Court File and Parties

Ontario Court of Justice

Date: February 28, 2017

Court File No.: 15-09953 Newmarket

Between:

Her Majesty the Queen

— and —

Calden James Pollock

Judgment

Before: Justice Joseph F. Kenkel

Delivered: February 28, 2017

Counsel:

• Mr. Michael Ventola, counsel for the Crown
• Mr. Al Pazuki, counsel for the defendant

KENKEL J.:

Introduction

[1] Constable Lukasavitch stopped a pickup truck for speeding. When he looked into the cab with his flashlight he saw open cans of beer. He smelled an odour of alcohol and then determined that the driver had an odour of alcohol on his breath. The officer administered an Approved Screening Device (ASD) test and the Fail result led to further testing at the station. The results of the Approved Instrument (AI) tests (173,172mgs) led to the Over 80 charge before the court.

[2] After evidence was heard the final submissions of both counsel identified six issues for decision:

• AS SOON AS PRACTICABLE – The defence submits that the approved instrument tests were not taken as soon as practicable as required by s.258(1)(c).

• EVIDENCE TENDING TO SHOW - Bolus Drinking – The defence submits that the evidence of the accused and their toxicologist shows that the accused's blood alcohol level could have been below the legal limit at the time of driving.

• ARBITRARY DETENTION – Charter s.9 – The defence submits that the stop of the accused and his detention prior to arrest was arbitrary.

• ASD DEMAND AND TEST FORTHWITH - Charter s.8 – The defence submits the ASD demand and test were not forthwith as required by s.254(2)(b).

• EXCLUSION OF EVIDENCE – Charter 24(2) – The defendant/applicant submits that the breath test results should be excluded from evidence as a remedy for the multiple Charter breaches.

As Soon As Practicable

[3] After the accused failed the ASD test at the roadside, there was an 11 minute delay before he was transported to the station. At the station the delay between breath tests was five minutes longer than was typical. The defence submits that neither delay was explained in the evidence. The combined gaps (11+ 5 minutes) are significant and the Crown has failed to show the tests were taken as soon as practicable.

[4] The police in-car video showed what happened after the accused failed the ASD test. He was arrested, advised of his right to counsel, cautioned, searched, handcuffed and placed in the back of the police car. The approved instrument demand was read at 3:02 a.m. and there was further discussion about right to counsel at 3:03:27 a.m. The video wasn't played past that point but the officer recalled that he waited for the dispatcher to identify the closest station that had a breath technician available. He wasn't certain about the time spent waiting for those instructions so at most there was something less than a six minute gap at the roadside.

[5] At the station the first test was conducted and the breath technician stepped out in between tests to go to the washroom. The Criminal Code requires that there be a delay between breath tests, but this interval was some five minutes longer than is typical. The breath technician returned and the second test was completed shortly afterwards.

[6] Identifying small, unexplained gaps in time in hopes that the total takes on some significance ignores the direction provided more than a decade ago in R v Vanderbruggen, [2006] OJ No 1138 (CA). In that case the Court of Appeal explained at paragraph 12 that the s.258(1)(c)(ii) "as soon as practicable" requirement does not mean as soon as possible. The section requires the court to determine whether the police acted reasonably in taking the tests. In this case the times from the arrest to the completion of the breath tests were reasonably explained. Considering the whole chain of events in the context of the Code two hour limit, I find the Crown has proved that the tests were taken as soon as practicable.

Bolus Drinking

[7] Mr. Pollock testified that he started drinking at 10:30 p.m. He had three 710ml tall Coors Light at 4% alcohol by volume (ABV) from 10:30 p.m. to 2:25 a.m. He said that at 2:25 a.m. he consumed four 1 ounce shots of Bacardi 151 at 75.5% ABV. His last shot was at 2:30 a.m. After drinking the four shots of liquor he got into his car and drove away from the party.

[8] In cross-examination Mr. Pollock was unsure of the times he started and finished the three beers he said he drank that evening. Cross-examination showed that by the time of trial the accused had no actual recollection of those details, which is understandable given the time since the event and the fact that he had no reason to keep close track of times that evening. He also had no memory of the time it took to consume each drink which affected his time estimates for the second and third beers.

[9] On the night he was arrested, Mr. Pollock told the breath technician that he could have started drinking as late as midnight. He explained at trial that the times he provided to the officer were a "rough estimate" showing that even within hours of drinking he was unable to say precisely when he had started. Ten months later his evidence as to the times of his drinking remained guesses.

[10] Mr. Pollock told the breath technician that he consumed only two beers which was inconsistent with his evidence at trial. He denied that he lied to the officer because he wanted to minimize the amount he had to drink. Later in his evidence he did concede that he minimized his drinking for that purpose but he denied that he did that to try to escape the consequences of drinking and driving. He claimed, "I didn't want to hide anything." Mr. Pollock's responses showed that he was not a credible witness and had little recollection of the circumstances of his drinking on the night in question. His evidence that he had four drinks in rapid succession right before driving was illogical and incredible.

[11] Dr. Mayer's evidence showed the possibility that the accused's blood alcohol level might have straddled the legal limit in some circumstances. In R v Ibanescu 2013 SCC 31 the Supreme Court clarified that straddle evidence may provide a defence. However, in this case there was no foundation for the expert's opinion where the accused was not a credible witness, the drinking times he provided were guesses and his estimates as to the amount he drank were internally inconsistent and incredible.

