Court File and Parties

Court File No.: 2811 998 14 14023 00

Ontario Court of Justice

Her Majesty the Queen

v.

Niroshon Placidass

Before: The Honourable Justice M.S. Felix

At Oshawa, this 18th day of October, 2016

Proceedings in Court

Reasons for Judgment and Ruling on Charter Application

Appearances

• B. Guertin – Counsel for the Crown
• C. Assie – Counsel for Mr. Placidass

Decision

Tuesday, October 18, 2016

Felix, J: Reasons for Judgment and Ruling on Charter Application (Orally)

The Charge

The defendant is charged with "Over 80" as a result of a traffic stop by Police Constable Frech of the Durham Regional Police on the 4th of December, 2014.

The investigating officer was on general patrol when her attention was drawn to a motor vehicle weaving within its lane. She caused the vehicle to come to a stop to determine the sobriety of the driver. After stopping the defendant, she noted indicia consistent with the consumption of alcohol. The defendant also admitted that he had consumed alcohol.

The defendant ultimately failed an approved screening device (ASD) test. He was arrested, taken to the police station, and ultimately provided samples of his breath.

Charter Application

The matter proceeded by way of blended application and trial.

Counsel for the applicant asserted breaches of ss. 8, 9, and 10(b) of the Canadian Charter of Rights and Freedoms (Charter). The argument centred around the fact that the officer did not possess an ASD at the time of the investigation. The applicant argued that the officer failed to comply with the immediacy requirement in s. 254(2) of the Criminal Code of Canada (Criminal Code) principally because she did not convey the ASD demand until nine minutes after the formation of the requisite reasonable suspicion. The applicant also argued that the officer failed to provide rights to counsel while awaiting the delivery of an ASD to her location. Furthermore, even after arrest, the applicant submits that there was an inordinate and inexcusable delay in providing rights to counsel.

The applicant argues that these breaches, along with an ancillary issue that the breath samples were not obtained "as soon as practicable" ground a deficient police investigation. He seeks the exclusion of the breath sample results pursuant to s. 24(2) of the Charter.

For the reasons that follow, the application is granted. The breath samples are excluded pursuant to s. 24(2) of the Charter. The applicant is acquitted.

Charter Argument: Relevant Considerations

Introduction

A litany of criminal cases have discussed the toll that drinking and driving takes on society.

The criminal law attempts to balance the rights of the individual against the legitimate public interest in the detection and prevention of this criminal activity.

The Criminal Code provides several investigative tools to assist police officers investigating drinking and driving offences.

Where a police officer communicates an ASD demand "forthwith" pursuant to s. 254(2) of the Criminal Code of Canada, there is a significant impact on the constitutional rights of the individual driver.

The driver is legally detained. The driver must comply with the demand or face criminal consequences.

The communicating police officer need not comply with s. 10(b) of the Charter because while s. 254(2) violates s. 10(b) of the Charter, it is a reasonable limit prescribed by law and justified under s. 1 of the Charter: See R. v. Thomsen (1988), 40 C.C.C. (3d) 411 (S.C.C.); R. v. Orbanski (2005), 196 C.C.C. (3d) 481 (S.C.C.). In addition, s. 254(2) legally authorizes police officers to engage in roadside testing for alcohol consumption in violation of ss. 8, 9, and 10 of the Charter: See R. v. Woods, 2005 (S.C.C.) 42 para. 15.

"Forthwith" and the Immediacy Requirement

The delicate balance between the detection and prevention of drinking and driving and the rights of the individual is preserved by the "immediacy requirement": See Woods, at para 1; R. v. Quansah, 2012 ONCA 123 at para. 26.

The immediate nature of both the demand and the required compliance means that in the ordinary course there should be minimal delay at the roadside. Where the ASD demand is made "forthwith" that is to say within the scope of the s. 254(2) statutory provision, the individual driver is legally expected to comply with the demand. Compliance with the 'immediacy requirement' furnishes no realistic opportunity to contact counsel. Further there is no ancillary breach of ss. 8 and 9 of the Charter in these circumstances. See Woods, paras. 29-36; See Quansah, paras. 17-22.

