Court File and Parties

Ontario Court of Justice

Date: July 21, 2016

Court File No.: 15-A10552

Between:

Her Majesty the Queen

— and —

Dwain Blair

Before: Justice Julie Bourgeois

Heard on: June 14, 2016

Reasons for Judgment released on: July 21, 2016

Counsel

Mr. Bruce Lee-Shanok — counsel for the Crown

Mr. Rodney Sellar — counsel for the accused Dwain Blair

Judgment

BOURGEOIS J.:

Facts

[1] Mr. Dwain Blair is charged with operating his car while having more than the legal limit of alcohol in his body and with breaching a release condition prohibiting him from the consumption of alcohol.

[2] The ultimate issue identified by the parties in this case is whether his constitutional 10(b) right to counsel was breached. If so, the Crown concedes that the evidence obtained after the breach – the breath sample results – ought to be excluded, pursuant to section 24(2) of the Charter. It was agreed that the case rises or falls on this issue and as such, the rest of the evidence was admitted by counsel for the accused. The parties agreed to proceed by way of a blended voir-dire and in fact, Exhibits 1 and 2 were filed on consent and that is part of the evidence of the Breathalyzer technician by way of the Alcohol Influence Report in relation to the confirmation of the right to counsel at the police station (Exhibit 1) and the confirmation of the accused's retained counsel on an unrelated outstanding charge from which stems the non-consumption of alcohol condition (Exhibit 2).

[3] I will summarize the facts, as they pertain to the ultimate issue.

The Traffic Stop and Initial Investigation

[4] The investigating officer, Cst. Meehan, first heard a vehicle quickly approaching his location as he was stationary in the area of Fisher Ave and Normandy Crescent. He then observed the vehicle passing his location at an estimated speed of approximately 130 to 140 km in a 60 km per hour zone. Due to this excessive speed, he pursued the vehicle and intercepted it near Prince of Wales Drive and Colonnade Road.

[5] It was not clear from the officer's notes, but relying on what was referred to as the "call card," the traffic stop was recorded at 3:42 AM and as such he estimated pursuing this vehicle at approximately 3:38 to 3:39 AM.

[6] He testified that upon pulling the vehicle over, he queried the license plate and obtained information about the make, model and registered owner of the vehicle. In examination-in-chief, it was put to him at this point that he found out about the existence of an undertaking with a condition not to consume alcohol and he agreed with this proposition. The exchange went like this:

Cst. Meehan: (…) At that time, I have the opportunity to conduct some queries into the license plate at which point I received some information pertaining to the make, the model of the vehicle, registered owner, so on and so forth.

Crown: I understand that you determined the registered owner is in fact the accused Mr. Dwain Blair?

Cst. Meehan: Yes.

Crown: And at the time you also learned that Mr. Blair had an undertaking prohibiting him from consuming alcohol?

Cst. Meehan: Correct. Yes.

The Alcohol Screening Device Request

[7] He then testified that after engaging the driver, Mr. Blair, and inquiring about his alcohol consumption that evening, he satisfied himself that the smell of alcohol came from his breath and requested, at 3:52 AM, that an Alcohol Screening Device (ASD) be brought to his location. He indicated that he did not receive any feedback as to when the device was going to be brought, but knew, he said, it was going to be fairly expeditious, based on his knowledge of the number of officers in that fairly populated area of the city. He testified that he expected the ASD to be brought to him within not much more than 5 to 6 minutes as there is generally someone (referring to a fellow officer) not very far so it generally does not take a very lengthy amount of time before receiving the ASD. In his cross-examination, he explained that he heard over the air that Cst. Merdian was assigned that call, but did not know what he was doing or where he was located specifically. He agreed that he had the ability to communicate with the officer, but did not, and as such had no estimated time of arrival.

[8] He also testified that he is aware people are allowed to call lawyers from the roadside, but explained that this would be in situations where there would be a significant delay over and above what would be considered reasonable. He testified that even though he had no idea how much time they were going to be waiting for the ASD, he did not feel it was going to be in excess of 10 minutes. He testified that if the wait time had been close to 10 minutes, he would have provided the accused with his rights to counsel as 10 minutes is his cut off point, as he understands the case law to be. He agreed that if the wait time had been 12 minutes, it would have been absolutely enough to advise the accused of his rights to counsel.

