R. v. Buenrostro-Ramirez

Court Information

Court: Ontario Court of Justice, Old City Hall – Toronto

Date: March 1, 2017

Judge: Melvyn Green, J.

Parties: Her Majesty the Queen v. Hugo Buenrostro-Ramirez

Counsel:

• S. Fericean, for the Crown
• D. Burke, for the Defendant

Heard: April 5-6, October 13, and December 14, 2016

A. INTRODUCTION

[1] The defendant, Hugo Buenrostro-Ramirez, faces the single charge of operating a motor vehicle with a legally excessive blood alcohol concentration (BAC).

[2] The defendant was involved in a minor motor vehicle collision in Toronto. A police officer attended, suspected the defendant had been driving after consuming alcohol, and demanded he provide a sample of his breath for roadside alcohol testing. An approved instrument demand followed the defendant's registry of a "Fail" on the roadside approved screening device (ASD). The defendant's BAC, as measured at the police station, was substantially above the legally prescribed limit. A toxicologist confirmed the defendant's excessive BAC at the time of his alleged driving. The defence advances a Charter-based challenge to the admissibility of the defendant's BAC readings and the toxicology report premised on them.

[3] The trial was conducted by way of a proceeding that blended the evidence relevant to the defendant's Charter application with that pertaining to the adjudication of the Crown's case on the merits. The defendant did not testify, nor were any other witnesses called on his behalf.

[4] The defence rests on the meaning and contextual application of the word "forthwith" as it appears in the statutory regime governing the collection of roadside screening samples from suspected drinking-and-driving offenders. In short, the defendant says that the ASD demand was not made "forthwith" or, in the alternative, that the roadside samples of his breath were not taken with the dispatch required by this same standard. Either form of statutory non-compliance, the defence contends, amounts to a Charter infringement for which the appropriate remedy is an order excluding the evidence of the defendant's BAC testing. Such order, if granted, necessarily results in the defendant's acquittal.

[5] As the search and seizure of the defendant's BAC is not judicially authorized, the Crown bears the onus of establishing its constitutional compliance on a balance of probabilities: R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 15; R. v. Haas, 76 O.R. (3d) 737 (C.A.), at paras. 24-26; leave refd [2005] S.C.C.A. No. 423. If it fails to do so, it is then the defendant's burden, on the same standard, to satisfy me that an order excluding the impugned evidence is warranted. The defendant fairly concedes that the State's compliance with the "forthwith" requirement, and the legal consequences, if any, of its failure to do so are the only viable issues at this trial. Put otherwise, there is no impediment to the defendant's conviction if his challenge to the admission of his BAC readings proves unavailing.

B. EVIDENCE

(a) Introduction

[6] The defendant's car, a BMW, struck the rear of a second vehicle on the evening of September 22, 2014. The Crown called eight witnesses to the incident and the events that followed: three officers who attended the scene, the two occupants of the motor vehicle with which the defendant's car collided, the defendant's then girlfriend (who occupied the front passenger seat of the BMW), a qualified breath technician (QBT) who administered the approved instrument, an Intoxilyzer, at the station, and a toxicologist from the Centre for Forensic Science (CFS). This evidence was supplemented by some helpful defence concessions and video recordings taken from inside the arresting officer's police car and at the police station.

(b) The Attending Officers

[7] Sgt. Mike Martin happened on the collision at 10:57pm. It "appeared to be a typical rear-ender". Martin was the first officer on the scene. He had a brief conversation with the defendant, advising him to stay in his car until police attended to investigate. He also summoned an officer to conduct an accident investigation and a primary response officer to assist with traffic. Martin did not recall extensive damage to either vehicle, although a second officer, PC Sergiy Kuznetsov, described extensive damage to the rear of a Dodge van and an estimated $5,000 damage to the front bumper area of the BMW behind it.

[8] Rachid Saib was the arresting officer. He had by then served for six years with the Toronto Police Service (TPS), but September 22, 2014 was his first shift with Traffic Services. Sgt. Martin was securing the scene when Saib arrived at 11:12pm in a response to a 10:57pm dispatch regarding a motor vehicle accident. Saib's understanding on arrival was that he was conducting a Highway Traffic Act investigation.

