Court File and Parties

Court File No.: Ottawa 16-A10629 Date: 2017-08-17 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Haris Malik

Before: Justice P. K. Doody

Heard on: July 12, 2017

Reasons for Judgment released on: August 17, 2017

Counsel:

• John Semenoff, for the Crown
• Neil Weinstein, for the defendant

Reasons for Judgment

DOODY J.:

Part 1: Overview

[1] Haris Malik is charged with impaired driving and operating a motor vehicle with more than 80 mg of alcohol in 100 ml of blood on April 26, 2016.

[2] The Crown properly concedes that the evidence does not support a conviction on the impaired driving charge. That count is dismissed.

[3] Mr. Malik, who was driving a Honda Civic, was stopped by Cst. Jason Degan of the Ottawa Police Service at 12:10 a.m. on April 26, 2016 in the northbound lane of Blair Road. Mr. Malik had just turned right on Blair Road from Innes Road. Cst. Degan stopped Mr. Malik after seeing his tires partially cross over the lane marker and swerve back into the lane, and speed up and slow down for no apparent reason. He suspected that Mr. Malik may have been impaired.

[4] Cst. Degan spoke to Mr. Malik who was sitting in the Honda's driver's seat with the window open. The officer detected the smell of burnt marijuana coming from the interior of the car. He saw that Mr. Malik's eyes were bloodshot. He did not smell alcohol at that time.

[5] Cst. Degan formed the reasonable suspicion that Mr. Malik had marijuana in his body. As a result, he demanded that Mr. Malik perform forthwith physical coordination tests ("standard field sobriety tests" or "field tests") to enable a peace officer to determine whether he or she had reasonable and probable grounds to believe that Mr. Malik had been operating a motor vehicle while his ability to do so was impaired by a drug. He also demanded that Mr. Malik accompany him for that purpose.

[6] Cst. Jennifer Simpson was on general patrol and parked, in her Ottawa Police Service cruiser, at the fire station at the northwest corner of Innes Road and Blair Road when Cst. Degan stopped Mr. Malik. She pulled onto Blair Road and parked her cruiser behind Cst. Degan's cruiser, which was parked immediately behind the Honda.

[7] Cst. Simpson told Cst. Degan she was certified to perform standard field sobriety tests. Cst. Degan was not. The two officers agreed that the field tests should be performed in the fire station building. The second floor of that building contained a "community policing centre", an office which police officers could use from time to time.

[8] Cst. Simpson left the scene and drove back across the road to the fire station, a distance of some 40 feet. Cst. Degan had Mr. Malik get in his cruiser and drove him there as well. The standard field sobriety tests were never done because Cst. Degan smelled alcohol on Mr. Malik's breath as soon as they were both upstairs in the fire station. As a result, he formed the reasonable suspicion that Mr. Malik had alcohol in his body. He then demanded that he provide a sample of his breath to allow an analysis to be made by means of an approved screening device.

[9] Mr. Malik did so. The result was a "fail". Consequently, Cst. Degan acquired reasonable and probable grounds to believe that Mr. Malik had been operating a motor vehicle while his blood alcohol level was over 80 mg per 100 ml of blood. He demanded that Mr. Malik accompany him to the police station to provide a sample of his breath into an Intoxilyzer. He did so and provided two samples of breath, both of which were over 80.

[10] Defence counsel makes two submissions in defence of the charge:

(a) that the breath samples at the police station were not taken "as soon as practicable", so that the presumption of identity – that the blood alcohol levels disclosed by the Intoxilyzer at the time of the tests were the same as at the time of the driving – did not apply, and

(b) that Mr. Malik's rights under sections 8, 9 and 10(b) of the Charter were infringed when he was placed in the cruiser and transported to the community policing centre for the standard field sobriety tests rather than have the tests carried out forthwith at the roadside (and that as a result the breath test results should be excluded under s. 24(2)).