In Quansah, at paragraphs 45-49, the Ontario Court of Appeal explained the five considerations at play when the Court is analyzing the immediacy requirement:

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

46. Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body. The immediacy requirement, therefore, commences at the stage of reasonable suspicion.

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

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

49. Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee's s. 10(b) rights before requiring the sample. If so, the "forthwith" criterion is not met.

Application to this Case

The investigating officer stopped the applicant's vehicle at 2:24 a.m.

The ASD demand was made at 2:35 a.m. This was approximately nine minutes after the formation of the requisite grounds, and approximately eleven minutes after the traffic stop.

It is unclear what time the officer formed the requisite reasonable suspicion to make an ASD demand. She did not have a specific time noted in her notebook or prepared reports. When testifying she did not possess an independent recollection of the time she formed her grounds. Given the evidentiary vacuum, the court must attempt to infer when the officer formulated her reasonable suspicion. I find that she formed her reasonable suspicion almost immediately after stopping the vehicle, based on the observations of the vehicle, and the immediate admission of consumption made by the applicant. The applicant in his materials suggests (generously I might add) that the "forthwith window" (See the case of R. v. Degiorgio, 2011 ONCA 527) excused two minutes of investigative time from the analysis.

I agree. It is abundantly clear that the officer did not communicate the demand "forthwith" in the temporal sense. I find that she failed to communicate the ASD demand at the time she formed her reasonable suspicion. I further find that she delayed making the demand for approximately nine minutes. I recognize there is no mathematical formula associated with the analysis of "forthwith." There is no acceptable range of minutes permitted. The analysis must focus on the context of the circumstances.

The demand must be communicated upon formation of reasonable suspicion in furtherance of the immediacy requirement. See Quansah, para. 46; and a decision of Mr. Justice Hill of the Superior Court of Justice, R. v. Fildan, [2009] O.J. No. 3604 paras. 38-40 (ONSC).

Any sanctioned delay or flexibility accorded the constitutional imperative of immediacy is restricted to "unusual circumstances" including delay associated with ensuring the operational accuracy of the instrument: Woods, Quansah, supra., para. 26; R. v. Bernshaw, [1994] S.C.J. No 87 (S.C.C.) para. 73; Fildan, para. 40.

The Explanation for Delay

The experienced investigating officer testified that she was aware that it was her obligation to communicate the ASD demand immediately after her acquisition of reasonable suspicion. She also confirmed that she understood her responsibility to provide rights to counsel upon arrest or detention.

The officer did not communicate the ASD demand after forming her reasonable suspicion. She did not provide rights to counsel upon detention. She did not provide rights to counsel upon arrest either.

The investigating officer cited two explanations, that is to say justifications, for the delay in this case. First of all, she testified in support of her view, that the driver was not detained while awaiting the arrival of the ASD. The inference being, no rights to counsel need be provided. Second, she sought to rely upon a generalized police safety concern associated with the passengers in the applicant's motor vehicle. She testified that the passengers were intoxicated and unruly and the circumstances caused some delay. Third, she testified that where she was aware that the ASD would arrive in two or three minutes, she did not as a practice, provide rights to counsel.

Detention

The applicant was asked by the investigating officer to attend her cruiser. She did a pat-down search. She explained "what was going to be happening" with the door of the cruiser open. The officer testified that she was of the view that the applicant had an opportunity to leave, that he was free to leave, but she had made a demand, and she testified that she "understood" that he was going to remain. The applicant remained in the back seat of the cruiser until the ASD arrived on scene. The Crown properly accepts that the application was detained. I do not accept the officer's view that the applicant was not detained and that he was free to leave at any time. If she believed this, she did not communicate this view to the applicant.

I conclude that the applicant was in fact detained.

