Court File and Parties

Ontario Court of Justice

Date: February 16, 2017

Court File No.: 15-15022689-00

Between:

Her Majesty the Queen

— and —

Gavin Davloor

Before: Justice H. Borenstein

Heard on: January 9, 10, 2017

Further written submissions received: January 23, 2017

Reasons for Judgment Released on: February 16, 2017

Counsel

Mr. Tom Schreiter — counsel for the Crown

Mr. Brian Starkman — counsel for the defence

BORENSTEIN J.:

Facts and Procedural Background

[1] The accused Gavin Davloor is charged with one count of operating a motor vehicle with a blood alcohol level "Over 80". There is a Charter motion filed which was heard and blended with the trial. The accused testified on the Charter motion.

[2] Two police officers, Pascaris and Fisher, were on patrol on Southbound Bay Street shortly after 1:30 am on December 3, 2015. Officer Pascaris was driving.

[3] At 1:43 a.m., they heard a radio dispatch reporting that a four door grey Nissan was speeding and doing "donuts" nearby to their west in the area of College and Beverly Streets. They were not planning on responding to that call. However, all of a sudden, they saw a grey Nissan coming from that direction on College. The Nissan turned from College onto southbound Bay Street. Its turn was unusually wide in that the driver veered to the left lane before turning to the right lane as a large truck would do.

[4] The Nissan was speeding on southbound Bay Street. The officers' radioed dispatch to confirm that the car on College and Beverly was a grey Nissan. It was. They decided to stop the Nissan. They activated the cruiser's emergency lights but the vehicle did not stop. At Gerrard Street, they turned on their siren but the vehicle kept going for three more blocks to Dundas Street. At Dundas, the light turned red. The Nissan stopped while straddling two lanes.

[5] Officer Fisher quickly exited her cruiser and ran to the passenger door of the Nissan. The accused was looking straight ahead. She knocked on the passenger window and he opened the rear right window initially but then opened the passenger window fully. She told him to put the car in park which he did. By this time, P.C. Pascaris was at the driver's side door. The accused opened his driver's window. Pascaris told him to turn the car off. Pascaris spoke to the accused but did not notice any indicia of alcohol consumption such as slurred speech, red eyes or an odour of alcohol.

[6] Pascaris testified that Fisher, who was not trained on the ASD, told him to issue an ASD demand and administer the test. Pascaris believes the accused was in a position to hear Fisher's comment. Fisher told Pascaris that she thought the accused had been drinking or was under the influence. It is likely that last comment was made to Pascaris after he issued the ASD demand.

[7] Fisher could not recall exactly what she told Pascaris at roadside but did tell him to issue an ASD demand.

[8] Other officers arrived on scene. Fisher instructed one of them to go to 52 Division a couple of blocks away to retrieve an ASD.

[9] Pascaris waited until the ASD arrived to make the ASD demand.

[10] At 1:53 a.m., which was ten minutes after the officers first heard the radio dispatch, then saw the Nissan, followed it and ultimately stopped it and spoke with the driver, dispatched the other officers to get the ASD demand and the officers returned with the ASD, Pascaris read the accused the ASD demand. He was just acting on Fisher's instructions.

[11] He later asked Fisher why she believed the accused had been drinking. She told him that she saw red eyes, very slightly slurred speech and detected an odour of alcohol coming from the accused.

[12] At 1:55 a.m., Pascaris demonstrated the ASD procedure to the accused. Pascaris did not check when the ASD had last been calibrated. He testified that he believed the date of calibration appeared on the ASD screen when it is turned on and goes through its tests. He believed it was in proper working order.

[13] He agreed that if it was out of calibration, it could produce unreliable results.

[14] At 1:56 a.m., he had the accused provide a sample into the ASD. At 1:57 a.m., the accused failed the ASD and was arrested, read his right to counsel and issued a breath demand. In response to the right to counsel, he said he wished to speak to duty counsel.

[15] The officers asked dispatch the location of the nearest breath technician and were told there was one at Traffic Services at 9 Hannah Street in Toronto.

[16] They left the scene at 2:01 a.m. and arrived at traffic services at 2:11 a.m.

[17] Officers are now required to input basic information into their on board computer which is then sent to a police office called "GO process" where that information is reviewed, perhaps transcribed, and then sent to the booking hall before they can enter the station.

