Court Information
Ontario Court of Justice
Date: June 26, 2017
Court File No.: Central East
Parties
Between:
Her Majesty the Queen
— AND —
Deja David
Hearing Details
Heard: June 12, 2017
Oral Judgment: June 12, 2017
Reasons for Judgment Released: June 26, 2017
Counsel
H. Cook — Counsel for the Crown
D. Zbarsky — Counsel for the Defendant
Contents
I. Introduction
II. Facts
III. Charter Application
- A. Onus
- B. "Forthwith"
- C. Rights to Counsel
- Latour, George and the Question of Time
- Time
- Conclusion
IV. S.24(2) of the Charter
- A. Onus
- B. Introduction
- C. Training
- The Investigating Officer
- The Training Officer
- D. Seriousness of the Charter-infringing State Conduct
- E. Impact on Charter-protected Interests
- F. Society's Interest in an Adjudication of the Case
- G. Balancing
V. Disposition of the Trial
Judgment
Justice M.S. Felix
I. Introduction
[1] The applicant applied pursuant to ss. 8, 9, and 10(b) Charter of Rights and Freedoms [Charter] for the exclusion of breath samples obtained in aid of an allegation of "Over 80".
[2] The crux of the matter is that the investigating officer in this case made two errors: (1) he did not communicate the approved screening device [ASD] demand upon formation of his reasonable suspicion (i.e. there was a delay); and (2) he failed to provide rights to counsel after making the ASD demand while awaiting the delivery of the ASD by another officer.
[3] While countless criminal cases track these issues with varying results, on the record in this case, the applicant has proven a breach of the Charter on a balance of probabilities.
[4] Both of the errors in this case I find were due to deficient training of the investigating officer. What is so unusual in this case, as compared to many cases, is that the investigating officer's deficient approach was not corrected or addressed by a "coach officer" who was present and responsible for training the investigating officer.
[5] With respect to the R. v. George, [2004] O.J. No 3287 (C.A.) [George] issue in particular, on the record in this case, the fortuitous arrival of the ASD within a short timeframe did not cure the deficient approach.
[6] It is fundamentally this training issue that drives me to conclude that on a proper balancing of the considerations in s. 24(2) of the Charter, the long term repute of the criminal justice system is better served by the exclusion of the evidence.
[7] This conclusion requires further explanation.
II. Facts
[8] The defendant was operating her motor vehicle on Salem Road without lights on when she was stopped by two police officers because of the obvious safety concern.
[9] The investigating officer in this case was a new police officer. He was accompanied by a more senior "coach officer" or training officer who was responsible for training him that night.
[10] The training officer approached the applicant in her vehicle, interacted with her, and obtained relevant documents. He then involved the investigating officer for the explicit purpose of training and experience.
[11] The investigating officer came to the driver's side of the vehicle and joined the training officer. He independently detected an odour of alcohol coming from the defendant. He had a conversation with her wherein she admitted consumption of alcohol two hours prior. He then formed the requisite reasonable suspicion for an ASD demand.
[12] He did not communicate the demand at the time he formed his "reasonable suspicion". He delayed communicating the demand for approximately two minutes. He testified that he did not have an explanation for why he failed to make the demand "forthwith". During the two minute delay he recalled that he radioed police communications to request delivery of an approved screening device to the location of the traffic stop. He did not make note or recall anything else he did during this timeframe.
[13] Shortly thereafter he heard a radio transmission wherein another officer advised the dispatcher that an ASD would be delivered to the location of the traffic stop.
[14] The investigating officer did not receive information as to when the instrument would arrive. He did not ask how long it would take for the ASD to arrive or from where the ASD would be obtained and delivered. The investigating officer testified that he believed that based on their geographic location and the available police units the wait for the delivery of the ASD would be no longer than 15 to 20 minutes.
[15] While waiting for the arrival of the ASD the investigating officer did not provide rights to counsel to the applicant. The investigating officer testified that there was simply no explanation for this failure. He did not know why he failed to provide rights to counsel given his belief that the ASD could take as long as 15 to 20 minutes to arrive. It is clear from his testimony that he did not identify this as a significant issue at the time of his investigation.
