Court File and Parties

Ontario Court of Justice

Date: 2016-04-12

Court File No.: Halton 14-2393

Between:

Her Majesty the Queen

— and —

Peter Mandrow

Before: Justice Lesley M. Baldwin

Heard on: September 10 and 17, 2015

Rulings on: Charter Applications, Section 8 and Section 10(b), and Final Trial Judgment released on April 12, 2016

Counsel:

• L. Muller, counsel for the Crown
• P. Hinkson, counsel for the defendant Peter Mandrow

BALDWIN J.:

Introduction

[1] Mr. Mandrow is charged with Over 80 on August 15, 2014, in Georgetown.

[2] Mr. Mandrow submits that his s. 8 and s. 10(b) Charter rights have been infringed and he seeks to have the breath readings excluded from the evidence.

[3] The Crown submits that there have been no Charter violations, but if so, the breath readings should not be excluded from the evidence.

The Evidence of Officers Chris Borak and Amanda Bodin

[4] On August 15, 2014, at 3:41 p.m., Halton Regional Police received an anonymous tip about an intoxicated male about to leave the Barber Towne Pub and driving a grey Sorrento Kia motor vehicle.

[5] Officers Borak and Bodin responded to that call in separate police vehicles. Officer Bodin arrived first at 3:48 p.m. Officer Borak arrived at 3:50 p.m. Officer Bodin advised Officer Borak that there was no grey Kia in the parking lot per her observations.

[6] As Officer Borak was driving in the parking lot outside of the Pub, he witnessed Mr. Mandrow together with another male exit the pub.

[7] He heard a car door close and a car engine start.

[8] He then saw the dark Kia Sorrento in motion, being operated by Mr. Mandrow.

[9] Officer Borak pulled in behind the Kia and Officer Bodin pulled in front of it.

[10] At 3:50 p.m., Officer Borak approached Mr. Mandrow, who initially had trouble producing his driver's licence; he offered his red and white Costco Card. During the process of obtaining the driver's licence, Officer Borak smelled an odour of alcohol coming from Mr. Mandrow's breath. He noted that Mr. Mandrow's eyes were watery and his face was red and flushed. Mr. Mandrow admitted to having 1 beer over the course of lunch at the Barber Towne Pub.

[11] At 3:53 p.m., Officer Borak asked Officer Bodin to get an ASD from 11 Division as he suspected Mr. Mandrow to be operating a vehicle with alcohol in his body. Officer Borak knew that the station was only about 2 kilometres away and he expected that Officer Bodin would be back within 10 minutes.

[12] At 3:53 p.m., Officer Borak read Mr. Mandrow the ASD demand from the back of his notebook and the Rights to Counsel, due to the ASD not being on scene. Both the demand and the Rights to Counsel were noted in Officer Borak's notebook.

[13] Officer Borak has recorded in his notebook that Mr. Mandrow was asked if he understood the ASD demand and he replied "Yes".

[14] Officer Borak has recorded in his notebook that Mr. Mandrow was asked if he understood his Rights to Counsel due to the delay, and he replied "Yes". (note: Officer Borak's notebook entries were filed with the Respondent's Charter material)

[15] Officer Borak testified that he has a recollection that Mr. Mandrow did not want to speak to counsel. He did not note this response in his notebook.

[16] Officer Borak testified that he could not have implemented the privacy rights to counsel at the roadside in these circumstances.

[17] While awaiting the ASD, Mr. Mandrow did use his cell phone to call his wife and ask where certain documents pertaining to the car were located. It was her car. Mr. Mandrow made this call while seated in the driver's seat. His passenger (by all accounts intoxicated) was seated in the front passenger seat.

[18] Officer Borak testified that he did not restrict Mr. Mandrow's use of his cell phone in any way.

[19] Officer Bodin testified that it took her about 5 minutes to get to the station. She was in the station for a few minutes to get the ASD. She left the station before even signing it out and returned right away to the scene. According to her, she was away from the scene for no more than 12 minutes.

[20] Officer Borak noted and testified that he received the ASD from Officer Bodin at 4:00 p.m. (note: 8 minutes after his suspicion was formed and the demand was read)

[21] At 4:04 p.m. Mr. Mandrow provided a suitable sample with a FAIL result on the ASD. He was arrested for the offence of Over 80 at 4:06 p.m. (note: 14 minutes after the suspicion was formed and the demand was read)

[22] Officer Borak testified that even if he had the ASD with him at 3:54 p.m., he would still have waited to administer the test due to the possibility of residual mouth alcohol since Mr. Mandrow was stopped just after he exited the Pub. By 4:04 p.m., he was satisfied that enough time had elapsed that there would be no residual mouth alcohol to affect the test.

[23] Officer Borak read the Rights to Counsel again at 4:09 p.m. and asked Mr. Mandrow if he understood. The noted reply was "Yes". Officer Borak asked Mr. Mandrow if he wanted to call a lawyer and the reply was "No".

