Court Information

Court: Ontario Court of Justice

Date: June 28, 2017

Court File No.: Guelph 998-4611-16-1532

Parties

Between:

Her Majesty the Queen

— AND —

Andrew Shelton

Judicial Officer and Counsel

Before: Justice M.D. McArthur

Heard on: March 29 and May 30, 2017 at Guelph

Reasons for Judgment released on: June 28, 2017

Counsel:

• L. Mehkeri, counsel for the Crown
• D. Doney, counsel for the defendant, Andrew Shelton

Judgment

M.D. McArthur, J.:

The Charge

[1] Andrew Shelton is charged that on July 3, 2016 he operated a motor vehicle in the City of Guelph, Wellington County, having consumed alcohol in such a quantity that the concentration in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood contrary to s. 253(1)(b) of the Criminal Code of Canada.

[2] The trial proceeded on the basis of a blended voir dire proceeding. Counsel for the defendant brought an application alleging Section 8 and 10(b) Charter breaches in circumstances where the investigating officer made a demand for a breath sample into an approved screening device but did not have the device readily available.

The Issues

[3] Counsel for the defendant alleges violations of both s. 8 and s. 10(b) of the Charter and submits that evidence of the results of breathalyzer samples of the defendant be excluded under s. 24(2) of the Charter. Counsel for the Crown takes the position there were no such breaches and, if there has been, this evidence should not be excluded.

The Facts

[4] On Sunday, July 3, 2016, Cst. Porterfield with the Traffic Unit of Guelph Police Service was conducting speeding checks along Gordon Street. At approximately 10:42 a.m., a vehicle operated by Andrew Shelton was travelling northbound on Gordon Street near Stone Road at 73 km/hour in a posted 50 km/hour zone. The officer waved and directed the defendant to pull over to the side of the roadway which he did.

[5] The officer came up to the defendant's vehicle and spoke to the defendant. She could smell the odour of alcohol coming from within the vehicle and asked the defendant if he had consumed alcohol to which he replied that he had the previous evening. When the defendant stepped out of his vehicle, the officer noticed that the odour of alcohol was coming from his mouth. Based on this, the officer made an approved screening device demand upon the defendant at 10:43 a.m.

[6] The officer returned to her cruiser and discovered that there was no approved screening device in the cruiser. She then made a radio request and Cst. Jones, who was apparently in close proximity, was to bring a device to her. Cst. Porterfield was unsure how long it would be for the device to arrive. She testified that she normally would have the device with her and that it would be in the trunk or on the passenger seat.

[7] Since the defendant was somewhat upset and the officer was uncertain when Cst. Jones would arrive with the device and for safety reasons otherwise at the roadside, Cst. Porterfield directed the defendant to be seated in her cruiser which was a cage car in which the rear doors automatically locked and required the officer to unlock in order to open these doors. Cst. Porterfield was concerned when the device might arrive. She was aware that the approved screening device was to be performed forthwith. She usually would perform the approved roadside test within a couple minutes of obtaining the device from her cruiser.

[8] Cst. Jones did eventually arrive with the device at 10:51 a.m. At 10:53 a.m, the approved screening device was demonstrated to the defendant who, at 10:54 a.m. provided a breath sample with a fail result. The officer then arrested the defendant for operate a motor vehicle over.08.

[9] At 10:59 and 11:00 a.m. respectively, the officer read a caution and the rights to counsel to the defendant who acknowledged both. The breathalyser demand was read to the defendant at 11:02 a.m.

[10] Throughout the time at the roadside after arrest, there was discussion by the defendant and the investigating officer about using a phone to talk to a lawyer when at the station. The investigating officer did not make any enquiries of the defendant if he had a cell phone nor did the defendant mention that he had a cell phone. The officer testified that she did not permit the defendant to exercise his rights to counsel at the roadside since she could not provide the him privacy and that since the defendant was upset, she was not comfortable leaving the defendant on his own.

[11] The defendant was transported to the station and was able to immediately speak to duty counsel commencing at 11:13 a.m.

