Court Information

Ontario Court of Justice

Date: January 28, 2016

Between:

Her Majesty the Queen

— and —

Rabae Elzain

Before: Justice Wayne G. Rabley

Heard: January 17, 2016

Reasons for Judgment Released: January 28, 2016

Counsel

Meredith Gardiner — counsel for the Crown

George Christakos — counsel for the defendant Rabae Elzain

RABLEY J.:

INTRODUCTION

[1] Rabae Elzain is charged with the offence of over 80. The facts are quite simple. On December 4th, 2011, he was driving his motor vehicle in the City of London. Constable Milne of the OPP was on patrol at approximately 2:46 in the morning and made some observations which caused him to suspect that Mr. Elzain may be impaired. He pulled the vehicle over and after a brief discussion, formed a reasonable suspicion that Mr. Elzain had alcohol in his system while operating his motor vehicle. The officer made an approved screening device demand which resulted in a fail. Mr. Elzain was arrested and given his Rights to Counsel, Caution and Breath Demand.

[2] Counsel for Mr. Elzain has brought an Application pursuant to subsections 10(b) and 24(2) of the Charter to exclude the Breathalyzer readings. It is also argued by the defence that the Crown cannot rely upon these results because the Demand was not adequately explained by the officer during testimony and that the tests were not taken as soon as practicable.

[3] I will deal with these defence submissions in reverse order.

AS SOON AS PRACTICABLE

[4] Section 258(1)(c)(ii) of the Criminal Code states:

258 (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2),

(c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if

(ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken,

[5] The defence argues that the Crown is not entitled to rely upon the presumption of identity because there were 29 minutes that were not accounted for by the police in their testimony.

[6] The relevant times are as follows:

• 2:48 — time of the stop
• 2:51 — ASD demand
• 2:59 — Arrest and Rights to Counsel
• 3:01 — Breathalyzer Demand
• 3:20 — Arrival of Tow Truck
• 3:24 — Departure to Detachment
• 3:27 — Arrival at Detachment
• 3:45 — Call placed to Duty Counsel
• 4:15 — Return call from Duty Counsel
• 4:24 — Mr. Elzain turned over to Breath Tech after call completed
• 4:26 — Secondary Caution read and Breathalyzer Demand read again
• 4:32 — 1st Sample received with reading of 132 mgs/100 mil.
• 4:57 — 2nd Sample received with reading of 118 mgs/100 mil.

[7] The defence argues that there is an unexplained delay relative to the following time periods:

1. 18 minutes between the time of arrival at the OPP station and the time that Duty Counsel was called;
2. 6 minutes between the time that the Breath Tech read his demand and the giving of the first sample;
3. 5 minutes between the time that the Intoxilyzer was ready and available to accept a second sample and the taking of that sample.

[8] The defence relies upon the decision of Justice Mitrow in the Superior Court of Justice in R. v. Dean, [2013] O.J. No. 2418 where there was an 18 minute unexplained delay between the time of arrival at the police station and the call to Duty Counsel. The case is helpful because it reviews the law and confirms that the onus is upon the Crown to explain any significant delay if it wishes to rely upon the statutory presumption.

[9] Justice Mitrow concluded that the starting point for any discussion regarding the issue of "as soon as practicable" is the decision of R. v. Vanderbruggen, [2006] O.J. No. 1138 (C.A.). In that case, the Ontario Court of Appeal concluded that although the tests had to be taken within a reasonably prompt time under the circumstances, there was no requirement that they be taken as soon as possible. Ultimately, the test for a court to determine is whether or not the police acted reasonably. At paragraphs 12 and 13 of the decision, the Court stated:

[12] That leaves the question that is at the heart of this appeal—the meaning of as soon as practicable. Decisions of this and other courts indicate that the phrase means nothing more than that the tests were taken within a reasonably prompt time under the circumstances. See R. v. Phillips (1988), 42 C.C.C. (3d) 150 (Ont. C.A.) at 156; R. v. Ashby (1980), 57 C.C.C. (2d) 348 (Ont. C.A.) at 351; and R. v. Mudry, R. v. Coverly (1979), 1979 ABCA 286, 50 C.C.C. (2d) 518 (Alta. C.A.) at 522. There is no requirement that the tests be taken as soon as possible. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably. See R. v. Payne (1990), 56 C.C.C. (3d) 548 (Ont. C.A.) at 552; R. v. Carter (1981), 59 C.C.C. (2d) 450 (Sask. C.A.) at 453; R. v. Van Der Veen (1988), 1988 ABCA 277, 44 C.C.C. (3d) 38 (Alta. C.A.) at 47; R. v. Clarke, [1991] O.J. No. 3065 (C.A.); and R. v. Seed, [1998] O.J. No. 4362 (C.A.).

