Court Information

Ontario Court of Justice

Date: 2017-05-05

Court File No.: Toronto

Parties

Between:

Her Majesty the Queen

— And —

Trevor Fentum

Judicial Officer and Counsel

Before: Justice J.M. Ritchie

Heard on: April 13, 2017 and May 5, 2017

Reasons for Judgment released on: May 5, 2017

Counsel:

• C. Kalantzis, counsel for the Crown
• J.V. Milligan, counsel for the defendant Trevor Fentum

Judgment

RITCHIE J.:

The Charge

[1] Trevor Fentum is accused of failing or refusing to provide a breath sample into an approved screening device in compliance with a demand made by a police officer under subsection 254(2) of the Criminal Code.

Facts

[2] Briefly, the fact situation is that Mr. Fentum drove through a stop sign at about 1:38 a.m. on January 22, 2015 in the City of Toronto. Officer Robert Liscoumb of the Toronto Police stopped Mr. Fentum's vehicle and determined that he had been consuming one or more alcoholic beverages. The officer made a demand for breath testing on an approved screening device. An approved screening device was brought to the scene. After a number of unsatisfactory attempts to provide a breath sample, Mr. Fentum was arrested for failing or refusing to do so.

[3] The trial proceeded in a streamlined fashion. Subject to the determination of three legal issues, the defence admitted all of the essential elements of the offence necessary to support a conviction. The defence relied on three legal issues that arose out of the evidence adduced at trial. Officer Liscoumb (the arresting police officer) testified for the Crown, and a video-recording of the interaction between the officer and Mr. Fentum at the roadside was put in evidence as Exhibit 2. I should mention as well that the trial and the voir dire on the section 10(b) Charter motion proceeded by agreement on a blended basis.

[4] Exhibit 2 is only a partial record of what was said at the roadside, because the audio portion was distorted at times, and very little of Mr. Fentum's words were audible. Also, the segment between 1:46:10 and 1:49:50 was not put in evidence. Despite these limitations, I gleaned the following from the video-recording of the interaction at the roadside:

1. Regarding the approved screening device demand, Officer Liscoumb said: "I'm going to demand that you provide a suitable sample of your breath into an approved screening device, in order to determine the alcohol concentration (if any) in your blood". The officer then provided a further explanation of what that meant.

2. The officer also said to Mr. Fentum: "I've got to call for that device. I don't have one with me. Stay in your car for a few minutes, and that will be fine … I want to make sure you know what's going on."

3. Regarding right to counsel, Officer Liscoumb said: "That means you have the right to telephone any lawyer you wish and if you'd like to speak to a lawyer. You can call Duty Counsel as well … Do you understand your rights to a lawyer? [The officer apparently presses Mr. Fentum on the point and says "OK" after getting a positive response]." Officer Liscoumb also explains to Mr. Fentum that he gave the right to counsel because "I wasn't sure how long the device would be".

[5] In addition to Exhibit 2, there was of course the direct testimony of Officer Liscoumb regarding the interaction between him and Mr. Fentum at the roadside.

Legal Issues

[6] I will now deal with the three issues raised by the defence:

Issue 1: The Invalidity of the Demand

[7] The defence submitted that Officer Liscoumb's demand for breath testing on an approved screening device was invalid. Specifically, it was submitted that the officer did not demand that Mr. Fentum provide a breath sample "forthwith".

[8] The applicable law is set out in the decision of the Ontario Court of Appeal in R. v. Torsney, 2007 ONCA 67. The Court stated at paragraph 6:

"The missing word 'forthwith' did not render the demand invalid. The demand need not be in any particular form, provided it is made clear to the driver that he or she is required to give a sample of his or her breath forthwith. This can be accomplished through words or conduct, including the 'tenor [of the officer's] discussion with the accused'."

[9] The Court of Appeal went on to state at paragraph 7:

"In this case, the demand was made clear and the appellant understood. He knew that he was to provide a sample as soon as the machine arrived … The appellant understood that the only event between the demand and his giving of the breath sample was the arrival of the ASD."