[9] He could not say, however, if he knew Mr. Blair had a cell phone with him at that point as he searched him only after he arrested him and not while they were waiting for the ASD, and he would only make a note of it if he would have seized it not if it was returned to him. He agreed this information would be relevant on his next call and might be worthwhile making note of it.

Officer's Knowledge of Release Conditions

[10] He then testified that it was at this point that he returned to his police car while the accused was sitting at the curbside at his direction. He conducted inquiries of the accused and found out that he was bound by an undertaking with a condition not to consume alcohol.

[11] When asked in cross-examination about the timing of his knowledge of the existence of that condition and the availability of that information, the officer testified that if he indicated in-chief that he knew about this specific condition upon intercepting the vehicle, then he misspoke. He indicated that he knew of the existence of outstanding charges and an undertaking upon intercepting the vehicle, but even though that information was available to him at that time, he only reviewed the specific conditions of the undertaking while awaiting the ASD. It is not clear from his evidence the specific time this would have been at.

[12] He acknowledged that Mr. Blair was detained and not free to leave. He also acknowledged that he could have arrested Mr. Blair at that point for the breach of his undertaking not to consume alcohol given the smell of alcohol on his breath. Other than the original speeding infraction, his entire interaction with the accused was relating to alcohol. He did not believe nor recall advising Mr. Blair that he was investigating a breach of his release condition. He agreed that all his questions were directly related to alcohol consumption and were all relevant questions on a breach of undertaking not to drink alcohol. He agreed that in hindsight, he would tell him and that it would "not be a bad idea" to advise him of this investigation as well.

[13] He agreed that should he have arrested him then, he would have provided him with his right to counsel and provided him with an opportunity to exercise that right. He also agreed that given this breach of release condition, he would have had to take the accused to the station for an Officer in Charge to determine if he could be released from the station. In the end, he conceded that he had sufficient grounds to arrest him at the roadside once he found out about this condition, but admitted it was an oversight on his part not to do so at that point (once he found out about the condition not to consume alcohol) for that breach.

The Alcohol Screening Device Test

[14] Cst. Merdian arrived to his location with the ASD at 3:58 AM; at 3:59, he conducted a self-test and was satisfied that the device functioned properly. He then explained and demonstrated to the accused how to provide a sample of breath; he changed the mouthpiece and directed him to provide a sample. At around 4:00 or 4:01 AM, the result of the ASD test was an "F" and the accused was arrested for the offence of "over 80" and for breaching his undertaking. He was handcuffed and placed in the rear of Cst. Meehan's cruiser.

Sequence of Events at the Police Station

[15] The following is the sequence of events:

• 4:11 AM – the officer read the breath demand pursuant to s. 254(3);
• 4:12 AM – he read him his right to counsel, the accused understood and did wish to speak to counsel;
• 4:14 AM – he read him his primary caution;
• 4:15 AM – he read him his secondary caution;
• 4:17 AM – he arrested him pursuant to s. 524 of the Criminal Code;
• 4:18 AM – they left the scene en route to the police station;
• 4:31 AM – they arrived at the detachment;
• 4:46 AM – the accused selected Diane Condo and the officer facilitated the phone call – he testified that he was not sure where the accused got the number from, it might have been from the list of lawyers at the station.
• 4:47 AM – he transferred the call to the telephone booth for the accused to speak with Mrs. Condo; based on his notes, the accused did not request to talk to any other lawyer;
• 4:51 AM – he started the interview with the Breathalyzer technician, providing her with his grounds;
• 4:57 AM – he completed his interview with the Breathalyzer technician and returned to the cell area – he cannot recall if he checked up on the accused to see if he had completed his call with Mrs. Condo;
• 5:06 AM – he has it that the accused concluded his phone call with counsel;
• 5:09 AM – he transferred custody of the accused to the Breathalyzer technician; and
• 5:47 AM – he received the results of the breath tests from the Breathalyzer technician: 130 and 120 mg%.

Cst. Merdian's Evidence

[16] Cst. Merdian testified that he was dispatched at 3:52 AM to bring an ASD to the location of Cst. Meehan. He arrived at that location at 3:57 AM and observed the accused sitting on the curb in proximity of his vehicle.

The Accused's Evidence

[17] Mr. Dwain Blair testified that indeed he was facing an unrelated charge at that time and was bound by release conditions, one of which was not to consume alcohol. He had hired a lawyer to defend him on that charge.