[11] There is no controversy about the times that a number of important events occurred. This chart sets out those events and the times that they occurred. The times in the chart come from evidence of Cst. Degan, Cst. Simpson, or the breath technician Cst. MacTavish, each of whose memories were refreshed by consulting his or her contemporaneous notes.

Time	Event
12:09 a.m.	Cst. Simpson sees Cst. Degan's cruiser following Honda with emergency lights on
12:10 a.m.	Cst. Degan stops Mr. Malik in Honda
12:13 a.m.	Cst. Simpson arrives on scene, "self-engages" herself (reports that she is on the call) and exits cruiser
12:19 a.m.	Cst. Degan issues standard field sobriety test demand to Mr. Malik in Honda
12:25 a.m.	Cst. Degan issues approved screening device demand in community policing centre building
12:30 a.m.	Mr. Malik provides breath sample into ASD; result "fail"; Cst. Degan arrests Mr. Malik for over 80
12:40 a.m.	Cst. Degan reads Mr. Malik notice re right to counsel
12:41 a.m.	Cst. Degan reads Mr. Malik standard police caution
12:42 a.m.	Cst. Degan reads Mr. Malik s. 524 caution
12:43 a.m.	Cst. Degan reads breath test demand
12:48 a.m.	Cst. Degan leaves scene with Mr. Malik
12:58 a.m.	Cst. Degan and Mr. Malik arrive at Elgin Street police station
1:14 a.m.	Mr. Malik speaks to counsel on telephone in private room in cellblock
1:14 a.m.	Cst. MacTavish is ready to receive first sample with machine properly calibrated and ready
1:20 a.m.	Cst. Degan commences giving breath technician basis for his breath demand
1:30 a.m.	Cst. Degan finishes giving breath technician basis for his breath demand
1:31 a.m.	Mr. Malik has concluded his conversation with counsel and is transferred to custody of breath technician
1:40 a.m.	First sample provided and analyzed: 97 mg of alcohol in 100 ml blood
2:01 a.m.	Second sample provided and analyzed: 94 mg of alcohol in 100 ml blood

Part 2: As Soon as Practicable Issue

(a) Law

[12] Paragraph 258(1)(c) of the Criminal Code provides that evidence of the results of the analyses by an Intoxilyzer of samples of breath of a defendant are proof of the concentration of alcohol in his or her blood at the time of the alleged offence if each breath sample was taken "as soon as practicable after the time the offence was committed".

[13] In order to take advantage of this statutory presumption the Crown must prove that each of its requirements have been met. As Justice Hill held in R. v. Walker, [2006] O.J. No. 2679:

Compliance with the statutory scheme must be strictly construed where the prosecution is relieved of the obligation of adducing expert evidence on the subject.

[14] The requirement that a breath sample be given arises from s. 254(3) which authorizes a peace officer to demand "as soon as practicable" samples of breath to be provided "as soon as practicable". Since this provision authorizes a warrantless search, failure to comply with its provisions is a breach of s. 8 of the Charter.

[15] As the Court of Appeal has held in R. v. Vanderbruggen, [2006] O.J. No. 1138, 206 C.C.C. (3d) 489, there is no requirement that the tests be taken as soon as possible. Nor does the provision require an exact accounting of every moment in the chronology. As the Court held:

• The provisions of s. 254(2) should not be interpreted to require an exact accounting of every moment in the chronology.
• The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably.
• In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The "as soon as practicable" requirement must be applied with reason.

[16] In R. v. Singh, 2014 ONCA 293, [2014] O.J. No. 1851, the Court of Appeal reiterated the Vanderbruggen decision, holding that the requirement that the samples be taken as soon as practicable means "nothing more than that the tests should be administered within a reasonably prompt time in the overall circumstances."

[17] These notes of caution by the Court of Appeal do not, however, diminish the requirement of s. 254(2). The analysis which trial courts are required to undertake is not one in which every unjustified minute of delay is totted up, with the resulting sum being analyzed to determine whether the requirement has been met. At the same time, however, the analysis is not whether the total delay seems reasonable without analysis of the reasons therefor. The inquiry is fact-specific. Just as the Court of Appeal held in R. v. Quansah, 2012 ONCA 123, that there is not a rule of a standard 15 minute allowable period of delay in administering the ASD test, there is not a rule of a standard permissible period of delay in administering the Intoxilyzer test. A fact-specific inquiry requires that significant periods of delay be identified and the Crown be required to justify them.

