Court Information

Ontario Court of Justice

Date: 2017-03-16

Court File No.: Region of Durham 998 16 33750

Parties

Between:

Her Majesty the Queen

— And —

Beatrice Davie

Judicial Officer and Counsel

Before: Justice J. De Filippis

Heard on: January 31, 2017

Reasons for Judgment released on: March 16, 2017

Counsel:

• Ms. J. O'Connor — counsel for the Crown
• Mr. T. Balka — counsel for the defendant

Reasons for Judgment

De Filippis J.:

[1] The defendant was tried on an Information alleging that she had care and control of a motor vehicle at a time when her blood alcohol level exceeded the legal limit. She asks that I exclude the relevant evidence because the police violated her right to counsel, as set out in section 10(b) of the Charter of Rights and Freedoms. At the conclusion of the evidence, the Defence also raised other arguments. A blended hearing was held to determine all issues. I heard from two witnesses called by the Crown. Their evidence is set out below. These reasons explain why I find the defendant guilty.

Facts

[2] On Saturday February 13, 2016 at 10:07 PM, P.C. Bacon heard a radio call that a person had reported a possible impaired driver at Whites Road and Finch Avenue in the City of Pickering. The information received included a plate number for the vehicle and specified that it was swerving all over the road, almost hitting oncoming cars. Within 10 minutes, the officer located the subject vehicle and conducted a traffic stop. Along with the driver, there were two other women in the car. The driver explained that she had been at her daughter's home and got lost trying to find Highway 401.

[3] PC Bacon noted that the driver's speech was good and that her eyes were not bloodshot or watery. However, he detected a strong odour of alcohol coming from within the vehicle and he asked the driver if she had been drinking. The latter responded that she had consumed one glass of wine and that she was fine. The officer instructed the driver to exit the vehicle and provide identification. He noted that she had no difficulty exiting her vehicle, opening her trunk and retrieving and producing her licence. The licence was in the name, Beatrice Davie and recorded a date of birth of October 28, 1932. In conversing with the driver, the officer detected an odour of alcohol emanating from her breath and made the Approved Screening Device (ASD) demand.

[4] PC Bacon retrieved the ASD from the trunk of his cruiser and turned it on. Since it was a cold evening, the device required time to warm up. Accordingly, the officer placed the driver into the back seat of his cruiser. The ASD demand was made at 10:14 PM. P.C. Bacon testified that because he did not know how long it would take for the device to warm up, he made a radio request for a second one to be brought to the scene. At 10:19 PM, the device he had retrieved from the trunk of the cruiser was ready to receive a breath sample. Accordingly he cancelled the request for the second ASD.

[5] Defence counsel suggested the officer should have kept the ASD in the cruiser, where it is warmer, and thus minimize the delay needed to wait for it to be ready. P.C. Bacon responded that to do so might make the device a projectile in the event of a car accident. When pressed on this point, he testified that officer safety is more important that the one or two minutes it takes to warm up the ASD. He conceded that he did not know how long this process would take, or how long it might take for the second device to arrive, and that Ms. Davie was detained in the cruiser during this period. In the five minutes between the demand and the taking of breath samples, the officer did not advise Ms. Davie of her right to counsel. In this regard, he did not know if Ms. Davie and/or the passengers had a cell phone, but assumed one of them did.

[6] After two failed attempts, Ms. Davie provided a suitable sample into the ASD and registered a "fail". On this basis, at 10:23 PM, the officer arrested the driver for the offence in question. He also advised her of her right to counsel. There is no dispute that the informational component of this right was properly conveyed to Ms. Davie. The latter stated that she understood her rights and when asked if she wished to call a lawyer, she replied, "I don't think so". The officer testified that he interpreted this answer to mean, "no, not at this time", and he further advised Ms. Davie to let him know if she changed her mind.

[7] The officer then cautioned her and, at 10:25 PM, demanded that she provide a sample of her breath into an approved instrument and advised she would be taken to a police station for that purpose. There is no dispute about the wording of the demand and that she understood it. Ms. Davie was transported to the nearest police station and arrived at 10:34 PM. Other officers remained on scene to await a tow truck and assist the passengers.