[16] The investigating officer conceded that the applicant could have exercised her rights to counsel during the speculative 15–20 minute wait. It was an admitted fact that the defendant had a cellphone on her person. He was not aware of this fact on the night of the investigation.
[17] The investigating officer did not specifically note when the instrument arrived. The sequence of events at trial satisfies me that in fact, the ASD arrived approximately 5 minutes after the formation of his reasonable suspicion and approximately 3 minutes after the communication of the ASD demand to the defendant. The delay was somewhere in the approximate range of 3 to 5 minutes including time "operational time": R. v. Bernshaw, [1995] 1 S.C.R. 254 at para. 64 [Bernshaw].
[18] When the applicant arrived at the police station she was paraded before a supervising officer at the station who canvassed her wish to speak with counsel. She exercised access to duty counsel. Her conversation was 4 minutes long. It took 5 minutes for duty counsel to call back.
III. Charter Application
[19] The matter proceeded by way of blended application and trial. It was agreed that the defendant's testimony applied only to the application. Further, the defendant agreed that if the Charter application was dismissed there were no trial-related arguments (after abandoning one argument concerning the provision of samples directly into the Intoxilyzer).
[20] The defendant as the applicant asserted two related arguments.
[21] First of all, the demand was not captured by s. 254(2)(b) of the Criminal Code of Canada [Criminal Code] because it was not "forthwith".
[22] The second argument concerned the fact that while awaiting the arrival of the ASD the investigating officer failed to provide rights to counsel.
[23] The applicant argued that these deficiencies constituted a violation of ss. 8, 9, and 10(b) of the Charter.
A. Onus
[24] The applicant bore the onus on the s. 9 and 10(b) Charter arguments.
[25] With respect to the s. 8 Charter argument there was a warrantless seizure of the applicant's breath samples. The Crown respondent bore the onus on a balance of probabilities: R. v. Haas, 76 O.R. (3d) 737 (C.A.), at paras. 24–26, leave ref'd [2005] S.C.C.A. No. 423.
[26] The Crown did not meet the s. 8 onus in this case.
[27] The applicant established the s. 10(b) breach on a balance of probabilities. The related ss. 8 and 9 breaches were also established.
B. "Forthwith"
[28] Section 254(2) of the Criminal Code of Canada provides the statutory authority for an ASD demand.
[29] The following exchange during cross-examination makes it clear that the investigating officer did not make the demand forthwith.
Q. Is there some reason that once you formed the suspicion that Miss David had alcohol in her body that you did not make the demand at that time:
A. No I am not sure why I radioed prior to making the demand.
Q. Would you agree with me that proper procedure is that once you form reasonable suspicion that you must make demand forthwith?
A. Yes you are correct.
Q. But you did not do that.
A. No I did not.
[30] I adopt the following relevant context for considerations around the "forthwith" requirement that I recently set out in another case named R. v. Placidis, 2016 ONCJ 699 at paras. 9–17:
Introduction:
A litany of criminal cases have discussed the toll that drinking and driving takes on society.
The criminal law attempts to balance the rights of the individual against the legitimate public interest in the detection and prevention of this criminal activity.
The Criminal Code provides several investigative tools to assist police officers investigating drinking and driving offences.
Where a police officer communicates an ASD demand "forthwith" pursuant to s. 254(2) of the Criminal Code of Canada, there is a significant impact on the constitutional rights of the individual driver.
The driver is legally detained. The driver must comply with the demand or face criminal consequences.
The communicating police officer need not comply with s. 10(b) of the Charter because while s. 254(2) violates s. 10(b) of the Charter, it is a reasonable limit prescribed by law and justified under s. 1 of the Charter: See R. v. Thomsen (1988), 40 C.C.C. (3d) 411 (S.C.C.); R. v. Orbanski (2005), 2005 SCC 37, 196 C.C.C. (3d) 481 (S.C.C.). In addition, s. 254(2) legally authorizes police officers to engage in roadside testing for alcohol consumption in violation of ss. 8, 9, and 10 of the Charter: See R. v. Woods, 2005 SCC 42 para. 15 [Woods].
