Court File and Parties

Date: July 7, 2016

Court File No.: Brampton 15-4573

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Kogulan Nithiyananthaselvan

Before: Justice Paul F. Monahan

Heard on: May 30 and 31, 2016

Judgment Released on: July 7, 2016

Counsel:

Ms. N. Engineer for the Crown

Mr. D. Locke for the Defendant

MONAHAN J.:

Introduction and Overview

[1] Mr. Kogulan Nithiyananthaselvan is charged with having operated a motor vehicle on or about April 5, 2015 having consumed alcohol in such a quantity that the concentration in his blood exceeded 80 mg of alcohol in 100 ml of blood contrary to s.253(1)(b) of the Criminal Code of Canada (the "Code").

[2] At trial, Mr. Nithiyananthaselvan brought a Charter application. He alleged violations of ss.8, 9 and 10(a) and 10(b) of the Charter. A blended trial and Charter voir dire was held on consent. There were four police witnesses for the Crown: Officer Brandon Wanamaker, Officer Fabian Canes, Constable Jesse Wilmot and Constable Donald Malott. Mr. Nithiyananthaselvan testified only on the Charter voir dire and the defence tendered no evidence on the trial proper.

[3] The defendant was pulled over at 2:05 AM on April 5, 2015 by two tactical unit officers with Peel Regional Police. One of those two police officers, Officer Wanamaker, spoke to the defendant and almost immediately formed the suspicion that the defendant had been operating a motor vehicle with alcohol in his body. The officer did not have an approved screening device ("ASD") with him but he requested that one be brought to the scene. He did not make an ASD demand. When the ASD did arrive, the officer bringing it to the scene made an ASD demand at 2:15 AM. A fail was registered, a further breath demand was made and two breath samples were ultimately provided into an approved instrument which registered 130 and 120 mg of alcohol in 100 mL of blood respectively (taken at 3:18 AM and 3:41 AM respectively).

[4] A number of issues were raised by the defence. One of the central issues raised was whether the demand was made "forthwith" as required by s. 254(2) of the Code and, if not, whether the defendant's Charter rights were violated. If there were Charter violations, should the breath samples be excluded pursuant to s. 24(2) of the Charter?

Facts

[5] Many of the facts were not contested but there were some important contested factual questions which I will identify and determine below. I may also expand upon certain facts in my analysis of the issues.

[6] Based on my consideration of the evidence, the chronology which occurred on April 5, 2015 is as follows:

2:03 AM - Two Peel Regional Police Tactical officers, Brandon Wanamaker and Fabian Canes, observe a vehicle driven by the defendant northbound on Highway 10 driving slow and then fast and exceeding the speed limit. The vehicle was also swerving within its lane. Officer Wanamaker is a 13 year police veteran and Officer Canes is a 19 year police veteran.

2:05 AM – A traffic stop is initiated. The defendant is driving and there is also a passenger in the front seat. Officer Wanamaker approaches the driver's side of the vehicle and speaks to the defendant to obtain his driver's license, insurance and ownership. Officer Wanamaker detects the smell of alcohol and asks the driver if he has been drinking, to which he says he has had three drinks an hour earlier.

2:06 AM - By this time Officer Wanamaker forms the suspicion that the defendant has alcohol in his body and has just been driving a motor vehicle.

2:07 AM - Officer Wanamaker tells Officer Canes that an ASD is required and Officer Canes makes a request for one via the police radio system.

2:08 AM - Constable Jesse Wilmot of the Peel Regional Police hears the radio request for the ASD and indicates over the police radio system that he will attend at the scene with the ASD.

2:11 AM - Constable Wilmot arrives at the scene and is briefed by the two tactical officers.

2:06 AM to 2:11 AM - Officer Canes testified that during this timeframe Officer Wanamaker obtained the identification documents related to the passenger of the vehicle and gave them to Officer Canes. According to Officer Canes, Officer Wanamaker asked Officer Canes to conduct a search of the passenger in the police computer which Officer Canes did. Officer Canes could offer no basis as to why he conducted the search of the passenger. He said there could have been a warrant for the passenger. He said he was "making use of his time" waiting for the ASD to arrive. He agreed that the passenger had done nothing wrong. Officer Wanamaker had no recollection of having spoken to the passenger but allowed that he might have but stated that, as he had no note of it, he could not recall. I believe it was Officer Wanamaker who obtained the passenger's identification documents as that was the evidence of Officer Canes and it was clearly Officer Wanamaker who was speaking initially to the occupants of the vehicle during this timeframe and taking control of the initial stop of the vehicle.

2:15 AM - Although Constable Wilmot is briefed by the two tactical unit officers, he forms his own suspicion under s. 254(2) of the Code. Constable Wilmot speaks to the defendant and detects slurred speech, bloodshot eyes, and the smell of alcohol. He makes an ASD demand which the defendant complies with.

2:18 AM - The defendant registers a fail on the ASD device. The defendant is handcuffed and placed under arrest for over 80 around this time.

2:21 AM to 2:23 AM - Constable Wilmot provides the defendant with rights to counsel, a caution and makes a further breath demand. In response to the question of whether he wishes to consult counsel, the defendant said "not right now".

2:31 AM - Constable Wilmot clears the scene with the defendant.

2:41 AM - Constable Wilmot and the defendant arrive at the police station.

2:41 AM to 2:47 AM - Sometime during this period, the defendant asks Constable Wilmot if the defendant can speak to duty counsel.

2:47 AM - Constable Wilmot calls duty counsel.

2:55 AM - Duty counsel calls back.

2:58 AM - A private telephone consultation between duty counsel and the defendant occurs.

3:06 AM - By this time, Constable Wilmot is engaged in giving his grounds for the arrest to the breath technician, Constable Donald Malott.