[13] In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The "as soon as practicable" requirement must be applied with reason. In particular, while the Crown is obligated to demonstrate that—in all the circumstances—the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody. See R. v. Letford (2000), 150 C.C.C. (3d) 225 (Ont. C.A.) at para. 20; R. v. Carter, supra; R. v. Cambrin (1982), 1 C.C.C. (3d) 59 (B.C.C.A.) at 61-3; and R. v. Seed at para. 7.

[10] In Vanderbruggen, the Court of Appeal held that the Crown need not provide an explanation for "every minute" that an accused is in custody. The facts in that case suggest that the explanations given by the police were not precise but were general in nature. Ultimately, the Court concluded:

There was no evidence that either the arresting officer or the technician acted unreasonably. The record only shows that they were attentive to their duties and to the need to administer the tests to the appellant as soon as practicable. There was no evidence that the officers gave unreasonable priority to any other task.

[11] I would make the same observation with respect to the facts of this case. When Constable Milne arrived at the OPP detachment at 3:27 he parked his cruiser and then brought Mr. Elzain into the prisoner lodging area. As a matter of common sense, this would have taken a few minutes. The officer then filled out a prisoner lodging sheet which estimated could take up to ten minutes. He then did a subject history before calling Duty Counsel.

[12] In cross-examination, the officer conceded that he did not know exactly how long he had spent completing the prisoner lodging sheet. In my view, it was reasonable for him to give an estimate given his 14 years of experience and the fact that this trial took place more than four years after the charge had been laid.

[13] It was also reasonable to do a brief subject history before contacting Duty Counsel to determine if bail was likely to be an issue that Duty Counsel would need to address with an accused. Again as a matter of common sense, it would have taken a few minutes to walk Mr. Elzain into various parts of the police detachment and to secure him in the lodging area.

[14] Therefore, the time between arrival at the OPP detachment and the placing of the call to Duty Counsel is reasonably explained.

[15] With respect to the six minute delay between the time of the demand and the giving of the first sample, I also find that this was reasonably accounted for. Constable Skeaff acted as the breath tech that evening. He testified that Mr. Elzain did not adequately provide a suitable sample when first required to do so. He gave intermittent blows and the Breathalyzer did not at first provide a reading. The officer took the time to issue Mr. Elzain a warning and explain to him the consequences of not giving a sample. It was only six minutes after the reading of the caution that the Breathalyzer produced an analysis of Mr. Elzain's breath.

[16] With respect to the five minutes of delay where the Breathalyzer was available to receive a second sample and the giving of that sample, it is my view that this small time frame does not add anything to the defence argument. It was a small delay and it did not appear that the officer was not "attentive" to his duties and that he had given "unreasonable priority" to any other task.

[17] In conclusion, I find that the time frames outlined by the Defence were adequately explained by the Crown and that the tests were taken as soon as was practicable. The Crown is therefore entitled to rely on the presumption of identity.

WORDING OF THE DEMAND

[18] The Crown called its police witnesses in reverse order. When questioning the Breath Tech as to the wording of the Demand read, the Defence conceded that the wording was not in issue. Based on this concession, the Crown did not have the Investigating Officer explain the wording of the ASD Demand and the Breathalyzer Demand that he read at the scene. The Defence did not make a similar admission regarding these two demands and was not asked to do so. In my view, it is important that the Crown be clear in the admissions that it is seeking and that it clarify what it is seeking to have the Defence admit.

[19] At the conclusion of the Crown's case, the defence did not put the Court and the Crown on notice that it would be arguing Section 8 or 9 of the Charter regarding this issue. In fairness, the Defence could not have reasonably expected the evidence to unfold as it did. Had the Defence had made such a request for Charter relief, I would have permitted the Crown to reopen its case to deal with this issue as it had not been given prior notice. Since no application has been made, the Breathalyzer results are before the Court and can therefore be relied upon by the Crown.

[20] Also, no specific wording is required for a sample under s. 254(3). What is necessary is that the officer conveys to the accused that he must give a sample of his breath. It is not sufficient for a police officer to testify that he "read the standard demand" or that he read "the police demand" to the accused, since that evidence does not convey anything about breath testing.