"Forthwith" and the Immediacy Requirement
The delicate balance between the detection and prevention of drinking and driving and the rights of the individual is preserved by the "immediacy requirement": See Woods, at para 1; R. v. Quansah, 2012 ONCA 123 at para. 26 [Quansah].
The immediate nature of both the demand and the required compliance means that in the ordinary course there should be minimal delay at the roadside. Where the ASD demand is made "forthwith" that is to say within the scope of the s. 254(2) statutory provision, the individual driver is legally expected to comply with the demand. Compliance with the 'immediacy requirement' furnishes no realistic opportunity to contact counsel. Further there is no ancillary breach of ss. 8 and 9 of the Charter in these circumstances: See Woods, paras. 29–36; See Quansah, paras. 17–22.
In Quansah, at paragraphs 45–49, the Ontario Court of Appeal explained the five considerations at play when the Court is analyzing the immediacy requirement:
In sum, I conclude that the immediacy requirement in s. 254(2) necessitates the courts to consider five things: First the analysis of the forthwith or immediacy requirement must always be done contextually. Courts must bear in mind Parliament's intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.
Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body. The immediacy requirement, therefore, commences at the stage of reasonable suspicion.
Third, "forthwith" connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible interpretation may be given. In the end, the time from the formation of the reasonable suspicion to the making of the demand to the detainee's response to the demand by refusing or providing a sample, must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2).
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.
Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee's s. 10(b) rights before requiring the sample. If so, the "forthwith" criterion is not met.
[31] I am not troubled by the fact that the training officer interacted with the applicant first and resultant delay associated with involving the investigating officer so that he might get experience.
[32] But the investigating officer was obliged to make the demand promptly or "forthwith" upon formation of his independent reasonable suspicion in furtherance of the immediacy requirement: R. v. Quansah, 2012 ONCA 123 at para. 46 [Quansah].
[33] Any sanctioned delay or flexibility must be premised on "unusual circumstances". These circumstances might include delay associated with ensuring operational accuracy of the instrument or issues around officer safety for example: R. v. Woods, 2005 SCC 42, [2005] S.C.J. No 42 at para. 43; Bernshaw, at para. 73; Quansah, at para. 48.
[34] There were no "unusual circumstances" or other justifiable basis articulated for the delay in this case. Requesting delivery of an ASD that you do not possess is not sufficient reason for delaying communication of the ASD demand. It is not ". . . delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty": Quansah, para. 48.
[35] The demand was not "forthwith" and as such was not a lawful demand per s. 254(2)(b) of the Criminal Code of Canada. There was a breach of s. 8 and s. 9 of the Charter.
C. Rights to Counsel
[36] During direct examination the investigating officer did not address why he failed to provide rights to counsel in any detail. During cross-examination the investigating officer said:
A. Based on where we were located and the available units at that time I don't know exactly how long it would take but I would not assume that it would take more than 15 or 20 minutes.
[37] The investigating officer acknowledged that given his belief about the time frame, the applicant would have had time to consult with counsel. He ended his testimony in this area with the following:
Q. Why didn't you give rights to counsel if you did not know when the machine was going to show up?
A. I don't know.
[38] The investigating officer believed that the timeframe for the arrival of the ASD might be in the range 15 to 20 minutes yet he failed to communicate rights to counsel to the applicant.
[39] If an officer believes that the delay will be short based on factors such as experience, the number of other officers on shift, proximity to a police station or any other articulated justifiable basis, there is no need to provide rights to counsel. Assuming the court sustains the reasonableness of the approach and the inferences drawn by the officer, this approach is justified because the officer has turned his or her mind to obligations under s. 10(a) and 10(b) and concluded that there is not sufficient time to permit consultations with counsel. In this case the investigating officer did not turn his mind to this issue.
[40] As it turns out, the wait for the ASD was more in the range of 3 to 5 minutes. Had the ASD demand been communicated properly the time frame would have been slightly longer.
