ONTARIO COURT OF JUSTICE
CITATION: R. v. Afari-Boateng, 2017 ONCJ 738
DATE: 2017 10 27
COURT FILE No.: Brampton 3111 998 16 8720
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
DICKSON AFARI-BOATENG
Before Justice G.P. Renwick
Heard on 18, 19 October 2017
Reasons for Judgment released on 27 October 2017
R. Morrow............................................................................................. counsel for the Crown
P. Mota................................................ counsel for the defendant Dickson Afari-Boateng
RENWICK J.:
INTRODUCTION
[1] Mr. Afari-Boateng is charged with operating a motor vehicle with an excess blood alcohol concentration (“BAC”) arising from a traffic stop on 9 July 2016.
[2] At the start of the trial, the defendant brought an application to exclude the results of the analysis of his breath samples on the basis of violations of his s. 8, 9, and 10(b) rights under the Charter of Rights and Freedoms (the “Charter”).[1] It is alleged that Constable Koufis did not demand a sample of the defendant’s breath for analysis by an approved screening device (“ASD”) “forthwith” upon the arousal of a reasonable suspicion that the defendant was operating his motor vehicle with alcohol in his body. Additionally, the defendant challenges the results of the analysis of his breath samples on the basis that the quantity and pattern of alcohol consumption moments before being stopped by police undermine the presumption that his BAC at the time of driving was the same as it was at the time of his breath sample testing more than one hour later.
[3] The parties agreed that the evidence could be taken together on the Charter application and the trial proper. The prosecutor relies upon the Certificate of a Qualified Technician, containing the results of the defendant’s breath testing, and the viva voce evidence of the investigating officer to defend the Charter application and to prove the offence beyond a reasonable doubt. The defendant testified in support of the Charter application and to advance his ‘last-drink’ defence. During the trial proper, the defendant also called Mr. Collins Sarfo to help corroborate his evidence of the quantity and pattern of the defendant’s alcohol consumption. Lastly, the defendant called Dr. Joel Mayer, who was qualified on consent as an expert in forensic toxicology, to provide an opinion of the defendant’s BAC at the time of driving.
[4] I have carefully considered all of the evidence and submissions in this case. I have spent much time thinking about these issues and reviewing the evidence in preparation to decide the issues raised in this matter. Except as may be necessary to understand these reasons, I do not propose to recite all of the evidence taken nor the submissions made during the course of the Charter application and trial.
THE CHARTER APPLICATION
[5] The basis for the application is the allegation that the investigating officer had or ought to have had the requisite reasonable suspicion of drinking and driving upon stopping the defendant’s motor vehicle and making some preliminary observations. Given that the roadside breath sample demand was not made for 12 minutes after observing an unusual lane change, the demand was not made “forthwith” as required by s. 254(2)(a) of the Criminal Code (the “Code”)[2] and consequently, the warrantless seizure of the defendant’s roadside breath sample was unconstitutional, it prolonged the defendant’s detention in an arbitrary manner, and it deprived him of the opportunity to immediately exercise his s. 10(b) rights to counsel.
[6] To decide this application, I have determined the facts as set out below. I pause to note that most of the facts were not contested by the defendant. He differed from the officer in three areas (how many lanes his vehicle crossed, the position of his windows at different times, and where he was located for the ASD test), but in terms of the timing of the events, the defendant was not aware of any of the times when things occurred. The officer, on the other hand, used both his wristwatch and the clock in his police car, and subject to his own correction of one of the times he wrote down for his self-test of the ASD, I accept the times he provided as accurate.
[7] The investigating officer observed the defendant make a sudden and erratic lane change across three northbound lanes of Airport Road in Brampton at 12:08 a.m. on 9 July 2016, ahead of his police vehicle. The officer engaged his emergency lights and after driving a short distance, the defendant stopped his sport utility vehicle on a side street. The officer called his dispatcher to advise of his traffic stop, the license plate of the vehicle, and his location, which took less than one minute. The officer approached the SUV and observed that both front windows were opened. He advised the defendant that he had seen an abrupt lane change and he was checking the defendant’s sobriety. The officer asked the defendant for his driver’s license and vehicle documentation. While speaking with the defendant the officer did not detect any odour of alcohol, although he testified that he observed the defendant to have red, watery eyes and he detected a slight slur in the defendant’s speech when he was told by the defendant that he had come from a dinner with co-workers. The investigating officer accepted the defendant’s denial of alcohol consumption, but he noticed that the defendant’s movements were slow and delayed. The officer testified, and I accept, that without any smell of alcohol he did not suspect that the defendant may be committing a drink-driving offence.
