Court Information

Ontario Court of Justice

Date: 2017-06-29

Location: Toronto

Court File No.: 4817 998 16-75002001-00

Parties

Between:

Her Majesty the Queen

— And —

Arben Lazaj

Before the Court

Justice: Bhabha, F.

Heard: June 2017

Ruling on s. 8 Charter Application released: June 29, 2017

Counsel

Counsel for the Crown: M. Giovinazzo

Counsel for the Defendant: B. Daley

Charge

[1] The defendant, Arben Lazaj, is charged with driving with excess blood alcohol.

Discrete Issue

[2] The sole and narrow issue in this trial is whether the arresting officer's delayed demand to provide suitable samples into an Approved Instrument breached the defendant's s. 8 rights under the Charter, and if so, what the appropriate remedy should be.

Position of the Parties

[3] The defence submits that the indefensibly delayed demand resulted in a breach and that the result should be the exclusion of the breath samples under s. 24(2) of the Charter. In the alternative, if the Grant factors do not result in the exclusion of the breath samples, the court should provide the defendant with a remedy under s. 24(1) of the Charter, namely that the crown should be deprived from relying on the presumption of identity, thus ending the prosecution. This approach, Mr. Daley submits, is an "elegant solution".

[4] The crown firstly acknowledges that there were no special exigencies justifying the delay, but submits that the 12-13 minute delay is: a) explained, and b) not unreasonable when the court considers that the tasks the officer was engaged in during this brief time frame actually moved the investigation along and were tasks he needed to complete in any event before arriving at Traffic Services. Secondly, the crown submits that even if there was a breach of the defendant's rights, the breach was a very technical one. Given the officer's otherwise exemplary and professional conduct, the crown submits that the Grant factors favour inclusion of the breath samples. Lastly, Mr. Giovinazzo, for the crown, submits that the court should refrain from fashioning a remedy under s. 24(1) and relies on Justice Code's decision in R. v. Zhao, 2014 ONSC 1985 that cautions against such an approach.

The Relevant Factual Background

[5] The arresting officer, William Niziol, is an officer with eight (8) years of experience in drinking and driving investigations. He has also been designated as a qualified breath technician since 2011.

[6] He testified that he stopped the defendant at 15:26 on the day in question to investigate him as a result of a complaint by a civilian about the defendant's driving. The defendant was the sole occupant of the car.

[7] As a result of his interaction with the defendant he made an approved screening device demand. Then, even though the defendant was not yet under arrest, officer Niziol, appreciating that the device had to be brought to the scene and that the defendant was under investigative detention, read the defendant his rights to counsel. He also encouraged the defendant to use his cell phone to call a lawyer or anyone else in the meantime.

[8] The roadside device arrived within minutes. It was there by 15:31, in fact, and the roadside test was completed without incident at 15:34.

[9] At 15:35 Officer Niziol placed the defendant under arrest and reread the right to counsel. The defendant was also cautioned at this time.

[10] The defendant was then handcuffed to the rear and placed in the back of the scout car. Officer Niziol got into the scout car as well, occupying the driver's seat where he began to run certain checks and complete other administrative tasks.

[11] Officer Niziol made the Approved Instrument Demand at 15:48.

[12] The approved instrument demand was therefore delayed for some 12-13 minutes from the time when the arrest was made, and rights to counsel and the caution was completed.

[13] The crown submits that the delay is in fact a few minutes less than 12 minutes if one takes into account the time to make the arrest and read the rights to counsel. He puts the delay in the 8-9 minute range.

[14] Whether the delay is 9 minutes or 12 minutes, the court needs to decide if the demand was made "as soon as practicable"? The answer, as with so many legal issues is: it depends on the particular circumstances of the case.

[15] We know from the abundant jurisprudence in this area of the law that "as soon as practicable" does not mean "as soon as possible", but it does mean "within a reasonably prompt time": See R. v. Ashby (1980), 57 C.C.C. (2d) 248 (Ont. C.A.).

[16] In some cases where officer safety or other exigent circumstances result in the demand being delayed, delays much longer than 12-13 minutes have been found to be reasonable. See R. v. Jaspal where a 22 minute delay was found to have been made "as soon as practicable". See also R. v. Squires where a 59 minute delay was found to be made "as soon as practicable".

[17] Firstly, it is worth noting that this is not a situation where the delay, or a part of it, is unexplained. Officer Niziol was present with the defendant in the scout car for the duration of the delay and until 15:51 when they left to go to Traffic Services[1]. He can be heard intermittently on the in-car video that was focused on the defendant. The officer provided an explanation of what occupied him for the 12-13 minutes. The question is whether his explanation can excuse the delay in making the demand.

[18] Between the time of the arrest at 15:35 and the time of the demand at 15:48 the officer testified that he conducted searches related to the defendant, and attended to a number of administrative matters. He also directed other officers at the scene who were attending to the search and towing of the defendant's vehicle.

[19] The officer was concerned that the defendant might need access to his phone and wallet since his car was going to be impounded. This is not an unreasonable or frivolous concern. As a result, he tasked other officers to locate these personal items for the defendant. The officers who did an inventory of the car, reported that they located empty beer cans in the vehicle.