[18] After filling out the form and submitting it, they entered Traffic Services booking at 2:26 a.m.

[19] Following the parade and booking, the accused was placed in an interview room.

[20] At 2:37 a.m., an officer called duty counsel.

[21] Duty counsel called back only four minutes later at 2:41 a.m.

[22] The accused was taken from the interview room to the privacy booth where he spoke to duty counsel in private. The officers did not note the length of that call but, at 2:50 a.m., he was taken into the breath room.

[23] At 2:57 a.m., he provided his first breath sample registering readings of 134 Milligrams of alcohol per 100 millilitres of blood.

[24] At 3:19 a.m., he provided his second suitable breath sample registering readings of 128 milligrams of alcohol per 100 millilitres of blood.

[25] The breath technician noted an odour of alcohol on the accused's breath.

[26] Following the necessary paperwork, the accused was released from the station on a Promise to Appear.

[27] The accused testified on the Charter motion. He testified that, had he been advised of his right to counsel at roadside, he would have called duty counsel to ask if he had to blow into the roadside device. He had cell phone.

[28] That was the evidence.

[29] I found all of the witnesses credible and, for the most part, reliable.

Defence Submissions

[30] The defence submits that there were six independent Charter violations in this encounter.

[31] He submits:

(1) P.C. Pascaris did not have grounds himself for making an ASD demand and therefore violated sections 8 and 9 of the Charter. Connected to this argument is the further argument that, even if Fisher had grounds, there is no lawful basis for an officer with grounds to delegate the making of a demand to another officer.

(2) Section 10b of the Charter was violated at roadside as there was a delay which would have allowed the accused to consult counsel.

(3) Further, the roadside delay negated the "forthwith" requirement in section 254(2) thereby breaching sections 8 and 9.

(4) There was no evidence this was an ASD thereby breaching s. 8.

(5) There was no attempt to ensure ASD was in proper working order as it relates to calibration thereby breaching s. 8.

(6) The breath tests were not taken "as soon as practicable" which the defence submits is both a Charter breach and disentitles the Crown from relying on the presumption.

Legal Framework

[32] The onus is on the accused to establish any violations of the Charter on a balance of probabilities. In light of Haas, the Crown must prove that the seizure of the accused's breath in the ASD and the approved instrument was authorized by law. If there is any breach of the Charter, section 24(2) must be considered.

[33] The Crown bears the burden of proof of the substantive issues beyond a reasonable doubt. The onus of establishing the ASAP requirement, apart from the Charter, rests with the crown.

[34] In this case, apart from the above issues, the Crown has proved its case beyond a reasonable doubt. The accused was operating the motor vehicle. All of the preconditions to the breath tests were met subject to these issues to which I now turn.

Issue #1 – The ASD Demand

[35] While Pascaris did not himself have grounds to issue the ASD demand, I accept that Officer Fisher had a reasonable suspicion that the accused was driving with alcohol in his system. Fisher's subjective belief was objectively reasonable. Even though Pascaris did not smell alcohol in the few moments he spoke to the accused, I accept as both credible and reliable Fisher's evidence that she observed the accused's red eyes and an odour of alcohol coming from him. This odour was later confirmed by Pascaris in the rear of the cruiser and by the breath technician. The issue however is not so much that Fisher did or did not have grounds, it is that Pascaris did not have grounds when he made the demand. The defence submits there is no lawful authority for one officer, i.e. Fisher, to direct another officer, Pascaris, to issue an ASD demand. He bases that submission on the wording of 254(2) and the comments in some of the case law, in particular, Justice Ducharme's comments in the 2007 decision of Padavattan (, 45 C.R. (6th) 405 at paragraph 20).

[36] The relevant portion of 254 (2) provides:

(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle ….. the peace officer may, by demand, require the person …..

• (b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

[37] That is the relevant wording.

