Court Information

Ontario Court of Justice

Date: 2017-08-08

Central East Region: Oshawa

Court File: 15-A33935

Parties

Between:

Her Majesty the Queen

— and —

Daniel Mahon

Before the Court

Justice: Peter C. West

Heard: August 8, 2017

Oral Reasons for Judgment Released: August 8, 2017

Counsel

For the Crown: I. Skelton

For the Defendant Daniel Mahon: B. Scott

Decision

WEST J.:

Charge and Background

[1] On July 3, 2015, Daniel Mahon was charged by Durham Regional Police with the offence of over 80, having the care or control of a motor vehicle, contrary to s. 253(b) of the Criminal Code.

[2] The defence brought a Charter application alleging the investigating officer did not have reasonable suspicion to make an ASD demand pursuant to s. 254(2) of the Criminal Code. Consequently, the result of the ASD could not provide the officer with reasonable and probable grounds to make a breath demand pursuant to s. 254(3) that Mr. Mahon provide a breath sample into an approved instrument. Second, the defence argued there was a delay of 13 minutes after the s. 254(3) breath demand while the officer waited for a contract tow truck to attend the address where Mr. Mahon's car was parked in the driveway to impound the vehicle. It was agreed by both counsel the Charter application could proceed by way of a blended hearing.

[3] Mr. Mahon pled not guilty and the Crown called the investigating officer, P.C. Adam Handscomb.

Factual Background

[4] At 2:28 a.m. on July 3, 2015, P.C. Handscomb, a DRP officer for 8 years, together with his partner P.C. Schutt, was operating a marked police cruiser westbound on Taunton Road in Oshawa when he observed a dark coloured pickup truck make a left turn onto northbound Ritson Road and then proceed at a high rate of speed. P.C. Handscomb turned onto northbound Ritson intending to stop this pickup truck for speeding and also for a sobriety check pursuant to the Ontario HTA. The pickup continued at a high rate of speed, put on its left indicator and turned westbound onto Woodmount. The police cruiser was about 200 feet behind the pickup truck and when P.C. Handscomb turned onto Westmount he could no longer see the pickup truck.

[5] P.C. Handscomb decided to check the area for the truck and turned onto Eatonwood Drive. He observed what he believed to be the same dark coloured pickup truck reversing onto the bottom of a residential driveway. He saw the truck to be turned off and a male person exited the driver's door. At 2:30 a.m., P.C. Handscomb requested the driver sit back in his truck, which request the driver complied with.

[6] P.C. Handscomb asked why the driver had been travelling so fast. The driver asked where the officer had seen him and the officer told him on Ritson Road. The driver replied he was just trying to get home. P.C. Handscomb observed the driver's speech to be slightly slurred and to have a flushed face. While he was speaking to the driver he detected an odour of alcohol coming from the driver's mouth. He asked the driver for his driver's license, which was provided. The officer confirmed the driver was Daniel Mahon from the photo ID.

[7] P.C. Handscomb asked how much alcohol Mr. Mahon had consumed that evening. Mr. Mahon advised he had not consumed any alcohol. The officer told him he could smell alcohol coming from him but Mr. Mahon told the officer he had friends in his car earlier who had been drinking and that was probably the alcohol he was smelling.

[8] P.C. Handscomb testified he did not believe Mr. Mahon as he could detect the odour of alcohol coming directly from Mr. Mahon's breath when he was speaking. P.C. Handscomb was standing directly in front of Mr. Mahon, in the open driver's door with only two feet between them.

[9] At 2:32 a.m., P.C. Handscomb read Mr. Mahon the ASD demand from the rear of his police notebook. Mr. Mahon said he understood. The ASD was a Draeger Alcotest 6810 and was calibrated on June 28, 2015 by P.C. Johnson. After turning on the ASD, the device indicated "Ready," which meant it was ready to receive a sample of breath. P.C. Handscomb believed the ASD was working properly. P.C. Handscomb explained what Mr. Mahon needed to do and at 2:33 a.m. Mr. Mahon provided a suitable breath sample, which resulted in a "Fail." A "Fail" means the reading is higher than 100 mg of alcohol in 100 ml of blood.

[10] As a result of the "Fail," at 2:34 a.m., P.C. Handscomb told Mr. Mahon he was under arrest for having care or control of a motor vehicle with a blood/alcohol concentration over 80. He handcuffed Mr. Mahon to the rear and did a cursory pat-down search. He found the keys to the pickup truck in Mr. Mahon's right front pocket and seized them. He also detected the odour of an alcoholic beverage on Mr. Mahon's person.