[10] In the present case, Mr. Fentum was told that an approved screening device had to be brought to the scene and that he would have to wait in his vehicle until it arrived. The law was therefore complied with, in my opinion. The "forthwith" requirement was made clear to Mr. Fentum.

Issue 2: Breath Testing Not Conducted "Forthwith"

[11] The defence submitted that the breath testing of Mr. Fentum on an approved screening device was not conducted "forthwith" as required by subsection 254(2) of the Criminal Code.

[12] The circumstances are obviously important. The demand for breath testing on an approved screening device was made at 1:41 a.m. The approved screening device arrived at the scene at 2:09 a.m., and the breath testing process was underway by 2:11 a.m. The request for an approved screening device was made at 1:44 a.m., and Officer Liscoumb was informed that officers would have to go to 11 Division to get one. At 1:58 a.m., Officer Liscoumb was informed that there was no approved screening device at 11 Division, however another police officer would bring one, and that officer would arrive on scene in about 10 minutes. In fact, the device was delivered at 2:09 a.m.

[13] The applicable law can be found in the leading decision of the Ontario Court of Appeal in R. v. Quansah, 2012 ONCA 123. The Court stated as follows at paragraphs 45, 47 and 48:

"The analysis of the forthwith or immediacy requirement must always be done contextually … 'Forthwith' connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible interpretation may be given … 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."

[14] In the present case, the defence submitted that the breath testing was not conducted forthwith because the time started to run at 1:41 a.m. and 30 minutes elapsed before the breath testing took place at 2:11 a.m. I do not agree with that conclusion. The problems associated with bringing an approved screening device to the scene in the middle of the night were explained at trial. Officer Liscoumb provided reasonable explanations for the time taken, in my opinion.

[15] As I have mentioned, the circumstances of the case must be taken into account. The 30 minutes in question was taken up with the performance of genuine policing duties and was reasonably necessary in the circumstances. I am satisfied that the police acted throughout with as much dispatch as was possible.

[16] In my opinion, the "forthwith" requirement of the Criminal Code was respected by the police officers and was complied with.

Issue 3: Section 10(b) Rights to Counsel Not Communicated

[17] The defence submitted that Officer Liscoumb failed to adequately inform Mr. Fentum of his rights to counsel when the officers knew that there would be a delay in bringing an approved screening device to the scene. Crown and defence were agreed that there was, in the circumstances of the case, "a realistic opportunity to consult counsel" before the device arrived.

[18] Officer Liscoumb testified that, because of the delay with the approved screening device, he told Mr. Fentum at 1:46 a.m. that the device was coming and that he had to give Mr. Fentum his rights to counsel. The officer proceeded to do so, in his own words, and not reading the "approved wording" on his police-issued card. The officer told Mr. Fentum that he had the right to speak to a lawyer and that he could telephone any lawyer he wished and that he could call Duty Counsel as well. Mr. Fentum said that he understood everything, but he questioned why Officer Liscoumb had not told him this when the officer first stopped him. Officer Liscoumb tried to explain, and a bit of a debate ensued.

[19] The defence submitted that the informational component of the right to counsel was not properly communicated. Specifically, Mr. Fentum was not told that he could consult with counsel "immediately" and "without delay" and that "free" legal advice could be obtained from Duty Counsel through a "1-800" number.

[20] In my view, it can be inferred from the circumstances that Mr. Fentum knew he could telephone a lawyer right away. Officer Liscoumb had told him to wait in his vehicle for an approved screening device to arrive. It is significant that Mr. Fentum did not say he wanted to talk to a lawyer or "how do I do it?" or "what is Duty Counsel?". He said he understood his rights to counsel and then argued with Officer Liscoumb over why the officer didn't tell him about them earlier.