[12] At 11:39 a.m., the defendant was escorted to the breath room where breathalyzer samples were provided by the defendant at 11:43 a.m. and 12:06 p.m. with respective readings of 157 and 159 milligrams of alcohol in 100 millilitres of blood. The defendant also requested and spoke to a family member between the first and second breath sample.

[13] Andrew Shelton testified that he owned and possessed a cell phone with data capability that he had with him in his vehicle on this occasion and confirmed that the investigating officer did not ask him if he had a cell phone at any time. He also testified that he had never dealt with a lawyer and never had to. He was not sure of his rights to counsel, that many things were occurring but that he was cooperative and was upset about the overall situation.

Positions of the Parties

[14] In this case, counsel for the defendant contends that the defendant was given the demand for the approved screening device, that the investigating officer did not have the device readily available and that the resulting delay in obtaining the device infringed the defendant's rights to counsel under s. 10(b) of the Charter. In addition the defence contends that the breath test was not valid since a breath sample could not be provided forthwith as required by s. 254(2) of the Criminal Code and as result, violated the s. 8 Charter rights of the defendant. As a consequence, the defence contends that the results of breathalyzer tests should be excluded under s. 24(2) of the Charter.

[15] The Crown submits that there was no breach of any Charter right and, if any breaches did occur, the evidence of the breath test results ought not to be excluded under Section 24(2) of the Charter.

The Law and Analysis

[16] The pertinent provisions of Canadian Charter of Rights & Freedoms for the purposes of this case are as follows:

s. 8 Everyone has the right to be secure against unreasonable search or seizure.

s. 10 Everyone has the right on arrest or detention

a) to be informed promptly of the reasons therefor; and

b) to retain and instruct counsel without delay and to be informed of that right.

[17] The onus is upon the defence to prove on the balance of probabilities that the defendant's Charter rights were infringed and that the admission of the evidence would bring the administration of justice into disrepute under s. 24(2) of the Charter.

[18] Section 254(2) of the Criminal Code provides:

Where a peace officer reasonably suspects that a person who is operating a motor vehicle or vessel or operating or assisting in the operation of an aircraft or of railway equipment or who has the care or control of a motor vehicle, vessel or aircraft or of railway equipment, whether it is in motion or not, has alcohol in the person's body, the peace officer may, by demand made to that person, require the person to provide forthwith such a sample of breath as in the opinion of the peace officer is necessary to enable a proper analysis of the breath to be made by means of an approved screening device and, where necessary, to accompany the peace officer for the purpose of enabling such a sample of breath to be taken.

[19] In R. v. George, [2004] O.J. 3287, the Ontario Court of Appeal dealt with a similar issue and circumstances where there occurred an 18 minute delay as a result of the screening device not being readily available and having been requested to be brought from a nearby police station since the officer did not have the device with him. The governing principles are outlined in paragraphs 26 through to 33 and need not be repeated here. In applying the principles, the court in R. v. George determined that the demand was not a demand to provide a sample forthwith but to provide a sample when the device arrived sometime later. The investigating officer was told the device would take 15 to 20 minutes to arrive. The issue in R. v. George is the issue in this case: In the circumstances, was there a realistic opportunity for the respondent to have been advised of his rights to counsel before the test was administered?

[20] I am likewise mindful of Gillese, J's indication in R. v. George that the actual time of arrival of the testing device is a relevant factor that must be taken into consideration. This is, however, just one of many factors to consider in the overall context. As Gillese, J. indicates, the prior decisions of R. v. Cote and R. v. Latour are not inconsistent. She points out at paragraph 41: "Latour applied the test established in Cote. Latour differs from Cote in that in Latour there was no evidence that telephones were readily available, whereas in Cote telephones were available at the police detachment to which the detainee was brought." She then states at paragraph 42 as follows:

In the instant case, the officer was aware that there would likely be a delay of fifteen to twenty minutes before the screening device arrived. In the face of that information, it was incumbent upon the officer to take reasonable steps to facilitate the respondent detainee's right to consult counsel. Such steps would involve asking the detainee whether he had a cellular telephone. In this case, the evidence is that the respondent would have used his cellular telephone and called his lawyer. I consider the proximity of the cellular telephone more fully below.