[21] In the case before me, Constable Milne testified that he read an "Intoxilyzer Demand" to Mr. Elzain and that the accused understood what was read to him. It was considered satisfactory in Humphrey (1977), 38 CCC (2d) 148 at 150 (OCA) for the police officer to testify that he informed the accused that he was making "a demand in regard to the breathalyzer test". It was also found that a sufficient demand had been proved where the officer testified that he had made "the standard breathalyzer demand;" McLaughlin, [1978] BCJ 681 at paragraph 6 (BCSC), Toy J.

[22] In all of the circumstances, it is my view that a proper demand was made and that even if I am incorrect in my finding, I find that in the absence of a Charter challenge, the Crown would still be entitled to rely upon the Breathalyzer results.

S. 10(b) RIGHTS TO COUNSEL

[23] The Defence argues that there was a reasonable opportunity for Mr. Elzain to have exercised his right to speak to a lawyer while waiting the 19 minutes for the tow truck to arrive at the scene. It is submitted that the investigating officer's personal policy of never allowing an individual to make a telephone call in the back of his cruiser was arbitrary and that if I find that there was a s. 10(b) violation, that I ought to exclude the Breath results pursuant to s. 24(2) of the Charter.

[24] Constable Milne testified that he stopped Mr. Elzain in front of White Oaks Mall on Wellington Street, which is a very busy part of London. The officer called for a tow truck at 2:55 after Mr. Elzain failed the ASD and testified that Ross, who I assume to be the tow truck company, "is fairly quick to respond in the City of London."

[25] Constable Milne read Mr. Elzain his Rights to Counsel at 2:59 and when asked if he would like to speak with someone he replied "Duty Counsel I think." No attempt was made by the officer to qualify this answer. The Caution was read at 3:00 and then the Breath Demand at 3:01. The officer handcuffed Mr. Elzain, placed him into the back of his cruiser. He then searched Mr. Elzain's motor vehicle and made some notes.

[26] Constable Milne originally testified that he did not believe that another officer was available that evening because generally they call each other when an arrest is made to offer assistance. In cross-examination, the officer acknowledged that he really could not specifically recall that another member of his detachment was available to stand by the vehicle until a tow truck arrived because he did not have a note and because of the long delay between charge and trial.

[27] Mr. Elzain had a cell phone with him that evening. He did not request the opportunity to use it. Constable Milne testified that when he explains the rights to counsel to an accused that he does so with the added explanation that the call will be done back at the detachment. In this case, the detachment was three minutes away.

[28] The officer was asked if he would remove the handcuffs from an accused if he had asked to speak to a lawyer. He replied that his standard practise was that "I don't take the handcuffs off so they can make a phone call." Instead, the officer offered that he would always take the individual back to the detachment to contact counsel.

[29] Constable Milne left for the detachment at 3:24 after the tow truck arrived at 3:20. Therefore, assuming that he completed reading the Demand at 3:01, there was a period of 19 minutes where Mr. Elzain could have made a phone call to Duty Counsel had he been given the opportunity to do so.

[30] The situation is similar to that found in the case of R. v. Johngeneel (unreported), a decision of my sister Judge J. Leroy. In that case, there was a period of nine to ten minutes between the officer reading the accused his rights and the departure from the scene for the police station. After reviewing a number of cases, Her Honour concluded at page 16 that:

In my view, in the absence of evidence of officer or public safety, there is, in nine to ten minutes, sufficient time for a cell phone to be used to contact known counsel and for advice to be received.

[31] Justice Leroy relied upon the decisions of R. v. Suberu, [2009] S.C.C. No. 33, R. v. George (2004), 187 C.C.C. (3d) 289, R. v. Piraino (Nov. 29, 2011 Kitchener OCJ, Epstein J unreported) and R. v. Ellacott, [2009] O.J. 5869, a decision of my brother Judge M. Hornblower. The reasoning in Ellacott is powerfully spoken:

It is not incumbent upon an arrested or detained person to ask the officer about contacting counsel at the roadside. Such persons are under the control of the police. Rather, it is the officer who is required in these circumstances, having first satisfied himself [or herself] that there was no risk to officer or public safety, to ask the arrested party if they have a cell phone and if they wish to consult counsel at that time.

[32] In the case before Justice Hornblower, there was a 20 minute delay. In George, there was a 15 to 20 minute delay. As stated by our Court of Appeal in George:

… it was incumbent upon the officer to take reasonable steps to facilitate the respondent detainees right to consult counsel. Such steps would involve asking the detainee whether he had a cell phone.

[33] I see no reason why I would depart from the reasoning of my colleagues and on the basis of judicial comity I would adopt their reasoning.