[18] He was driving home when he was stopped by the officer. When asked if he had consumed alcohol, he testified that he lied to the officer by denying it. The officer asked him to exit his vehicle and again he asked him to blow air into his face. At that time, the officer asked him to go sit down on the curb behind his car. He testified that he felt he was in trouble and that the officer was doing further investigation as he walked to his police cruiser. He was just trying to be polite and not move. He could see the officer inside his cruiser on his computer.

[19] He testified that he sat there 2 or 3 minutes before the officer came back and read a demand of some sort, leading him to believe he was going to be blowing into a device of some sort. He explained that the officer told him to stay there and to make sure he could see his hands before he returned to his cruiser.

[20] He testified that he had a cell phone in his pocket, it was operational and he had 3 phone numbers programmed in his contacts to reach his lawyer on the outstanding charge. He confirmed that the officer did not advise him he could call a lawyer, but he would definitely have called his own lawyer had he been given the opportunity at that time. He would have had no privacy concerns talking to his lawyer at the curbside while the officer was sitting in his cruiser with the engine running.

[21] Another few minutes passed by and another officer arrived. While he was still sitting at the curb side, he saw the officers having a brief conversation and he described them "playing with the machine". One or two minutes later, they demonstrated how to provide a breath sample and ultimately he was arrested. He recalls being advised of his right to counsel and when asked if he wanted to call a lawyer he answered: "Yes please Sir."

[22] He testified that the police discovered that he had a cell phone on him because they seized it at that time, while they were at the roadside.

[23] When asked why then he called Mrs. Diane Condo at the station, he answered that the only lawyer he knew was his counsel on his outstanding charges, but the officer took his cell phone away and gave him a list of lawyers. He said he was very confident in his lawyer's work, but thought he had to pick a lawyer from that list. When he was transferred to the Breathalyzer technician, he testified that he believed she asked him if he called a lawyer. He did not know he was allowed to call another lawyer. He did not believe the options were the same than at the roadside, in the sense that at the roadside he was asked if he wanted to call a lawyer now compared to being asked by the Breathalyzer technician if he had called one.

The Analysis

[24] Both Crown and Defense counsel agree on the law applicable in this case. They disagree as to how the factual basis applies to the law.

[25] I can summarize the law from the materials they have provided:

The Right to Counsel and the Forthwith Demand

[26] As reiterated by Le Dain, J. in R. v. Thomsen, [1988] S.C.J. No. 31, at paras. 12-13, the right to counsel pursuant to section 10(b) of the Charter is triggered the moment when a person is detained by police, such as when being pulled over by police in circumstances such as alcohol related driving investigations. However, the right to retain and instruct counsel is suspended upon a valid demand pursuant to s. 254(2) of the Criminal Code, as per section 1 of the Charter, given the requirement of a forthwith demand and the immediacy of the obtaining of the sample of breath. See also Thomsen above at para 22; R. v. Woods, 2005 SCC 42; and R. v. Quansah, 2012 ONCA 123.

[27] However, the Court of Appeal for Ontario in R. v. George, [2004] O.J. No. 3287, at para. 33, specified that in circumstances where a police officer is not in a position to require the detainee to provide such sample of his breath immediately, suspending the right to counsel is no longer warranted. Therefore, if there exist a realistic opportunity to consult counsel, the failure to accommodate the exercise of the right to counsel constitute a violation of the implementational component of section 10(b). My brother Paciocco, J. recently applied this analysis in R. v. Steele, 2014 ONCJ 583, at paras. 24, 32.

The Quansah Principles

[28] The Crown referred to R. v. Quansah, ibid, paras. 45-49. It establishes the 5 principles to apply or guidelines to follow in determining whether a breath demand was made forthwith pursuant to section 254(2) of the Criminal Code:

• The forthwith or immediacy requirement must always be done contextually but also keeping in mind Parliament's intention in striking a balance between the public interest in eradicating impaired driving and the need to safeguard the Charter rights;

• The demand must be made by the police officer promptly once the reasonable suspicions are formed that the driver has alcohol in the body. The immediacy requirement commences at the stage of reasonable suspicion.

• "Forthwith" connotes a prompt demand and an immediate response. However, in unusual circumstances, a more flexible interpretation is required to enable an officer to discharge his or her duty pursuant to section 254(2), but no more time than reasonably necessary.