[18] As Durno J. held in R. v. Schouten, [2002] O.J. No. 4777:

… each case must be examined on its own facts. One hour and forty-six minutes could be "as soon as practicable": R. v. Letford (2001), 150 C.C.C. (3d) 225 (Ont. C.A.). One hour and thirty minutes might not be "as soon as practicable" in another: R. v. Lightfoot, (1980), 4 M.V.R. 238 (Ont. C.A.).

[19] The case law is replete with instances, post Vanderbruggen, in which unexplained or inadequately explained delays of varying lengths have resulted in trial courts concluding that the Crown has not met its onus of proving that the tests were taken as soon as practicable after the defendant was operating a motor vehicle. Some examples are:

(a) R. v. Cargill, 2014 ONSC 3897, where there was an unexplained 20 minute delay and the first sample was taken 78 minutes after the defendant was stopped;

(b) R. v. Dean, 2013 ONSC 2916, where the only explanation for a 20 minute delay between arrival at the station and the defendant's consultation with counsel was the necessity of booking the defendant which took "a couple of minutes" and a brief conversation with the defendant about calling a lawyer; and

(c) R. v. McDonald, 2014 ONSC 208, where there was a 20 minute delay while the breath technician was assisting another officer although the "evidence [was] somewhat general in that regard as to precisely what he was doing" and a 16 minute delay while the breath technician was getting the reasonable and probable grounds from the arresting officer and there was no evidence as to how much time that required.

(b) Defence Position

[20] Defence counsel takes issue with four discrete periods of time with respect to the "as soon as practicable" argument:

(a) He submits that Cst. Degan had grounds to make the standard field sobriety test demand by 12:14 a.m., but that the demand was not made until 12:19 a.m. and, because of the decision to conduct the field test at the community policing centre, the officers were not in a position to start the tests until 12:25, a delay of 11 minutes which was unnecessary;

(b) Cst. Degan waited 10 minutes after arresting Mr. Malik at 12:30 a.m. before reading him his right to counsel at 12:40 a.m.;

(c) Cst. Degan waited 5 minutes after making the breath test demand at 12:43 a.m. before leaving for the station at 12:48 a.m.; and

(d) 16 minutes elapsed between arrival at the police station at 12:58 a.m. and Mr. Malik's call to counsel at 1:14 a.m.

[21] No issue is taken with any of the other periods of time between Mr. Malik's initial stop and the administration of the Intoxilyzer tests.

(c) Evidence

(i) Time Before Ready to Start Standard Field Sobriety Tests

[22] This issue requires evaluation of the evidence of both Cst. Simpson and Cst. Degan.

[23] Cst. Degan testified that after he pulled up behind the Honda at 12:10 a.m., and before he got out of his cruiser, he ran the licence plate and the registered owner of the car through the computer. He said that he then approached the driver's side window. It was down. Mr. Malik had his driver's licence and other documents in hand and gave them to the officer.

[24] Cst. Degan testified he detected a strong odour of burnt marijuana from inside the car, and that the Mr. Malik's eyes were bloodshot. He asked Mr. Malik if he had consumed alcohol or drugs that night. Mr. Malik denied both, and said that his two passengers had smoked marijuana.

[25] Cst. Degan then testified:

As is my standard practice I would have returned to my cruiser, would have performed a query of the driver; I would have examined all in-house dealings with the individual, as well as any CPIC, MTO, or criminal record. I thought about everything that I had observed, the totality of the circumstances so the driving evidence I had observed, as well as the odour of burnt marijuana emanating from that open driver's side window, as well as the bloodshot eyes of the driver. At this point I suspected that the driver was under the influence of marijuana. So I returned to the driver. I explained my suspicion and at approximately 19 minutes past midnight I read the driver the standard field sobriety test demand.