[38] Turning now to Padavattan. In Padavattan, an officer received information that a civilian called the police advising that Padavattan was impaired and was about to enter his car at a McDonalds. That officer went to the scene and issued an ASD demand. Prior to arriving, that officer radioed for an ASD to be brought to the McDonalds. Another officer arrived on scene with the ASD and administered the test to Padavattan. The trial Judge found that the Crown failed to prove that the second officer had the requisite suspicion when he administered the test. The charge was dismissed. On appeal, Justice Ducharme found that the trial judge was in error. The defence relied specifically on paragraph 20 of Padavattan wherein Ducharme, J.'s wrote:

[39] In my view, the clear language of the statute requires that the officer making a demand under s. 254(2) of the Code must have formed the reasonable suspicion and must also form an opinion as to the sufficiency of the breath samples provided. As well, an officer who makes the demand may require the subject to accompany him for the purpose of the test. However, where these requirements are satisfied, there is nothing in the language of s. 254(2), that expressly or by implication precludes the ASD test being administered by another officer. Nor is there any requirement that this other officer form the reasonable suspicion before administering the ASD test.

[40] I note that Justice Ducharme therefore was not dealing with the question at issue in the present case; namely, whether an officer who forms the suspicion can instruct another officer to issue the demand.

[41] In this case, that is what happened. I find that Pascaris was acting on the instructions of Fisher. It was Fisher who had the grounds and she instructed Pascaris to issue the demand. I see nothing wrong in principle, logic, common sense or law with one officer, with sufficient grounds, instructing another officer to issue the demand and administer the test. The Court can assess the validity of the grounds of the officer who formed the opinion and who caused the ensuing demand and test to occur. Nothing of value would be gained by requiring the officer who formed the grounds to also be the one to read the actual demand. I am comforted in this analysis by the analysis of the Supreme Court of Canada in R. v. Debot, [1989] 2 S.C.R. 1140 (SCC).

[42] In Debot, police were acting under the power of s. 37 of the Food and Drug Act R.S.C. 1970 c. F-27 as amended which, for present purposes, is similar to s. 254(2).

[43] The relevant portion of s. 37 of the FDA provided:

[44] 37. (1) A peace officer may at any time

(a) without a warrant enter and search any place …. in which he reasonably believes there is a controlled drug …and

(b) search any person found in such place; . . .

[45] The issue in Debot was whether the officer who formed reasonable grounds to search a suspect had to be the one to search the suspect. There were three key officers in Debot. P.C. Gutteridge who received information that Debot and others would be engaged in drug trafficking. Gutteridge passed that information to Sgt. Briscoe telling Briscoe to keep Debot and others under surveillance. During the course of surveillance, Briscoe instructed another officer, Birs, to stop Debot's vehicle and search the occupants. The Trial Judge found the search violated the Charter. The Court of Appeal and Supreme Court of Canada disagreed. In agreeing with the Ontario Court of Appeal, Justice Wilson, speaking for the whole Court on this point, wrote:

[46] The Court of Appeal further suggested, at p. 221, that Constable Birs could also have relied on the order from his superior officer, Sergeant Briscoe, to stop and search the appellant. In my opinion, Constable Birs must rely on Sergeant Briscoe's order. Since the decision to stop and search the appellant was made by Sergeant Briscoe and not by Constable Birs, it is immaterial, in my view, what knowledge Constable Birs had when executing Sergeant Briscoe's request. Constable Birs was simply following orders; he had no decision to make upon which to bring his own knowledge and belief to bear. It would have made no difference had he known nothing about the case and had merely been on patrol in the area at the opportune time.

[47] The police officer who must have reasonable and probable grounds for believing a suspect is in possession of a controlled drug is the one who decides that the suspect should be searched. That officer may or may not perform the actual search. If another officer conducts the search, he or she is entitled to assume that the officer who ordered the search had reasonable and probable grounds for doing so. Of course, this does not prove that reasonable grounds actually existed. It does make clear, however, that the pertinent question is whether Sergeant Briscoe and not Constable Birs had reasonable and probable grounds.

[48] In my view, the above passage is a complete answer to the defence argument. An officer is entitled to rely upon instructions from other officers and it is the officer who made the decision whose grounds will be evaluated. The structural similarity between 254(2) and s. 37 of the F.D.A. militate toward this conclusion.

Issue #2 - Section 10(b) – Right to Counsel at Roadside

[49] Turning to the second issue; was the delay at roadside long enough to have reasonably permitted the accused to have consulted counsel thus violating section 10(b) of the Charter. The argument is that, if there was sufficient time for an accused to consult with counsel at roadside, then the ASD test was not administered forthwith and the justification for the suspension of the right to counsel at roadside falls. It is the entire time between the stop until the administration of the test that is to be considered.