[9] The defendant was sitting behind the wheel of his BMW and a woman was seated next to him in the front passenger seat. Saib approached the defendant and asked him what had happened. The defendant advised that he and his girlfriend had had an argument. This comment, said Saib, shifted his attention to the possibility of a "domestic incident". He asked the defendant to exit his car. He did, as did the woman passenger. In cross-examination, Saib agreed that the women showed no signs of injury and that she uttered no complaints.

[10] Saib detected a "medium" odour of alcohol on the defendant's breath as the two spoke in close proximity by the side of the BMW. According to the videotape time stamp, it was not yet 11:15pm. The defendant explained that he had gotten distracted during an argument with his girlfriend and hit the second vehicle. Asked if he had been drinking that night, the defendant answered, "one drink". Saib did not then believe he had sufficient evidence to charge the defendant with impaired driving, but he did believe he had grounds to make a roadside ASD demand. "We're going to put a test on you", he said. "OK", said the defendant.

[11] Saib requested the defendant's driving-related documents. He then went to speak to Sgt. Martin about the possible domestic incident and of his intention to conduct a roadside ASD. Martin had no recall of having anything to do with a domestic investigation.

[12] The defendant was rummaging through his car looking for his wallet when Saib returned a minute later. Saib testified he told the defendant that verbal identification would do. However, the video evidence indicates that Saib continued to press for documentation. He also questioned the defendant about whether he was licensed to drive and, again, about the extent of his alcohol consumption. The defendant advised that he had bought a small bottle of Jägermeister.

[13] Other than talkativeness, the officer did not notice any signs of impairment. His reasonable suspicion that the defendant had alcohol in his body and had operated or had care and control of a motor vehicle within the previous three hours was premised on the defendant's location in the driver's seat, the odour of alcohol on his breath, his admission of alcohol consumption, and the unlikelihood that Sgt. Martin (who had pointed out the defendant as the driver of the offending car) had been on the scene for more than three hours. Finally, at 11:25pm (as recorded on the videotape), Saib formally read the ASD demand. Some 10 minutes had passed since the officer had first detected the odour of alcohol and, on a fair reading of his evidence and that captured on the videotape, formed that "reasonable suspicion" predicate to making an ASD demand.

[14] The defendant indicated he understood the demand. He provided a sample that registered a "Fail". Then, at 11:27pm, Saib arrested the defendant for impaired driving and, a minute later, read him the approved instrument demand from the back of his notebook and translated it into colloquial English. A recitation of the defendant's rights to counsel followed a minute later. The defendant declined to call a lawyer "at the moment".

[15] Saib then briefed an officer who he assumed Martin had summoned to deal with the "domestic" investigation. He also caught up with his notes and completed the necessary Versidex entries. At close to 11:42pm, some 13 minutes after advising the defendant of his rights to counsel, Saib left the scene with the defendant. He drove directly to the closest station with a QBT on duty, arriving at about 11:56pm.

[16] Saib re-cautioned the defendant as they waited outside the station. He again asked him how many drinks he had consumed. Again, the defendant said only one. At about 12:17am, after waiting for approximately 21 minutes outside the station, they were cleared to enter the sallyport and, soon after, to enter the booking hall.

[17] A parade followed, including a Level 2 search. The defendant was taken out of the booking hall at approximately 12:25am. He was taken to a washroom at 12:27am. He wanted to speak to his father but Saib was unable to locate him. Saib called the duty counsel office at the defendant's request at 12:33am. The defendant spoke with duty counsel in a privacy booth when the call was returned at 12:51am. They spoke until almost 1:00am. The defendant was then escorted into the breath room for his first Intoxilyzer test. He was charged with "over 80" following the second test, at about 1:40am.

[18] Saib advised the QBT, officer Kell, that the collision occurred at about 10:50pm. Saib based this estimate on Sgt. Martin's presence when he first arrived and the probability that the police had responded promptly to an accident alert.

[19] The defendant was not released from the station until about 3:20am, more than four hours after he was first detained.

(c) The Occupants of the Second Car

[20] Andrasne Mida was driving to a friend's home. Her husband, Andras Mida, was in the front passenger seat. The defendant's BMW banged into the rear of their 2002 Dodge van about ten seconds after they stopped for a red light. They both got out of the Dodge and spoke to the defendant who, along with a young woman, remained in the BMW. Despite being very close to the driver, neither Andrasne nor Andras Mida detected any odour of alcohol. The driver, Andrasne, estimated the accident occurred around 9 or 10pm and that the police first arrived about ten minutes after its occurrence. Her husband, Andras, thought "maybe" 20 minutes passed between the collision and the arrival of the first police car. The Dodge was a write-off.