[24] The Cautions and Breath Demands were read and also understood by Mr. Mandrow.

[25] Officer Borak transported Mr. Mandrow to 11 Division for breath testing. They arrived at 4:16 p.m.

[26] At 11 Division Mr. Mandrow declined to speak to counsel.

[27] Two suitable samples of his breath were obtained. The first sample completed at 4:46 p.m. with a BAC of 120; the second test started at 5:17 p.m. and resulted in a BAC reading of 109.

[28] Officer Borak was the qualified breath technician in this case.

[29] He testified that, as can be seen on the breath room video, he reviewed Rights to Counsel again with Mr. Mandrow before the breath tests were taken. Once again, Mr. Mandrow stated that he did not want to speak to a lawyer.

Testimony of Peter Mandrow – Charter Applications Only

[30] Mr. Mandrow is 49 years of age. He is married with 2 children and lives in Georgetown. He is employed as a Sales Representative.

[31] On August 15, 2014, he arrived at the Pub with a friend of his at 2:00 p.m. He had picked this friend up earlier from another bar. His friend was inebriated.

[32] After they exited the Pub and he was pulling out in his wife's car, he noticed the cruisers. They stopped him and Officer Borak approached him and asked if he had been drinking. He told the officer he had consumed 2 pints.

[33] He was asked for his driver's licence and pulled out his Costco card in error.

[34] Before the officer said anything about wanting to give him a road side test, he used his cell phone to call his wife about locating car documents.

[35] Mr. Mandrow testified that Officer Borak never mentioned or read him anything about Rights to Counsel while they waited for the ASD to arrive. Officer Borak never asked him if he wanted to speak to a lawyer.

[36] Officer Bodin was back with the ASD about 12 to 15 minutes later. He has no notes of the times.

[37] Mr. Mandrow agreed that he was not prevented from using his cell phone to call anybody. He agreed he did not ask to use his cell phone to call a lawyer.

[38] After he provided the sample, he was read his Rights to Counsel. When Officer Borak asked him if he wanted to speak to a lawyer he said 'No'.

Issues

(1) Was the ASD demand made forthwith as required by s. 254(2)(b) of the CCC?

(2) Was it reasonable to wait for the dissipation of residual mouth alcohol in these circumstances?

(3) Were Rights to Counsel given because of the wait for the ASD to arrive?

(4) If so, was Mr. Mandrow given an opportunity to exercise his Rights to Counsel before the ASD arrived?

Findings of Fact

[39] Before answering the questions, it is first necessary to conduct a WD analysis with respect to the different testimony and evidence given by Officer Borak and Mr. Mandrow on the issue of whether Rights to Counsel were read to him at the roadside at 4:54 p.m.

[40] Mr. Mandrow said the officer made no mention of Rights to Counsel before the arrest.

[41] Officer Borak testified that he read Rights to Counsel from his notebook and he asked if Mr. Mandrow understood. All of this is recorded in his notebook entries.

[42] Officer Borak recalls that the answer to wanting to speak to counsel at that time was no. This response was not noted and probably should have been.

[43] However, there is nothing in Mr. Mandrow's testimony that indicates that if he had been asked that question, he would have said 'yes' I want to speak to a lawyer.

[44] The testimony of Mr. Mandrow is that he did not want to speak to a lawyer at any time.

[45] The evidence of Officer Borak is that Mr. Mandrow did not want to speak to a lawyer at any time.

[46] I therefore conclude that Officer Borak did read the Rights to Counsel at the roadside at 4:54 p.m. and he ensured that they were understood. He said he did this because he knew there was going to be a short delay in getting the ASD on scene. Further, he did not restrict Mr. Mandrow's use of his cell phone during this 8- to 12-minute wait. Mr. Mandrow could have called a lawyer if he had wanted to.

[47] I agree with Officer Borak that he had no opportunity to implement the privacy aspect of the Rights to Counsel in these circumstances at the roadside. Mr. Mandrow was seated in his own driver's seat. His intoxicated passenger was seated in the front passenger's seat. Officer Borak was standing beside the driver's door as Mr. Mandrow was detained.

[48] During the course of several hours of submissions, both counsel referred to a number of cases dealing with the issues of when to wait for residual mouth alcohol to dissipate; when rights to counsel are to be given at the roadside; and the law as it pertains to the 'forthwith' requirement in s. 245(2)(b) of the CCC.

