Court Information

Date: March 17, 2017

Information No.: 2811-998-15-36002-00

Ontario Court of Justice

Her Majesty the Queen v. Ryan A. Vanonlangs

Before: The Honourable Mr. Justice M. Felix

Location: Oshawa, Ontario

Date of Hearing: Friday, March 17, 2017

Appearances

I. Skelton – Counsel for the Crown

T. Balka – Counsel for Ryan Vanonlangs

Reasons for Judgment

FELIX, J: (Orally)

A. Introduction

The Defendant is charged with operating his motor vehicle "Over 80" arising out of a police investigation on the 10th day of December in the year 2015.

The investigating officer, P.C. Bowler, stopped the Defendant's vehicle after observing some "erratic driving", to wit, the Defendant's vehicle crossed over the marked lane of travel. The officer lawfully stopped the Defendant's vehicle to investigate the sobriety of the driver. Upon approach to the vehicle there was both an odour of alcohol and an odour of marijuana emanating from the vehicle. During a conversation with the Defendant related to his sobriety the officer detected an odour of alcohol coming from the breath of the Defendant. As a result, the officer asked the Defendant to get out of his vehicle for the purpose of administering an approved screening device test. When the Defendant got out of the driver's seat the officer observed a marijuana grinder and a small amount of marijuana - approximately one gram.

The officer continued with his drinking and driving investigation. Minutes later the Defendant failed the approved screening device test. He was arrested for "Over 80" and simple possession of marijuana, given his rights to counsel, and cautioned. The officer made a "breath demand" for a sample into an Intoxilyzer. The Defendant was transported to the police station. He spoke with Duty Counsel and complied with the demand.

B. Charter Application

The matter proceeded by way of a blended Charter Application and trial.

The parties agreed that the determination of the Charter application would drive the result at trial.

The Defendant (as the Applicant) alleged a breach of Sections 10(a), 10(b) and 8 of the Charter. It was clear that a related Section 9 breach was contemplated as well.

The core complaint involved the conduct of the officer at the roadside.

The Applicant argues that notwithstanding the fact that the officer had a reasonable suspicion in support of an approved screening device demand, he also had reasonable grounds to believe the Applicant was in possession of marijuana. Consequently, the officer was obliged to provide rights to counsel immediately concerning the possession of drugs. Instead, it is alleged, the officer inexcusably delayed the provision of rights to counsel concerning the possession of drugs and prioritized his drinking and driving investigation.

The heart of the argument is that the officer knew that the criminal law insulated him from providing rights to counsel while investigating the drinking and driving matter so he chose to ignore his responsibilities concerning the possession of marijuana charge.

The Applicant submits this issue is even more acute given certain unusual aspects of this trial. First of all, the officer did not even advise the Defendant generally that he was being investigated for the possession of drugs so the Defendant was unaware of his jeopardy in that regard.

Second, the officer speculated that had the Applicant passed the approved screening device demand, he might have exercised discretion to refrain from charging him with possession of the marijuana.

Third, when the officer did administer rights to counsel with respect to both the "Over 80" and the possession of drugs, the Applicant asserted his right to speak to counsel, and the officer failed in his duty to "hold off" pending that consultation and as a result the Applicant made certain incriminating statements.

For the reasons that follow, I am not satisfied that the Applicant has established a breach of Sections 8, 9, 10(a) or 10(b) of the Charter.

The Charter application is dismissed.

The Defendant is found guilty.

C. Analysis

The Applicant has not established a breach of Sections 9, 10(a) or 10(b). As the Section 8 argument is inextricably linked to this central failure there is no Section 8 breach either.

There are several reasons for this finding.

First, there is no question that the officer had the lawful authority to stop the Applicant's motor vehicle to investigate his sobriety: R. v. Ladoceur, [1990] S.C.J. No. 43 (SCC); s. 210 Highway Traffic Act. Once stopped, the officer had the authority to canvass the Applicant's sobriety, licence, ownership, insurance, and the mechanical fitness of the car: R. v. Mellenthin, [1992] 3 S.C.R. 615.

Second, there is legal authority for the proposition that P.C. Bowler was obligated to remain within the parameters of his Highway Traffic Act traffic stop and his investigation of sobriety.

The rationale for the constitutionality of the suspension of legal rights during sobriety focused traffic stops is based upon a number of considerations.