I was not able or I was not qualified to provide this standard field sobriety test demand, however there was another officer on scene who was able to and that was Cst. Simpson.

I had the driver exit the driver's side of the vehicle and accompany me to the passenger side of my cruiser. I explained the procedure of the standard field sobriety test and at this point we determined that the standard field sobriety test would be best performed just across the street from our location at the community policing office and that was due to the environmental conditions it was very windy. It was dark obviously at this time. It was a much safer spot to have this test done.

Q. I'm going to just stop you there, Constable. We have got a lot of information. I just want to take you back a little bit. In terms of that last decision, in terms of not doing that standard field sobriety testing there on scene, you used the term "we" determined. Who is the "we" you are talking about?

A. That would have been myself and Cst. Simpson, I believe.

[26] Cst. Degan did not recall when Cst. Simpson arrived on the scene. He did not recall whether she was on scene when he was having the conversations with Mr. Malik at the driver's side window. He did recall having discussions with her on the roadside and he said he could not recall but he "suspected" that Cst. Simpson suggested that the community policing centre was a safer and more practical spot to conduct the test. He could not recall whether Mr. Malik was still seated in his car or standing outside of the cruiser at the time of these discussions with Cst. Simpson.

[27] When asked if the discussions with Cst. Simpson were before or after the demand, he testified:

I would suggest that it would have occurred after the demand was made.

Q. You use the term you would suggest. What would lead you to suggest that.

A. If I remember correctly, when I had Mr. Malik exit his car and stand by my cruiser and we explained the standard field sobriety test I remember it was windy and I remember that it was at that point that we thought the community policing center would have been a much better spot to conduct that test. And I should add that the standard field sobriety test was something relatively new to me. Prior to being back on patrol, I was in a different section for 3 years so I would have obtained some advice from likely it was Cst. Simpson on this particular note.

[28] Cst. Simpson testified that when she got out of her cruiser at the scene at 12:13 a.m., she approached the Honda. Cst. Degan was speaking to Mr. Malik, who was in the driver's seat with the window down. She heard Cst. Degan tell Mr. Malik that his eyes looked red. She then walked up to the driver's side of the Honda and noticed that Mr. Malik's eyes were "droopy". She also detected a strong odour of burnt marijuana coming from the vehicle.

[29] Cst. Simpson testified in examination in chief that she spoke to Cst. Degan subsequently, and he advised her that he had suspicion that Mr. Malik was impaired by drugs – that he had drugs in his body. She advised him that she was a trained field sobriety test officer, and they coordinated how they were going to go about conducting the field test. She said she suggested that they use the community policing center, which was a much better "avenue" to use, with clean flat lines for the tests. She requested another officer to attend, for safety reasons, to stay with the vehicle and the passengers. She said she then drove her cruiser across the street, so she would be ready to go. It was her evidence that she was on the scene about five minutes.

[30] In cross-examination, she testified that she was at the window with Cst. Degan for only about half a minute. She said that she and Cst. Degan then stepped away to have a conversation about procedure. They went to the back of the Honda, between it and Cst. Degan's cruiser. She testified that Cst. Degan told her that he had a suspicion that Mr. Malik was impaired but that he did not detect an odour of alcohol.

[31] She gave the following evidence:

Q. Does Cst. Degan tell you that he has formed the suspicion that the man is impaired by drugs so as to make the standard field sobriety test demand?

A. Yes.

Q. … ultimately you believe that he had formed the suspicion of impairment by drugs.

A. Yes.

Q. Is that a suspicion that he advises you of or do you like you know is it something that you and him talk about in order to help him come to that conclusion. I mean, is he there already by the way he phrases it to you.

A. I believe so. Yes.

Q. OK

A. There was no conversation needing my guidance.

Q. So as far as you are concerned he formed his own grounds.

A. Absolutely.

Q. He didn't need anything from you in order to form the grounds for the standard field sobriety test demand. … They are his grounds.