[34] It is also important to consider the comments made by the Supreme Court of Canada in R. v. Taylor, 2014 SCC 50, [2014] S.C.J. No 50 (SCC). In that case, the accused was involved in a motor vehicle accident and was taken to the hospital. While awaiting blood tests to be taken for medical purposes, 22 minutes passed which the Court concluded was ample time for the police to make inquiries as to whether a phone was available or a phone call was medically feasible.

[35] Justice Abella speaking for the Court reviewed the obligations of the police and commented at paragraph 28:

But the police nonetheless have both a duty to provide phone access as soon as practicable to reduce the possibility of accidental self-incrimination and to refrain from eliciting evidence from the individual before access to counsel has been facilitated. While s. 10(b) does not create a "right" to use a specific phone, it does guarantee that the individual will have access to a phone to exercise his right to counsel at the first reasonable opportunity.

[36] Justice Abella then concluded at paragraph 35:

The result of the officers' failure to even turn their minds that night to the obligation to provide this access, meant that there was virtually no evidence about whether a private phone call would have been possible, and therefore no basis for assessing the reasonableness of the failure to facilitate access. In fact, this is a case not so much about delay in facilitating access, but about its complete denial. It is difficult to see how this ongoing failure can be characterized as reasonable. Mr. Taylor's s. 10(b) rights were clearly violated.

[37] I would come to the same conclusion and find that Mr. Elzain's s. 10(b) rights were violated.

S. 24(2) EXCLUSION

[38] The most challenging aspect of this case is whether or not I should exclude the Breathalyzer readings because of the Charter breach. Such a finding would effectively bring the prosecution of Mr. Elzain to an end. S. 24(2) of the Charter states as follows:

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[39] In R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32, the Supreme Court of Canada concluded that a court must assess and balance the effect of admitting evidence obtained in violation of the Charter with society's confidence in the justice system having regard to:

i. The seriousness of the Charter-infringing state conduct;

ii. The impact of the breach on the Charter-protected interests of the accused; and

iii. Society's interest in the adjudication of the case on its merits.

Seriousness of the Charter-Infringing State Conduct

[40] The courts must disassociate themselves with unlawful state conduct. Such unlawful conduct ranges from inadvertent or minor violations to wilful or reckless disregard for Charter protected rights. The more serious the state conduct that lead to the Charter breach the more the courts will want to disassociate themselves from such conduct in order to preserve public confidence in the justice system.

[41] The factors to consider when determining the seriousness of the Charter violation include:

(a) whether the violation was committed in good faith;

(b) whether it was wilful or flagrant disregard of the Charter;

(c) whether it was motivated by circumstances of urgency or necessity; and

(d) whether other investigatory techniques were available that would not have violated the Charter.

[42] In my view, the violation of the Charter protected interest in this case was serious. It is clear that the law requires a police officer to consider whether or not during a post arrest delay that there is a reasonable opportunity for the accused to make a telephone call to his or her lawyer.

[43] An officer cannot circumvent this responsibility because it is his "standard procedure". The fact that this officer has many years of experience makes this violation even more serious because the law in this area has been well established for many years.

[44] It may be for officer safety reasons or investigative needs such as those discussed in R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621 (SCC) that an officer may choose not to allow a telephone call to be made. For example, in this case, had Constable Milne testified that he would not step out of his vehicle to allow a private conversation to be had by an accused person in the back of his cruiser because it was December and the cold weather might jeopardize his health, that might have been a consideration.

[45] However, in the absence of a reasonable explanation, the wilful disregard for a Charter protected right such as the ability to consult counsel, will weigh strongly in favour of excluding the evidence subsequently obtained.

Impact of the Charter-Protected Interests of the Accused

[46] This inquiry considers what effect the Charter breach had on the accused. The Court must consider the extent of the breach actually had on the rights and interests of the individual. The more serious the impact is on the accused, the greater the risk will be of excluding the evidence.

[47] The Supreme Court of Canada has concluded that Breathalyzer tests are minimally intrusive. In this case, there was no attempt by the police to obtain evidence from the accused between the time that he was provided his Rights to Counsel and the time that he spoke with Duty Counsel. After he was taken to the OPP detachment, Mr. Elzain was given an opportunity to speak with Duty Counsel and did so.

[48] In fairness to Constable Milne, he may not have expected the tow truck to be delayed for as long as it was. His evidence was that the company was 'fairly quick' to respond in the City of London and that his arrest had taken place only three minutes away from the OPP detachment.