[41] In many cases this admittedly short period of delay might be dispositive of the Charter complaint.
[42] Should the short time-frame dictate the analysis in this case?
1. Latour, George and the Question of Time
[43] In R. v. Latour, [1997] O.J. No 2445 (C.A.), Charron J.A. said that even fortuitous compliance was permitted:
- . . . If, as the events actually unfold, the peace officer is in a position to require the person to provide the sample before there is any realistic opportunity to consult counsel, the statutory requirements are met. The detained person has no cause for complaint as the events will have unfolded in accordance with the legislative scheme and within its constitutional boundaries. I see no sound policy reason for requiring that the statutory requirements be met by design rather than by chance. Compliance is compliance whether fortuitous or otherwise. [Emphasis added]
[44] Certainly, the actual events that transpired and the timeframe of delay is an important factor to consider as explained in George at paragraph 39:
- . . . Latour makes it clear that the actual time of arrival of the testing device is a relevant factor that must be taken into consideration…[J]ustice Charron stated in Latour that the actual time that elapses between the issuance of the demand and the taking of the sample is a factor that the court must consider in determining whether the officer was in a position to require that a breath sample be provided "forthwith". . . .
2. Time
[45] On the facts in this case I am satisfied on a balance of probabilities that the defendant would have had time to contact and consult with counsel: R. v. Torsney, 2007 ONCA 67, [2007] O.J. No. 355 (C.A.).
[46] The analysis is not singularly focused on an examination of the time-frame of the "forthwith window": (See Durno J. in R v. Gill, 2011 ONSC 4728 (S.C.) and the authorities cited in paragraph 36.). That there was only between 3 and 5 minutes of actual delay before the investigating officer was in the position to require compliance is a relevant factor, but not dispositive of the issue: George, para. 39.
[47] First of all, had the investigating officer promptly communicated the demand as he was obligated to do there would have been an additional two minutes available. Second of all, the applicant had a cellphone in her possession and was detained within her private vehicle at the scene. Third, I accept the applicant's evidence that had she been advised of her rights to counsel she would have exercised access. Fourth, she did not have a particular lawyer in mind at the roadside – she was content with duty counsel. Fifth, when she did consult with duty counsel at the police station the entire duration of that consultation was 4 minutes.
3. Conclusion
[48] In Quansah the Ontario Court of Appeal clarified that the opportunity to consult counsel is not the only factor to assess concerning the "forthwith" requirement: Quansah, paras. 33–42.
[49] I agree with Paciocco J. in R. v. Ruck, 2013 ONCJ 527 at paragraphs 40–41:
In my view this is not a purely objective assessment of the time that actually transpires, with the benefit of hindsight. It includes consideration of the circumstances known to the officer at the time. I say this because every Charter breach is predicated upon state action. Not surprisingly, the essence of the breach in R. v. George is the failure by the police to take reasonable steps to facilitate a detainee's right to counsel when doing so is feasible: R. v. George, para. 42. The only way to judge sensibly whether an officer has taken reasonable steps is to evaluate the officer's conduct objectively, given what the officer knew or should reasonably have known. Simply put, it is reasonable for an officer to take steps to facilitate a detainee's right to counsel when it is apparent there will be time to do so. It is not reasonable to expect an officer to do so where, objectively viewed, it appears as though the right to consult counsel cannot possibly be accommodated in the time available. The officer's reasonable belief about the expected delay is therefore, in my view, a central factor.
To hold otherwise would defeat the purpose behind the law. If breaches were measured solely based on the opportunity that proved to be available with the benefit of hindsight officers would be encouraged to accommodate contact with counsel in all cases, on the off-chance some unexpected delay in the arrival of the roadside unit might take place. Such an approach would bring about the mischief sought to be avoided in R. v. Thomsen, namely, exacerbating the loss of liberty roadside detentions entail, by delaying the test to accommodate consultation. [Emphasis added]
[50] At the time that the instrument was requested, the investigating officer subjectively believed that the delay would be between 15–20 minutes. Objectively speaking, possessed of this belief, it was incumbent upon him to communicate rights to counsel and facilitate access to counsel.