3:07 AM - The breath technician takes custody of the defendant.

3:08 AM - The breath technician provides the defendant with rights to counsel, and a detailed approved instrument breath demand and caution.

3:18 AM - The first breath sample is provided directly into the Intoxilyzer 8000 C and it registers 130 mg of alcohol in 100 mL of blood.

3:41 AM - A second breath sample is provided directly into the Intoxilyzer 8000 C and registers 120 mg of alcohol in 100 mL of blood.

3:50 AM - The breath technician returns the custody of the defendant to Constable Wilmot and the defendant is released in due course.

Determination of the Contested Factual Issues

[7] Within the foregoing factual framework a number of contested factual issues arise.

[8] The first and most important one concerns what, if anything, was said to the defendant between 2:06 AM and 2:15 AM as to whether an ASD was going to be brought to the scene. Officer Wanamaker testified that he knew that he was obliged to make the breath demand as soon as he formed the suspicion that the accused had been operating a motor vehicle with alcohol in his body and that he did not do so in this case because he did not have an ASD with him and he thought he would leave it to be done by the officer who would be bringing the ASD to the scene. However, he testified both in-chief and cross-examination that he had an "independent recollection" of having told the defendant shortly after 2:06 AM that another officer would be coming to the scene and that the defendant would need to blow into a machine to see how much alcohol was in his blood. He had no note of having told the defendant this information. It was the Crown's submission at trial that this statement to the defendant was an "informal" ASD demand.

[9] Officer Canes did not hear the discussion between Officer Wanamaker and the defendant. Officer Canes testified that Officer Wanamaker advised him that the driver had been drinking and that the officer should call for an ASD, which he did.

[10] Although he had no note of it, Officer Canes testified further that he had a "independent recollection" that Officer Wanamaker also told him that Officer Wanamaker had told the defendant that an ASD had been requested and would be coming to the scene.

[11] Mr. Nithiyananthaselvan testified on the Charter voir dire. He agreed that he was going above the speed limit by anywhere from 10 to 30 km an hour. He agreed that Officer Wanamaker spoke to him and asked him if he had been drinking to which he initially replied that he had had two beers. After looking at his license, registration and ownership he said that Officer Wanamaker said words to the effect "don't fucking lie to me, how many beers have you had" to which the defendant then said he had actually had five beers. This latter point was not put to Officer Wanamaker when he testified and should have been in my view. In the absence of the point having been put to Officer Wanamaker, I am not prepared to find that he used the profane language attributed to him in the defendant's evidence but it has no impact on my decision one way or the other.

[12] The defendant testified that Officer Wanamaker told the defendant to turn the vehicle off and stand outside his vehicle. He said that Officer Wanamaker told him just to stand there and said nothing to him about another officer coming to the scene with any sort of device and gave him no forewarning that he would be required to give a breath sample.

[13] He testified that he had a cell phone with him and that he was aware of the names of two lawyers. He did not have their telephone numbers but thought that he could get them using an internet search. He said that if he had been told at the roadside prior to blowing into the ASD device that he could have spoken to a lawyer, he would have. He said that the reason he spoke to duty counsel back at the station was because he did not know that he could have asked to get the numbers for the two lawyers he wanted to call.

[14] I have concluded that Officer Wanamaker did not tell the defendant that an ASD or any such device would be coming to the scene and that he would have to blow into it to provide a breath sample. As mentioned above, Officer Wanamaker had no note of having done so. He had very detailed notes concerning virtually all other aspects of his conversation with the defendant.

[15] I have a number of reasons for this conclusion.

[16] First, given the level of detail in Officer Wanamaker's notes on other interactions with the defendant and with Officer Canes I simply do not believe that he actually had an independent recollection of having this not noted conversation with the defendant about how he would have to blow into the device to have the quantity of alcohol in his blood analyzed.

[17] Police officers have dealings with the public every day of the week and need to rely on their notes in order to recall those conversations at much later dates. Most members of the public, like the defendant, have few dealings with the police and common sense would suggest that they tend to remember those events more clearly because of how rare they are. To give an example in this case, when asked if he had spoken to the passenger, Officer Wanamaker stated that he did not believe so but allowed that he might have but essentially said that as he had no note of it, he could not recall. Officer Canes said that Officer Wanamaker gave him the passenger's identification documents, suggesting that there was at least something said between Officer Wanamaker and the passenger. It is not surprising that Officer Wanamaker could not remember any conversation with passenger as he had no note of it. The same logic applies to the alleged discussion with the defendant concerning his evidence that an ASD would be coming to the scene and he would have to blow into it.

[18] Second, when pressed on this issue in cross-examination he stated at one point that he "would have" told the defendant that the ASD would be coming and then stated again that he actually recalled it happening. The "would have" point suggests to me that he didn't actually have a recollection of having done so.

[19] Third, Officer Wanamaker's evidence needs to be considered in the context of the evidence as a whole including the evidence of Officer Canes and the defendant. I found it strange that Officer Canes would have an "independent recollection" that Officer Wanamaker had told him that Officer Wanamaker had told the defendant that an ASD would be coming to the scene. Like Officer Wanamaker, Officer Canes had detailed notes on virtually all other aspects of his testimony except for this point. I do not believe that Officer Canes could possibly remember such an innocuous point, namely what Officer Wanamaker had told Officer Canes about what the defendant had been told. Indeed, Officer Canes' testimony made it very clear to me that he and Officer Wanamaker must have discussed this point in preparation for their testimony and it came across as rehearsed evidence which, as indicated above, I do not believe. This undermines both the evidence of Officer Wanamaker and Officer Canes on this point.

