Court Information

Date: November 23, 2016

Ontario Court of Justice Central West Region Brampton, Ontario

Parties

Between:

Her Majesty the Queen

-and-

Bipasha Ahmad

Reasons for Judgment

Before: Duncan J.

Counsel:

• E Norman for the Crown
• J Marchand for the Defendant

Facts

[1] The defendant is charged with exceed 80, offence date December 23, 2015.

[2] A police officer saw a car exit from the parking lot of a drinking establishment at about 2:39 am. He decided to do a sobriety check of the driver. He stopped the car a short distance down the road and questioned the defendant driver as to her consumption of alcohol. She admitted having had two drinks hours earlier. Her breath smelled of alcohol. The officer formed the requisite suspicion and made an ASD demand.

[3] Before the test was administered, at 2:45 am, the defendant told the officer that she had had a shot of tequila "10 minutes ago". His training told him that where there has been recent consumption he should wait 15 minutes from the time of last drink to ensure that mouth alcohol did not contaminate the test result. He was going to wait 15 minutes from that point in time (2:45) and because of the expected delay, read the rights to counsel to the defendant. But then a disturbance involving police broke out in the parking lot of the same bar and he felt that he should attend there to assist with officer safety. He decided therefore to wait only 5 more minutes since 10 minutes had already passed since the reported consumption. At 2:49 he conducted the test using an Alcotest 6810 device, which registered a "Fail".

[4] The defendant was arrested. She was again read her rights. She said that there was a lawyer that she wanted to call but she was not sure of his name. She wanted to call her mother to get that information. There was some delay in leaving the scene because there were no available officers to assist with arranging the towing of the defendant's car. They left for the station at 3:20. On arrival, contact was made with the defendant's mother who provided the number for the private lawyer, and although he or she was said to be out of the country, a message was left. The defendant was asked if there was another private lawyer that she wanted to try. There was not. She was offered duty counsel and accepted. She spoke to duty counsel until 3:53 am.

[5] The qualified technician, Cst. Leonardo went over the defendant's rights again. She voiced no dissatisfaction with duty counsel and made no further requests for counsel. She eventually provided breath samples that when analyzed betrayed blood alcohol levels of 150 mgs %.

Right to Counsel at the Roadside

[6] It is argued that there was a violation of the defendant's 10(b) rights because the arresting officer did not commence the facilitation of that right during the time that they waited at the roadside for the tow truck. While the officer agreed that he had been told that the tow truck might be 20 minutes in coming and that the defendant had a cell phone he said that he had other things to do during that period including making notes and keeping an eye on the situation at the bar parking lot. He noted that the defendant would require privacy for any calls.

[7] Counsel relies on R v Devries [2009] OJ No 2412 (CA) in support of a submission that the police are required to begin their efforts to facilitate contact with counsel immediately at the roadside particularly when they anticipate delay in getting to the station. I don't think Devries supports that submission.

[8] The issue in Devries was almost the opposite of this case. The detainee was told at the roadside that she had the right to contact counsel "without delay". She declined. No further mention was made about counsel throughout the time of her detention and provision of incriminating breath samples. The trial judge convicted but on summary conviction appeal, the court held that telling the detainee that she had the right to contact counsel "now" was misleading because she would not have had that opportunity until they arrived back at the station. He held that she should have been told that the opportunity to consult with counsel would be provided at the station and not at the roadside. In rejecting that position, Doherty J.A. for the Court of Appeal said:

[30] With respect to the contrary view, I do not think that the use of the word "now" in the context of the administration of the s. 10(b) caution at the roadside implies that the detainee can speak with a lawyer instantly upon the officer's completion of the s. 10(b) caution. Most police officers are not standing with a telephone in their outstretched hand as they complete the s. 10(b) caution. The officer's statement to a detainee at the roadside that he or she may speak with a lawyer "now" would necessarily convey that the right to speak with a lawyer was contingent on the availability of a telephone that was useable in circumstances that would permit the detainee to speak with a lawyer for the purpose of obtaining legal advice.

[31] It is important to distinguish between the nature of the rights guaranteed by s. 10(b) and the further question of whether the police have properly complied with a detainee's right to consult with counsel in any given case. The constitutional right is the right to speak with a lawyer "without delay". All detainees are entitled to that right and must be so advised by the police. The language used by the police cannot suggest that the right to speak with a lawyer only arises at some point later on in the detention. If the detainee, having been told he or she has a right to speak with a lawyer "without delay", chooses to exercise that right, the police must then afford him or her a reasonable opportunity to do so. Whether the steps taken by the police to make a telephone available to a detainee, in circumstances where he or she can speak with counsel, comply with the implementational requirements of s. 10(b) turns on the facts of the specific case and not on whether the police properly informed the detainee of his or her right to speak with counsel without delay.