(d) The Defendant's Girlfriend

[21] Jasmine Ruiz had been at the defendant's apartment before the accident. While there, she consumed a variety of drinks – tequila, vodka, and Jägermeister. She was pretty loaded. She mixed a shot of tequila with juice and ice in a tall glass for the defendant. She did not know if he had anything more to drink.

[22] They left the defendant's apartment to visit one of his friends. The defendant was driving. Ruiz estimated that they began their journey about a half-hour before the accident occurred. As they approached the friend's home, Ruiz told the defendant, for a second time, that she had forgotten her purse at his apartment. This led to a "heavy argument" as the defendant returned to his apartment to collect the purse. Ruiz was facing the defendant when she heard a bang and realized there had been an accident. She suspected she may have been a "distraction". The defendant, in her view, looked normal and was sober at the time of the collision. Ruiz spoke to an officer at the scene. It "confuses me", she said, upon being given an opportunity to read a statement she had provided the police.

(e) Expert Evidence

[23] Officer Jeffrey Kell, the QBT, was first advised that his services would be required at 11:34pm. The defendant was brought into the breath room at around 1am. Kell noticed a strong odour of alcohol on the defendant's breath, that his eyes were red and glassy, and that his words were somewhat slurred. Overall, however, he assessed the effect of alcohol on the defendant as "slight". No issue was taken with the integrity of the Intoxilyzer testing procedure. The defendant's BAC readings, taken at 1:14am and 1:36am, were, respectively, 148 and 147 milligrams of alcohol (truncated to 140 in both cases) in 100 millilitres of blood. The lawful BAC limit is 80.

[24] Cst. Saib, the arresting officer, advised Kell that the defendant last drove his car at 10:50pm. As the Intoxilyzer breath samples were taken more than two hours after the offence of driving with an excessive BAC is alleged to have occurred, the Crown cannot rely on the statutory presumption of identity. Accordingly, Dr. Daryl Mayers, a CFS forensic toxicologist whose expert qualifications were conceded by the defence, was called to "read-back" the defendant's BAC results to the last known time the defendant was driving. Relying on the Intoxilyzer readings and qualified by a series of assumptions unchallenged by any contrary evidence, Dr. Mayers' "conservative" opinion was that the defendant's BAC in the 10:30 to 11:10pm aperture was between 140 and 195 milligrams of alcohol in 100 millilitres of blood.

[25] The defendant's Intoxilyzer test results, the accompanying Certificate of a Qualified Technician, and Dr. Mayers' expert opinion as to the defendant's BAC at the time of the accident were only provisionally admitted when tendered. Their ultimate receipt, or not, turns on my determination of the defendant's Charter application.

C. ANALYSIS

(a) "Forthwith": The Legal Framework

[26] As earlier noted, the defence asserts that the police failed to honour the "forthwith" requirement set out in s. 254(2) of the Criminal Code. The relevant portions of that provision read:

(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle … the peace officer may, by demand, require the person …

(b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose. [Emphasis added.]

Compliance with the "forthwith" standard is both a statutory and constitutional precondition for a lawful search and seizure: R. v. Bernshaw, [1995] 1 S.C.R. 254, at para. 51. Further, both the demand for an ASD sample and its provision must be "forthwith". Again, the defendant's complaint is one of state non-compliance – and, thus, Charter infringement invoking a remedy of exclusion – under both branches of the requirement.

[27] The Court of Appeal has on several occasions traced the contextual rationale for this approach, including in R. v. Quansah, 2012 ONCA 123, 287 O.A.C. 383. As there noted, at paras. 18-23:

The meaning to be given to s. 254(2) must be informed by its purpose. Parliament created a two-step detection and enforcement procedure in s. 254 that necessarily interferes with rights and freedoms guaranteed by the [Charter]. …

… The deaths and substantial societal costs associated with drinking and driving fully justify the existence of this procedure: see R. v. Degiorgio, 2011 ONCA 527, 279 O.A.C. 386, at para. 41.

The "forthwith" requirement of s. 254(2) is inextricably linked to its constitutional integrity: see R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205, at para. 29. This justifies what would otherwise be sustained as violations of ss. 8, 9 and 10(b) of the Charter. Thus, in interpreting "forthwith", this court must bear in mind Parliament's choice of language and Parliament's intention, which is to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights: see Woods, at para. 29.