[20] Fourth, I accept the defendant's testimony that he was told to stand outside of his vehicle and that he was given no reason as to why he was being detained. He said he was not told about an ASD coming or that he would have to blow into some device when it arrived. In this regard, I note that Constable Wilmot could not say for sure whether the defendant was seated in his vehicle or was already standing outside of it when Constable Wilmot went over to talk to him. This is notwithstanding Constable Wilmot's note about seeing him step out of the vehicle and being unsteady. I am not satisfied Constable Wilmot saw him step out of the vehicle at all although I don't consider that Constable Wilmot deliberately misstated anything in this regard. I also consider that any unsteadiness Constable Wilmot detected was minor.

[21] In summary, considering all of the testimony on the point, I do not believe the defendant was told anything about the ASD being brought to the scene nor did Officer Wanamaker tell Officer Canes that he had told the defendant that such a device was coming. I also accept that the defendant was standing outside of his vehicle when Constable Wilmot arrived.

Issues, Law and Analysis

Issues

[22] The issues that arise for decision on the facts are as follows:

Issue 1 – Was the reliance on the fail result from the ASD demand unreasonable due to issues with the calibration date of the device?

Issue 2 – Does the fact that express language of the approved instrument demand was not given in evidence prove a violation of s. 8 of the Charter?

Issue 3 - Was the forthwith requirement in s. 254(2) met in this case? If the forthwith requirement was not met, were Mr. Nithiyananthaselvan's Charter rights violated?

Issue 4 - If Mr. Nithiyananthaselvan's Charter rights were violated, should the breath samples that were taken be excluded under s. 24(2) of the Charter?

[23] I will examine each issue in turn.

Issue 1 – Was the reliance on the fail result from the ASD demand unreasonable due to issues with the calibration date of the device?

[24] The principal issue raised by the defendant is the "forthwith" issue, namely that there was a nine minute delay from the time the police officer first suspected that the defendant had alcohol in his body and had been driving and the time the police proceeded to require a breath sample to be provided for analysis by the ASD.

[25] The defendant also submits that, apart from the forthwith issue, reliance on the ASD fail result was not reasonable due to the fact that the last calibration date for the ASD noted by Constable Wilmot was April 12, 2015, a date which had not even occurred at the time of the events on April 5, 2015. When this error was pointed out to Constable Wilmot in cross-examination he indicated that his reference to April 12, 2015 as the last calibration date was an error and was intended to refer to the next required calibration date. He testified that he believed the ASD was in good working order on April 5 when he used it and that he performed a self-test on it immediately prior to administering the ASD demand to the defendant in this case.

[26] The law is clear that as long as the officer reasonably believes the ASD to be in good working order, it can be used to confirm or reject the officer's suspicion that the motorist has alcohol in their system. See for example R. v. Coutts, [1999] O.J. No. 2013 (C.A.) (per Moldaver J.A. for the Court) at para. 20; R. v. Mastromartino, 70 O.R. (3d) 540 (S.C.J.) at para. 79 and R. v. Topaltsis, 214 O.A.C. 115 at paras. 8-9.

[27] One of the important points that comes out of these cases is that the ASD does not have to, in fact, be in proper working order. The officer must simply have a subjectively honest belief, which is objectively reasonable in the circumstances that the device is in proper working order. This limited perspective on the operation of the ASD is permitted by the courts because the evidence derived from the ASD does not prove that the accused person was over 80. It is only used for the purpose of confirming or rejecting a police officer's suspicion that a motorist may be impaired (Coutts at para. 21). Where there is a fail on the ASD test which results from a proper ASD demand, it permits the officer to make an approved instrument demand under s. 254(3).

[28] While I have some concerns about why Constable Wilmot would refer to the next calibration date as opposed to the last calibration date, I am satisfied that he reasonably believed the ASD to be in good working order on the date he used it in this case. I would not find reliance on the ASD fail result improper on this basis.

Issue 2 – Does the fact that express language of the approved instrument demand was not given in evidence prove a violation of s. 8 of the Charter?

[29] Section 254(3) provides in part as follows:

(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person

(a) to provide, as soon as practicable,

(i) samples of breath that, in a qualified technician's opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person's blood

[30] The demand under s. 254(3) is sometimes referred to as an approved instrument demand. In this case, Constable Wilmot testified that after he received the fail result in respect of the ASD demand, he provided the defendant with rights to counsel, a caution and a breath demand. He gave no evidence at trial as to the specifics of the breath demand that he made. I note that the breath technician, Constable Malott, did make an approved instrument demand and the specifics of the language used were testified to by Constable Malott and were entirely satisfactory.

[31] The defence submitted that as we did not have the precise language of the breath demand made by Constable Wilmot, the Court cannot say whether the demand was made in accordance with s. 254(3). While the defence did not make this point clearly, I take the point to be that if the demand is not valid under [s. 254(3)], then there is a s.8 Charter violation and it may impact on the ability to rely on the presumption of identity in s. 258 as that provision contemplates a valid demand under [s. 254(3)].

[32] While it would have been better for the Crown to adduce the precise wording of the breath demand by Constable Wilmot, I understood his evidence to be that the breath demand he made on the arrest of the defendant was an approved instrument demand as distinguished from the ASD demand he made at 2:15 a.m. No particular words are necessary to make an effective approved instrument demand as long as the words and surrounding circumstances convey to the accused that the demand is being made pursuant to [s. 254(3)]: see R. v. Flegal, 7 C.C.C. (2d) 55 (Sask. C.A.) at para. 8 and R. v. Ackerman, 6 C.C.C. (2d) 425 (Sask. C.A.) at para. 8. As far as I am concerned, it is not necessary to mention the section number itself.

[33] Each case must of course be considered on its own facts. On the facts of this case I infer and find that the demand Constable Wilmot made upon the arrest of the defendant was an approved instrument demand. I would not find the demand made invalid on this basis.

Issue 3 – Was the forthwith requirement in s. 254(2) met in this case? If the forthwith requirement was not met, were Mr. Nithiyananthaselvan's Charter rights violated?