[49] If he had turned his mind to this issue, it may not have been unreasonable for Constable Milne to believe that the tow truck would have been there quickly and that he would not be able to facilitate contact with Duty Counsel as requested by Mr. Elzain. However, this is speculation. It is the Crown's obligation to call evidence regarding this issue. As stated by Justice Abella in Taylor; "Whether a delay in facilitating access to counsel is reasonable is a factual inquiry."

[50] In this case, there was no significant impact on Mr. Elzain's Charter protected right and he suffered no prejudice. He was already under arrest. A demand had been made and this would not have been impacted by his ability to speak with his lawyer at the scene. He did speak to Duty Counsel prior to the next investigative step.

[51] Had Mr. Elzain been charged with Impaired Driving the situation may have been different as there would be a risk that the accused person who is taken to a police station and then paraded before a desk sergeant or other officers might accidentally self-incriminate himself. However, that was not the case here where Constable Milne took the accused to the OPP detachment and dealt with him on his own during the logging in procedure. I find that there was no significant impact on Mr. Elzain's Charter protected right. In my view, that factor favours inclusion of the evidence.

Society's Interest in an Adjudication of the Case on its Merits

[52] Under this branch of the analysis, the court must consider whether the truth-seeking function of the criminal trial process is better served by the admission or exclusion of the evidence. The reliability of the evidence and the nature of the Charter breach right must be examined.

[53] It will rarely be the case that Society's interest in the adjudication of a case will not include the desire to admit reliable evidence such as the Breathalyzer results in this case. Without this evidence, the Crown's case will immediately come to an end. Society has an interest in ensuring that its roadways are safe and that those who commit offences upon it are brought to justice. Having cases heard on their merits with reliable evidence will generally be in Society's best interests. This factor favours inclusion.

SECTION 24(2) ANALYSIS – APPLICATION TO THIS CASE

[54] In this case, 19 minutes passed between the reading of the Breath Demand and the arrival of the tow truck. A cell phone was available to Mr. Elzain and there was ample opportunity to contact Duty Counsel. Having said that, Duty Counsel are not private lawyers who could reasonably be expected to immediately answer their home phones at 3 o'clock in the morning when those numbers are known to an accused person. As was done here, a call is made to Duty Counsel and then an accused waited for a call back which created delay. On this particular evening, the delay was half an hour.

[55] The officer was only three minutes away from his detachment where he could provide privacy to Mr. Elzain. More importantly, the officer had stopped Mr. Elzain in the City of London and his expectation was that a tow truck would arrive within a short period of time because the company was "fairly quick to respond." In my view, this is an important factor because while it is easy after the fact for a Court to count the minutes in between the time the detention and the departure from the scene and conclude that there was time available for a telephone call to counsel, it is much more fluid situation for the police officer during the course of an investigation.

[56] In this case, I find that Constable Milne reasonably expected that a tow truck would be "fairly quick to respond". The reality is that even if the officer did not avert his mind to this issue, it is fair to conclude that a reasonable person standing in his place may not believe that there would be a reasonable opportunity to find the cell phone, dial the number for Duty Counsel and leave a message, wait for a call back and then provide privacy to Mr. Elzain, especially where the officer is then required to stand outside of his cruiser in the early morning hours of December.

[57] Police put themselves in a difficult situation when they do not make reasonable inquiries regarding issues that pertain to an accused's s. 10(b) rights. At present there is no obligation on an officer to inquire when the tow truck they have asked for is expected to arrive. Prudence might dictate that this information be sought by the officer as it would be easy to ascertain from their dispatch operators. Once that information is known the officer could then make an informed decision as to whether or not there was a reasonable opportunity for an accused to attempt to contact counsel.

[58] As I balance the various factors, I also take into consideration that no evidence was obtained between the time of arrest and the eventual call to Duty Counsel. This was an Over 80 investigation which was handled solely by Constable Milne to the time of surrender to the Breath Tech. There was minimal risk that Mr. Elzain might accidentally self-incriminate himself during this procedure.

[59] Therefore, although tempted to exclude the evidence as Justice Duncan did in the helpful decision of R. v. Beattie [2009] O.J. No. 4121, "after much anguished consideration that the long term interests of the administration of justice are better served by exclusion in this case" I have come to the conclusion that the circumstances of this case favour inclusion of the Breathalyzer results.

[60] The case having been proven beyond a reasonable doubt, I would find Mr. Elzain guilty of the offence.

Released: January 28th, 2016

Signed: "Justice Wayne G. Rabley"