[20] Another issue also distracted the officer's attention. The defendant complained about the tightness of the handcuffs, and the officer's attention was briefly taken away from inputting information into the computer – a task he testified must be completed before a defendant can be paraded and booked at Traffic Services.

[21] The officer eventually exited the car and adjusted the cuffs. Then, he made the demand.

[22] In his cross-examination, the officer resisted the suggestion put to him that he got sidetracked or simply forgot to make the demand. His testimony was that he made the demand after attending to other important tasks in the investigation.

[23] Officer Niziol was, in general, an impressive witness. I find that he was professional and courteous throughout his dealings with the defendant. He was particularly sensitive to and careful about respecting the defendant's right to counsel and ensuring he had the items from his vehicle that he needed. He went above and beyond in that regard. The defendant was likewise polite and cooperative. His complaint about the handcuffs was not a ruse, but a legitimate complaint that was attended to.

[24] I find that, notwithstanding the officer's insistence that he was not "sidetracked", that, in fact, he did simply forget to make the demand "as soon as practicable", which likely was at the time of arrest. When he placed the defendant under arrest, he was not instructing other officers, nor was he already engaged in inputting information into his on-board computer. There were no safety concerns or other exigencies that required his immediate attention and could explain or excuse the delayed demand.

[25] I find that absent unusual or exigent circumstances, police officers should not delay making the demand when they are required to which is "as soon as practicable". This is a statutory requirement that must be respected. It is not up to an arresting officer to decide when it is more convenient for him to do so. Reading the demand is not a particularly onerous or time-consuming task, especially for an experienced officer who likely can make the demand from memory. It is also important to note that no magical incantation read verbatim from the back of a memo book is required in order to comply with the provisions of s. 258. All that needs to be conveyed is that that the defendant is required to accompany the officer to a station to provide two suitable samples of breath.

[26] On the one hand a delay in the order of 8-12 minutes is very short especially when one considers how quickly the investigation ultimately moved along. One the other hand there were no exigent circumstances relating to officer safety, no medical or other issues that explain why the demand was delayed. Inputting data and conducting searches are not the type of "exigencies" that can countenance a delay of even eight to twelve (8-12) minutes, when the demand takes no more than thirty seconds, and is usually something that is or can be done on arrest.

[27] In the result, I find that there was breach of the defendant's section 8 rights.

Grant Analysis

[28] Does the breach warrant exclusion? I am required to consider the Grant factors on any application under s. 24(2).

[29] The first prong of the Grant analysis is to consider the seriousness of the state conduct. Was this a serious breach? Firstly, I find that this breach is very minor and technical in nature. The demand was made of the defendant, it was just made about 8-12 minutes later that it should have been made.

[30] Secondly, I find that the officer's conduct was otherwise professional and exemplary. He was not deliberately trying to delay the demand nor can it be said that he was deliberately disrespectful of the defendant's rights. To the contrary, he went above and beyond when it came to providing right to counsel, for example, even before the formal arrest. As well, when the defendant complained about discomfort from the handcuffs, he attended to the complaint. The officer's forgetfulness cannot be characterized as willful, flagrant or deliberate.

[31] Turning now to the second prong of the Grant test: the impact of the breach. In this case there was no deleterious impact. The tasks the officer completed in the car before he made the demand needed to be completed before the parading and booking process could take place. Time lost at the front end would have resulted in waiting at the sally port, or at the roadside as the officer inputted the information he needed to. This factor favours inclusion.

[32] On the last prong of the test the court is required to consider the importance of the evidence to the Crown's case as well as the reliability of the evidence. There is only one charge before the court and it rests entirely on the admissibility of the breath samples. Breath samples are considered minimally intrusive and very reliable.

[33] Finally, balancing all of the factors against the circumstances of the case, I can come to no other conclusion, but that the samples ought to be admitted into evidence.

The s. 24(1) "Remedy"

[34] The defence submits that if the circumstances do not justify a remedy under s. 24(2) that the court should consider s. 24(1) which allows the court greater latitude in fashioning a remedy with the same result: the inability of the crown to prosecute the case without the benefit of the presumption of identity.

[35] The crown submits that it would be inappropriate to grant the defendant the relief he sought under s. 24(2) under 24(1) and relies on Justice Code's decision in Zhao, supra.

[36] At paragraph 28, Justice Code observed that using s. 24(1) as a means to "go around Grant essentially" is an unprincipled reason for allowing resort to s. 24(1) when s. 24(2) has failed.

[37] In any event, he noted at paragraph 30 that both remedial provisions require a broad consideration of all the circumstances before granting a particular remedy.

[38] In the result, he was sceptical of the proposition that s. 24(1) and s. 24(2) will yield different results in this specific context, namely drinking and driving cases. He was satisfied that they did not yield different results in the particular case before him.

[39] Given the similarities in the analytical frameworks for both sections, I am equally confident that a different result would not be obtained.

[40] For all these reasons, although I find there was a breach, I decline to exclude the breath results, or to prohibit the crown from relying on the presumption of identity.

Released: June 29, 2017

Signed: Justice Bhabha

[1] With the exception of the very brief time when he exited the car to loosen the defendant's handcuffs.