[21] Officer Liscoumb didn't think about whether Mr. Fentum had a cell phone, but the officer said at trial that he thinks everyone has a cell phone in this day and age. At one point in the Exhibit 2 video-recording, Mr. Fentum can be seen holding his cell phone when he got out of his vehicle. As it turned out, Mr. Fentum wanted to ask the officer if he could call someone to come to the scene. That was 1:49 a.m. The officer said "no". Mr. Fentum also asked where they were, and the officer answered Mr. Fentum's question concerning their location. Mr. Fentum obviously ignored the officer and called someone to come to the scene, because a female acquaintance showed up.

[22] The Crown conceded that the failure to communicate the free legal aid telephone number was a technical breach of Charter section 10(b). However, the Crown contended that the evidence of the "failure or refusal" should be admitted under Charter subsection 24(2).

[23] I agree. In my view, the subsection 24(2) analysis weighs heavily in favour of the admission of the evidence regarding Mr. Fentum's failure or refusal to provide a breath sample. In R. v. Pino, 2016 ONCA 389, the Ontario Court of Appeal stated as follows at paragraph 82:

"The trial judge must take account of and balance the three factors stipulated by the Supreme Court in R. v. Grant, 2009 SCC 32:

• The seriousness of the Charter-infringing state conduct;
• The impact of the breach or breaches on the Charter-protected interests of the accused; and
• Society's interest in the adjudication of the case on its merits."

[24] Regarding the first Grant factor, Officer Liscoumb's failure to be more specific about the availability of legal aid was a relatively minor breach, in the circumstances of the case. Obviously, there would be no issue at all if the officer had read the approved wording from his police-issued card. However, the officer made it abundantly clear to Mr. Fentum that he was free to consult a lawyer while they were waiting for an approved screening device to arrive. Mr. Fentum said that he understood his rights, and he showed no interest in consulting a lawyer then. There is some onus on a detainee in these circumstances to give some indication to the police officer if they wish to consult a lawyer and need some help. None of those things occurred in the present case.

[25] Regarding the second Grant factor, the breach had no impact on Mr. Fentum's Charter-protected interests. As I have just indicated, Mr. Fentum had no wish to consult a lawyer at that time. He wanted to argue with the officer about why he had not been told about his right to counsel first thing after his vehicle was stopped. Mr. Fentum also said that he understood his right to counsel, and he did not pose any questions or make any requests to Officer Liscoumb.

[26] Regarding the third Grant factor, society has a strong interest in adjudicating the case on its merits. In R. v. Torsney, 2007 ONCA 67, the Ontario Court of Appeal at paragraph 5 quoted Justice Cory of the Supreme Court of Canada in R. v. Stillman, 113 C.C.C. (3d) 321 at page 356:

"Cory J., for the majority, referred to the Criminal Code provisions pertaining to breath samples as being 'both minimally intrusive and essential to control the tragic chaos caused by drinking and driving'."

In the present case, the exclusion of evidence respecting the "failure or refusal" would leave the Crown with no evidence of the alleged offence.

[27] I conclude that the evidence in question should be admitted pursuant to subsection 24(2) of the Canadian Charter of Rights and Freedoms.

Conclusions

[28] I want to thank Mr. Milligan (for the defence) and Mr. Kalantzis (for the Crown) for their co-operative, reasonable, expeditious and professional approach to this case. They are both a credit to the legal profession.

[29] Counsel have provided me with an abundance of very helpful case law, for which I thank them. I have considered all of the case law carefully. It gave me useful guidance with respect to applicable principles of law. Needless to say, I have also considered carefully all of the evidence at trial and the submissions of Counsel.

[30] It is fundamental that an accused person must be acquitted if a reasonable doubt exists at any time. The burden in a criminal prosecution rests solely on the Crown to prove all elements of an offence beyond a reasonable doubt. That onus never shifts to the defendant under any circumstances.

[31] I am satisfied that the Crown has discharged the burden upon it. There will be a finding of guilty.

Released: May 5, 2017

Signed: Justice J.M. Ritchie