[11] He read the right to counsel at 2:35 a.m.; the caution at 2:36 a.m. and the breath demand pursuant to s. 254(3) at 2:37 a.m. Mr. Scott did not raise any issues with the wording of what P.C. Handscomb read to Mr. Mahon. Mr. Mahon advised he did not wish to speak to a lawyer and P.C. Handscomb told him if he changed his mind when they got to the police station to just let him know. P.C. Handscomb then requested a contract tow truck to attend to impound Mr. Mahon's pickup truck. When Mr. Mahon was advised his vehicle would be impounded for 7 days he became angry. No other police officer attended their location to take over the keys of Mr. Mahon's pickup truck and wait for the contract tow. As a result P.C. Handscomb testified he waited for the tow truck to arrive and take control of Mr. Mahon's vehicle.

[12] At 2:50 a.m., P.C. Handscomb left the scene and transported Mr. Mahon to 17 Division in Oshawa, arriving by the most direct route at 2:58 a.m. In cross-examination P.C. Handscomb agreed he did not have the reason he waited for the tow truck noted in his notebook; however, it was his usual practice to call for backup to handle the towing of a detainee's vehicle. Knowing he remained on scene until the tow truck arrived caused him to believe there were no other police units available to take control of the vehicle until the tow truck arrived.

[13] Once at the police station, Sgt. Lafontaine was dealing with the release or transport of another prisoner and as a result Mr. Mahon had to wait in the sally port in the police cruiser until the sergeant was free. P.C. Handscomb spoke to P.C. Rogers, the qualified breath technician, at 3:14 a.m. and provided his grounds for Mr. Mahon's arrest.

[14] After providing his grounds Mr. Mahon was paraded before the booking sergeant. At 3:23 a.m., Mr. Mahon was turned over to the qualified breath technician, P.C. Rogers. The first breath sample was provided at 3:26:28, with a result of 130 mg of alcohol in 100 ml of blood. The second sample was provided at 3:48:42, with a result of 120 mg of alcohol in 100 ml of blood. P.C. Handscomb was provided the Certificate of the Qualified Breath Technician with copies by P.C. Rogers, which he compared and found to be identical and he served one of the copies on Mr. Mahon, which Mr. Mahon signed. The Certificate was filed as Exhibit 1 pursuant to s. 258(1)(g) of the Criminal Code.

Analysis

[15] During submissions Mr. Scott conceded that P.C. Handscomb on the evidence had a reasonable suspicion Mr. Mahon had alcohol in his body. The odour of alcohol alone would be sufficient to provide the officer with a reasonable suspicion.

[16] In R. v. Lindsay, [1999] O.J. No. 870, at para. 2, the Ontario Court of Appeal held the smell of alcohol on the respondent's breath by the officer was sufficient to amount to reasonable suspicion justifying an ASD demand (see also R. v. Carson, 2009 ONCA 157, [2009] O.J. No. 660).

[17] Further, Mr. Scott conceded the "Fail" result on the ASD, which the officer believed was working properly, provided the necessary reasonable and probable grounds to P.C. Handscomb to arrest Mr. Mahon with care or control of a motor vehicle when his blood/alcohol concentration was greater than 80 mg of alcohol in 100 ml of blood. P.C. Handscomb testified the ASD he used registered a "Fail" when the blood/alcohol concentration was greater than 100 mg of alcohol in 100 ml of blood.

[18] As a result, Mr. Scott abandoned this aspect of his s. 8 Charter application; however, he submitted the delay of 13 minutes after the breath demand pursuant to s. 254(3) was read, when P.C. Handscomb delayed driving to 17 Division as he waited for a tow truck to arrive to impound Mr. Mahon's vehicle, meant the breath samples were not taken as soon as practicable.

[19] Section 254(3) of the Criminal Code reads as follows:

(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person

(a) to provide, as soon as practicable,

(i) samples of breath,…

[20] This provision requires that a police officer make a timely demand for samples of the breath of a person who is believed to have committed either the offence of impaired driving or that of operating a motor vehicle with more than the permissible amount of alcohol in his or her blood.

[21] Section 254(3)(a) requires that the person provide these samples "as soon as practicable".

[22] Mr. Scott asserted that the police failed to secure samples of the Mr. Mahon's breath in compliance with this statutory obligation and accordingly, the subsequent seizure of samples of his breath constitute an unreasonable search and seizure, contrary to section 8 of the Charter, rendering Mr. Mahon's detention for that purpose as arbitrary and in violation of section 9 of the Charter.