So long as the demand is validly made pursuant to s. 254(2) – that is, so long as it is made "forthwith" – for Charter purposes there is no unjustified seizure or arbitrary detention or breach of the requirement to advise the detainee of his or her right to counsel. This is because this statutory detection and enforcement procedure constitutes a reasonable limit on Charter rights, given the extreme danger represented by unlicensed or impaired drivers on the roads: see Degiorgio, at para. 37.

As this court noted in Degiorgio, at para. 46, the "forthwith" period is the time in which Charter rights are justifiably infringed. That is to say, within this time a detained person can be required to comply with an ASD demand and respond to that demand … and incur criminal liability that is justified despite ss. 8, 9 and 10(b) of the Charter.

[28] Although s. 254(2) speaks only of a motorist's obligation to provide a sample "forthwith", it is long settled that there is a complimentary constitutional duty on an officer to make the ASD demand as soon as he or she forms the requisite reasonable suspicion. As said in R. v. Vinoharan, [2009] O.J. No. 4037 (Sup. Ct.), at para. 6: "both the demand and the sample must be forthwith". See, also, R. v. Pierman; R. v. Dewald, 19 O.R. (3d) 704, at para. 5; R. v. Woods, supra, at para. 14.

[29] As held authoritatively in Woods, at para. 13: "Forthwith" means "immediately" or "without delay". Indeed, as said in the next paragraph, "[s]ection 254(2) depends for its constitutional validity on its implicit and explicit requirements of immediacy." There is no fixed standard or temporal guillotine, and some elasticity may be justified in demanding situations. Indeed, "forthwith", as Woods acknowledges at para. 43, "may in unusual circumstances be given a more flexible interpretation than its ordinary meaning strictly suggests" (emphasis added). By way of example, the Supreme Court (relying on Bernshaw, supra) speaks of a "brief and unavoidable delay of 15 minutes … in accordance with the exigencies of the use of the equipment".

[30] While on-the-ground challenges to statutory compliance may afford a measure of elasticity, the Court of Appeal has made "very clear" that Bernshaw and Woods do not cut the police a blank cheque. As it said in R. v. George, 187 C.C.C. (3d) 289, at para. 50, delays of 15 minutes or less are not to be routinely excused "no matter what the reason for the delay". (See, also, Quansah, supra, at para. 31.) The standard, both statutory and constitutional, is that of circumstantial immediacy or, as put in Quansah, at para. 48, "a delay that is no more than reasonably necessary to enable the officer to properly discharge his or her duty" under s. 245(2). Any more extensive delay "exceeds the immediacy requirement".

(b) The Question of Breach

[31] The defence position, writ simple, is that there was a constitutionally inexcusable delay of approximately 10 minutes between either the formation of reasonable suspicion and the making of a formal s. 254(2) demand or between the making of an informal ASD demand and the collection of the roadside sample. Either interval, says the defendant, is inconsistent with the "forthwith" requirement.

[32] Relying, as I do, on the videotape time stamps, at approximately 11:15pm Saib, having detected an odour of alcohol and having confirmed the consumption of an alcoholic beverage, advised the defendant that he was "going to put a test" on him. This, in my view, reflected the officer's then-crystallized belief that he had the requisite reasonable suspicion to make an ASD demand. It was not until some 10 or 11 minutes after this "informal" demand that the roadside screening commenced.

[33] While it makes little to no difference for analytical purposes, the alternative defence position, and the one I find more accurately reflects the informational function and mandatory impact of the statutory demand, is that the officer did not make an ASD demand until he read it from his notebook and translated it into non-legalese at approximately 11:25pm – some 10 minutes after he had formed the reasonable suspicion to make such demand. Saib's verbalization of the demand was not made "forthwith" or, in the language of the settled line of authority since Bernshaw and Woods, immediately. Nor, in my view, were there any exigent or pressing circumstances that compelled or excuse any delay in the making of the demand. There was no extensive damage or serious injuries. Other officers were already on-scene when Saib arrived and were attending to traffic duties and the occupants of the second vehicle. And Saib was equipped with a currently calibrated ASD that he believed was in proper working order. It is not a question of the precise duration of the gap between the formation of the requisite belief and the demand but the fact that the demand was simply not made "without delay".