[34] I have found that there was a nine minute delay between the time that Officer Wanamaker first formed the suspicion that the defendant had alcohol in his body and had been driving a motor vehicle (2:06 AM) and the time that the ASD demand was made on the defendant by Constable Wilmot (2:15 AM). Further, I have found that while Officer Wanamaker did ask Officer Canes to call for an ASD, he did not tell the defendant that he would have to blow into an ASD or that he would have to wait for the ASD to arrive. He left him waiting outside his vehicle for the ASD to arrive while Officer Wanamaker sat with officer Canes in their police vehicle. Similarly, I have found that there was no discussion between Officer Wanamaker and Officer Canes concerning Officer Wanamaker having told the defendant that an ASD was being brought to the scene. I have expressly rejected the trial evidence of the Officers Wanamaker and Canes on these points as being inaccurate. In fact, while the tactical officers were waiting for the ASD to arrive, one of the things they were doing was performing background checks on the passenger of the vehicle when, on this record, there was no basis for such checks to be done.

[35] The forthwith requirement flows from section 254(2) of the Code which provides in part as follows:

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 … the peace officer may, by demand, require the person…:

(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.

[36] The forthwith requirement in section 254(2) applies both to the demand by the peace officer and the response by the person who is subject to the demand: see R. v. Quansah, 2012 ONCA 123, 92 C.R. (6th) 1 (Ont. C.A.) at para. 47. The term forthwith means immediately: see Quansah at para. 26 citing R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205 at paras. 13-14 and 44.

[37] The forthwith requirement is "inextricably linked to its constitutional integrity": see Quansah at para. 21 and 22 citing R. v. Woods, supra at para. 29. As long as the forthwith requirements of s. 254(2) are met, there is no obligation to advise the driver of his or her right to counsel and there is no violation of section 8, 9 and 10(b) of the Charter. The forthwith requirement is a justifiable limit under s. 1 of the Charter on the person's rights under ss. 8, 9 and 10(b) of the Charter: see R. v. George, 187 C.C.C. (3d) 289 (Ont. C.A.) at para. 27 citing R. v. Thomsen, 40 C.C.C. (3d) 411; and R. v. Quansah, supra at para 22.

[38] The Court of Appeal in Quansah stated further that "the immediacy requirement must take into account all of the circumstances" and that the time from the formation of the suspicion to the making of the demand to the response to the demand be "no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated under s.254(2)" (see Quansah at paras. 47 and 48).

[39] The courts have held that the forthwith requirement requires that the demand be made by the officer as soon as he or she forms the requisite grounds to make the demand: (see Quansah, supra at para. 25). However, some flexibility will be applied to this aspect of the forthwith requirement where the person who is the subject of the eventual demand is not yet detained: see R v. MacMillan, 2013 ONCA 109, 114 O.R. (3d) 506 (C.A.) at para. 32 and 39. Otherwise, some delay in making the demand may be permitted only in "unusual circumstances" relating to, for example, the "exigencies of the equipment": see Quansah supra at para. 32 citing R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205 at para. 43.

[40] If the forthwith requirement of s.254(2) is not met then the demand will be invalid and the subsequent demand made under [s.254(3)], which relies upon the results of the s.254(2) demand, will also be invalid unless there are other facts to support it. A person who refuses to comply with an invalid demand under s. 254(2) commits no crime: see R. v. Grant, [1991] 3 S.C.R. 139 at paras. 19 and 21. However, if breath samples are nevertheless provided in response to an invalid s. 254(3) demand, they will only be inadmissible if the accused can show that they should be excluded under s. 24(2) of the Charter: see R. v. MacMillan, supra at para. 42.

[41] If the actions of the police fall outside the terms of s. 254(2) because the forthwith provision is not complied with, then there will be a s. 8, s.9 and s. 10(b) violation (assuming rights to counsel are not given) and the issue will be whether the evidence obtained should be excluded under s. 24(2) of the Charter: R. v. Vinoharan, [2009] O.J. No. 4037 (Sup. Ct.) at paras. 9 to 26.

[42] The vast majority of the forthwith cases are those where the officer forms the suspicion that the driver has alcohol in his or her body and the officer makes the ASD demand under s. 254(2) but does not have the ASD immediately available: see for example R. v. George, 187 C.C.C. (3d) 289 (Ont. C.A.). One of the issues in those cases is whether there is time to consult counsel between the time of the demand and the time the officer is in a position to proceed with the taking of the sample. If there is time to consult counsel, the demand will be invalid and there will be no obligation on the accused to comply with demand. To be clear, the issue of whether there is time to consult counsel is only one factor to be considered in determining in those cases whether the forthwith requirement in s. 254(2) is met: (see Quansah, supra at para 42).

[43] The other type of forthwith case occurs where there is some delay in the making of the ASD demand. That is the circumstance in the case at bar. In R. v. Kerr, 2010 ONCJ 212, 212 C.R.R. (2d) 149 (Ont. C.J.) affirmed [2011] O.J. No. 6142 (Sup. Ct.), my colleague Justice Melvyn Green dealt with a forthwith case in circumstances where the ASD demand was not made until 6 minutes after the police officer's suspicion under s. 254(2) was first formed. He noted that once the forthwith or immediacy requirement of 254(2) was not complied with, the police officer was operating outside of the 254(2) framework and there was no suspension of the defendant's Charter rights (following Vinoharan, supra). He ultimately excluded the breath sample evidence under s. 24(2) of the Charter and found the defendant not guilty of the over 80 charge. His decision was upheld by a Superior Court Judge.