[8] Upon arrival at the police station, Ms. Davie was presented to the booking sergeant and had a conversation with him about her right to counsel. She was uncertain about whether to speak to a lawyer and asked the officer what she should do. Ms. Davie was told the decision was one for her to make. She considered the matter but did not request a lawyer of choice. At 10:55 PM, P.C. Bacon contacted duty counsel on her behalf. Duty counsel called back at 11:12 PM and spoke with Ms. Davie for five minutes.

[9] Immediately after her discussion with duty counsel, Ms. Davie was turned over to P.C. Hood, a qualified breath technician. At 11:55 PM, P.C. Bacon was informed that the test results confirmed a blood alcohol level that exceeded the legal limit. He prepared the relevant paperwork and arranged for Ms. Davie's daughter to pick her up.

[10] P.C. Hood is a qualified intoxilyzer technician and obtained the breath samples from Ms. Davie after receiving a report from P.C. Bacon about the grounds for arrest. He used the intoxilyzer 8000c, an approved instrument, and explained how he set up the machine to ensure it was in proper working order. He described the testing procedure to Ms. Davie and confirmed she understood the reason for her arrest and that she had spoken to counsel. The officer testified that he obtained two satisfactory samples of her breath; the first, at 11:23 PM, revealed a blood alcohol level of 131 and the second, at 11:23 PM, showed a reading of 124. Both test results are over the legal limit of 80. The officer observed that Ms. Davie emitted a moderate odour of alcohol from her breath and had glassy eyes. He noted that the effects of alcohol upon her were "obvious".

Defence Arguments

[11] Before dealing with the Charter motion, I will deal with the other three issues raised by the Defence.

Identity

[12] It is argued that the Crown has failed to prove identity in this case because neither police officer pointed to the accused as the offender. As my colleague, Justice Duncan, has pointed out (R v Tullah, 2016 ONCJ 774):

Identity in a criminal case can refer to more than one question. First. Who is the accused? This is rarely in issue. An accused is expected to identify himself to the court either personally or by his counsel. In this case, the person accused is someone named Troy Tullah. A man stepped forward in answer to that name and answered to the charge. His identity as Troy Tullah the accused person was thereby established: R v Nicholson (1984) 1984 ABCA 88, 12 CCC3d 228 ; [1984] AJ 2522 (Alta CA).

The main identification issue in this and many cases is: Who is the offender? The appearance of the accused before and attornment to the jurisdiction of the court does not in itself address this issue, except to the extent that it may complete the circle discussed below. The Crown must prove that the person accused (in this case the Troy Tullah who identified himself as per the above) is the person who committed the alleged offence(s).

As with all issues, the burden of proof can be satisfied in any manner, provided that it is by admissible evidence and/or permissible inference. In this case, identification can be established by at least three routes which can be considered in combination to determine if the burden of proof has been met:

1. Video evidence
2. The circle - Continuity of offence, arrest, charge, release and appearance.
3. Evidence of name and other identifiers

[13] With respect to the third mode of proof identified by Justice Duncan, I also note the decision of the Court of Appeal for Ontario in R v St. Pierce 2016 ONCA 173, in which it was noted that the similarity of name and date of birth as set out in the Information before the Court and other documents (in that case, the promise to appear that was the basis for the charge of failure to appear) is some evidence that the accused and offender are one and the same.

[14] In the present case, the arresting officer and the breath technician both testified as to their dealings with a woman named Beatrice Davie. The defendant answered to the name, Beatrice Davie, when she was arraigned at the start of trial. She appeared personally or by counsel in court on several occasions prior to trial. The name, Beatrice Davie, with a date of birth of October 28, 1932 appears in the Information. P.C. Bacon testified he received, from the driver of the motor vehicle, a licence with this name and date of birth. The officer also testified that the driver was an elderly woman. The woman before me is an elderly woman. There are relatively few 84 year old drivers on the road, and even fewer, who are charged with this offence. These facts strengthen the inference that the accused before the court is, in fact, the alleged offender. In these circumstances, I am not troubled by the fact that neither officer pointed to the accused as the alleged offender. Indeed, in these circumstances, I would be shocked by their silence had they not been certain the person before me is the one they dealt with. That silence is not necessarily determinative of the issue; I mention it as an additional reason why the failure to point to the accused is not a problem in this case. In any event, I have no doubt that identity has been proven.

