evidence adverse to his interest in this time. In fact they tried to convince him to blow so as to hopefully release him without charge. The breach is in no way connected with the commission of the offence of refusal so that none of his Charter protected interests were engaged, let alone trampled vis-à-vis the charge before me. The police acted in good faith and seemed to be doing their best in a tense situation. The breach was not serious and fell at the very low end of the spectrum. Even if the breach was in some way connected with the charge of refusal, I would not exclude any evidence including the refusal itself: R. v. Fildan, [2009] O.J. No. 3604 (S.C.J.); R. v. Bryce, [2009] O.J. No. 3640 (S.C.J.).

[25] Upon applying the relevant legal principles to the facts in this case, I find that the Crown has proven beyond a reasonable doubt that the Defendant failed without lawful excuse to comply with a lawful screening demand. Furthermore, there was no violation of his Charter rights prior to his arrest. Any Charter violation after his arrest was so minor that no remedy of exclusion of evidence is appropriate in the circumstances of this case.

[26] Therefore a verdict of guilty will be recorded on the single count of refusing to provide a breath sample.

Original signed by The Honourable Justice R.H.K. Schwarzl

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