[21] It is likewise important to draw the distinction between a detainee having "a chance to call counsel" and a detainee being able to "consult with" counsel: R. v. Torsney, 2007 ONCA 67, [2007] O.J. 355. In that case, where the machine was ready within 6 to 7 minutes, the court determined in paragraph 12, "On the record in this case, any attempt by the appellant to contact and consult counsel within the space of six to seven minutes, at that time in the morning (sic 2:53 a.m.), would have been futile." Accordingly, there was no breach of the rights to counsel in that situation.

[22] The Crown also referred to the case of R. v. Mohamed, [2013] O.J. 1518 where a 13 minute delay was found reasonable in all the circumstances and that there was no breach of the rights to counsel. The court observed at paragraph 10 that there was no realistic possibility for the officer to implement the rights to counsel during the 13 minutes taking into account that the appellant did not have a number for a lawyer, did not contact counsel at the station afterwards and that given the early morning time and a call would have to be made to duty counsel who would have to call back. As I will outline further, there are factual distinctions amongst these decisions that I have taken into account.

[23] As directed in R. v. Quansah, 2012 ONCA 123, [2012] O.J. 779, where the elapsed time was 17 minutes in some unusual circumstances, the immediacy requirement in s. 254(2) requires the court to consider 5 factors: (1) contextual considerations and the necessity to strike a balance between eradicating driver impairment and the need to safeguard Charter rights; (2) that the immediacy requirement commences at the stage of reasonable suspicion; (3) that forthwith connotes a prompt demand and an immediate response, although in unusual circumstances, a more flexible interpretation may be given; (4) that immediacy must take into account all circumstances, and (5) could police have realistically fulfilled their obligation to implement the detainee's s.10(b) rights before requiring a sample.

[24] In this case, the investigating officer made the demand forthwith at 10:43 a.m. In usual circumstances, the device would have be ready at or shortly after 10:45 a.m. The device did not arrive until 10:51 a.m., 6 minutes after when the usual tests would have been conducted and 8 minutes after when the demand had initially been made. The officer was rightly concerned about the forthwith requirement in the circumstances of this case.

[25] The defendant did have a cell phone and, upon being provided rights to counsel, expressed his desire to speak to counsel then and again thereafter. Furthermore, the defendant exercised his rights to counsel in a timely fashion and immediately spoke with duty counsel when the call was placed by the officer to the 1-800 number at the detachment. After arriving at the station at 11:08 a.m., being escorted to the booking room, the defendant was, with that assistance, immediately in direct contact with duty counsel by 11:13 a.m., 5 minutes later.

[26] As mentioned, there was indication by the investigating officer that privacy could not be provided to the defendant sitting in her cruiser at the roadside. In the circumstances and evidence heard in this case, the defendant could have been seated in the rear of the caged cruiser and privacy provided while yet observing the defendant from outside the cruiser.

[27] These known features considered in their totality and in the context of this case demonstrate that the device was not readily available and, contemporaneously, that the officer did not have a subjective belief when the device would arrive. As a result of the officer's subjective state of belief, the obligation under s. 10(b) of the Charter was triggered and the officer proceeded otherwise in view of that belief and without proper regard to s. 10(b) of the Charter. As I have found in these circumstances, there existed a realistic opportunity for the defendant to have been advised of and consult with counsel before the test was administered.

[28] Accordingly, in the circumstances of this case, the defence has established on the balance of probabilities that there occurred a violation of the rights of the defendant under s.10(b) of the Charter.

[29] When it was discovered by the officer that the device was not available and did not know when it would arrive, the demand for the approved screening device was no longer capable of being completed forthwith other than fortuitously. Consequently, the demand was not a demand to provide a sample forthwith and, like that in R. v. George, supra, became a demand to provide a sample when the device arrived sometime later.

Section 24(2) Analysis

[30] This leaves the determination to be whether the evidence of breathalyzer results should be excluded under s. 24(2) of the Charter. This approach to this was reformulated in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 as follows at paragraph 71:

A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.

[31] Justice Doherty in the case of R. v. McGuffie, 2016 ONCA 365, [2016] O.J 2504 explained the test in R. v. Grant as follows:

The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society's interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown's case: see R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 33-34.