[8] After a couple of minutes dealing with the defendant, the officer went to his police car to run computer checks to verify the license status of the defendant. The officer initially testified that this took about 5 minutes, but in cross-examination he admitted that it may have only taken three minutes. When he returned to the defendant’s motor vehicle the front windows were now closed. The defendant opened the driver’s window to receive his documents from the officer, and the officer immediately detected the odour of alcohol coming from the defendant’s breath. At this point, the officer formed a reasonable suspicion that there was alcohol in the defendant’s body and without delay he made the demand for an ASD test at 12:20 a.m.
[9] The defendant says that the officer ought to have had a reasonable suspicion of alcohol in the defendant’s body at the time he stopped the vehicle, some 11-12 minutes earlier, and because he delayed the ASD demand, he inappropriately delayed the defendant’s right to counsel[3] and he did not comply with the statutory regime for the warrantless seizure of the defendant’s breath. I do not accept that the officer ought to have had a reasonable suspicion of alcohol in the defendant’s body within one or two minutes of stopping the defendant’s vehicle as suggested by the defendant. I accept that the officer was cautious before coming to any suspicions, he acknowledged that there may be innocent explanations for the indicia he observed, and without an admission of alcohol consumption or an odour of alcohol coming from the defendant, the officer had no reason to suspect prior alcohol consumption simply on the basis of the driving or the behaviour he observed, given the time of night.
[10] Among the parties, there is no dispute on the law. The onus is upon the applicant to establish that his Charter rights have been violated on a balance of probabilities. The “forthwith” requirement not only requires immediate compliance with an ASD demand, but because there is a delay in providing a motorist with their rights to counsel, the police must make the ASD demand promptly upon the formation of their reasonable suspicion.
[11] In Regina v. Quansah, the Ontario Court of Appeal provided guidance to understand the requirements of “forthwith:”
45 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.
46 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.
47 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 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).
48 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.
49 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.[4] [Underlining is mine.]
[12] After only approximately 18 months as a police officer, Constable Koufis was relatively inexperienced on the night he stopped the defendant’s motor vehicle. He seemed to take more time to accomplish tasks than one might expect. For instance, if the defendant was stopped at approximately 12:08 a.m., and after advising dispatch (approximately 12:09 a.m.), speaking with the defendant for a couple of minutes (approximately 12:11 a.m.), making computerized driver’s license inquiries (from 3-5 minutes or approximately 12:14-12:16 a.m.), and returning to the defendant’s vehicle to conclude the traffic stop (approximately 12:15-12:17 a.m.), there is an unexplained delay of between three and five minutes on the constable’s own evidence upon the detection of the smell of alcohol on the defendant’s breath and before the officer made the ASD demand at 12:20 a.m. On this basis, and without any explanation for the unexplained delay of 3-5 minutes before making the ASD demand, I conclude that the investigating officer did not act “promptly” as required by the statutory regime.
[13] In addition to the lack of haste in making the ASD demand, there were several other notable delays in the arrest and process leading up to the demand for breath testing by an approved instrument:
-the defendant registered a “fail” on the ASD at 12:23 a.m., but he was not arrested until 12:26 a.m. (an unexplained delay of three minutes);
-the defendant was patted down and then he was not given his rights to counsel until 12:33 a.m. (an unexplained delay of 7 minutes);
-the caution to the defendant was given and then the breath demand was not made until 12:39 a.m. (an unexplained delay of 6 minutes);
-although the assisting officer was on scene by 12:35 a.m., the arresting officer did not leave the scene to head back to the station for the breath testing until 12:50 a.m. (an unexplained delay of 15 minutes); and
-once the defendant arrived at the police station (12:56 a.m.), there is an unexplained delay of 9 minutes before the arresting officer attempted to contact duty counsel at 1:05 a.m.
All of the delays in this routine traffic stop leading up to the ASD demand and the subsequent ASD testing and arrest of the defendant clearly establish that the officer took inordinate delays in conducting this investigation. Each of these delays impacted upon the defendant in a concrete way: the detention of the defendant became arbitrary and the defendant’s s. 10(b) Charter rights to counsel were impermissibly infringed.
