JUDGMENT

Ontario Court of Justice

Date: December 20, 2016

Court File No.: 14-09893 Newmarket

Between:

Her Majesty the Queen

— and —

Duy Thang Tran

Before: Justice Joseph F. Kenkel

Heard: April 6, December 16, 2016

Judgment delivered: December 20, 2016

Counsel:

• Mr. Lucas O'Neill, counsel for the Crown
• Mr. Brian Brody, counsel for the defendant

KENKEL J.:

Introduction

[1] Mr. Tran drove into a car stopped at a red light. It was a minor collision. The couple whose car was hit were more concerned about the accused's failure to apologize than they were about the small scratch that resulted. As Mr. Tran argued with the other driver Constable Gabay pulled up behind the two cars stopped in the middle of a major roadway.

[2] Constable Gabay spoke with Mr. Tran and noticed that there was an odour of alcohol coming from Mr. Tran's mouth. It was 1 p.m. He called for an Approved Screening Device (ASD) and then he directed Mr. Tran to pull his vehicle over to the side of the road. The device arrived seconds after Mr. Tran and the officer pulled over. Mr. Tran failed the ASD test and subsequent tests at the station showed his blood alcohol level was over the legal limit.

[3] At the conclusion of the evidence, both parties agree the following issues remain:

• Charter Section 8 – Whether the officer made the ASD demand without the required reasonable suspicion?
• Charter Sections 8, 9, 10 – Whether the demand was made promptly when the officer formed his reasonable suspicion? Whether the test was administered "forthwith"?
• Charter Section 24(2) – Whether the breath test evidence should be excluded pursuant to s.24(2) as a remedy for the breaches alleged?

Reasonable Suspicion

[4] The defence submits that Constable Gabay did not have the reasonable suspicion required for an ASD demand. The defence submits that it was a windy day and the officer was plainly unsure about the odour of alcohol or where it was coming from as shown by the further questions he put to the accused.

[5] Constable Gabay testified that it was not particularly windy that day. The video confirms he had a discussion about the traffic issue with both drivers. He was close enough to the accused to make the observation of an odour of alcohol coming from Mr. Tran's mouth. His investigation shifted from Careless Driving to drinking and driving after he detected the odour of alcohol. His subsequent questions and actions are consistent with his evidence that he detected that odour. The odour of alcohol on the accused's breath is a sufficient basis for an ASD demand – R v Schouten 2016 ONCA 872.

[6] Constable Gabay asked a few further questions in that regard and formed a reasonable suspicion that the accused had alcohol in his body based on the odour of alcohol, the admission of past drinking, the accused's glossy eyes, and the motor vehicle collision. The officer's explanation for the further questions – that he wanted to be sure and rule out other explanations such as cologne, is reasonable and credible considering that it was just 1:00 p.m. in the afternoon.

[7] The defence submits that the officer's acceptance of the accused's roadside statement that he was drinking the night before precludes a reasonable suspicion of the presence of alcohol given the likelihood of elimination. This same point was considered in Schouten. There the court held that even though the officer accepted that the accused's last drink was the night before, that did not preclude the possibility that alcohol was still present in his body. The reasonable grounds to suspect standard involves possibilities, not probabilities – Schouten at para 27. Here the present odour of alcohol supported a reasonable suspicion beyond the required possibility.

Timing of the ASD Demand and Test

[8] Constable Gabay happened upon the two vehicles stopped in the middle lane of a major roadway. He exited his vehicle and spoke to the drivers at 12:55:12 p.m. The initial conversation centred on the refusal of the accused to say sorry for hitting the bumper of the stopped car in front of him. Constable Gabay listened to both parties including the accused's explanation, then at 12:57:07 he said, "that's Careless Driving". There was further discussion and at 12:57:16 PC Gabay asked, "Have you had any alcohol today?" There were a few questions related to the accused's alcohol consumption. After the accused told PC Gabay that it was not possible that there was any alcohol left in his system, the Constable replied at 12:57:50, "Well I'm going to get you to blow into a roadside device just to make sure".

[9] At 12:58:21 he told the driver of the first vehicle to move out of the middle lane and over to the side of the roadway. He then returned to his police vehicle and was in the car by 12:58:30. He explained in his evidence that he contacted dispatch to determine if an ASD was available and he ran checks on the driver to determine who he was dealing with. At 13:00:19 the video includes an aired call by dispatch for a "roadside". Constable Gabay explained that a nearby officer confirmed that he had an ASD that he could bring to the scene. The Constable's evidence is confirmed by the audio portion of the in-car video. At 13:00:43 Constable Gabay returned to the accused's window and asked him to pull over to the side of the road. The accused drove around a nearby corner and both he and the officer stopped by 13:01:20. The ASD arrived 10 seconds after they stopped. The video recorded the officer saying to himself, "that was fast". PC Gabay spoke with the officer who brought the ASD at 13:01:36.