[44] In R. v. Vinoharan, supra, Justice Backhouse of the Ontario Superior Court dealt with an appeal from an Ontario Court of Justice trial in which an ASD demand was delayed by seven minutes after the presence of alcohol in the body of the driver was first suspected by the officer in that case. Notwithstanding that the Crown conceded a violation of s. 8, 9, 10(a) and 10(b) of the Charter, the trial judge found only a violation of s. 8 and s.10(a) and admitted the evidence in any event. The Superior Court Judge found that the demand was made outside of the parameters of s. 254(2) and, as a result, there was a violation of ss. 8, 9, 10(a) and 10(b) of the Charter. However, the Superior Court Judge found that the Charter breaches were "technical" and that the evidence should not be excluded pursuant to a s. 24(2) of the Charter.

[45] In R. v. Megahy, 2008 ABCA 207, 233 C.C.C. (3d) 142 (Alta. C.A.), there was a four minute delay between the time the suspicion was formed and the ASD demand was made. For reasons of personal convenience and for no good reason, the police officer kept the ASD in a location a short distance away. The trial judge found the demand was not made forthwith and the breath sample evidence was excluded and an acquittal entered. The summary conviction appeal court judge reversed the trial decision. The Alberta Court of Appeal restored the trial judge's decision and an acquittal was entered. The issue of the s. 24(2) Charter exclusion was not before the Court of Appeal. One judge of the Alberta Court of Appeal expressed the view, obiter, that he would not have excluded the evidence under s. 24(2) had the issue been before the Court. The other two Appeal Court judges restored the acquittal and expressly declined to comment on the s. 24(2) issue.

[46] Applying the law to the facts in this case, in my view there can be no doubt that the ASD demand was not made forthwith. It is true that Constable Wilmot formed his own grounds and made the demand as soon as he formed his suspicion but, in my view, that is not the appropriate way to view this case or the requirements of the statutory scheme under s. 254. As indicated by the Court of Appeal in Quansah at para. 45, the forthwith analysis must always be done "contextually" and bearing in mind "Parliament's intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual rights". The context and circumstances here were as follows. Officer Wanamaker formed his suspicion under s. 254(2) at 2:06 AM and detained the defendant on that basis for the purpose of having him provide a sample into an ASD but made no demand was made. There was no reason at all to delay nine minutes in making the ASD demand after the suspicion was first formed by Officer Wanamaker. There were no unusual circumstances which would justify the delay. If Officer Wanamaker was going to detain the defendant on the basis of his suspicion under s.254(2) and for the purpose of making an ASD demand, he should have made the ASD demand at 2:06 AM even though he did not have the device with him. Officer Wanamaker's failure to make a forthwith demand could not be cured by having Constable Wilmot show up and form his own suspicion and make his own demand and then try to argue that the demand was made forthwith by the officer who ultimately made the demand and that therefore s. 254(2) was complied with in some overall way. Indeed, I did not understand this to be the submission of the Crown in this case. This approach would be to take too permissive a view of how the statutory scheme was intended to operate balancing both Parliaments' intention to prevent drinking and driving while still respecting individual Charter rights. As indicated, in my view, Officer Wanamaker was obligated to make the ASD demand forthwith if the defendant was going to be detained on that basis. Indeed, Officer Wanamaker acknowledged that he knew he was obliged to make the ASD demand as soon as he formed the suspicion at 2:06 AM and he really had no legitimate reason for having failed to do so.

[47] In this case, the demand having not been made forthwith, the police were operating outside the parameters of s. 254(2) and there was no suspension of the defendant's Charter rights. The defendant was clearly detained from the time he was pulled over. By detaining the defendant by the side of the road for 9 minutes without making an ASD demand and without telling him why he was being detained and without giving him rights to counsel, there was a violation of ss. 9, 10(a) and 10(b). The subsequent ASD demand that was made at 2:15 AM was not made forthwith in my view and therefore there was a s. 8 Charter violation and there was no obligation to comply with it. In my view, if the defendant had refused to provide a sample of his breath in response to this demand, he would not be guilty of any crime: see R. v. Grant, [1991] 3 S.C.R. 139 at paras. 19 and 21.

[48] There was some evidence that, among other things, the accused was unsteady on his feet and had slurred his words. I have found that the defendant was outside of his vehicle when Constable Wilmot arrived and that, as a result, the suggestion from Constable Wilmot that the defendant was unsteady on his feet when he exited the vehicle has to be incorrect as Constable Wilmot also agreed that the defendant might have been outside of his vehicle when he arrived. I note that I attribute no improper intention on the part of Constable Wilmot as concerns this testimony. I have also found that any unsteadiness detected by Constable Wilmot was minor.

[49] Accordingly, I have considered whether the approved instrument demand might have been supported by evidence other than the fail result on the ASD. However, I note that that position was not advanced by the Crown in this case. Moreover, if it was the case that Constable Wilmot thought he had reasonable and probable grounds to make an approved instrument demand (without the ASD fail result), why would he have made the ASD demand? I infer that Constable Wilmot considered that he required the ASD fail result to make the approved instrument demand and that this accorded with the objective facts of the case. Accordingly, the approved instrument demand under s.254(3) was also invalid as it relied on an invalid demand under s.254(2).

Issue 4 - If Mr. Nithiyananthaselvan's Charter rights were violated, should the breath samples that were taken be excluded under s. 24(2) of the Charter?

[50] The defendant was detained for 9 minutes without being given rights to counsel. There was no s. 254(2) forthwith demand so there was no suspension of Charter rights. It follows that Mr. Nithiyananthaselvan's s. 10(b) right to counsel was violated. Further, his detention and subsequent breath samples were all dependent on the invalid breath demand. It follows that his detention was arbitrary and he was subject to an unreasonable search and seizure, contrary to ss.9 and 8 of the Charter respectively: see R. v. Beattie, 2009 ONCJ 456, 69 C.R. (6th) 92 (Ont. C.J.) at paras. 23 and 24. Further, he was never told the reason for the 9 minute detention between 2:06 AM and 2:15 AM, contrary to s.10(a) of the Charter.

