Court Information

Ontario Court of Justice

Date: April 4, 2017

Court File No.: Newmarket 15-09877

Parties

Between:

Her Majesty the Queen

— and —

Thomas Darlington

Judgment

Before: Justice Joseph F. Kenkel

Trial Heard: March 20, 21, 2017

Delivered: April 4, 2017

Counsel:

• Mr. Brad Juriansz — counsel for the Crown
• Mr. Vadim Paskarou — counsel for the defendant

KENKEL J.:

Introduction

[1] Mr. Darlington was stopped for a drinking and driving investigation after an officer noticed he was swerving within his lane. The officer attempted to administer an Approved Screening Device (ASD) test but found that the device he'd been issued was no longer working properly. He radioed for a second unit to be brought and detained the accused in the interim. Seven minutes later a second ASD arrived. The ASD test was conducted and the accused's failure of that screening test led to his arrest. Approved Instrument tests with readings of 190mgs and 200mgs resulted in the Over 80 charge before the court.

[2] At the conclusion of the evidence only the Charter issues remain. The defence alleges six breaches:

• s.8 – FORTHWITH – The ASD demand and the ASD test were not conducted forthwith contrary to s.254(2)
• s.9 – ARBITRARY DETENTION FOR TESTING – The accused was arbitrarily detained for an ASD test that did not comply with the s.254(2) requirements.
• s.9 – ARBITRARY DETENTION IN THE POLICE CAR – The accused was arbitrarily detained in the officer's car during the wait for the second ASD.
• s.10(b) – RIGHT TO COUNSEL – Improper right to counsel advice during the wait for the ASD amounts to a breach.
• s.8 – PAT DOWN SEARCH – the pat down search of the accused before the accused was put in the police car was unjustified and breaches s.8.
• s.10(b) – RIGHT TO COUNSEL – Section 10(b) was again breached where the accused was not advised of his right to speak to a lawyer immediately at the moment of arrest.

The Forthwith Requirement

[3] Section 254(2)(b) of the Criminal Code provides that a peace officer may require a person to comply forthwith with an ASD test. The section does not require that the ASD demand be made "forthwith" but it's implicit in the provision that both the demand and test be conducted on that basis – R v Quansah 2012 ONCA 123.

[4] The officer started speaking with the accused at 2:49 a.m. By 2:51 a.m. he'd detected the odour of alcohol on the accused's breath and formed the reasonable suspicion required by s.254(2). Constable Kiersnowski returned to his vehicle to conduct computer checks for officer safety while the accused searched for the insurance and ownership. At 2:53 a.m. the officer asked the accused to step out of his car and walk back to the cruiser for the ASD test. The defence agrees that the very brief delay in reading the demand was reasonable in the circumstances.

[5] The alleged breach of the forthwith requirement involves the delay after the officer discovered that his ASD was not working properly. He'd checked the device at the start of his shift and it was in working order but an error code displayed during the self-test so the officer had to ask for another device to be brought to the scene. The in-car video shows that he called for a second screening device at 2:56 a.m. By 3:04 a.m. the device had arrived and the video shows the officer removing the accused for testing.

[6] When the officer made the approved screening device demand he thought the test would be administered forthwith as he had an approved screening device directly in front of him. That belief was reasonable as he'd checked the ASD at the beginning of his shift and found it to be in working order. When that device displayed an error code he called for a second device to be brought. He testified that he expected the wait for the device would be approximately five minutes. It turned out to be eight minutes.

[7] To meet the s.254(2) forthwith requirement the Crown must prove that the time from the formation of the reasonable suspicion to the time a sample was provided was no longer than reasonably necessary to enable the officer to discharge his duties under s.254(2) – R v Quansah at paras 45-49. This includes consideration of the legislative context and the circumstances at the roadside. One central circumstance is right to counsel – whether the officer was in position to administer the ASD test before there was any realistic opportunity for the person detained to consult with a lawyer – R v Torsney 2007 ONCA 67.

[8] The screening device test was delayed by the unusual circumstance of device error which resulted in an eight minute delay while a second device was brought. The Crown has proved that the delay was no longer than reasonably necessary and there was not sufficient time for Mr. Darlington to consult with a lawyer in the interim. I find the demand ASD test was forthwith within the meaning of s.254(2)(b).