The Seriousness of the Charter Infringing State Conduct

[32] The first stage of the analysis as explained in R. v. Grant at paragraphs 72 to 74 is as follows:

The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.

This inquiry therefore necessitates an evaluation of the seriousness of the state conduct that led to the breach. The concern of this inquiry is not to punish the police or to deter Charter breaches, although deterrence of Charter breaches may be a happy consequence. The main concern is to preserve public confidence in the rule of law and its processes. In order to determine the effect of admission of the evidence on public confidence in the justice system, the court on a s. 24(2) application must consider the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter.

State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute.

[33] In this case, the investigating officer was faced with circumstances not otherwise expected and became reliant upon others to bridge the gaps to help meet the professional and statutory duties. Although there can be no finding of bad faith in this case, without any knowledge or enquiry by the officer of when a device might materialize, this left matters to be addressed more by good luck than good management. Moreover, this approach ignored the temporal significance of statutory requirements and core Charter protections. As a result, the defendant was not provided his rights to counsel at the roadside in circumstances that then were otherwise required to be addressed.

[34] The implementation failure of Section 10(b) Charter Rights is not merely technical and, as other cases have demonstrated before and since R. v. George, supra, this issue continues to come before the courts. There are other cases including R. v. Duval-Okipniuk, 2014 ONCJ 294 (a brief delay in making the demand that was attributable to the request for a device, the accused's exit from the vehicle and the delivery of the device within one to two minutes did not go beyond the time reasonably required); R. v. Yamka, 2011 ONSC 405 (the demand, made 10 minutes after the officer formed the requisite suspicion and when a device arrived at the scene, was not authorized by s.254(2)); R. v. Kim, 2014 ONCJ 568 (a 15-minute delay in making the demand until a device arrived at the scene resulted in the failure to make a lawful demand and neither the officer's optimistic guess that a device would arrive in 10 minutes nor the accused's acquiescence to his detention provided a basis to delay making a formal demand); R v. Bui, 2014 ONSC 6955 (not unreasonable where seven minutes elapsed between the time that the officer found the appellant urinating in front of his vehicle, a device was brought to the scene and the demand was made); R. v. Dehal, [2006] O.J. No. 2588 (10-minute delay in making the s.254(2) demand where the officer either misunderstood his obligation to make the demand when his belief was formed or was awaiting the arrival of the device before making it); R. v. Najm, [2006] O.J. No. 2348 (Court of Appeal restored the trial judge's finding that there was non-compliance with the "forthwith" requirement where there was a six-minute delay between the demand and the arrival of the device).

[35] I am also mindful of Ducharme, J. in R. v. Yeung, 2010 ONSC 2168, [2010] O.J. 1597 where he stated:

The reputation of the administration of justice is jeopardized by judicial indifference to unacceptable police conduct. Police officers who stop and detain motorists in order to perform ASD tests must execute their duties efficiently, competently, and accurately. There is no question that the need to combat drinking and driving is a pressing social concern. The public therefore accepts the use of breath samples both for roadside screening and ultimately for the determination of blood alcohol levels. Nonetheless the administration of justice would inevitably fall into disrepute if such shoddy police conduct were permitted to form the basis for the arrest, detention, and subsequent testing of drivers. As Sopinka J. observed in Bernshaw at para. 74:

Although we all agree that Parliament has every reason to vigorously pursue the objective of reducing the carnage on our highways, that objective is not advanced by subjecting innocent persons to invasions of privacy on the basis of faulty tests. I do not believe that this is what Parliament intended in enacting s. 254 of the Criminal Code. [Emphasis added.]

As Chief Justice McLachlin noted in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 (S.C.C.) at para 22, courts should dissociate themselves from police activity, "where the police knew (or should have known) that their conduct was not Charter-compliant." There is no question that P.C. Wollenzien should have known his actions did not comply with either the Criminal Code or the Charter and this weighs in favour of excluding the evidence.

[36] Good faith will reduce the need but not necessarily eliminate the need for the court to dissociate itself from state conduct. While the officer acted in good faith in this case, the error from a lack of knowledge that could have been avoided by making a brief and timely further enquiry as to the time of arrival of the device, nevertheless this resulted in the oversight of core Charter rights that ought not be condoned nor accepted in circumstances particularly where the device is not readily available.