[51] As is well known, s. 24(2) of the Charter provides that where a person establishes that evidence has been obtained in a manner that infringed or denied their rights, the evidence is to be excluded if it is established that the admission of the evidence would bring the administration of justice into disrepute. This requires a consideration of the analysis laid down by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at para. 71 and an evaluation of three issues: (i) the seriousness of the Charter infringing state conduct; (ii) the impact on the Charter protected interests of the accused; and (iii) society's interest in an adjudication on the merits. The Court must balance each of the assessments of these three issues to determine whether in all the circumstances the admission of the evidence would bring the admission of justice into disrepute.

(i) The Seriousness of the Charter Infringing State Conduct

[52] Concerning the seriousness of the Charter infringing state conduct, the question is whether the admission of the evidence would bring the administration of justice into disrepute by suggesting that the courts will condone breaches of the Charter and the need for the courts to dissociate themselves from unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from the conduct so as to preserve public confidence in the rule of law: see Stuart, Charter Justice in Canadian Criminal Law (sixth edition 2014) at page 651.

[53] In my view and considering all of the circumstances, the violations of Mr. Nithiyananthaselvan's Charter rights were serious. There were multiple violations. There was a s.8 violation as the search was based on an invalid ASD demand. There was a s.9 violation as the detention was based on the invalid s.8 search. There was also a s.10(a) and (b) violation.

[54] Both Officer Wanamaker and Officer Canes were veteran officers and both acknowledged in their trial testimony knowing that once the suspicion of a driver having alcohol in their system is formed, the ASD demand must be made immediately. The failure to comply with the well known statutory scheme under s.254 exacerbates the breaches of the defendant's Charter rights in this case. Why did Officer Wanamaker fail to make the ASD demand notwithstanding his knowledge that the driver had been consuming alcohol and driving? In my view, what happened followed from the fact that as Officer Wanamaker said "he was in a different unit now" and he didn't have an ASD and would have to call for one. In my view, he essentially did not bother to make the ASD demand. He decided that he would call for another officer who had an ASD and let that officer deal with the defendant. He may have even thought, incorrectly, that he did not need to make the demand forthwith and that he could delegate the entire process to someone else without concern for the provisions of s. 254(2) or the Charter rights of the defendant. As will be explained below, when Officer Wanamaker should have been making the ASD demand on the defendant or, alternatively, advising him of his rights to counsel, he and Officer Canes were busy violating the Charter rights of the passenger of the vehicle. As a result, the ASD demand did not get made for nine minutes (until 2:15 AM) until Constable Wilmot arrived and made the ASD demand.

[55] On the facts as I have found them, the defendant was not told why he was being detained resulting in a s. 10(a) violation. There is a positive Charter obligation on a police officer to tell an accused person as to why they are being detained and that did not happen here. Having said that, the police were essentially cross-examining the defendant on how much he had to drink which would lead most people to realize that they were being investigated for drinking and driving. In my view, the s. 10(a) violation was a technical one and in and of itself would not give rise to a remedy.

[56] There was also a s.10(b) violation as the defendant was not told that he had the right to retain and instruct counsel prior to the ASD arriving and this was a serious violation in my view. Once the officer chose not to make the ASD demand forthwith, he was operating outside the parameters of section 254. It is not a question of whether there was time to consult counsel; an issue that arises in many forthwith cases like R. v. George, supra. Having not made a demand, there was a positive obligation to inform the defendant of his right to retain and instruct counsel and, if the defendant chose to invoke that right and acted diligently in this regard, there was an obligation to implement the right to counsel and to refrain from eliciting evidence in the meantime: see R. v. Willier, 2010 SCC 37, [2010] S.C.J. 37 at para. 33 and R. v. Manchulenko, 2013 ONCA 543, [2013] O.J. No. 3977 (C.A.) at para. 65

[57] I consider that the Charter violations in this case are exacerbated by the fact that Officer Wanamaker gave inaccurate testimony when he told the Court that the defendant had been told that the ASD would be coming and that he would have to blow into it. Similarly, Officer Canes gave inaccurate testimony when he said that Officer Wanamaker had told him that Officer Wanamaker had told the defendant that the ASD had been ordered and that he would have to blow into it. None of this happened on the facts as I have found them. This testimony appeared to be an attempt to shore up the failure to make a timely ASD demand.

[58] As concerns Officer Wanamaker, I cannot say the degree of intention associated with his inaccurate testimony. He may have thought that logically he must have or would have told the defendant that he would need to wait for the ASD, but he clearly did not do so. He either knew that that was the case (i.e. that he had not done so) or, if he had thought about it more carefully, he would have realized that he could not possibly give sworn testimony to the effect that he had done so.

[59] As concerns Officer Canes and his evidence that he remembered Officer Wanamaker telling him that he had told the defendant that the ASD would be coming, he either knew or ought to have known that his testimony on this point was not accurate.

[60] In any event, the evidence of Officer Wanamaker and Officer Canes on this issue was inaccurate. The inaccurate testimony of the police witnesses in this case exacerbates the Charter breaches and is a proper consideration when considering the first Grant factor. I refer and rely upon the recent decision of the Ontario Court of Appeal in R. v. Pino, 2016 ONCA 389 at paras. 100 to 103 where a similar issue was considered. In Pino, the Court of Appeal noted that admission of the evidence in that case could be interpreted as condoning dishonest testimony (see para 103). See also R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494. While I have not characterized the evidence of the two tactical officers (on the question of what the defendant was told about whether he was going to be required to blow into an ASD) as deliberately dishonest, I still consider that they either knew or ought to have known that their evidence on this issue was inaccurate. In my view, the point made by the Court of Appeal in Pino applies equally in the circumstances of this case.