Arbitrary Detention and Search

[9] The defence concedes the Crown has proved the accused was lawfully stopped pursuant to s.48 of the Highway Traffic Act RSO 1990 s H-8. The odour of alcohol on his breath and admission of drinking provided the reasonable suspicion required for further detention for an ASD test. The officer complied with the requirements of s.254(2) and the detention of the accused was not arbitrary. At issue is the change in the manner of the detention after the officer called for the second device to be brought to the scene. The officer decided to put the accused in the back seat of the police car. He did not handcuff the accused but the officer did conduct a limited pat-down search prior to placing the accused in the car.

[10] The Crown concedes that the change in the manner of detention and the search that resulted breaches sections 8 and 9 of the Charter.

Right to Counsel Without Delay

[11] Section 10(b) of the Canadian Charter of Rights and Freedoms requires that a person detained be advised of their right to retain and instruct counsel without delay. The phrase "without delay" in s.10(b) means "immediately" – R v Suberu 2009 SCC 33. Mr. Darlington's s.10(b) right was suspended during his detention for the purposes of the ASD test – R v Thomsen. The accused was subsequently arrested at 3:07 a.m. but was not advised of his right to counsel until he was seated in the police car at 3:13 a.m. The defence submits that the six minute delay breaches the accused's s.10(b) rights.

[12] The officer agreed in cross-examination that he could have read the accused the right to counsel advice in the roadway at the moment of the arrest. He chose to wait until the accused was seated secure in the police vehicle. In the interim the accused was searched and placed in the vehicle and the officer retrieved the ASD from the hood of the police car. The right to counsel advice was his next investigative step once he joined the accused in the vehicle.

[13] There was no safety reason for the delay. The officer thought the conversation would be best conducted off the roadway in the police car but the six minute delay in right to counsel advice breached the immediacy requirement as set out in R v Suberu.

Exclusion of Evidence s.24(2)

[14] Section 24(2) applications are governed by the test set out in R v Grant 2009 SCC 32 which requires the court to balance three factors to determine whether the admission of the evidence would bring the administration of justice into disrepute:

• The seriousness of the breach
• The impact of the breach on the accused's Charter-protected interests
• Society's interest in the adjudication of the case on its merits

[15] With respect to the seriousness of the breaches, the defence submits that when the accused was directed to sit in the police car he was "caged" and the intrusion on his liberty interest was serious. The search that accompanied that direction was unlawful and a significant intrusion on the accused's privacy interest. All this is made worse by the officer's agreement in cross-examination that he always searches persons detained for investigation. He understands his training to authorize detention in the police car while waiting for an ASD to be brought so the defence submits that the police are teaching officers to violate the Charter. The defence submits the right to counsel breach is significant. It would be mere speculation to say that the accused would not have requested to speak to a lawyer if his rights were read immediately upon arrest, even though he refused to do so minutes later and several times again at the police station. The Crown submits that the right to counsel breach is technical. The detention of the accused in the cruiser and pat-down search had little impact on the accused's Charter protected interests. Balancing the factors set out in R v Grant 2009 SCC 32 the reliable and essential breath test evidence should not be excluded.

[16] The delay in right to counsel advice in this case was not serious as the officer was aware that advice was the next investigative step and he did not continue his investigation until after right to counsel advice was provided minutes later. In R v Suberu the Supreme Court explained at paragraph 41 that the primary reason "without delay" was interpreted as "immediate" was due to the risk of self-incrimination during detention. There was no risk of self-incrimination in the intervening minutes in the circumstances of this case. I agree with the Crown that this s.10(b) breach was a technical one. It could not have had any impact on the accused's Charter protected right. That's particularly the case here where the accused declined to speak to a lawyer at the roadside and then declined several further offers at the police station. This section 10(b) breach could not reasonably result in exclusion of evidence nor does it add anything to the case for exclusion in combination with other breaches.

[17] Constable Kiersnowski attempted to conduct the ASD test at the front of his cruiser. Both parties agree that the accused was lawfully detained for that purpose. The change in the manner of detention came after the device failed which is an unusual circumstance. The officer first told the accused he could wait in his car, then re-considered and directed the accused to wait in the police car. The accused was told he was detained but not under arrest and he was not handcuffed. The officer conducted a limited pat-down search before placing Mr. Darlington in the police car. He was searching as a safety measure only, not for evidence. The officer located a hard item but did not go into the accused's pockets and accepted the accused's verbal description of the item. Unlike the officer in R v Aucoin 2012 SCC 66, this officer did not have two others present on scene to assist him. Constable Kiersnowski did speak with the accused while they waited for the ASD, but it was limited to a continuation of the s.254(2) investigation with questions about the timing of drinks that could be relevant to the administration of the test.