Impact on the Charter-Protected Interests of the Accused

[37] The second stage of the analysis is likewise explained in Grant as follows:

This inquiry focuses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.

To determine the seriousness of the infringement from this perspective, we look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests. For example, the interests engaged in the case of a statement to the authorities obtained in breach of the Charter include the s. 7 right to silence, or to choose whether or not to speak to authorities (Hebert) - all stemming from the principle against self-incrimination: R. v. White, [1999] 2 S.C.R. 417, at para. 44. The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute.

[38] In the circumstances of this case, the issue is the admissibility of breath results as a result of the defendant participating and providing a series of breath samples. This court is mindful of the instruction in R. v. Grant, supra, dealing with bodily evidence as follows:

The second inquiry assesses the danger that admitting the evidence may suggest that Charter rights do not count, thereby negatively impacting on the repute of the system of justice. This requires the judge to look at the seriousness of the breach on the accused's protected interests. In the context of bodily evidence obtained in violation of s. 8, this inquiry requires the court to examine the degree to which the search and seizure intruded upon the privacy, bodily integrity and human dignity of the accused. The seriousness of the intrusion on the accused may vary greatly. At one end of the spectrum, one finds the forcible taking of blood samples or dental impressions (as in Stillman). At the other end of the spectrum lie relatively innocuous procedures such as fingerprinting or iris-recognition technology. The greater the intrusion on these interests, the more important it is that a court exclude the evidence in order to substantiate the Charter rights of the accused.

[39] Here the breach impacted the Charter-protected interests of the defendant in relation to both s. 8 and s. 10(b) Charter rights. These are core Charter rights that must be immediately provided and maintained throughout any detention unless there is brief temporal justification. Such justification did not exist here. This failure is also more than merely technical and impacts significantly upon the accused's Charter protected interests.

Society's Interest in the Adjudication of the Case on its Merits

[40] In this regard, Justice Doherty's comments in R. v. McGuffie are instructive where he states as follows:

In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence: see e.g. Harrison, at paras. 35-42; Spencer, at paras. 75-80; R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241, at paras. 75-103; Aucoin, at paras. 45-55. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility: see e.g. R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 81-89; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 98-112. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence: see e.g. Grant, at para. 140.

[41] The evidence from breath tests is certainly regarded generally as reliable and would be essential in relation to the over 80 charge. However, such samples of breath are not provided voluntary or on consent here but were provided having done so without the benefit of Section 8 and 10(b) Charter safeguards. In this case, without the results of the approved screening device, there would have otherwise been no basis for a demand for breathalyser samples or the obligation to provide such samples in the circumstances of this case.

[42] Balancing the effect of admitting the breathalyzer readings obtained on society's confidence in the justice system giving proper consideration to the Charter-infringing conduct here and the serious impact on well-recognized Charter-protected interests of the defendant, the results of breathalyzer readings ought not to tip the balance for admissibility in these circumstances.

[43] In addition, the perspective and considerations outlined to guide the court to the "obtained in a manner" requirement by Laskin, J. in R. v. Pinot were outlined as follows:

Based on the case law, the following considerations should guide a court's approach to the "obtained in a manner" requirement in s. 24(2):

• the approach should be generous, consistent with the purpose of s. 24(2);
• the court should consider the entire "chain of events" between the accused and the police;
• the requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct;
• the connection between the evidence and the breach may be causal, temporal or contextual, or any combination of these three connections;
• but the connection cannot be either too tenuous or too remote.

Conclusion

[44] Here, based on such an approach and considering the entire chain of events between the defendant and the officer, the breathalyzer evidence was obtained solely from and during a breach of the Charter-protected rights of the defendant under both Section 8 and 10(b). Accordingly, it is this court's conclusion the breathalyzer results were obtained in a manner that infringed the defendant's rights and should not be admitted into evidence and will be excluded from evidence in this trial proceeding.

[45] Since the breath results are the main evidential basis for the over .08 offence and are excluded, the charge against the defendant is dismissed.

Released: June 28, 2017

Signed: Justice M.D. McArthur