[61] Finally, I consider that the Charter breaches were further aggravated when one examines what else was occurring during the nine minute period delay in administering the ASD demand. We know from Officer Canes that he received the passenger's identification documents from Officer Wanamaker and that Officer Canes was busy running the information through the police computer. Officer Canes could provide absolutely no explanation as to why he was checking the passenger's information in his police computer and stated that the passenger had done nothing wrong. Officer Canes had the following further exchange with defence counsel in cross-examination:

Q. I take it that was really the game plan from the get go – to stop this vehicle and get the identification of the two people in the vehicle and run them right?

A. Well yes that is part of it. We have to identify the vehicle driver and sometimes identify who the passenger is as well.

Q. You can identify the passenger but to run him that is basically give me your licence, give me your information, I am going to put you through our system.

A. Yeah he might have warrants out for his arrest.

Q. Well you will agree that if you stop someone for a traffic violation, you usually don't run the passengers of the vehicle do you?

A. At times I do or we do.

Q. This was one of those times.

A. This was one of those times yes.

Q. And because why - why here?

A. I cannot specifically tell you what the conversation that Constable Wanamaker had with the driver of the vehicle or sorry the occupant of the vehicle, my main concern at that point was to watch our backs.

(emphasis added)

[62] Officer Wanamaker was not specifically asked about running the passenger's information through the police computer but it can be fairly inferred on this record that he could offer no support for such action. Officer Wanamaker had no recollection of having spoken to the passenger at all and had no notes on any dealings with that person nor did he have his name. Accordingly, on this record, there was no legal basis for the police to obtain the passenger's personal information and run it through the police computer. It was not to see whether the passenger could drive the vehicle as the defendant had not yet failed the ASD demand and the passenger told Officer Canes that he had been drinking as well so this issue was not on the table at the time. Indeed, Officer Canes was candid in his testimony that the plan from the beginning was to pull the vehicle over and run both the driver and the passenger through the police computer system. He said that there might be a warrant for the arrest of the passenger. That does not constitute a reasonable and justifiable basis for the search of the passenger on any view of matter.

[63] I recognize, of course, that the violation of the passenger's Charter rights does not give rise to a remedy for the defendant. The violation of the passenger's Charter rights is only relevant to the extent that it informs or supports a Charter violation of the defendant's rights and it is my view that it does so in this case. Both of the tactical unit officers were very experienced police officers. Each of them knew of the requirement to make the ASD demand forthwith and that was not done. Instead, one of the things they were busy doing was checking the background of the passenger of the vehicle with no legal basis to do so. This conduct exacerbates the Charter violations of the defendant in my view because it tells us one of the things the tactical police officers were doing instead of making the ASD demand forthwith as they knew they were obliged to do under s. 254(2) or giving the defendant his right to counsel if the demand was not to be made forthwith. More time should have been spent by the officers focusing on how to properly deal with the defendant.

[64] To summarize on the first branch of the Grant test, I consider that the tactical officers appear to have knowingly ignored the provisions of s. 254(2); ignored the obligation to give rights to counsel in these circumstances; were busy violating the rights of the passenger when they should have been honouring their obligations to the defendant; and then came to Court and gave inaccurate testimony. By reason of the foregoing, I consider that there was a lack of good faith on the part the tactical officers in this case. In all of the circumstances, the violation of the defendant's Charter rights in this case was towards the moderately serious end of the spectrum and favours the exclusion of the breath sample evidence.

(ii) The Impact of the Breach on the Charter Protected Interests of the Accused

[65] In order to consider the impact on the Charter protected rights of the defendant, it is necessary to consider among other things the discoverability question. I recognize as well that breath sample evidence is generally seen as relatively non-intrusive (see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at para. 111). "Discoverability" refers to situations where unconstitutionally obtained evidence could have been obtained by lawful means had the police taken the proper steps. Discoverability has two main implications in the s. 24(2) analysis. The fact that evidence could have been obtained by lawful means may be seen to increase the seriousness of the Charter violation in the first part of the Grant analysis. On the other hand, the fact that the same evidence could have been obtained by lawful means may tend to lessen the seriousness or impact of the breach: see R. v. Cote, 2011 SCC 46, [2011] 3 S.C.R. 215 at paras 64 to 74. To be clear, even if evidence was discoverable by lawful means, that does not necessarily lead to the admission of evidence under the Grant analysis.

[66] Considering the discoverability question in this case, if Officer Wanamaker had made the ASD demand at 2:06 AM as he was obligated to do, he could have proceeded to require the sample himself by no later than 2:15 AM and likely earlier. Following on the demand that he should have made at 2:06 AM, he should have used the ASD device himself with the defendant when it arrived at 2:11 AM, or had Constable Wilmot administer it for him in furtherance of the demand he should have made at 2:06 AM. The forthwith question in that circumstance would have required a consideration of whether there would have been time to consult counsel in that 9 minutes or less timeframe. Considering all of the circumstances of this case, including the time of day; the fact that the defendant had a cell phone, the fact that the consultation with duty counsel back at the station took at least 11 to 13 minutes (from 2:47 AM when duty counsel was called to 2:58 AM when the defendant spoke to duty counsel for at least a few minutes) leads me to conclude that 9 minutes would not have been enough time to consult counsel. I reject the defence submission that 9 minutes would have been enough time to consult counsel. Not on the facts of this case. If Officer Wanamaker had proceeded as I have outlined above, the ASD demand would have been valid and the defendant would have had no choice but to comply with it. Accordingly, if Officer Wanamaker had done what he was obliged to do, there would have no Charter violations at all and the defendant would have had to provide the breath samples (or be guilty of the offence of refusing to provide a breath sample). Looked at from this vantage point, the effect on the Charter protected rights of the defendant was minimal.