Generalized Police Safety Concern: Unruly Passengers

I do accept that there will be situations where the immediacy requirement will give way to other considerations and circumstances. At times, traffic stops occasion police safety concerns for example, or public safety considerations such as securing the scene of a traffic accident for fear of further risk to the public. Surely we would expect police officers to address immediate medical emergencies, rather than focus on complying with the immediacy requirement. These considerations embody the recognition that in some justifiable circumstances, a certain flexibility is required: See Woods, para. 43; Quansah, paras. 28, 29, 32; R. v. Peirman and R. v. Dewald, (1994), 92 C.C.C. (3d) 160 (Ont. C.A.); Bernshaw, para. 73.

In this case, the investigating officer testified concerning an officer safety issue -- the other passengers in the applicant's vehicle. She sought to rely on these circumstances to justify delay in both making the ASD demand, and providing rights to counsel.

Having considered the context of the circumstances and the evidence on this application, I conclude that I place little weight on this justification.

First of all, this circumstance did not merit a notation in the officer's notes or her typed reports, yet, it figured prominently as the sole reason for delaying the ASD demand and the provision of rights to counsel. That an officer failed to record a detail in notes, does not mean that the detail did not occur or an independent recollection is unavailable. A contextual analysis is required. In this particular case, that particular detail is important, as it is the sole justification relied upon by the officer to explain delay associated with the ASD demand and the provision of rights to counsel. The officer in question has more than a decade of experience. Enough experience to understand that in drinking and driving prosecutions, times, constitutional rights and reasons for delay are important issues. In these circumstances, it is reasonable to expect that had this issue played a significant role, it would have been noted somewhere in her investigative file.

Second, during direct examination, the officer could not even recall the number of passengers in the vehicle.

Third, during direct examination, the officer did not rely, in any significant way, on the conduct of the passengers. The concern was their behaviour and level of intoxication. It's certain that they were a distraction. The officer testified that the passengers had evidently been consuming alcohol, and were somewhat boisterous. During cross-examination on this issue, the officer's recount changed. She expanded the scope of the impugned conduct to include the passengers getting out of the applicant's vehicle and/or making efforts to get out of the applicant's vehicle. While she acknowledged that none of the passengers were cautioned or arrested for this behaviour, this feature of the evidence arose as her evidence evolved to rely more prominently on officer safety issues. It is significant that this evidence came out when pressed on the issue during cross-examination. This is what prompted a change in the scope of the evidence that she sought to rely on. The change in evidence to expand the scope of the conduct attributed to the passengers, causes me to place little weight on this evidence as a justification for delaying the provision of the ASD demand and inferentially rights to counsel.

This case is similar to case provided by one of the parties, R. v. Kerr, (2010) ONCJ 189, aff'd [2011] O.J. No. 6142 (SCA). And the observation provided by Green, J., in that case at paragraph 22, is appropriate:

22. Although rare, there may well be situations where immediacy may have to yield to legitimate concerns for public or officer safety. Such claim, however, cannot be indiscriminately or universally invoked so as to pre-empt constitutional compliance. Nor does the application of such exception fall to the subjective sensibility of each officer. There must be some objectively ascertainable foundation for such departure from a statutory imperative to avoid constitutional protections being held hostage to the unreviewable whim of law enforcement officers.

I think that this is a principled approach. I would be prepared to consider explanations provided for delay and I will in the future. I have pointed out in this judgment that there are circumstances where a more flexible interpretation of the immediacy requirement is in order. But in this case, I have considered and evaluated the explanation provided by the investigating officer, and I reject it. There is no corroborating evidence from the second officer at the scene concerning the conduct of the passengers. This second officer was the person who actually directly dealt with the passengers once he arrived.

Having considered all of the circumstances, I find there were no "unusual circumstances" that justified the delay in executing the ASD demand. Further, there was no justification for the delay associated with a concern for accuracy of the instrument or some other justifiable reason, including officer safety.

As such, I must conclude that the constitutional imperative that the demand be made forthwith governs. There is no need for flexibility.

I conclude the demand was not made forthwith pursuant to s. 254 of the Criminal Code.