[51] In my view, the totality of these circumstances establish a breach of section 8, 9, and 10(b) on a balance of probabilities.
IV. S.24(2) of the Charter
A. Onus
[52] The applicant seeks exclusion of breath sample results obtained from her in violation of s. 8, 9, and 10(b) of the Charter pursuant to the analysis in R. v. Grant, 2009 SCC 32, [2009] S.C.J. No 32 [Grant].
[53] The applicant has established on a balance of probabilities a sufficient nexus between the breath samples and the Charter breaches. I am also satisfied that the applicant has established on a balance of probabilities that the admission of the evidence would bring the administration of justice into disrepute: R. v. Pino, 2016 ONCA 389.
B. Introduction
[54] The random carnage associated with drinking and driving offences provokes great public concern.
[55] Drinking and driving offences occupy a significant portion of time in the Ontario Court of Justice criminal courts. Every police officer is involved in the detection and prevention of these offences.
[56] The public are entitled to effective detection and prevention of these crimes, particularly because of the risk of bodily harm or death.
[57] Effective police investigations require officers to balance the tools provided by Parliament and the constitutional rights held by the public they are investigating.
[58] The constitutional rights of those detained for the purpose of drinking and driving investigations are justifiably infringed pursuant to s. 1 of the Charter: See R. v. Thomsen (1988), 40 C.C.C. (3d) 411 (S.C.C.); R. v. Orbanski (2005), 2005 SCC 37, 196 C.C.C. (3d) 481 (S.C.C.)
[59] The Criminal Code provides ample authority for police officers to investigate drinking and driving offences.
[60] In a society concerned about the rule of law, police officers must receive effective training.
C. Training
[61] I concede that Police Services Boards and Police Chiefs must be responsible with public funding. But it is also important that police officers receive training so that they may effectively perform their duties.
[62] While it is not within the four corners of the record before me, I cannot ignore the general knowledge I have as a trial judge in Durham Region. The Crown Attorney's Office is particularly conscientious and concerned with the training and education of police officers. Senior Crown Attorneys engage in such training with police officers even though it is not their primary responsibility, often on their own time.
[63] This is because the Crown Attorney's Office as an institution knows the importance of officer training and how training is integral to the proper prosecution of cases. The Crown Attorney has an interest, as does the criminal justice system, in litigating matters on their legal merits.
[64] The specific Crown Attorney prosecuting the instant case is entitled to expect that police officers will have received training in their responsibilities and duties.
[65] In this particular case, the prosecuting Crown Attorney could do little about the fact that this standard was not met.
1. The Investigating Officer
[66] Although I do not have detailed particulars, the investigating officer in this case was evidently a new addition to the police service.
[67] The whole purpose of his involvement in this matter was for him to receive experience and training from his training officer.
[68] I found the investigating officer to be pleasant, straightforward, and frank about his investigation. He did not attempt to excuse his conduct. He took responsibility for his investigation. He answered questions simply and directly. The truth of the matter is that the investigating officer was simply unaware of the two cited deficiencies in this case at the time of the investigation. He was forthright in his testimony – he had no explanation for his failure.
[69] He was entitled to proper training.
2. The Training Officer
[70] The investigating officer was being trained by his "coach officer" (the training officer).
[71] I have no evidence from the training officer in this case.
[72] While the onus on the s. 10(b) complaint rests with the applicant, given the evidence produced on the application, in my respectful view, an explanation from the training officer was important.
[73] Was the training officer himself aware of the twin issues in this trial? What did he think about the investigating officer failing to make the demand upon formation of reasonable suspicion? What did he think about the failure to provide rights to counsel given the subjective mindset of the investigating officer? Was he dismissive of these concerns? Ignorant? Perhaps he had a better handle on how long the delay would be for the delivery of the ASD? Did he reassure the investigating officer in this regard?
[74] There is simply no evidence on these issues.
[75] The training officer was present. There is no evidence of him being engaged in any other duties (for example addressing officer safety issues or public safety issues).