[32] In cases involving a roadside detention and a breathalyzer demand, all detainees must be told that they have the right to speak with a lawyer "without delay". They must also be told that they can access immediate free legal advice using the toll-free number. Should a detainee choose to speak with counsel "without delay", the police must afford him or her the opportunity to do so. Depending on the circumstances, consultation with counsel "without delay" may require a telephone call at the roadside, at the police station where the breathalyzer test will be administered or, perhaps in very unusual cases, somewhere else. It will all depend on the facts of the particular case. Questions of where and when consultation with counsel will occur are properly considered as part of the implementational phase of the rights guaranteed by s. 10(b). (Bolding added)

[9] In short, the question of where and when facilitation of contact with counsel must be initiated and effected is dependent on all of the circumstances. Here the officer had other tasks and other specific valid concerns. While timely facilitation of rights to counsel is important, it has no claim to priority or paramountcy over other duties and considerations.

[10] Apart from that, I cannot think that there must be a rule that requires a police officer to stand outside his cruiser in December while the detainee makes calls to reach and speak to counsel. Or, as was suggested in argument, that he should put her back in her own car to use her phone while he waits in his cruiser. What about handcuffs? Should they be removed? How much time should be given? How is the officer going to be able to see what the arrested person is doing - including potentially arming himself with a weapon? Or consuming secreted alcohol? Continuity of impaired suspects is important. It used to be routine for the prosecutor to lead evidence that the defendant had nothing to drink from the outset of detention to the providing of breath samples, though more commonly this is now usually just assumed from the implausibility that a detainee in the sight and custody of the arresting officer would have the opportunity to drink. What about attempts to flee or, less dramatic, sudden exit by an impaired person from the car, potentially into traffic? What about liability?

[11] It seems to me that it would be a rare case in which these types of concerns would NOT be present, quite apart from the specific concerns the officer mentioned in this case. I cannot accept the suggestion that a police officer must effectively relinquish control of his prisoner, compromise his own safety, lose continuity of the evidence and delegate control over the course and pace of the investigation to the detainee himself - all in furtherance of facilitation of a right to counsel that is quite adequately and even indulgently accommodated at the station before the crucial moment of breath testing.

[12] There was no infringement of the defendant's right to counsel.

The ASD Test – Mouth Alcohol

[13] The officer acknowledged his awareness of the issue of mouth alcohol and the protocol of waiting 15 minutes from the point of last reported consumption before conducting an ASD test. He acknowledged that he would not have relied on the results of the test had he not waited the requisite period. But in this case he considered that he had waited 15 minutes and that the resulting Fail reading was reliable. However from the times recorded, (2:35-2:49), he seems to have waited only 14 minutes!

[14] The officer never really explained how he came to conclude that by 2:49 he had waited 5 minutes from disclosure (at 2:45) of having drank a shot "10 minutes earlier" except to repeat that he was calculating from 2:35. He was never directly confronted with the obvious question as to how he could believe that 2:45 to 2:49 was 5 minutes. In argument Crown counsel suggested that in fact it was 5 minutes, taking the time of 2:45 to be minute one, 2:46 to be minute two etc. - ending with 2:49 as minute five. I can't accept that approach. In the absence of some elaboration or explanation, I take references made by the witness to 2:45 and 2:49 to be start and end times respectively. The Crown's approach effectively amends the starting point to be 2:44 rather than 2:45 and/or includes all of the last minute to 2:46.

[15] In the result, on the dubious assumption that the defendant pinpointed rather than approximated the time of last drink, the evidence does not establish that 15 minutes were allowed to pass before ASD testing.