A. That is correct.

(ii) Time Between Arrest at 12:30 a.m. and Reading Right to Counsel at 12:40 a.m.

[32] Cst. Degan told Mr. Malik he was under arrest for driving with over 80 mg of alcohol in 100 ml of blood at 12:30 a.m., immediately after he failed the ASD test. He then escorted him downstairs, took him outside, cuffed him, searched him, and put him in his cruiser. He did not begin to read the necessary right to counsel, police caution, s. 524 warning, and breath test demand until 12:40.

[33] In cross-examination, Cst. Degan testified that it would have taken him 2 to 3 minutes to go downstairs, cuff and search Mr. Malik, and put him in the cruiser. When asked what he did during the rest of the time before reading him his right to counsel, he said he "would have discussed making arrangements for the vehicle, passengers and all that sort of stuff" before departing for the station. He also testified that he had at least one officer to look after those things and he did not have to do it – he just wanted to make sure someone was going to do it. He could not recall whether he went back to the Honda on the other side of the road "or what else [he] had to do, if anything".

[34] Cst. Simpson testified that after the sample was given, it was her responsibility to have the Honda towed. She went back to the Honda and made those arrangements. She also attempted to contact the registered owner of the Honda.

(iii) Time Between End of Cautions at 12:43 and Leaving for Station at 12:48

[35] Cst. Degan testified that he finished reading the rights and cautions at 12:43. He did not leave the scene to head to the station until 12:48. He could not recall at all what he did in that period of time. The only thing he could suggest was that he may have been adding notations in his notebook or collecting the roadside device and recording the serial number. He did not know whether he had done that, however.

(iv) Time Between Arrival at Station at 12:58 a.m. and Speaking to Counsel at 1:14 a.m.

[36] Cst. Degan testified that he arrived at the sallyport, the entrance to the cell block, at 12:58 a.m. Officers arriving with prisoners get buzzed in. They have to remove their firearm and lodge it, complete a booking sheet, and call the sergeant in charge and be admitted to the cell block where the person under arrest is paraded before the sergeant. Cst. Degan said that it would be safe to assume that he was speaking to the sergeant after lodging his firearm and completing the booking sheet by 1:00 a.m.

[37] He testified that while it was not uncommon to wait 20 to 30 minutes to be allowed entry into the cellblock if there were other prisoners being processed, he could not recall how long he waited that night.

[38] After a prisoner is admitted and paraded before the sergeant, he is searched by the special constables. The time that that takes is in the discretion of the special constables. Cst. Degan could not recall how long it took on the night in question. Nor could he recall whether there was any delay in getting Mr. Malik to the room to speak to the lawyer.

[39] Cst. Degan could not recall any particulars about what happened between his arrival at the sallyport at 12:58 a.m. and Mr. Malik commencing his call with counsel at 1:14 a.m.

(d) Analysis

(i) Time Before Ready to Start Standard Field Sobriety Tests

[40] Cst. Degan testified that he formed a reasonable suspicion that Mr. Malik was under the influence of marijuana when he returned to his vehicle with Mr. Malik's driver's licence, and that it was then that he decided to demand that Mr. Malik undergo the standard field sobriety test.

[41] Cst. Simpson testified that she arrived at 12:13 a.m., immediately walked up to the driver's side window where Cst. Degan was talking to Mr. Malik, and heard Cst. Degan tell Mr. Malik that his eyes looked red. Cst. Simpson said that this took only about half a minute of her time.

[42] Both Cst. Simpson and Cst. Degan agree that they had a conversation near Mr. Malik's car during which Cst. Simpson suggested that the field test be conducted at the community policing centre. Both testified that Cst. Degan had formed a reasonable suspicion, by that time, that Mr. Malik had marijuana in his body – Cst. Degan by direct evidence, and Cst. Simpson by testifying that Cst. Degan told her that and saying that she had no role in his forming that suspicion.