In arriving at this conclusion I should point out that, with respect, I do not accept one of the submissions made by the applicant concerning the delay associated with identifying the applicant at the scene. I am not troubled by the moments that the officer took to identify the driver of the motor vehicle. While counsel for the applicant pressed this issue in argument, I do not perceive the moments taken to identify the driver to be a crucial issue, particularly where I am obliged to engage in a contextual analysis of all of the circumstances.

Delay Associated with the Arrival of the ASD and Rights to Counsel

The applicant argues that compounding the actions of the officer with respect to the forthwith issue was a relaxed approach to rights to counsel. The officer failed to provide rights to counsel while awaiting the arrival of the ASD. The applicant further submits that even after arrest, there was another independent period of delay in the provision of rights to counsel. The prosecution asserts that the officer knew the ASD was nearby and under the circumstances there was no obligation to provide rights to counsel. The investigating officer testified that where she was aware that the ASD would arrive in two or three minutes, she did not as a practice provide rights to counsel.

Analysis

The ASD demand was made at 2:35 a.m., approximately nine minutes after the formation of grounds, and approximately eleven minutes after the traffic stop. The ASD test was administered at 2:41 a.m., which is approximately 15 minutes after the formation of grounds, and approximately 17 minutes after the traffic stop. I do acknowledge that some period of time would be required to ready the instrument for the test.

As I indicated, the officer testified that generally, where the ASD was two or three minutes away, she didn't believe she had to provide rights to counsel. Further as I have already addressed and outlined above, she relied upon her position that although the applicant was seated in the back of her cruiser while awaiting the arrival of the ASD, he was not detained and was free to leave if he wished.

The officer testified that prior to getting out of her vehicle to investigate the applicant, she used a computer tool to map the location of other officers. She therefore knew that other officers were close by. The officer did not possess an ASD at the time she formed her reasonable suspicion. The officer did not have an ASD at the time she made the ASD demand either. She requested that an instrument be delivered to her. She did not record, nor did she recall when she requested the delivery of an ASD. She did not record, nor did she recall, what, if any, information she received about her request from communications or other officers. She did not record nor recall if she was provided information relevant to the estimated arrival time of the instrument. She did not record nor did she recall the duration of time it took to render the ASD operational upon receipt. She administered the test at 2:41 a.m. and reasoned that the arrival of the second officer with the instrument must have occurred prior.

As such, based on all of the circumstances, I find that there was a five minute delay in the arrival of the ASD. Objectively speaking, on this record that has been placed before me, the officer did not know if an ASD was close by, and could not know reasonably know when an ASD would arrive. While she examined her computer to see the location of other officers in the area prior to investigating the applicant, this did not furnish her with information about whether any of those officers possessed an ASD and who might be available to deliver an ASD by the time of her request for delivery. She had no idea whether any of these officers would be available to attend her location at the time of her investigative need, subsequent to the stop.

With respect to this finding, it is significant that the investigating officer did not have notes concerning her efforts to obtain an ASD. She lacked an independent recollection with respect to what information she might have been provided.

Contrary to the testimony of the officer, I find that the applicant was in fact detained. He was not free to leave the scene, notwithstanding the door to the police cruiser was open. He was not told he was free to leave the scene and any reasonable person would surmise that they must remain, pending the arrival of the ASD.

Rights to counsel should have been provided during this five minute delay.

Any inclination in the Court's mind to justify this delay must consider all of the contextual circumstances.

There was also a delay in the provision of rights to counsel after arrest. The application was arrested at 2:43 a.m., and rights to counsel were provided for the first time at 2:51 a.m. As such, there was an eight minute delay between the arrest and the provision of rights to counsel.

As indicated earlier, I do not rely on the officer's evidence concerning unruly passengers as an explanation for the delay in this case. In any event, at this point, a second police officer was present, and that police officer was principally dealing with the occupants of the vehicle.

Rights to counsel should have been provided promptly upon arrest.