[50] At 1:43 a.m., the officers were on patrol near Bay and College when they heard the dispatch about a Nissan in the area of Beverly and College. They then saw the grey Nissan come from College and turn onto Bay. They then followed and attempted to stop the Nissan which continued for several more blocks. Eventually, the Nissan came to a stop at Bay and Dundas. The officers then quickly exited their car and approached the driver.

[51] At 1:48 a.m., five minutes after hearing the dispatch, and after forming her suspicion, Fisher instructed other officers to retrieve the ASD. She knew 52 Division was only a few blocks away and the ASD would arrive quickly.

[52] The ASD was on scene by 1:53 a.m. at which time the demand was read and the process of administering the ASD began. At 1:55 a.m., Pascaris demonstrated the ASD to the accused and, at 1:57 a.m., he failed.

[53] While the officers did not note the specific time they stopped the car, likely due to the fact that they both jumped out of the cruiser when the accused stopped at Bay and Dundas, it was sometime after 1:43 a.m. and before 1:48 a.m.. Not that the precise minute the car was stopped matters, but I infer it took several minutes to follow and stop the car and then quickly form the reasonable suspicion. The car was likely stopped and the grounds formed around 1:46 or 1:47. This is a reasonable inference from the evidence. I disagree with the defence submission that, due to the failure of the officers to note the exact times of the stopping of the car, the Court should give the benefit of the doubt to Davloor and assume the very longest times favourable to the accused. These are inferences to be drawn from the evidence. Returning to the chronology. The stopping of the car and the formation of the grounds likely occurred around 1:46 or 1:47, the ASD arrived within six or seven minutes by 1:53 a.m. and the ASD process began. Things moved quickly. I do not see any realistic opportunity to consult with counsel, either prior to the ASD arriving or between its arrival and the taking of the test. Or taking those times together. Defence argues that, in R. v. Torsney, the Court of Appeal engaged in ex post facto reasoning to support the view that there was no realistic opportunity to consult counsel in that case. The defence argues therefore that, since we know duty counsel called back to the station within four minutes, he submits there was a realistic opportunity to consult with counsel prior to taking the ASD test. I disagree. The fact that duty counsel called back to the station within four minutes does not mean that duty counsel would have called back within four minutes on scene and, even if they had, that the accused could then be given privacy and consulted with counsel. The accused was stopped just before 1:48, likely 1:46 to 1:47. The grounds were then formed. The ASD arrived by 1:53 a.m., beginning the ASD process and the accused failed by 1:57 am. In those circumstances, it is unrealistic to expect or infer that there was an opportunity to consult with counsel prior to taking the test. There was no violation of 10(b). The recent Mohammed case of Justice McWatt is but one particular example of what may amount to a realist opportunity to consult with counsel as are the cases referred to in paragraph 11 of Torsney.

Issue #3 – 5-6 Minute Delay Between Suspicion and Demand

[54] The defence submits that the delay between Fisher forming the suspicion just before 1:48 a.m. and the 1:53 a.m. demand rendered the demand unlawful and contrary to section 8 of the Charter because the demand was not made forthwith.

[55] Within five to seven minutes of stopping the car, a formal ASD demand was read. In my view, accused was advised forthwith of the fact that the officers were demanding a roadside test. In R. v. Quansah (2012) OJ # 779 (Ont. CA), the police arrested the accused and then searched and questioned him. Eleven minutes later, they read the ASD demand. Quansah was convicted at trial but his conviction was overturned by the Summary Conviction Appeal Court holding that the trial Judge erred in finding that the ASD demand was forthwith. In restoring the conviction and overturning the Summary Conviction appeal court, the Court of Appeal spoke about the underlying rationale of the forthwith requirement and how the forthwith requirement ought to be interpreted. Specifically, I quote paragraph 49 of the Court of Appeal's decision where the Court held:

[56] 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.

[57] The forthwith requirement has been met in this case.

[58] Both Crown and defence also made submissions on the so called informal wording of the demand. No special or formal wording of a demand is necessary. What is required is that the accused, forthwith, be told of what he will be expected to do. Pascaris asked the accused if he had been drinking. The accused denied drinking. Fisher told Pascaris that she wanted the accused to do a roadside test. Pascaris believed the accused was in a position to hear that comment and the accused, in his evidence did not suggest otherwise. The accused was aware he was waiting to perform a roadside test.