[16] Does a sub-fifteen minute waiting period have any significance in this case? There is no specific evidence that it does. In R v Bernshaw, [1995] 1 S.C.R. 254 the Court said that "[w]here the particular screening device used has been approved under the statutory scheme, the officer is entitled to rely on its accuracy unless there is credible evidence to the contrary." With respect to evidence to the contrary, Sopinka J for the majority said at para 51:

Where there is evidence that the police officer knew that the suspect had recently consumed alcohol and expert evidence shows that the subsequent screening test would be unreliable due to the presence of alcohol in the mouth, it cannot be decreed, as a matter of law, that both the subjective and objective tests have been satisfied. (bolding added)

And further the Court said at para 80:

If the scientific evidence establishes a high degree of unreliability with respect to the screening device when certain conditions prevail, and if a police officer knows, for example based on his or her training, that the resultant screening device will provide inaccurate results where a suspect has consumed alcohol within the 15 minutes prior to administering the test, how can the police officer testify that he or she had an honest belief of impairment, absent other indicia? Surely the knowledge that the screening test is unreliable would vitiate any subjective belief that an officer may have regarding reasonable and probable grounds of the commission of an offence under s. 253 of the Code.

In this case there is no expert or scientific evidence called that mouth alcohol could have any bearing on the reliability of the test. No police training guide or manufacturer's user manual was put into evidence. As a general rule, evidence presented in one case (Bernshaw) cannot be borrowed and transposed to another case (this one). Besides, this case involves a newer and different instrument and I have no direct evidence that it is as susceptible to mouth alcohol contamination as earlier instruments. So is there an evidentiary basis to give rise to a mouth alcohol issue at all in this case? Must there be expert evidence adduced, as suggested in Bernshaw?

[17] I don't think so. Bernshaw dates back to 1994. We have had over 20 years of litigation of mouth alcohol cases. The basic premise that mouth alcohol can affect the reliability of ASD results is rarely if ever challenged and is pretty much accepted as fact. At this point in time it seems to me that the presentation of expert evidence on what is now an uncontroversial point should not be required. As for this case involving a newer and different testing device, there is evidence in this case that the officer's training on the instrument included instruction on procedure where mouth alcohol may be present. That training presumably was given to address what continues to be a live issue with the new instruments and discloses that the same 15 minute wait period is recommended. Accordingly I conclude that in this case, despite the lack of expert evidence, there is some evidence properly giving rise to a mouth alcohol issue.

[18] So to answer the question posed above, a sub-fifteen minute waiting period does have significance in this case. It is significant because known presence of mouth alcohol can undermine the investigating officer's subjective belief in the accuracy and significance of a "Fail" result on an approved screening device. It can also undermine the objective reasonableness of reliance on that result. Did it have that effect in this case?

[19] Subjective belief: This officer clearly believed that he had waited the requisite period, had obtained an uncontaminated sample and could rely on the Fail result for grounds to believe that the defendant was committing the over 80 offence. He appears to have been mistaken on the first point. This distinguishes this case from the one posited in para 80 of Bernshaw above where the hypothetical officer knew that the recommended period had NOT passed and therefore knew that the result might be unreliable. But here, because of his mistake, the officer's faith in the result remained undisturbed. In my view he had a genuine albeit possibly mistaken subjective belief that the defendant was over 80. The significance of his mistake is more properly considered as bearing on the objective reasonableness of that belief.

[20] Objective reasonableness: The officer's belief must be justified objectively, that is, a reasonable person standing in the shoes of the officer could conclude that there were reasonable and probable grounds: see summary of the law in R v Wu 2015 ONCA 667 para 49-54. While evidence and information that turns out to be false or incorrect is not to be eliminated from this assessment, I cannot think that an officer's own error in calculation of the passage of time should be treated in the same manner. Accordingly, the question is whether a reasonable officer who did not make the same error would conclude that there were reasonable and probable grounds to believe that the defendant was over 80.

[21] While at first blush the answer to this question would seem to be a straightforward "No", further consideration suggests that it may not be that simple. First, as mentioned in footnote 3 above, it is obvious that the time of the last drink would be no more than an estimate or approximation – it could have been taken a couple of minutes earlier or a couple of minutes later. Accordingly, the ASD test might actually have been conducted fifteen minutes or more after the last drink in conformance with the recommended procedure - in which case there would be no problem and no issue.

[22] Further, there is no evidence to suggest that fifteen minutes is a rigid or bright line standard below which all tests are unreliable. To the contrary the standard seems rather soft and flexible. Given this fluidity, coupled with the uncertainty inherent in a vague approximated starting point, can it be said that the objective facts – a fail registered on an approved instrument 14 minutes or so after last drink - could not provide reasonable and probable grounds? It must be kept in mind that the RPG standard is not one of certainty; it is not proof beyond a reasonable doubt or even a prima facie case: R v Bush 2010 ONCA 554. There is even authority to the effect that it is less than grounds to believe that it is more likely than not that the offence has been committed: R. v. Abdusemed, 2013 ONSC 4063 at para 63. On these standards, I tend to think that there were reasonable and probable grounds and that the objective requirement has been satisfied. However the point is a difficult one and not free from doubt. For this reason I am prepared to assume otherwise, to deal with this case as if there had been a breach and turn to the question of exclusion under section 24(2).