[43] Cst. Simpson testified she was on scene about five minutes and that after the conversation near Mr. Malik's car she returned to the community policing center in her cruiser. Cst. Degan testified that, based on a note he had made at the time, he gave the field test demand at 12:19 a.m., 6 minutes after Cst. Simpson had arrived. He did not have a clear memory of whether his conversation with Cst. Simpson about doing the test at the community policing center was before or after he had made the demand.

[44] Cst. Simpson's memory was much clearer than was Cst. Degan's. She had no doubt that Cst. Degan told her he had formed the requisite reasonable suspicion within a minute or so her arrival – that is, by approximately 12:14 a.m.

[45] I find that Cst. Degan had formed a reasonable suspicion that Mr. Malik had marijuana in his body by the time Cst. Simpson arrived at the driver's side window and heard him tell Mr. Malik that his eyes looked red, and that that occurred no later than 12:14 a.m.

[46] Despite having formed that reasonable suspicion by then, he did not make the demand until five more minutes had passed. That was probably because, as he testified, the field test was relatively new to him and he was not sure how it would be conducted. When he learned that Cst. Simpson was certified to conduct the field test, he acceded to her suggestion that it be done across the street.

[47] The result of not making the field test demand until after he had spoken to Cst. Simpson was that the making of the demand took place at least 5 minutes after he had formed the requisite suspicion.

[48] The result of agreeing to have the test take place at the community policing center was that the test could not have been performed until 12:25, when all three of Mr. Malik, Cst. Simpson, and Cst. Degan were together in that location. The field test could not have been performed until 6 minutes after the demand and 11 minutes after Cst. Degan had formed the requisite suspicion.

[49] The issue of whether the breath tests were taken "as soon as practicable after the time the offence was committed" turns on whether the police officers were acting reasonably – whether the breath tests were "administered within a reasonably prompt time in the overall circumstances". Those circumstances include the law relating to the Charter rights of Mr. Malik during the investigative detention before the planned standard field sobriety tests.

[50] Paragraph 254(2)(b) provides that if a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in his or her body and has driven in the preceding three hours, the officer may require the person to "provide forthwith a sample of breath" to allow analysis to be made in an approved screening device (where alcohol is suspected) or "perform forthwith a physical coordination tests prescribed by regulation" (where either alcohol or a drug is suspected). This provision requires not only that the test be conducted forthwith after the demand is made, but that the demand be made forthwith after the peace officer forms the requisite reasonable suspicion. (Quansah at paras. 25-26)

[51] In its decision in R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205, the Supreme Court of Canada defined the word "forthwith" in s. 254(2) to mean "immediately" or "without delay". As the Court held in that case, however, in the context of s. 254(2), the word "may, in unusual circumstances be given a more flexible interpretation than its ordinary meaning strictly suggests. For example, a brief and unavoidable delay of 15 minutes can thus be justified when this is in accordance with the exigencies of the use of the equipment – see Bernshaw [, [1995] 1 S.C.R. 254]." (emphasis added)

[52] There is, however, no "standard" or "permissible" delay. It is not the law, for example, that any delay of 15 minutes or less is permissible no matter what the reason for the delay. (Quansah at para. 15) Interpreting "forthwith" with some flexibility should only be done in "unusual circumstances", as the Supreme Court has said. (Quansah at para. 32)

[53] There are many examples in the caselaw where the Crown has failed to establish that the demand has been made "forthwith":

• a lapse of 6 unexplained minutes between the demonstration of how to use the ASD and the test (R. v. Jensen, [2012] O.J. No. 5237);
• a delay of 5 minutes in which the officer made notes (R. v. John, [2012] O.J. No. 3567);
• a delay of 6 minutes while the officer checked to make sure that his partner was having no difficulty dealing with the passengers in the stopped vehicle, when there was no basis to think that there would be any problem (R. v. Kerr, [2010] O.J. No. 2222);
• a delay of 16 minutes between the reasonable suspicion and the demand because the officer "took his time and was thorough, looked inside the car and did not rush" (R. v. Vasylyev, [2009] O.J. No. 6244).