The stop is broadly justified on a highway traffic regulation and safety purpose: R. v. Simpson, [1993] O.J. No. 308 (Ont. C.A.); Brown v. Durham (Regional Municipality) Police Force, [1998] O.J. No. 5274 (Ont. C.A.); R. v. Ladouceur, [1990] 1 SCR 1257; R. v. Huksky, [1988] 1 SCR 621; R. v. Mellenthin, [1992] S.C.J. No. 100 (SCC); R. v. Orbankski; R. v. Elias, 2005 SCC 37, [2005] S.C.J. No. 37 (SCC).

A detention premised upon Highway Traffic Act considerations is limited to the roadside and should be a brief interference with the rights of the driver unless grounds are developed for a further detention: Brown, para. 24.

Where the police are investigating the sobriety of a detainee, the detention in aid of that investigation must be focused and efficient as well. In my respectful view the police are obligated to minimally intrude on the rights of the detainee and the police are obligated to comply with the "immediacy requirement" that underpins the constitutionality of the breath demand regime: Woods, 2005 SCC 42 at paras. 29-36; R. v. Quansah, 2012 ONCA 123, at paras. 17-22.

P.C. Bowler formed a reasonable suspicion and communicated an approved screening device demand "forthwith" pursuant to Section 254(2) of the Criminal Code of Canada. That grounds might permit the investigation of another matter does not mean that he was required to investigate immediately. One can conceive of alternative investigations that could take priority (e.g. if the officer observed a firearm in the car). In this case, on these facts, the officer was not terribly concerned about a gram of marijuana. He did deliberately choose to prioritize his "Over 80" investigation.

It is arguable that conducting an investigation into the simple possession of one gram of marijuana would compromise the "immediacy requirement". While it is true that the analysis of the "immediacy requirement" requires a contextual analysis: Quansah, para. 45. While it is true that delay in compliance with the immediacy requirement is permissible, such flexibility requires "unusual circumstances": Quansah, paras. 47-48. For example, had the officer observed a firearm on the passenger seat, and had he determined to prioritize that investigation, delay associated with the officer safety considerations and securing the firearm would arguably be justified. No reasonable person could argue otherwise.

D. Conclusion

In this case, the officer conceded that once he observed the marijuana and grinder on the passenger seat he had reasonable grounds to believe the Applicant was in possession.

The officer acknowledged that he could have pursued an investigation into both drinking and driving offences and possession. He also asserted that he was entitled to investigate further to determine whether or not the Applicant's ability to drive was impaired by alcohol or drug. When he detected the odour of alcohol emanating from the breath of the Applicant he deliberately chose to prioritize the drinking and driving investigation.

He was in personal possession of an A.S.D. and made the demand "forthwith".

I do not find that the officer deliberated and made a conscious choice to take the path of least constitutional resistance as asserted by the Applicant. I accept the evidence of the officer that he was not terribly concerned about a small amount of marijuana. He did not remain at the scene to investigate the marijuana. Another officer addressed the tow of the vehicle and the inventory search. Constable Bowler focused on his priorities concerning the drinking and driving investigation. I have considered the overall time span of the investigation and it was very short given the proximity of a mobile breath unit.

Given the priority accorded to the drinking and driving investigation, I find that the officer was not obliged to provide rights to counsel to the Applicant immediately upon observation of the marijuana on the passenger's seat.

Even if I am wrong in that conclusion in my respectful view this situation is addressed by the Supreme Court of Canada in R. v. Suberu, 2009 SCC 33, [2009] S.C.J. No. 33 at para. 42:

"In our view, the words "without delay" mean "immediately" for the purposes of Section 10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under Section 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention."

In my respectful view the officer's approach was in keeping with the overarching "immediacy requirement" contemplated in drinking and driving investigations and "...such limitations as prescribed by law and justified under Section 1 of the Charter" specifically contemplated by the Supreme Court of Canada in Suberu.

E. Utterances Made by the Applicant

The Applicant was arrested and provided with rights to counsel. He asserted his right to speak to counsel. He was then placed in the rear of the police cruiser.

The Applicant (primarily in the written materials) asserts that Constable Bowler failed in his duty to hold off investigating given the assertion of rights to counsel.

But on the record before me P.C. Bowler provided unchallenged evidence that any utterances made by the Applicant in the rear of the police cruiser were not solicited. He did not question the Applicant and his view is the Applicant voluntarily provided certain information.

I find that the only conclusion I can make on the record before me is that Constable Bowler did not fail to hold off questioning after the Applicant asserted his right to speak to counsel.

In any event in the final analysis, the Crown did not proceed on the possession count. Further, the Crown did not seek to substantively rely on any utterances made by the Applicant: R. v. Morris, 2013 ONCA 223, [2013] O.J. No. 1583 (Ont. C.A.).

The Applicant has not established a breach concerning this part of the investigation.