[23] Mr. Skelton for the Crown, submitted that the breath samples in issue were secured within "a reasonably prompt time" under consideration of all of the circumstances in issue in this case.

[24] A number of authorities were cited and reviewed by Mr. Scott and I have had an opportunity read all of the referenced authorities submitted on behalf of the defendant, all of which are from either the Ontario Court of Justice or other provincial courts, all courts of concurrent jurisdiction.

[25] Courts of superior jurisdiction direct that the as soon as practicable consideration must be applied with reason. The prosecution is not required to explain every time period between the stop and arrest of a defendant and the securing of the breath test as long as the tests are taken as soon as practicable on consideration of the circumstances of the investigation in issue. In determining whether the as soon as practicable issue has been met with compliance, the court is required to assess whether the conduct of the police was reasonable in all the circumstances; see R. v. Van Derveen (1988), 1988 ABCA 277, 44 C.C.C. (3d) 38, (Alta. C.A.); R. v. Vanderbruggan (2006), 206 C.C.C. (3d) 489 (Ont. C.A.); R. v. Carter (1981), 59 C.C.C. (3d), 450 (Sask. C.A.); R. v. Payne (1990), 56 C.C.C. (3d) 548 (Ont. C.A.).

[26] The governing authority in this province is R. v. Vanderbruggan, supra, at paras. 12 and 13, where Justice Rosenberg held:

12 That leaves the question that is at the heart of this appeal -- the meaning of as soon as practicable. Decisions of this and other courts indicate that the phrase means nothing more than that the tests were taken within a reasonably prompt time under the circumstances. See R. v. Phillips (1988), 42 C.C.C. (3d) 150 (Ont. C.A.) at 156; R. v. Ashby (1980), 57 C.C.C. (2d) 348 (Ont. C.A.) at 351; and R. v. Mudry, R. v. Coverly (1979), 1979 ABCA 286, 50 C.C.C. (2d) 518 (Alta. C.A.) at 522. There is no requirement that the tests be taken as soon as possible. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably. See R. v. Payne (1990), 56 C.C.C. (3d) 548 (Ont. C.A.) at 552; R. v. Carter (1981), 59 C.C.C. (2d) 450 (Sask. C.A.) at 453; R. v. Van Der Veen (1988), 1988 ABCA 277, 44 C.C.C. (3d) 38 (Alta. C.A.) at 47; R. v. Clarke, [1991] O.J. No. 3065 (C.A.); and R. v. Seed, [1998] O.J. No. 4362 (C.A.).

13 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. In particular, while the Crown is obligated to demonstrate that -- in all the circumstances -- the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody. See R. v. Letford (2000), 150 C.C.C. (3d) 225 (Ont. C.A.) at para. 20; R. v. Carter, supra; R. v. Cambrin (1982), 1 C.C.C. (3d) 59 (B.C.C.A.) at 61-3, and R. v. Seed at para. 7.

[27] The recent decision in R. v. Singh, 2014 ONCA 293, [2014] O.J. No. 1858 (C.A.), at paras. 12-16, upheld Justice Rosenberg's comments in Vanderbruggan.

[28] When considered within the context of "reasonableness", I conclude it was not unreasonable for P.C. Handscomb to wait for the contract tow company to arrive on scene to effect the impound of Mr. Mahon's pickup truck. The Ontario HTA mandates that a person's vehicle must be impounded for a period of 7 days where that person has been charged with impaired, over 80 or refuse breath sample. P.C. Handscomb had seized Mr. Mahon's truck keys from his pocket after he searched him and in my view he was now responsible for Mr. Mahon's vehicle.

[29] While some delay resulted as a consequence, while P.C. Handscomb waited for either a backup unit to assist, which did not occur, or until the tow truck arrived on scene, which occurred within 13 minutes after the breath demand was read, I conclude, on consideration of the totality of the circumstances, that that period of delay was insufficient to violate the soon as practicable requirement governing the lawful securing of samples of the defendant's breath for the purposes of analysis.

[30] A further consideration is that the first breath sample was provided less than an hour after Mr. Mahon was first observed by the police driving at a high rate of speed. In my view this demonstrates the breath samples were taken "as soon as practicable" or as indicated by the Court of Appeal, a "reasonably prompt time." Consequently, on the totality of the circumstances of this case the defence Charter application must fail and it is dismissed.

Released: August 8, 2017

Signed: Justice Peter C. West