[18] I agree with the defence that the officer's agreement in cross-examination to the general suggestion that he always searches persons upon investigative detention and understands his training to include that practice is troubling. If that answer reflected the officer's general practice the s.8 breach in this case would be more serious. The officer's evidence on this point though must be considered in context, particularly where his conduct during this investigation was contrary to that suggested in his response in cross-examination.

[19] The accused was detained upon being stopped in relation to his driving. The officer did not search the accused at that point. He was removed from his vehicle for an ASD test and the officer again did not search him. He was brought to the police car for a test that was eventually stopped due to device error. He was not searched before that attempted test sequence. It wasn't until the officer decided to direct the accused to wait in the police car that he conducted a pat-down search. The contradiction between the officer's agreement in cross-examination that he searches every person upon investigative detention and his actual practice in this case I find is reasonably resolved by reference to the context of the question. The officer's response came during a series of questions about the search of the accused prior to placing him in the police car. The officer's evidence as a whole and his conduct in this case shows that he searches detained persons being placed into his police car for safety reasons as a matter of routine, but does not support the wider assertion that he always searches every person detained for every investigative detention which would be the plain meaning of that one answer if read out of context.

[20] This case is similar to R v Aucoin 2012 SCC 66 in that the accused was lawfully detained but the decision to change the manner of detention led to an unauthorized search. As in Aucoin that decision was prompted by an unusual circumstance, here the failure of the ASD device during the test sequence outside the police vehicle. The officer's conduct shows it was not his routine practice to confine drivers for the purpose of that test. Indeed once the second ASD arrived Constable Kiersnowski removed the accused from the back seat of his car and conducted the ASD test at the front of his vehicle as he'd done with the first device. Unlike the officer in Aucoin, this officer did not have the assistance of two other officers to provide other supervision alternatives that don't involve sitting in the back seat of a police car.

[21] The wait in a police car, otherwise unrestrained, late at night in a commercial area with no other persons around would have had some impact on the accused's liberty and privacy interests, but that impact would not have been significant. The accused was not free to return to his vehicle which might give risk of flight or might involve access to alcohol or other substances that could interfere with the ASD test. The officer had no right to search the accused's car to remove that risk. The alternative to sitting in the police car was for the accused to remain outside at the side of the road late at night in December, lightly dressed as shown in the video. The accused was relaxed and conversational in the back seat, consistent with the minor nature of the breach. As the Crown concedes, the officer made a mistake about his authority at that point to direct the accused to sit in the police car. He provided reasons why he felt that form of detention was reasonably necessary, but those reasons were insufficient. It was arbitrary in that sense, but it was not capricious nor was the decision based on any improper motive.

[22] As in Aucoin, the search was the more significant breach arising from the mistaken decision to put the accused in the police car. Even a limited pat-down search involves some intrusion on the accused's privacy interest. The officer respected the limits of that search power in that he didn't go into the accused's pockets when a hard item was detected. He satisfied the safety concern by verbal questions.

[23] Constable Kiersnowski was polite and respectful to the accused throughout. He was aware of Charter requirements and restrictions but he made mistakes. The circumstances are similar to Aucoin in that the evidence shows the officer was not trying to misuse his powers nor was he deliberately ignoring the accused's Charter rights. These factors attenuate the seriousness of the breach – Aucoin at para 49. The fact that the officer was not aware of the limits on detention in a police car per Aucoin increases the seriousness of the breach.

[24] Society's interest in the adjudication of the case on its merits favours admission of the relevant and reliable breath test evidence.

[25] Balancing all three factors, the unusual circumstances of this case and the minor impact the breaches had upon the accused's Charter protected rights, I find that the applicant has failed to prove on the balance of probabilities that the administration of justice would be brought into disrepute by the admission of the breath test evidence.

Conclusion

[26] The Charter applications are dismissed. The Crown has otherwise proved the Over 80 offence beyond a reasonable doubt. There will be a finding of guilt.

Released: April 4, 2017

Justice J.F. Kenkel