[14] Although I do not find that the officer intended to violate the defendant’s Charter rights, and I found Constable Koufis to be conscientious and professional in the performance of his duties that night, in all of the circumstances I find that the police did not comply with the statutory regime for the seizure of the defendant’s breath samples and I would exclude the Certificate of Analysis and acquit the defendant on this basis.
LAST DRINK DEFENCE
[15] Even if I had decided that the Charter application should fail, I would nonetheless acquit the defendant on the merits of his defence.
[16] The defendant testified about a quantity and pattern of consumption of alcohol on the night in question. The defendant’s girlfriend’s son, Mr. Collins Sarfo, corroborated the defendant’s evidence in many respects. The toxicologist testified that the BAC of the defendant at the time of testing by the approved instrument supported the quantities and pattern of alcohol consumption of the defendant’s evidence. The toxicologist testified in chief and cross-examination consistently with respect to his ultimate conclusion: the defendant’s BAC at the time of driving would have been approximately 80 milligrams of alcohol in 100 millilitres of blood, or slightly higher or slightly lower.
[17] As with any witness’ evidence, I can accept some, none, or all of what a witness says. In approaching defence evidence I must also bear in mind that even if I reject the defendant’s evidence entirely, I cannot convict the defendant unless I am satisfied of his guilt beyond a reasonable doubt on the basis of all of the evidence I do accept.[5]
[18] In this case, I am not prepared to reject the defendant’s evidence entirely for the following reasons:
i. The defendant testified consistently and he was not shaken in cross-examination;
ii. The defendant testified in a balanced manner and he admitted things that did not assist his defence: he did not know the times when he was stopped and investigated; he admitted drinking a large amount of alcohol; he admitted lying to the police about drinking alcohol and where he had been coming from; and he admitted having discussed this matter and the evidence with Mr. Sarfo;[6]
iii. Mr. Sarfo’s evidence was believable; he did not have as much detail as the defendant in terms of the defendant’s consumption of alcohol, but I would not have expected him to recall those details; and
iv. Most importantly, the toxicologist opined that the defendant’s total consumption of alcohol as established by the evidence was “in agreement” with the intoxilizer results.
[19] The toxicologist was given several hypothetical situations depending on the possible variances in the defendant’s wine consumption (either 2/3 or ¾ of a 750 mL bottle of red wine – 13% alcohol by volume) and two shots of either 1 or 2 ounces of whiskey (40% by volume) and he was asked to estimate the defendant’s BAC at the time of testing and driving.
[20] The toxicologist spoke about the caution that must be used when calculating the defendant’s BAC in this case because it is generally accepted in his field that alcohol does not make its way into one’s systemic circulation for 10-15 minutes post consumption. As a result, maximum absorption of alcohol is not reached until 30-60 minutes, or possibly 90 minutes post-consumption, depending upon the amount of alcohol consumed, whether or not the alcohol was consumed along with a large meal, and one’s level of health.
[21] The defendant testified that he took the whiskey shots just minutes before midnight and the evidence established that he was stopped at approximately 12:08 a.m. It is possible that the shots of whiskey had not yet entered the defendant’s circulatory system, or had just begun to enter the defendant’s blood at the time he was stopped and consequently, the total load of alcohol, less elimination at the time of driving was estimated at either 10-50 mgs of alcohol in 100 mL of his blood or 25-65 mgs of alcohol in 100 mL of blood, depending on how much of the bottle of wine the defendant actually consumed.
[22] On all of the evidence, I am left with a reasonable doubt that Mr. Afari-Boateng operated his motor vehicle on 9 July 2016 with an impermissible blood alcohol concentration, and accordingly, I find the defendant not guilty of this charge.
Released: 27 October 2017
Justice G. Paul Renwick
[1] Part I of the Constitution Act, 1982, enacted as Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
[2] R.S.C. 1985, c. C-46, as amended.
[3] The delay in making the ASD demand was also suggested by the defendant to have given an unanticipated advantage to the police by permitting the last consumed alcoholic beverage more time to be absorbed into the defendant’s blood. This ancillary investigative advantage became critical during the trial in terms of the defendant’s theoretical BAC at the time of the ASD testing and eventual approved instrument analysis.
[4] 2012 ONCA 123, [2012] O.J. No. 779 at paras. 45-49.
[5] R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] S.C.J. No. 26.
[6] I note that the officer did not testify that he had asked the defendant about his alcohol consumption, but the defendant admitted he was asked this by the officer and he had lied in response.