[76] The conclusion that I draw is that for some reason the training officer's presence had no impact on the performance of the investigating officer – his trainee. Given the errors in the approach by the investigating officer, I am entitled to wonder why and how this occurred. Given the training officer had the responsibility to train the investigating officer, I conclude that he must have been ignorant of the twin issues in this trial. Otherwise, why not intervene to assist the investigating officer and correct his approach? This would be consistent with the training rationale.
[77] This training issue separates this case from a multitude of similar cases in my view where the analysis might drive toward the admission of evidence because of the fortuitously short delay.
[78] Any inclination towards flexibility and context concerning a finding of good faith in relation to the investigating officer has been tainted by the overall circumstances.
[79] Both the investigating officer and his training officer were ignorant of the legal standard.
[80] This is a serious concern. If the training officer lacks the ability to train, then the investigating officer is likely to perpetuate that poor training with a serious impact on the prosecution of cases.
[81] Absent this training issue, I might be persuaded on a s. 24(2) argument that given the fortuitously short timeframe for the arrival of the ASD that the evidence should be admitted. Absent this training issue, I might be persuaded that the two minute delay in the communication of the demand is of little consequence.
[82] But the training issue is serious. The Court has a responsibility to distance itself from these circumstances.
D. Seriousness of the Charter-infringing State Conduct
[83] The conduct of the police officers in this case was not in keeping with clear legal standards.
[84] The investigating officer was unaware of his obligations.
[85] More concerning is the inaction on the part of the training officer.
[86] While the investigating officer did his best, ignorance of these standards is not "good faith".
[87] This systemic or institutional behaviour is at the serious end of the spectrum because it directly impacts the proper investigation of drinking and driving offences. This conduct tends to bring the administration of justice into disrepute.
E. Impact on Charter-protected Interests
[88] The investigating officer thought the delay would be 15 or 20 minutes. His subjective mindset is key in the analysis.
[89] The applicant should have been provided with an opportunity to speak to counsel. It likely would have been duty counsel in this case. The conduct of the police caused the applicant to believe there was no point in consulting with counsel and to simply go along with the police investigation.
[90] The investigating officer and the training officer infringed the rights of the applicant. They did not appear to understand that the suspension of her right to counsel was premised on the concept of immediacy.
[91] The impact on the Charter protected rights of the applicant was serious because the infringement of her rights was premised upon the poor training of the officers. The analysis of this factor favours exclusion.
F. Society's Interest in an Adjudication of the Case
[92] Society is keenly interested in the adjudication of drinking and driving offences on their merits.
[93] The evidence sought to be excluded in this case is highly reliable.
[94] This factor favours inclusion of the evidence.
G. Balancing
[95] The purpose of s. 24(2) is to maintain the good repute of the administration of justice including maintaining the rule of law and upholding Charter rights.
[96] The focus is on the long term confidence of the public in the justice system, not the immediate result in the instant case.
[97] This is not a case about a 3 to 5 minute delay in the arrival of an ASD. It is a case about the evident lack of training provided to a police officer and the perpetuation of a deficient approach to training.
An informed reasonable person would be concerned about the lack of training evident in this case.
[98] The purpose of this inquiry is not to punish the police officers in this case or the police as an institution. That is not the focus. The purpose is to express the Court's serious concern. The training issue is properly a systemic issue that should be addressed.
[99] An informed reasonable person might excuse (to some degree) the errors made by a new officer, but it is inexcusable that an officer responsible for training him did not appear to have the necessary knowledge either.
[100] Given the grave public concern about drinking and driving recognized and explained in dozens of court decisions over decades, these failures are concerning.
[101] With an eye on the long term repute of the criminal justice system, the Court must distance itself from the police conduct in this case.
[102] Balancing the three Grant factors the sound conclusion is exclusion: R. v. McGuffie, 2016 ONCA 365 at para. 63.
V. Disposition of the Trial
[103] The application is granted. The breath readings are excluded. The defendant is acquitted.
Released: June 26, 2017
Signed: Justice M.S. Felix