[10] At 13:02:05 Constable Gabay put the case on this hood and removed the device. At 13:02:13 he asked the accused to step out of his vehicle for the purpose of making the demand and administering the test. He located the formal demand wording in his memo book and at 13:02:59 he read the accused the Approved Screening Device demand. The accused understood the demand. The ASD test followed.

[11] The defence submits that the delay between 12:57:50 when PC Gabay formed his reasonable suspicion and advised the accused that he would administer a roadside test to determine if there was any alcohol in his system to 13:02:59 when a formally worded demand was read, breaches the immediacy requirement in s.254(2) and results in an unlawful demand.

[12] While there is no "forthwith" requirement in relation to the demand in s.254(2), the Court of Appeal has held that it is implicit in that section that the demand be made when the officer forms his or her reasonable suspicion – R. v. Quansah 2012 ONCA 123. Section 254(2) requires that the officer be in a position to administer the test, "forthwith". In Quansah the Court of Appeal recognized that that the immediacy requirement for the demand called for some flexibility in its interpretation. A short delay may be reasonable where necessary to accomplish the objectives of s.254(2).

[13] In this case the officer needed to have the other party move out of the roadway for safety reasons. The video shows the constant flow of traffic around the stopped vehicles. The officer also needed to move his car and the accused's car out of the roadway. In the remaining time the officer entered his vehicle and from 12:58:30 to 13:00:43 made inquiries about the driver and the availability of an ASD.

[14] Quansah explains that an immediacy requirement has been read into the s.254(2) demand by the courts so that the provision will comply with the resulting infringement of the accused's s.10 Charter rights. In this case the informal demand made immediately upon the officer's reasonable suspicion advised the accused of the need for roadside testing to determine whether he had alcohol in his system. The accused's s.10(a) right was complied with as he was aware that the reason for his detention had moved beyond the traffic matter and he was aware of the next investigative step. The few minutes the officer spent related to road safety, officer safety and determining the availability of an ASD were all necessary and related to his duties under s.245(2). The device arrived moments after the cars were safely out of the roadway. The officer was not in position to make a formal demand before that point.

[15] It may well be that the initial informal demand is sufficient for this purpose, but even if the formally worded demand was the first "demand" within the meaning of s.254(2) I find that it was made promptly. The Crown has proved a prompt demand on reasonable suspicion and proved that the test was conducted "forthwith" as required by s.254(2). There's no evidence of a section 8 or 9 breach. The accused was aware of the reasons for his detention through his conversation with the officer (R v MacKenzie 2014 ABQB 44 at para 45) and the informal roadside test demand. While he was free to call anyone he wished in the few minutes he was waiting, it's unlikely he called a lawyer as there simply wasn't time. Suspension of the right to counsel for roadside breath testing has long been held to be a reasonable limit under s.1 of the Charter. R v Thomsen, [1988] SCJ No 31, R v Orbanski; R v Elias 2005 SCC 37. There was no breach of his s.10 Charter rights.

[16] In the alternative, if the formally worded demand is the first "demand" and the delay in the vehicle conducting checks amounts to a s.8 breach, the breach was a trivial one with no impact on the accused's s.8 and s.10 Charter protected rights. The investigation moved very quickly otherwise in full compliance with Charter and Criminal Code requirements. Society's interest supports the admission of the reliable breath test evidence. The alleged breach in this case could not reasonably result in the remedy requested by the defendant. To exclude evidence admitted to be reliable in these circumstances would bring the administration of justice into disrepute. Exclusion of evidence for trivial breaches in drinking and driving cases was cited in R v Grant 2009 SCC 32 at paragraph 106 as an example of why a new 24(2) test was required.

Conclusion

[17] I thank Mr. Brody for very thorough submissions and Mr. O'Neill for his very focused reply. The defence very carefully reviewed every circumstance that might give rise to a Charter breach, but on the evidence as a whole I find that the Crown has proved that the breath tests were lawful and in compliance with s.8 of the Charter and the defence has failed to prove a section 9 or 10 breach on the balance of probabilities.

[18] The Crown has proved the Over 80 offence beyond a reasonable doubt. There will be a finding of guilt.

Delivered December 20, 2016

Justice Joseph F. Kenkel