Issues #4 & 5 - Was This an ASD and Could the Officer Rely Upon It?

[59] Issues four and five were argued together. The defence initially made two submissions; first, that Pascaris did not know the name of the device and, second, that he did not check when it was last calibrated and therefore could not have reasonable relied on its results.

[60] With respect to the first argument, as we all listened to the recording, Pascaris did not know the make or model number of the device but he did know and did refer to it as the Approved Screening Device. That is sufficient to properly identify the device.

[61] Turning to the second argument; the Crown need not prove that the ASD was working properly in order for the officer to rely upon the results obtained following a breath sample into an ASD. I note that, in this case, in any event, there is nothing to suggest the device was not working properly. The issue is whether the officer subjectively believed he could rely upon the ASD and whether his belief was objectively reasonable.

[62] Pascaris testified that he believed the device to be working properly. He started it up, saw that it cycled through its self-tests, he believed one of those tests indicated the date of calibration, he did a self-test which registered zero. He knew the device was calibrated to register a fail if a subject had a BAC of 100 milligrams of alcohol in 100 millilitres of blood. In cross examination, he conceded that he did not check the date of calibration and agreed that, if it were not calibrated appropriately, it was possible that the results could be unreliable. He could not speak to the likelihood of it being improperly calibrated.

[63] In these circumstances, the defence submits that the officer could not reasonably rely upon the results of the ASD. I disagree. The officer honestly believed the ASD was working properly. His subjective belief is not the issue. It is whether his belief was objectively reasonable. He did not check or note the date of calibration. However, he believed that the device was checked monthly. He was aware that the ASD cycled through its self-tests when he started it up. He believed one of the items that is disclosed in that test is the calibration. He performed a self-test which registered a zero. Based on this, his belief that the device was working properly was objectively reasonable even without checking or noting the date it was last calibrated. There is no evidence as to how often it must be calibrated. He believed the device was checked monthly. The defence's primary submission in this regard is that the officer's failure to know the model number or to check the calibration compound the need for exclusion under s. 24(2) when one looks at all the breaches in this case. However, I have not found any violations of the Charter.

Issue #6 – "As Soon As Practicable"

[64] Turning to the final argument; "As Soon As Practicable". The defence submits that the breath tests were not taken as soon as practicable and therefore there was both a Charter breach and the Crown can no longer rely upon the presumption of identity.

[65] The timeline is as follows:

• 1:43-1:47 – time of driving
• 1:57 – failed ASD
• 2:01 – depart scene
• 2:10 – arrive at station
• 2:26 – enter station for booking after filling out information on the computer system, submitting it to Go processing
• 2:37 – Duty counsel called
• 2:41 – duty counsel consulted
• 2:50 – enter breath room
• 2:57 – first breath test
• 3:19 – second breath test

[66] The first test was taken approximately one hour and ten minutes after the time of driving. Both tests were completed within about one and a half hours from the time of driving. The principal complaint of the defence is the 16 minute delay at the sallyport.

[67] The Criminal Code requires the Crown to prove beyond a reasonable doubt that breath samples were taken as soon as practicable if it intends to rely on the presumption contain in section 258. It does not require that the tests be taken as soon as possible. It requires consideration of the overall length of time between the arrest and the breath tests and what was occurring during that time. The taking of the breath test must be done within a reasonably prompt time frame.

[68] The issue is whether the police acted reasonably and expeditiously in the circumstances. The Crown need not account for every minute before the presumption can be relied upon. The Code permits reliance on the presumption, assuming all other preconditions have been met, even where the first breath test is taken up to two hours after the alleged offence: see R. v. Vanderbruggen (2006), 206 C.C.C. (3d) 489 (Ont. C.A.); R. v. Burbidge (2008) O.J. 765 (O.C.A.).

[69] In my view, the 16 minute period while waiting to enter the station was explained. Officers are required to fill out those forms, send them in and have them forwarded to the booker prior to entering the booking hall. That entire process took 16 minutes. In the context of the entire period of time in this case, that period has been satisfactorily explained and is reasonable. The officer was throughout occupied with tasks related to this offence and this accused. The tests were taken as soon as practicable.

Conclusion

[70] Accordingly, for the above reasons, the accused will be found guilty.

Released: February 16, 2017

Signed: "Justice H. Borenstein"