It is true that it is not clear that the applicant would have had the opportunity to access to counsel during the first delay of five minutes. Similar considerations apply to the second period of delay in providing rights to counsel. The applicant did exercise his rights to counsel when he was taken back to the police station. As I noted, he was not provided with the informational component of his rights to counsel at the side of the road, and there is no evidence that he had a cell phone at the side of the road.

The weight accorded this part of the analysis in my respectful view, has diminished over the years. There was a time when the forthwith issue was more strictly concerned with assessing whether there was a realistic opportunity to consult with counsel. In my respectful view, this singular focus changed with the harmonization of the law in Woods, and Quansah.

In Quansah, at paragraph 38, the Ontario Court of Appeal noted that:

There are a number of examples of cases in addition to Grant and Woods in which the delays are tested against the forthwith requirement without using the opportunity to consult counsel as the criterion.

In my respectful view, the police must pay scrupulous attention to their obligations. This is necessary to balance the public interest in the investigation and the detection of drinking and driving offences and the constitutional rights of the individual.

Findings

The applicant has established on a balance of probabilities breaches of ss. 9 and 10 of the Charter. The ASD demand was not made forthwith within the statutory framework of s. 254(2) of the Criminal Code. The applicant was arbitrarily detained. The suspension of s. 10(b) rights is premised upon the immediacy requirement. The applicant should have been provided with his rights to counsel while he awaited for the arrival of the ASD. Where the investigating police officer is not in a position to require immediate compliance with the demand, there is no justification for failing to provide the driver with s. 10(b) rights: See Supreme Court of Canada in R. v. Taylor, 2014 SCC 50, para. 24; R. v. Grant, 1991 3 S.C.R. 139 at paras. 17-20.

I also find a breach of s. 8 of the Charter flowing from these conclusions.

Remedy: Section 24(2) Considerations

The assessment and balancing of the three factors in R. v. Grant 2009 SCC 32 are well known. The focus of the analysis requires the Court to consider all of the circumstances and determine if the admission of the evidence would bring the administration of justice into disrepute.

Section 24(2) Analysis

1. Seriousness of the Charter-Infringing State Conduct

I have to admit that the Crown's submissions in this case did give me some pause. But I would characterize the culminations of breaches in this case as serious. The admission of the breath samples is founded upon police conduct that disregarded the rights of the applicant.

As I indicated at the outset of this judgment, a litany of criminal cases have examined the public policy considerations inherent in the detection and prosecution of alcohol-related driving offences.

The emphasis on the protection of the public is sound and defendable. The suspension of constitutional protections accorded those presumed innocent at the roadside, must be balanced by scrupulous attention by the police to ensure that the investigative approach is sound and in compliance with the law.

This important relationship between the investigation of the offence and the suspension of constitutional rights must be respected. The purpose of the "immediacy requirement" is to ensure that notwithstanding the suspension of constitutional protections there is some minimal protection for the individual being investigated.

The delay associated with the ASD demand in this case, in my respectful view, was serious and unjustified. The delay in the provision of rights to counsel compounded this state of affairs. What concerns me is these basic requirements are not new, particularly for an officer with some decade or more experience. These areas have to be well-settled areas of police training. The experienced officer's conduct in this case, should not be characterized as indicative of "good faith." This is not available for me to conclude where there has been a disregard for well-established, long-standing constitutional principles. Ignorance of these constitutional norms should not be sanctioned by the Court.

It is interesting that the applicant filed the case of Beatty. I had the case of Beatty in my notes. Obviously a very well-respected jurist, Mr. Justice Duncan, observed in R. v. Beatty, 2009 ONCJ 456 at para. 31:

Section 8 and 9 are somewhat different. There is no mystery or complexity to a straight-forward, temporally measured "forthwith" and the officer should have been aware that he was stretching he authority in detaining the defendant for a later roadside screening test. Quite apart from this particular officer, I regard it as a serious matter that the constitutionally-mandated requirement of mere "immediacy" for roadside testing has crept ever forward to where "forthwith" is now regarded by some, if not many as including "when we can" or "when it gets here," a view never endorsed by and in fact sharply at odds with the Supreme Court of Canada. The carefully crafted balance between law enforcement goals and individual liberties represented by legislation permitting compulsory roadside testing has thus been skewed in favour of law enforcement. Recognition and correction of this shift favours exclusion.