[54] Paragraph 254(2)(a) allows the officer to require that the person detained accompany him or her for the purpose of the test, but only if that is "necessary".

[55] The "physical coordination tests prescribed by regulation" are set out in the Evaluation of Impaired Operation (Drugs and Alcohol) Regulations, SOR/2008-196, s. 2. They require administration of 3 tests, described in the regulation as the "standard field sobriety tests":

(a) the horizontal gaze nystagmus test, (b) the walk-and-turn test, and (c) the one-leg stand test.

[56] The purpose of these tests, which must be carried out "forthwith", is to provide the officer with further information to allow him or her to determine whether he or she has reasonable grounds to believe that the person detained has, within the previous three hours, committed the offence of impaired driving. If, as a result of the field tests, the officer forms those reasonable grounds, he or she may require the person detained to submit to an evaluation by a qualified officer to determine whether the person's ability to operate a motor vehicle is impaired by a drug or a combination of alcohol and a drug. (s. 254(3.1)).

[57] That evaluation is much more extensive than the field tests. As is set out in the same regulation, they require:

(a) a preliminary examination, which consists of measuring the pulse and determining that the pupils are the same size and that the eyes track an object equally;

(b) eye examinations, which consist of (i) the horizontal gaze nystagmus test, (ii) the vertical gaze nystagmus test, and (iii) the lack-of-convergence test;

(c) divided-attention tests, which consist of (i) the Romberg balance test, (ii) the walk-and-turn test referred to in paragraph 2(b), (iii) the one-leg stand test referred to in paragraph 2(c), and (iv) the finger-to-nose test, which includes the test subject tilting the head back and touching the tip of their index finger to the tip of their nose in a specified manner while keeping their eyes closed;

(d) an examination, which consists of measuring the blood pressure, temperature and pulse;

(e) an examination of pupil sizes under light levels of ambient light, near total darkness and direct light and an examination of the nasal and oral cavities;

(f) an examination, which consists of checking the muscle tone and pulse; and

(g) a visual examination of the arms, neck and, if exposed, the legs for evidence of injection sites.

[58] Sub-section 254(3.1) allows the officer to require that the person detained accompany him or her for the purpose of these more extensive tests. Unlike the provisions of paragraph 254(2)(a), an officer can require that the person accompany him even if it is not "necessary". Furthermore, the more extensive tests do not have to be carried out "forthwith", only "as soon as is practicable".

[59] The legislative scheme thus creates a two-step procedure. The first step is a summary test to be performed "forthwith", allowing removal of the person detained from the scene only if "necessary", and is justifiable only on reasonable suspicion. The second step allows more extensive testing, requiring longer detention and removal from the scene at the discretion of the officer, and is justifiable only if the officer has reasonable grounds to believe an offence has been committed.

[60] During the first step, the detained person's rights under sections 8, 9, 10(a) and 10(b) are violated. That violation is permitted only because of the requirement that the test be demanded and performed immediately. (Woods, at paragraphs 14 and 15)

[61] The requirement of immediacy as a condition of constitutional validity of the provision is an appropriate consideration when determining whether the police acted reasonably promptly after detaining Mr. Malik.

[62] There are two periods of delay with which defence counsel takes issue – the five minutes between when Cst. Degan formed a reasonable suspicion that Mr. Malik had marijuana in his body and when he demanded that he undergo the field tests, and the six minutes that it took to put Mr. Malik in his cruiser, drive to the community policing center, and get him to the upstairs office.

[63] I accept that it was reasonable for Cst. Degan to speak to Cst. Simpson about how to administer the tests. It was necessary that he find a qualified officer and decide on a plan.

[64] I do not accept, however, that it was necessary that the tests be conducted in the community policing centre. Cst. Simpson said that she proposed doing so because of safety concerns and to facilitate the gathering of evidence because she could see better in the lighted office which had a level floor with a marked straight line.

[65] The evidence was that traffic was light. It is often dark when drivers are stopped by officers who suspect them to be impaired.

