Court Information

Ontario Court of Justice

Date: 2017-10-31

Court File No.: Durham Region 998 16 25206

Parties

Between:

Her Majesty the Queen

— and —

Zachary Knight

Judicial Officer and Counsel

Before: Justice J. De Filippis

Heard on: September 6, 2017

Reasons for Judgment released on: October 31, 2017

Counsel:

• Ms. S. Graydon — counsel for the Crown
• Mr. R. Greenway — counsel for the defendant

Judgment

De Filippis, J.:

Facts and Initial Observations

[1] The defendant was charged with having care or control of a motor vehicle with a blood alcohol level that exceeded the legal limit ("over 80"). He asserted that the breath test results were obtained in a manner that violated his rights as guaranteed by sections 8, 10(a) and 10(b) of the Charter. My evidence summary deals with these issues and reflects the fact that, while the admissibility of the evidence is in issue, its quality is not.

The Traffic Stop and Initial Observations

[2] At 10:22 PM, on the day in question, P.C. Pallister was travelling southbound on Townline Rd in the Municipality of Clarington. There were three motor vehicles in front of him. When this traffic approached Adelaide Street, the first two cars turned left, after which the one directly in front of the officer accelerated beyond the speed limit and made a quick right hand turn at the next street. At 10:26 pm, the officer caused that motor vehicle to stop and approached the driver side on foot. The driver, the defendant, had his license, ownership, and insurance documents in hand and there were passengers in the car. P.C. Pallister informed him he had been stopped for speeding. He testified that in further conversation, he detected a slight odour of alcohol from the defendant's breath and that he had red eyes. When asked, the defendant denied having consumed alcohol and one of the passengers added that they had just left a bar in Whitby. The officer did not believe the defendant and was of the opinion that he had operated a motor vehicle with alcohol in his system. It was now 10:28 PM.

Delay in Obtaining the Approved Screening Device

[3] As the officer did not have an approved screening device (ASD) with him, he returned to his cruiser and radioed a request that one be brought to the scene. At this time, he also conducted a background check on the defendant. This activity took about one minute. During this time, P.C. Pallister was advised that another officer would bring an ASD from the nearby station. P.C. Pallister knew that it would take four to five minutes to drive from that station to his location. He waited. Two minutes later, at 10:30 PM, he learned that, in fact, there was no ASD at the station and that a second officer, who was four kilometers away would bring one. Given that distance, P.C. Pallister believed the device would be delivered within a minute or two. When nobody arrived after four minutes, P.C. Pallister learned that the officer with the ASD had been suddenly called to investigate another incident and that a third officer was now on his way with the ASD. That officer, P.C. Boone, arrived with the device at 10:37 PM.

Administration of the Approved Screening Device

[4] On receipt of the ASD, P.C. Pallister walked to the defendant's vehicle and instructed the latter to walk with him back to the cruiser. Once inside, at 10:39 PM, the officer activated the device and while waiting for it to "go into ready mode", he informed the defendant of the standard roadside demand for breath samples. When asked if he understood, the defendant said "yup". Having assured himself that the device was in proper working order and after giving appropriate instructions on how to provide a breath sample, the defendant registered a "fail". On this basis the defendant was arrested for the present offence and subjected to a breath demand.

Arrest and Breath Demand

[5] Before leaving the scene and being transported to the nearest police station, the defendant was advised of his right to counsel. When he responded, "I don't have one", he was reminded he could access "a free lawyer at legal aid". The defendant responded "no". The defendant was subjected to the normal booking process at the station and P.C Pallister provided his grounds for arrest to P.C. Collard, a qualified intoxilyzer technician. He said the defendant had been stopped for speeding and arrested for this offence because of an odour of alcohol, red eyes, and a fail on the ASD test. After the defendant complied with the breath demand, he was served with the Certificate setting out these results: two truncated readings of 150 and 160.

Officer's Testimony Regarding Delay and Right to Counsel

[6] P.C. Pallister testified that from the time he reasonably suspected the defendant to have operated a motor vehicle with alcohol in his system (10:28 PM) until the arrival of the ASD (10:37 PM), he did not speak to the defendant about the reason for the delay or advise him of his right to counsel. During this time, the defendant remained in his motor vehicle as the officer attempted to obtain an ASD. In explanation for his actions, he testified that he never thought the total delay would be nine minutes as on each of the three occasions that he arranged for delivery of the device, he thought it would arrive imminently. As such, on each occasion, he did not believe the defendant had time to consult with counsel.

Credibility Issues and Conflicting Evidence

[7] P.C. Pallister's notes record that he detected the odour of alcohol on first speaking with the defendant. In testimony he particularized that the odour was from the defendant's breath. He was challenged about this lack of detail in the notes, given that there were other passengers in the vehicle. He was also confronted with the fact that the intoxilyzer technician noted that the defendant's eyes were normal. In response, the officer testified that he simply failed to note the detail about the source of the odour and could not comment on what P.C. Collard had or had not observed about the eyes.

[8] P.C. Boone testified that after arriving on scene with the ASD, he noticed that the defendant had glossy red eyes and dilated pupils. He did not detect the odour of alcohol from his breath but added that he was suffering from allergies at the time.