Charter s.9 – Arbitrary Detention

The accused was stopped for speeding. The stop was not arbitrary. The accused was initially detained for the traffic offence of speeding, then an additional reason was added when the officer discovered open liquor in the car. Further observations led to a third avenue of investigation in relation to drinking and driving. The detention of the accused to the point of arrest was not arbitrary within the meaning of s.9 of the Charter even though the officer conceded that in hindsight he would have conducted part of the investigation in a different order.

Charter s.8 – ASD Demand and Test Forthwith

[12] Constable Luckasavitch first spoke with the accused at 2:40 a.m. He returned to his vehicle at 2:43 a.m. and by that time had detected the odour of alcohol coming from the accused driver. PC Luckasavitch waited for a second officer to arrive for safety reasons as there were two occupants in the car, it was late at night and his investigation would involve an ASD test and a vehicle search where he would not be able to monitor both parties. The second officer arrived just before 2:49 a.m. Shortly afterwards Constable Luckasavitch asked the accused driver to step out of his vehicle and he advised Mr. Pollock in plain terms that he would be administering a roadside breath test. After moving the accused and conducting a brief search of the accused's vehicle Constable Luckasavitch made the ASD demand at 2:54 a.m. The test was conducted at 2:55 a.m. and a Fail result displayed at 2:58 a.m.

[13] There is no separate "forthwith" requirement for the demand in s.254(2)(b), but it has been held implicit in that section that the demand must be made as soon as the officer forms the required reasonable suspicion – R v Quansah 2012 ONCA 123 at para 25. I agree with the defence that the delay in administering the test for officer safety reasons does not explain the delay in making the demand.

[14] The Crown must show that the officer was in a position to require the ASD sample be provided "forthwith". The "forthwith" requirement has been linked to the right to counsel as the benchmark for a timely test. The Crown must show that the test was administered before there was any realistic opportunity for the person detained to consult with a lawyer – R v Torsney 2007 ONCA 67 leave refused [2007] SCCA No 126.

[15] Constable Luckasavitch had an approved screening device in his vehicle. His six minute wait for a second officer to attend for safety reasons was reasonable in the circumstances. I disagree that there must be a specific confrontation or threat involving the second party before that precaution can reasonably be taken. After the second officer arrived, the accused and his passenger were removed from the car. Constable Luckasavitch agreed he should have administered the test at that point rather than search the accused's car but the search was very brief and the accused had been advised that a roadside breath test would be administered.

[16] Considering whether the s.254(2) immediacy requirement has been met in this case begins with the context – the balance struck in that section between the need to detect drinking drivers and the individual's Charter rights which place limits on those investigations. The immediacy requirement began here when the officer detected an odour of alcohol on the accused's breath and formed the reasonable suspicion required by 254(2). He should have made his demand at that time, but he delayed reading the demand until he administered the test. There was a further two minute delay while he searched the accused's car which was unnecessary at that point.

[17] The delay in making the demand did not delay the test as the officer had to wait for a second officer to assist. The search of the accused's vehicle did delay the test by two minutes. In considering the impact of those delays on the accused's Charter protected rights, the court must consider whether the police could have realistically fulfilled their obligation to provide the person detained with access to legal advice – R v Quansah 2012 ONCA 123 at para 49.

[18] As the Court of Appeal explained in Torsney at para 13, there's an important distinction between being able to make a phone call to a lawyer or duty counsel, and being able to "consult" with counsel. Considering the time that would have been required to contact a lawyer or duty counsel and receive a response, and the fact that the passenger would have to be moved to permit the accused to consult in private, I find that the test was conducted before there was a realistic opportunity for the accused to consult with counsel. Even though the demand should have been read immediately and the officer's vehicle search delayed the test by two minutes, I find the Crown has proved that the overall time meets the statutory forthwith requirement.

Section 24(2)

[19] In the alternative, if the delay in making the ASD demand and the delay in administering that test breached the s.254(2)(b) immediacy requirement, the section 8 breach was not serious and had little impact on the accused's Charter protected rights. The officer had the required reasonable suspicion for the test and was entitled to detain the accused for that purpose. The delay for the vehicle search was very brief.

[20] Mr. Pollock remained in his car and was free to call anyone he wished during the six minute wait for the second officer to attend. He testified that he did not call a lawyer but would have done so while waiting if the officer had advised him of that right. However, Mr. Pollock declined to speak to a lawyer when advised of that right on arrest and again when the officer tried to clarify the accused's response. He declined a further offer to speak to a lawyer at the police station. His explanation for the inconsistency between his evidence at trial and his responses after arrest when he faced greater jeopardy than a roadside test was neither logical nor credible.

[21] Society's interest in the adjudication of the case on its merits would weigh against exclusion. Weighing the seriousness of the breach, the impact on the accused's Charter rights and society's interest I find the Crown has shown that the exclusion of the reliable breath test evidence in the circumstances of this case would bring the administration of justice into disrepute.

Conclusion

[22] The Crown has proved that the ASD test and the approved instrument tests were taken in compliance with the Criminal Code requirements. There is no s.8 Charter breach. In the alternative, the breaches discussed above could not reasonably result in the exclusion of the breath test evidence. The defence has failed to prove a section 9 or 10 Charter breach on the balance of probabilities.

[23] The Crown has proved that the breath tests were taken as soon as practicable. The Crown is therefore entitled to rely upon the presumption that relates those test readings to the time of driving. The accuracy of those tests is not disputed. The defendant's bolus drinking evidence was illogical and internally inconsistent. It was not credible. I can find no evidence that reasonably could leave a doubt on this charge.

[24] The Charter application is dismissed. The Crown has otherwise proved the accused's guilt beyond a reasonable doubt.

Released February 28, 2017

Justice Joseph F. Kenkel