This factor, the first factor, favours exclusion of the evidence.

2. Impact on the Defendant's Charter-Protected Interests

The officer possessed grounds to stop the applicant's motor vehicle, and shortly thereafter a basis for reasonable suspicion was disclosed.

The applicant was detained at the roadside without regard for his Charter-protected interests. On this record, it is unclear to what extent provision of his rights to counsel, the informational component I should say, would have changed the circumstances. It is unclear to what extent the applicant would or could have availed himself of legal advice. As discussed earlier in this decision, the officer did not know when the ASD would arrive. The applicant was detained at the roadside, ultimately he was arrested, handcuffed and taken to a police station for breath testing. The officer's subjective view that the applicant was not detained in the back of her cruiser was not communicated to the applicant at the time. He did not know that her position was he was free to leave. He did not know that her position was he didn't need to remain at the scene.

While I accept that the impact on the applicant was not minor (See R. v. Au-Yeung, 2010 ONSC 2292 at paras. 60-62), I rely on the fact that the officer had grounds for the traffic stop and possessed a reasonable suspicion. Balancing these considerations, I believe that this factor favours admission of the evidence.

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

The truth-seeking function of a criminal trial favours the admission of highly reliable evidence such as breath tests, particularly where the breach was minor: See Grant, para. 111.

This factor clearly favours admission of the evidence.

Balancing the Factors

The focus of the 24(2) analysis is on the long-term repute of the administration of justice.

The applicant has demonstrated a nexus between the Charter breaches and the breath readings in this case.

It is not the Court's role to punish the particular officer in this case. Frankly, there was nothing nefarious, capricious or oppressive about the conduct of the officer in this case. There was no ill-treatment of the application by the police in this case. The officer was not unprofessional with him.

But the real concern is that an experienced officer had a relaxed and non-urgent approach to the obligations placed upon her. Her focus should have been on compliance with the immediacy requirement. She should have been more concerned about the expeditious compliance with her obligation to provide rights to counsel. She acknowledged during her testimony being aware of these obligations during her testimony, yet her approach to the investigation did not fulfill those obligations. When held to task during cross-examination, she attempted to justify the delay and I have found that justification to be unsuccessful.

As indicated earlier where circumstances disclose an ignorance of constitutional norms, for example, her subjective view of detention, the Court is hard-pressed to support a finding of good faith.

The criminal law provides strong support for police investigations of "drinking and driving." Protection of the public is founded upon the proper use of the tools provided and respect for the process including the rights of the individual that was presumed innocent. The public are entitled to expect the police to pay scrupulous attention to the rights of the person being investigated.

With these considerations in mind, I respectfully conclude that the long term repute of the criminal justice system requires the Court to disassociate itself from this investigative approach.

The application is granted.

Certificate of Transcript

Evidence Act, Subsection 5(2)

I, Jodi J. Hewett, C.V.C.R. certify that this document is a true and accurate transcript of the duplicate recordings of Her Majesty the Queen v. Niroshon Placidass, in the Ontario Court of Justice, Oshawa, Ontario taken from Recordings No. 2811_103_20161018_082636_10_FELIXMA.dcr made by Linda van Es, Court Monitor, on the 18th day of October, 2016 which has been certified in Form 1.

Date: ________________________

Jodi J. Hewett Certified Verbatim Reporter

Legend:

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THIS IS NOT A CERTIFIED COPY UNLESS ORIGINALLY SIGNED

Photostatic copies of this transcript are not certified and have not been paid for unless they bear the original signature of Jodi J. Hewett, Certified Court Reporter.

Transcript Ordered: October 23, 2016

Transcript Completed: November 8, 2016

Transcript Released: November 22, 2016