• The immediacy requirement must take into account all the circumstances, which may include a reasonably necessary delay because the ASD is not immediately available; to ensure an accurate result; or due to safety concerns.

• In considering whether the demand was "forthwith", one of the circumstances to consider is whether the police fulfilled their implementational duty of the detainee's s. 10(b) right to counsel when a realistic opportunity existed before requiring the sample of breath.

The "Realistic Opportunity" Test

[29] The Court of Appeal for Ontario in R. v. Torsney, 2007 ONCA 67, [2007] O.J. No. 355, at para. 13 described the "realistic opportunity" in terms of whether, in all the circumstances, there was a realistic opportunity for the detainee to contact, seek and receive advice from counsel.

[30] This last principle is at the heart of this matter. In considering it in the context of the other principles, the context of the analysis in the circumstances of this case, the question is whether there was a realistic opportunity, after reasonably suspecting that the accused had alcohol in his body at 3:52 AM, for the officer to fulfill his obligation to inform and implement Mr. Blair's section 10(b) rights to counsel before obtaining a sample of his breath.

Application to the Facts

The Timing of the Demand

[31] It is not clear when exactly the officer made the demand pursuant to section 254(2), but it appears the officer satisfied himself of the requisite grounds at 3:52 AM, some 10 minutes after the interception of the vehicle. It is at this time that he requested an ASD be brought to his location. Cst. Meehan satisfied himself that the odor of alcohol he smelt was in fact emanating from the accused's breath and not simply from inside the car. In the context of the accused denying drinking and suggesting the odor came from the passengers he had just dropped off, the officer certainly cannot be criticized for taking a few additional steps or moments to ensure he had the proper grounds to make the demand. He did not have to believe the accused and as it turns out, the accused admitted lying to the officer and trying to mislead him.

Knowledge of Release Conditions

[32] I also accept the officer's evidence that he misspoke when he agreed with the proposition of the Crown, while testifying in-chief that he found out about the specific condition imposed upon the accused not to consume alcohol. He was led down that path by the leading question of the Crown. In the context of his entire evidence and how it unfolded, I accept that he only saw that the accused was bound by release conditions from outstanding charges when he first intercepted the vehicle. I accept that even though the information was available to him and that it would have been advisable for him to review this information prior to engaging the driver, even if it were on a personal officer's safety ground, he did not verify what those conditions were at that time. This of course could have had a fatal effect on the rest of his course of conduct with the driver, should he have known about this condition, question him about his consumption of alcohol and not advise the accused of his section 10(a) and (b) rights in this context, as discussed by Hill, J. in R. v. Richards, [2016] O.J. No. 2812. It might otherwise be a consideration for a section 24(2) analysis in another case.

[33] I accept his evidence that once he returned to his vehicle after directing Mr. Blair to sit by the curb, through the use of his on-board computer, he then reviewed the available information and realized the existence of the condition not to consume alcohol. In any event, he became aware of this information prior to the arrival of the ASD. This would have been an opportune time to advise him of his 10(a) and (b) rights, especially in the context of the information in hand, the self-incriminating questions he had asked him, his grounds to suspect he had alcohol in his body by then and the eminent conscripted evidence from his breath sample.

Failure to Advise of Investigation

[34] I accept the accused's evidence, coupled with the officer's evidence on this point, that he did not advise or inform the accused of this investigation into the breach of this condition, pursuant to section 10(a) of the Charter. The accused has it that the officer returned from his cruiser to his location on the curb and read him the roadside screening demand at this stage. He did not, however, advise him of his right to counsel in relation to his imminent arrest for breach of his release condition, while he was in detention and awaiting the ASD to further incriminate himself in relation to the breach of condition.

Change in Jeopardy

[35] It seems to me that the accused's jeopardy or criminal liability had drastically changed. It went from a roadside investigation where immediate release from detention was one of the possibilities should the result of the breath analysis be under the legal limit, to an extended detention until brought before a justice of the peace at the next available possibility, in this case, later that morning. This, I believe, is a situation contemplated by our Supreme Court in Thomsen where the right to counsel ought to be implemented.