[34] Crown counsel endeavours to explain the delay by suggesting that the officer abruptly found himself "riding two horses" when he was suddenly presented with a domestic assault investigation, raising public safety concerns of elevated priority. It might, of course, have helped the Crown's case had Saib himself couched his purported dilemma in this fashion, but he did not. Further, and as I assess the evidence, there was simply no objective foundation for any concern respecting a domestic assault. The defendant had volunteered that he and his girlfriend had had an "argument" – not a "fight". The girlfriend, Ruiz, did not raise any alarm and showed no signs of injury. Nor was there any indication of struggle or any demeanour evidence suggestive of fear, distress or even concern. Nor, it appears, did Saib make even the briefest of inquiries of Ruiz. The officer, in short, was off on his own unfounded frolic. He may have believed he was "doing the right thing" but his belief had no basis in shared reality. Further, he continued to make inessential inquiries of the defendant during this 10-minute interval. In my view, Saib's delay in making the demand was not so much a product of divided investigative loyalties as it was his own indifference to his statutory and constitutional obligations.

[35] The immediate situation is conceptually similar to that presented in the case of R. v. Kerr, 2010 ONCJ 189 where, at para. 22, I noted:

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 conclude, as I did in Kerr, at para. 23, that "no cognizable justification emerges for the officer's failure to immediately make the ASD demand". Accordingly, the alleged breach is made out.

(c) The Question of Remedy

[36] The remedy sought is that of exclusion of the toxicological report and the defendant's BAC readings on which it is premised. Three lines of s. 24(2) inquiry are directed by R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353: (1) the seriousness of the Charter-infringing conduct; (2) the impact of the infringement on the Charter protected interests of the defendant; and (3) society's interest in the adjudication of the case on its merits. Having conducted these inquiries, the court, as said in R. v. Grant, at para. 85, "must then determine whether, on balance, the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute".

[37] In regard to the first branch of the s. 24(2) analysis, I find the breach serious. Most importantly, the failure to immediately make the demand was inconsistent with well-settled law and thereby provoked unnecessary constitutional infringement of several of the defendant's Charter-protected rights. PC Saib did not set out to subvert the defendant's rights, but his conduct reflects a woeful disregard for the immediacy with which they were to be honoured or of the constitutional rationale for the "forthwith" requirement". As said in Grant, at para. 75,

"Good faith" on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith. [Emphasis added.]

This step of the s. 24(2) analysis militates in favour of exclusion.

[38] The second line of inquiry, as put in Grant, at para. 76, "calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed". A case-specific inquiry also favours exclusion in this instance. As Grant makes clear, the unreasonable search and seizure of the defendant's breath samples by way of roadside screening and Intoxilyzer testing lies toward the less invasive end of the continuum of privacy and personal dignity interests secured by s. 8 of the Charter. However, the impact of the "forthwith" breach is not limited to these more modest intrusions. The defendant's arrest and detention for several hours flow from the breach. His ordinary mobility and agency were entirely subject to state control. The defendant's s. 9 interests – those of physical and mental liberty – were meaningfully infringed in this case: see Grant, at para. 20.

[39] The third consideration, that of societal interest in an adjudication on the merits, favours, as here, receipt of "real" evidence that is vital to the Crown's case. However, the internal calibration is not without an element of nuance. The arresting officer did not observe any indicia of impairment and the defendant was not, ultimately, charged with impaired driving. And while the charge was, as often said, "serious", this characterization does not compel inclusion of the impugned evidence. As said in Grant, at para. 84, the "short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice". (See, also, R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 38.)

[40] The final step involves a balancing of the search for truth and the integrity of the judicial system. This inevitably refocuses the overall inquiry on the "long term", "prospective" and "societal" interests that inform a proper s. 24(2) analysis. These considerations tip the scales in the direction of exclusion where, as here, the police conduct signals an inexplicable misapprehension of constitutional norms. The repute of the justice system demands that courts not be seen to excuse ignorance or disregard of the law by those charged with its enforcement. I conclude, in the end, that an informed public's respect for the administration of justice is better served by exclusion rather than receipt of the impugned evidence.

D. CONCLUSION

[41] For the reasons just recited, the tendered toxicology report and the defendant's BAC readings are excluded. As there is then no basis to establish the defendant's guilt, his acquittal of the charge of operating a motor vehicle with an excessive BAC necessarily follows.

Released on March 1, 2017

Justice Melvyn Green