Intoxilyzer Procedure

[15] The Defence also argued that P.C. Hood failed to testify about all the steps necessary to engage the presumptions in s. 258 of the Code. One example cited is the failure of the officer to note that each sample took less than one minute. In this regard, counsel pointed out that the Crown did not file a certificate, which contains pre-printed text setting out these steps. I do not accept this submission. P.C. Hood is a qualified intoxilyzer technician who properly described the process leading to a suitable sample. A fair reading of his testimony leave me in no doubt that the test results obtained from the defendant accurately reflect her blood alcohol level at the relevant time. That the witness may not have repeated an expected mantra is of no moment in this case.

Approved Instrument

[16] The third argument presented is that the Crown failed to prove that the roadside test was conducted with an approved instrument. That is, although P.C. Bacon correctly identified the device, he did not specifically say he understood it to be an approved screening device and, accordingly, I cannot be certain he knew he was using a proper device. This submission is without merit. P.C. Bacon made a statutory demand that refers to "an approved screening device", obtained a device from a police cruiser, and identified it as a Dragger Alcotest 6810. This is an approved screening device. There is no need for him to tell me that is what he understood it to be. That fact is obvious.

Charter Motion

[17] The Charter motion is grounded in the decision by the Court of Appeal for Ontario in R v George (2004), 187 C.C.C. (3d) 289 at para 55:

Where an officer is in a position to require that a breath sample be provided by the detainee before the detainee has any realistic opportunity to consult counsel, the detainee does not have the right to delay the production of the breath sample in order to consult counsel by virtue of the ready availability of a telephone. However, where an officer is not in a position to require that a breath sample be provided immediately after a demand for such a sample, the court, in determining whether the detainee had a realistic opportunity to consult counsel during the period of delay, must consider the ready availability of a telephone as a relevant factor in making that determination.

[18] It is asserted that George stands for proposition that the right to counsel is triggered when an officer is not in a position to know how long a detainee will be waiting. Accordingly, since, P.C. Bacon did not know how long it would take for the device to warm up and/or for the second one to arrive, he should have given the defendant the right to counsel.

[19] The Court of Appeal for Ontario provided further guidance about this issue in R v Quansah 2012 ONCA 123:

21 The "forthwith" requirement of s. 254(2) is inextricably linked to its constitutional integrity: see Woods, 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…

22 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…

45 In sum, I conclude that the immediacy requirement in s. 254(2) necessitates the courts to consider five things. First, the analysis of the forthwith or immediacy requirement must always be done contextually. Courts must bear in mind Parliament's intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.

46 Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body. The immediacy requirement, therefore, commences at the stage of reasonable suspicion.

47 Third, "forthwith" connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible interpretation may be given. In the end, the time from the formation of reasonable suspicion to the making of the demand to the detainee's response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2).

48 Fourth, the immediacy requirement must take into account all the circumstances. These may include a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed to ensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns. These are examples of delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty. Any delay not so justified exceeds the immediacy requirement.

49 Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee's s. 10(b) rights before requiring the sample. If so, the "forthwith" criterion is not met.

[20] On the basis of the factors identified in Quansah, I am satisfied that the demand was made forthwith; in particular, I find that the five minute delay was sufficiently brief and needed to ensure an accurate result for the breath tests. Moreover, it must be pointed out that, although the officer testified he assumed a cell phone was available to the defendant, there is no evidence before me of that fact. In addition, when later given the opportunity to consult with counsel, the defendant was uncertain what to do and, after several minutes, was put in contact with duty counsel. In these circumstances, I am not satisfied, on a balance of probabilities, that P.C. Bacon could realistically have fulfilled his obligation to implement the defendant's right to counsel before taking the breath sample at the roadside.

Conclusion

[21] The defendant has not established that her s. 10(b) rights were violated. Moreover, even if she had persuaded me otherwise, this is not a case in which I would exclude the evidence, pursuant to s. 24(2). The seriousness of the Charter infringing state conduct is minimal, as is the impact on the defendant's Charter protected interests. On the other hand society's interest in adjudication of the case on the merits is strong; breath test results are highly reliable and exclusion is fatal to the prosecution. The Charter motion is dismissed.

[22] The Crown has proven its case beyond a reasonable doubt.

Released: March 16, 2017

Signed: "Justice De Filippis"