[67] On the other hand, if one assumes that the ASD demand was not made until 2:15 AM as actually transpired in this case, but the police had given the defendant his right to counsel as they were obliged to do in the absence of an ASD demand, if the defendant wished to invoke that right to counsel, then the police would have had to permit him to do so prior to gathering any evidence from him.

[68] Based on the testimony of the defendant in this case and what actually transpired once he was informed of his right to counsel, I am of the view that if he had been advised of his right to counsel prior to the arrival of the ASD, he likely would have chose to exercise that right to counsel. It is true that when he was advised of his right to counsel after the ASD fail result and he was placed under arrest and handcuffed he stated, in response to a question as to whether he wished to exercise the right to counsel, "not right now". Upon arrival back at the station, he specifically asked to consult counsel and was given the opportunity to do so. Accordingly, it is important to note that once he was advised of the right to counsel, he chose to exercise it prior to giving any other incriminating evidence either by way of a statement or breath sample.

[69] I am aware of the Ontario Court of Appeal's decision in R. v. Owens, 2015 ONCA 652, 127 O.R. (3d) 603, an over 80 case in which the accused stated "no, not right now" when asked if he wished to consult counsel. The Court of Appeal restored the trial judge's decision that the right to counsel had not been invoked and that therefore the question of the waiver of the right to counsel did not arise. The Court of Appeal described the words "no, not right now" as "arguably ambiguous".

[70] In my view, Owens was a very different case than the one at bar. In Owens, the accused never spoke to counsel. The closest the accused in Owens came to exercising the right to counsel was to say "no, not right now" when asked if he wanted to speak to counsel. The trial judge found there was no invocation of the right to counsel and the Court of Appeal's ruling in Owens is no more than a ruling that such a finding was open to the trial judge on the facts of that case. There was no palpable and overriding error to support appellate interference.

[71] In the case of Mr. Nithiyananthaselvan, once he learned of his right to counsel and was facing a s.254(3) approved instrument breath demand, he specifically asked to speak to counsel before responding to the breath demand or providing any further evidence to the police. It is true that while he was in the back of the cruiser by the roadside after he had failed the ASD demand, he did not wish to consult counsel at that moment. This is not surprising as he was under arrest and handcuffed. I accept the defendant's testimony on the Charter application that prior to being handcuffed and prior to providing the ASD sample, if he had been provided his right to counsel, he would have exercised it at that time and prior to responding to the ASD demand. In this circumstance the police would have been obliged to hold off on the collection of evidence. The fact that he exercised his right to counsel once he was advised of it and once he knew the police were seeking further breath samples from him supports my conclusion in this regard.

[72] I have already stated that the ASD demand made by Constable Wilmot was invalid as it was not made forthwith. If the defendant had received counsel prior to being called upon to respond to the ASD demand he may well not have provided the sample that he did in this case. Had he refused, in my view his refusal would have been entirely lawful as the demand was invalid and there could be no successful over 80 case or refusal case against him: see R. v. Grant, [1991] 3 S.C.R. 139 at paras. 19 and 21. Viewed in this light, the failure to give the defendant his right to counsel (after the failure to make the ASD demand forthwith) could be seen to have had a significant impact on the defendant's Charter protected interests of the defendant.

[73] Accordingly, the answer to inquiry of the seriousness of the Charter breach depends upon which Charter violation one is looking at. If there had been no s.8 violation (because the officer made the demand forthwith), there would have been no 10(b) violation and there would be no serious impact on the interests of the defendant. On the other hand, in light of the s.8 violation that did occur, the impact on the s.10(b) violation can be viewed as significant. Accordingly, taking all of the circumstances into account, I consider that the violation of the defendant's Charter rights ranged from minimal to moderately serious in terms of the impact on the defendant's interests. In my view, this part of the Grant test does not point clearly towards exclusion or inclusion of the evidence.

(iii) Society's Interest In Adjudication on the Merits

[74] Under this heading, the Court considers whether the truth seeking function of the Court process would be better served by admission of the evidence or by its exclusion. The reliability of the evidence and the importance of it to the Crown's case are to be considered. In this case, the breath samples are highly reliable and critical to the Crown's case. This issue clearly favours inclusion of the evidence.

(iv) Balancing

[75] The seriousness of the Charter infringing state conduct favours exclusion of the evidence and society's interest in adjudication on the merits favours inclusion of the evidence. For purposes of balancing, I will assume that the impact on his Charter rights was only minimal even though from at least one perspective, it was moderately serious.

[76] There is no hard and fast rule that the evidence of breath samples should be admitted or excluded where there is a Charter violation.

[77] I am persuaded that the balancing of the three Grant factors favours the exclusion of the evidence as this will protect the rule of law and the integrity of the justice system in the long run. I think it particularly important for the Court in this case to distance itself from the inaccurate testimony of the two tactical unit police officers who pulled the defendant over and the failure of these officers to follow the basic and well understood statutory scheme with respect to the demanding of breath sample evidence. I note as well that part of the reason the officers did not make the demand forthwith in this case as required by the statutory scheme and violated the defendant's Charter rights (including his right to counsel) was because they were busy violating the passenger's Charter rights and this factors into the balancing exercise and also favours exclusion of the evidence in my view. However, to be clear, the conduct with respect to the passenger is only a secondary consideration and I would still have arrived at the same conclusion with or without this conduct.

[78] In the circumstances, the breath sample evidence will be excluded.

Conclusion

[79] In conclusion, in light of my decision that the breath sample evidence is to be excluded, there is no evidence upon which the Crown can rely to prove the over 80 case beyond a reasonable doubt. Accordingly, the over 80 charge is dismissed.

Released: July 7, 2016

Justice Paul F. Monahan