Suspension of Right to Counsel

[36] Further, the accused was detained since shortly after 3:42 AM, in relation to the officer's reasonable grounds to suspect the presence of alcohol in the accused's body. Even though the nature of the release condition was discoverable upon interception of the vehicle, the officer only took steps to confirm the condition while waiting for the ASD. He ought to have been provided with his right to counsel immediately upon detention, in this case, at the time he discovered the nature of the condition and having in mind that he was going to arrest him and bring him to an officer in charge to determine whether he was going to be released from the station. There is no suspension of the right to counsel at roadside in a situation of breach of release condition as there is in an investigation pursuant to section 254(2) of the Criminal Code.

The Realistic Opportunity Analysis

[37] Turning to the issue of "realistic opportunity" to consult his lawyer, regardless of when the officer actually made the section 254(2) demand, either while waiting for the ASD as per the accused or after demonstrating how to provide a sample as per the officer, I am of the view that the most crucial element in this case is the fact that Cst. Meehan did not know when the ASD would be arriving. As we know from the second principle in Quansah, the immediacy requirement commences at the reasonable suspicion stage, so at 3:52 AM in this case. At that time, the officer obviously knew that he did not have an ASD with him. I am satisfied that he made a request to obtain one shortly thereafter. What he did not have either, however, is an estimated time of arrival specific for this particular night. He only had a general idea, based on his general experience. He knew which officer had been assigned to bring him the ASD, but he did not know where the officer was located or what he was doing at that time. He had the ability to inquire, but did not do so. At best, he guessed it right. But the end cannot justify the means.

[38] I accept that the officer knew about certain circumstances where an accused can consult counsel at the roadside. But he erroneously thought the cut-off period to the suspension of the roadside right to counsel was 10 minutes. He then testified that if the wait time to receive the ASD had been close to 10 minutes he would have provided the accused with an opportunity to consult a lawyer. However, he did not make the slightest inquiry about the wait time in this instance. I cannot accept generalities and blunt statements as made by the officer in this case. Guesstimating that the delay to receive the ASD in this case would be 5 to 6 minutes because it is generally the time it takes to receive an ASD when one is requested is not only of limited use in this analysis, but it is unrealistic and unfounded.

[39] Even if I did accept such a standardized statement, this is not the state of the law. Applying the "realistic opportunity" test in the context of the principles enunciated in Quansah, above, the amount of actual minutes it takes for the ASD to arrive is not final to the analysis. In fact, in this case, I am satisfied that 5 or 6 minutes might very well have been sufficient for the accused to actually consult his lawyer, when in fact, the accused had his cell phone on him with three numbers to reach him in his contacts and at best, they were doing nothing else but wait for the device to arrive or at worst, the officer was furthering his investigation of breach. There is at least 8 or 9 minutes here, from 3:52 AM to 4:00 or 4:01 AM, which would have provided a realistic opportunity to consult counsel.

[40] Even though the time actually taken at the station to consult a lawyer may be considered to assess the "realistic opportunity" at the roadside, it is only one of the criterions. Given that Mrs. Condo was not his counsel for his outstanding charge and that after providing a sample of his breath in the ASD, he was arrested both for the over 80 charge and also the breach of his release condition not to consume alcohol, it appears reasonable to conclude that he had more details to provide to counsel, more questions to ask and more information to receive from counsel. Consulting his own counsel of choice might very well have been more efficient and expedient in this case.

Conclusion

[41] After considering the totality of the evidence, the state of the law, especially following George, Quansah and Steele, I find that the officer did not comply with his implementational obligation pursuant to section 10(b) of the Charter. As such, the ASD demand was not valid as it was not made forthwith and the breath sample was not obtained immediately as there existed a realistic opportunity to consult counsel.

[42] As indicated at the outset, the Crown conceded the section 24(2) analysis should the court determine a breach existed.

[43] Consequently, I exclude the result of the breath sample as it was obtained illegally, in breach of the accused's right to counsel. Therefore, the officer not having the requisite grounds to arrest the accused and not having the proper foundation to make a demand pursuant to section 254(3) of the Criminal Code, the results of the analysis of his breath samples at the station were obtained in contravention of section 8 of the Charter.

[44] I also find that Mr. Blair's section 10(a) and (b) rights were infringed in relation to count 2. Having excluded the evidence obtained from the result of the ASD, there would not be sufficient evidence left to be convinced beyond a reasonable doubt that the accused breached his release condition not to consume alcohol.

[45] I therefore find the accused not guilty of both counts.

Released: July 21, 2016

Signed: Justice Julie I. Bourgeois