[66] If Parliament wanted to allow such tests to be administered elsewhere than on the roadside (as the regulation says, in the "field") it could have done so by not using the word "necessary" and thereby expressly mimicking the language of s. 254(3.1). It chose not to do so, consistent with the statutory scheme (necessitated by constitutional concerns) of an immediate, summary screening test, with more intrusive demands only required if justified by reasonable grounds to believe a crime has been committed.

[67] I have no doubt that if the community policing center had not been across the street, the tests would have been performed on the roadside. It may have been more convenient for the officers to conduct the tests at the community policing center, and the evidence gathering process may have been easier there. It may also have produced a more accurate result. But it was not necessary. The constitutional requirement is that the test be demanded and administered immediately, not as soon as it can be done in a convenient manner.

[68] In my view, if the decision had not been made to have the tests conducted at the community policing center, the officers would have been in a position to do so at least 8 minutes earlier than they were. If the field tests had been administered in the community policing centre, they would not have been "forthwith". Even though they were, in all likelihood, motivated by convenience and comfort – both theirs and the accused's – they failed to act in accordance with the constitutional requirement that the individual be detained without benefit of advice from counsel for as short a period of time as possible. As a result, they failed to act reasonably.

(ii) Time Between Arrest at 12:30 a.m. and Reading Right to Counsel at 12:40 a.m.

[69] I conclude that the 7 minutes between placing Mr. Malik in the cruiser and Cst. Degan reading his right to counsel have not been adequately explained. Cst. Degan may have been asking Cst. Simpson to look after the Honda and the passengers, but I am not satisfied of that. Cst. Degan could only testify that he "would have" done that. He also testified that he could not recall what, if anything, he had to do. Furthermore, it was not necessary. He had two other officers to look after those things, as he admitted. And Cst. Simpson did look after them.

[70] The police were not acting with reasonable promptness during this period of time.

(iii) Time Between End of Cautions at 12:43 and Leaving for Station at 12:48

[71] Nor am I satisfied that the 5 minute delay between the end of the cautions at 12:43 a.m. and the time Cst. Degan left for the station have been adequately explained. He was ready to go. He had no explanation for why he did not do so.

[72] The police were not acting with reasonable promptness during this time.

(iv) Time Between Arrival at Station at 12:58 a.m. and Speaking to Counsel at 1:14 a.m.

[73] Nor is there an adequate explanation for this 16 minute period. Obviously it took a few minutes, at least, to fill out the booking sheet, lodge Cst. Degan's firearm, parade Mr. Malik before the sergeant, have him searched, and contact counsel. But I have been given no evidence about how long it actually took, or what else the police were doing during this period of time. The Crown has not proven that the police were acting with reasonable promptness during this time.

(e) Conclusion with Respect to As Soon as Practicable

[74] As Maranger J. held in McDonald:

The testimony at trial showed that for two [in Mr. Malik's case three] specific periods of time there is a complete absence of any detail as to what the officer was doing, and why he was doing it. While there need not be a minute by minute accounting of the officer's time, whether an officer was acting reasonably in the context of whether tests were taken "as soon as practicable" must nonetheless have an evidentiary foundation.

[75] In all of the circumstances, I conclude that the Crown has not established that the breath tests were taken as soon as practicable. As a result, it cannot rely on the presumption in s. 258(1)(c) that the blood alcohol level at the time of the tests is the same as it was at the time of driving.

[76] I would have come to this conclusion even if I had been satisfied that the police acted with reasonable promptness between the time Mr. Malik was stopped and the time Cst. Degan gave him the ASD demand at 12:25 a.m.

[77] There being no evidence of the blood alcohol level of the defendant at the time of driving, the charge of operating a motor vehicle with more than 80 mg of alcohol in 100 ml of blood is dismissed.

[78] It is not necessary for me to consider the Charter application to exclude the evidence of the breath tests. I thank counsel for their very helpful submissions.

August 17, 2017

Signed: Justice P. K. Doody