Section 24(2)

[23] It is always useful to revisit the words of 24(2) of the Charter:

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

[24] These are strong words. They set a high bar for exclusion. The party seeking exclusion must establish that the bar has been cleared.

[25] Resolution of the issue posed by the section is guided by the structure developed by the Supreme Court in R v Grant 2009 SCC 32, [2009] 2 SCR 353 directing that the circumstances be considered under three broad categories, the seriousness of the police conduct, the impact of that conduct on the Charter protected interests of the accused, and society's interest in adjudication on the merits.

[26] Dealing with these three points in reverse order, society's interest in adjudication on the merits will almost always favour admission. This interest is augmented in the case of drink/drive offences, the leading criminal cause of death and injury in Canada: R v Lahiry 2011 ONSC 6780 at Para 89. Here the defendant's blood alcohol content was almost twice the legal limit. The evidence in question is completely reliable, vital to the Crown's case and necessary for a just determination of the merits. This third aspect strongly favours admission: R v Rehill 2015 ONSC 6025.

[27] With respect to the second aspect of the analysis, the Charter protected interest of the accused focuses on privacy and bodily integrity. It was recognized in Grant, para 111 that the taking of breath samples is minimally intrusive and generally would tend not to support exclusion: see Rehill supra and authorities cited therein para 36. Having said that, it is the long term interests of the administration of justice that must be considered. These interests include the recognition that the existence of proper grounds is the necessary legal pre-condition that triggers arrest, detention and ultimately compelled self-incrimination. It is important that the standard – already quite low – not be further diluted, thereby skewing the balance between civil liberties and public safety. For this reason, it is my view that the long term interests of the administration of justice might be best served in some cases by holding the line against such dilution where the necessary grounds for these procedures are found to be absent or significantly deficient.

[28] But not in this case. The pivotal consideration here is the seriousness of the police conduct – or more accurately, the lack thereof. The law from Grant is well summarized in this passage from Rehill para 28:

Under the first prong of the test, the court must consider whether admitting the evidence would send the message to the public that courts condone deviations from the rule of law by failing to dissociate themselves from the fruits of unlawful conduct. Accordingly, the more severe or deliberate the state misconduct is leading to the Charter violation, the greater the need for courts to dissociate themselves from that misconduct by excluding the evidence. Minor or inadvertent violations of the Charter fall at one end of the spectrum of conduct, while wilful or reckless disregard of Charter rights falls at the other end. Extenuating circumstances (e.g. the need to prevent the disappearance of evidence) may mitigate the seriousness of police misconduct. Good faith will also reduce the need for the court to disassociate itself from the police conduct. However, neither negligence nor wilful blindness by the police can properly be characterized as good faith. Deliberate, wilful, or flagrant disregard of Charter rights may require exclusion of the evidence. Even a significant departure from the standard of conduct expected of police officers will lean this aspect of the inquiry in favour of exclusion of the evidence. Further, if the Charter-infringing police misconduct was part of a pattern of abuse, such conduct would support the exclusion of the evidence. See R. v. Grant, at paras. 72-75; R. v. Taylor, at para. 39.

[29] I do not regard the police conduct in this case as serious at all. Rather it was a small mistake or miscalculation made by an officer who was aware of the law and endeavoring to comply with it. His over-all conduct and respect for Charter rights cannot be criticized. In one respect he even went further than the law required in giving rights to counsel during the mouth alcohol waiting period: R v Bell [2009] O.J. No. 1551 (CA). As discussed above, there may not even have been anything wrong or non-compliant with the procedure he followed at all, depending on when - actually as opposed to approximately - the last drink was consumed.

[30] It is my conclusion that the balance of all of the factors in this case strongly favours inclusion of the evidence. In fact I would go further and say that to allow a minor blunder such as occurred here to result in fatal exclusion of crucial reliable evidence on a serious charge would bring the administration of justice into disrepute.

Conclusion

[31] The evidence is admissible. The charge is proven. The defendant is found guilty.

November 23, 2016

B Duncan J.

E Norman for the Crown

J Marchand for the Defendant