[49] R. v. Bernshaw, [1995] 1 SCR 254; R. v. Jennifer Johnson, released March 6, 2015, authored by Justice Monohan (OCJ), ONCJ 134; R. v. Peter Quansah, [2012] ONCA 123; R. v. Warha [2015] O.J. No. 1973 (OCJ); R. v. Dillon [2014], O.J. No. 1366 (SCJ); R. v. Vandergriendt [2014] O.J. No 2943 (OCJ); R. v. Calder, [2004] O.J. No. 451 (OCA); R. v. Calder, [2002] O.J. No. 3021 (SCJ); R. v. Taylor, [2014] 2 SCR 496 (SCC); R. v. Devji, [2008] O.J. No. 1924 (SCJ); R. v. Torsney, 2007 ONCA 67, [2007] O.J. No. 355 (OCA), Aff'd [2007] SCCA No. 126 (SCC); R. v. Maher, [2010] O.J. No. 1301 (SCJ); R. v. Morton, [2009] O.J. No. 4370 (SCJ); R. v. Cunha, [2010] O.J. No. 3077 (SCJ); R. v. Einarson, [2004] O.J. No. 852 (OCA).

Analysis

The Wait For Residual Mouth Alcohol to Dissipate – 14 Minutes in this Case

[50] As discussed by the Ontario Court of Appeal in R. v. Quansah (supra) and other cases, a short delay in administering an ASD test is reasonable when there is reason to believe that the presence of residual mouth alcohol may affect the accuracy of the test.

[51] The evidence on this issue comes from Officer Borak, an experienced officer who has been a Qualified Breath Technician since 2004 and is also designated as a DRE officer.

[52] Officer Borak testified that based on the information from the dispatch call, together with his observation of seeing Mr. Mandrow walk out of the Pub, including his reasons for forming the reasonable suspicion that Mr. Mandrow had been consuming alcohol in the Pub before driving his car, he determined that it would be best to wait for any residual mouth alcohol to dissipate before administering the test.

[53] That wait period is generally 15 minutes. The wait period in this case was some 14 minutes.

[54] I conclude that it was reasonable for Officer Borak to delay the ASD test for this reason in these circumstances.

The Delay to Get the ASD to the Scene – 8 to 12 Minutes in this Case

[55] As discussed in R. v. Quansah (supra) and other cases, there may be a reasonable necessary delay in administering the test when the ASD is not immediately available.

[56] Officer Borak knew that the ASD was at the station just 2 kilometres away when he made the demand and requested that the ASD be brought to him.

[57] Being the officer-in-charge, Officer Borak has noted and testified to tight timeframes in this regard. The ASD was delivered to him just 8 minutes after he formed his suspicion and read the ASD demand.

[58] I conclude that there was no unreasonable delay in getting the ASD to the scene for this test. In an ideal world, every cruiser on active patrol would have an ASD as part of the standard operating equipment. This is not an ideal world and they do not.[1]

Do the Rights to Counsel Need to be Read When the Delay is For Either Reason Discussed Above?

[59] It seems that a lot of confusion has crept into the law on this issue with the prevalence of personal cell phones being available in the cars of most drivers.

[60] See R. v. Thomsen, [1988] 1 S.C.R. 640, 40 C.C.C. (3d) 411; R. v. Bernshaw (supra); R. v. Grant, [1991] 3 S.C.R. 139, 67 C.C.C. (3d) 268; R. v. George (2004), 187 C.C.C. (3d) 289, 23 C.R. (6th) 181 (Ont. C.A.); R. v. Torsney (supra).

[61] Where the delay in administering the test has been for valid reasons, such as the wait for the dissipation of residual mouth alcohol or the wait to get an ASD to the scene, there is no requirement that the formal Rights to Counsel be read. One reason is that the formal informational component of the Rights to Counsel incorporates the right to access Duty Counsel which cannot be facilitated at the roadside. Formal Rights to Counsel also state that the detainee can 'consult' with counsel which imports the privacy component for the call. Speaking to a lawyer on a cell phone at the roadside is distinct from consulting with a lawyer in private. Another reason is that not all motorists have a working cell phone in their possession to make such a call even if they wanted to.

[62] In Mr. Mandrow's case, he was read the formal Rights to Counsel. He said he understood them and he had unrestricted access to his cell phone. Accordingly, I find that there was no s. 10(b) Charter violation here, nor has there been a corresponding breach of s. 8 of the Charter.

[63] I suggest that in providing the 'abridged' Rights to Counsel in these circumstances, all a police officer might say is words to the following effect: 'You can call any lawyer you wish on your cell phone while we wait for the ASD to arrive if you want'.

Conclusion

[64] I conclude that the "forthwith" requirement in s. 254(2) of the Criminal Code has been met in this case.

[65] In addition to all the cases referred to above, I have also considered the recent decision in R. v. Owens, released by the Ontario Court of Appeal on September 28, 2015 and indexed as [2015] ONCA 652; 127 O.R. (3rd) p. 603. This case deals with Rights to Counsel at the roadside and is based on similar facts to this case on the s. 10(b) issue, which was the only live issue at the end of trial.

[66] A finding of guilt is registered.

Released: April 12, 2016

Signed: "Justice Lesley M. Baldwin"

[1] There are 40 ASDs for use by all of the Halton Officers at this time, according to the evidence of Constable Steven Long, Traffic Services Coordinator for Halton Regional Police. Evidence heard December 1st, 2015 in the case of R. v. Manoj Seth.