[9] P.C. Collard, the intoxilyzer technician, testified that he could smell a moderate odour of alcohol on the defendant's breath but that his eyes were normal.

Defence Position and Initial Analysis

[10] The Defence position is that the evidence of the breath test results should be excluded because P.C. Pallister did not have the requisite grounds to make the ASD demand and, in waiting for the devise to arrive, failed advise the defendant why he was detained and of his right to counsel. I reject these submissions. In this regard, I note that although the officer was challenged about his grounds for making the ASD demand, there are no credibility or reliability issues with respect to the explanation for his actions about the delay.

Legal Framework: Reasonable Grounds for ASD Demand

[11] An officer may make a demand under s. 254(2) of the Criminal Code if s/he suspects on reasonable grounds that a person has alcohol in his/her body and has been operating a motor vehicle within the previous three hours. This reasonable suspicion does not rise to the level of probability and the suspected fact need not be the only possible one to be inferred from the information relied upon. See: R. v. Chehil, 2013 SCC 49. The context must be considered as a whole to determine whether the officer's subjective suspicion was objectively reasonable. In this regard, it is not necessary that the officer smell alcohol on the person's breath. See: R. v. Mac, [2008] O.J. No. 1334 (C.J.).

Application of Reasonable Grounds Standard

[12] The information available to P.C. Pallister supports the reasonable possibility that the defendant had alcohol in his system while operating a motor vehicle: The officer saw that he had been speeding and made a sudden turn. He detected the odour of alcohol and observed that the defendant had red eyes. He learned from one of the passengers that the group had just left a bar. The officer's notes record these factors and I am not troubled that he did not particularize that the odour of alcohol was "from the breath" of the defendant. It is of some relevance that another officer also noticed this. In the result, the ASD demand is lawful.

The "Forthwith" Requirement and Delay Analysis

[13] The police right to make an ASD demand under section s. 254(2) of the Code is linked to the requirement that it be made forthwith. The Court of Appeal for Ontario discussed this issue in R. v. Quansah, 2012 ONCA 123. The court stated that a demand must be made "promptly" once an officer forms suspicion that a motorist has alcohol in his/her system. Any delay in between the formation of the suspicion and the making of the demand must be "reasonably necessary" to allow the officer to discharge his/her duty under s. 254(2). The court stated the following (at paragraph 48):

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.

Application to the Nine-Minute Delay

[14] In this case, the delay between the formation of grounds and making of the demand is nine minutes (and a further five minutes to complete the breath test). However, this period of delay was not foreseeable; indeed, it occurred in three segments, in which, at each occasion, P.C Pallister reasonably believed the arrival of the device was imminent. The failure of others to arrive then required further action on his part to find a device. In these circumstances, the demand was made forthwith and there is no breach of section 8. These circumstances also persuade me that there was no breach of the defendant's rights pursuant to section 10(a) and (b).

Section 10(a) — Right to be Informed of Reasons for Detention

[15] Section 10(a) of the Charter requires that a person detained or arrested be promptly informed of the reasons. In determining if there has been compliance with this right, the question is not so much what the police said but what the person understood. That question is answered with reference to all the circumstances. See: R. v. Kumarasamy, 2011 ONSC 1385. In this case, I am confident the defendant understood why he had been detained for those nine minutes. He was told he had been stopped for speeding and asked if he had been drinking. Although he denied it, one of his passengers reported that they had just left a bar. Moreover, police interest in drinking and driving offences is a notorious fact in our society.

Section 10(b) — Right to Counsel During Roadside Investigation

[16] The Supreme Court of Canada has considered the constitutionality of roadside investigation techniques such as questioning and sobriety tests and held that denial of the right to counsel during the roadside investigation of a suspected impaired driver is a reasonable limit of the s. 10(b) right. This reasonable limit applies not only during a roadside screening test, but also during the roadside investigation that precedes an ASD demand. Likewise, the reasonable limit applies during the investigation that precedes a breath demand. See: R. v. Orbanski; R. v. Elias, 2005 SCC 37.

Realistic Opportunity to Consult Counsel

[17] Where there is a realistic opportunity to consult counsel before the administration of the roadside test because of delay in securing a device there is no justification for delaying the right to counsel. If the accused has the time and the facilities are available to permit consultation then there is no reason why constitutional rights associated with detention cannot be enjoyed. The failure to give the right to counsel in such a case is therefore a violation of section 10(b). See: Quansah, supra, and R. v. George.

Application to the Present Case

[18] It follows that if an officer is justified in believing that the ASD will arrive in a very short time while s/he undertakes necessary tasks, there is no duty to advise of the right to counsel. As I have explained, this is the situation P.C. Pallister found himself in. There was no reasonable opportunity for the defendant to seek and receive advice from counsel at each of the three segments during the nine-minute delay. In addition, although more relevant to a section 24(2) analysis, I point out that when advised of his right to counsel, after arrest, the defendant declined the opportunity.

Verdict

[19] There is no dispute that the evidence is sufficient to prove all elements of the offence. Having concluded that the Charter challenges to the admissibility of that evidence must fail, I find the defendant guilty.

Released: October 31, 2017

Signed: Justice J. De Filippis