Court Information

Ontario Court of Justice

Date: November 16, 2017

Court File No.: Toronto 16-15004315

Parties

Between:

Her Majesty the Queen

— AND —

Satish Balakrishnan

Judicial Officer and Counsel

Before: Justice Bhabha

Heard on: July 7th and September 8th, 2017

Reasons for Judgment released: November 16th, 2017

Counsel:

• E. Moore, counsel for the Crown
• C. Wagman, for the defendant Balakrishnan

Reasons for Judgment

Justice Bhabha:

[1] Overview

[1] At the conclusion of the trial on September 8th, 2017, the court provided brief oral reasons with written reasons to follow. These are my written reasons.

A. Overview of the Case

[2] In the early morning hours of June 3rd, 2016, the defendant was driving his car on the Don Valley Parkway. A police officer who became concerned about his driving stopped him to investigate.

[3] After the motor vehicle stop, the arresting officer made observations of the defendant who admitted to consuming alcohol hours before. The officer formed a suspicion that the defendant had alcohol in his body. A demand was made of him to provide a sample of his breath into an Approved Screening Device (an "ASD"). He complied. As a result of the investigation he was charged with a single count of driving with excess blood alcohol ("over 80 operation").

[4] As with most roadside investigations these days, much of the interaction between the defendant and the investigating officer was captured on the police in-car camera system, which records both audio and video once activated. In fact, in this instance, the camera was activated even before the stop was initiated.[1]

[5] The investigating officer did not have an Approved Screening Device (an "ASD") in his vehicle and requested that one be brought to the scene. The device arrived within nine (9) minutes and the officer who delivered it ultimately administered the ASD test.

[6] Based on the result, the defendant was subsequently asked to provide samples of his breath into an approved instrument. He was taken to Traffic Services ("TSV") where he complied with the demand after speaking to duty counsel. Based on the results of that test, he was charged with operating a motor vehicle with excess blood alcohol ("over 80 operation").

[7] The defendant brought a Charter application alleging breaches of his s. 10(a), 10(b), s. 8, and section 9 rights. He chose not to testify on the application or on the trial proper.

[8] Two of the main issues raised at this trial related to the timing of both breath tests. Firstly, whether the ASD demand was prompt and the test administered "forthwith", and secondly, whether the breath samples taken at TSV were taken "as soon as practicable". The defendant submitted that neither requirement was met. Counsel for the defendant submitted that the breaches resulted in Charter violations of the defendant's section 8, 9 and 10(b) rights. He sought to have the breath readings excluded under s. 24(2) of the Charter.

[9] The defence further submitted that if the first breath test survives Charter scrutiny, then the problems relating to the timeliness of the approved instrument breath-testing should result in a finding by the court that the tests were not administered "as soon as practicable". That would mean that the Crown would be deprived of the evidentiary shortcut permitted in the Code to prove that readings at the time of testing are presumed to be the same as at the time of driving.

[10] The defendant also raised other issues which included: whether the arresting officer used the correct test in formulating his suspicion that the defendant had alcohol in his body at the time of driving, and whether the defendant was advised of the reason for his arrest as required under s. 10(a) of the Charter.

B. The Chronology of the Events at the Roadside

[11] As noted above, the in-car camera captured what happened at the roadside. As such, there is no mystery as to what happened once the defendant was detained at the roadside. The central issues the defence raised were whether the two testing procedures (first at the roadside and secondly at the station) took longer than what is tolerable in the circumstances given the legal requirement that ASD test should be administered "forthwith", and that the approved instrument test should be administered "as soon as practicable".

[12] The investigating officer, Sergeant Sammut, testified that he saw the defendant driving on the Don Valley Parkway at approximately 2:12 AM. They were both travelling northbound. The officer saw the defendant drive at a high rate of speed, swerving back and forth within his lane, and changing lanes without signalling. He decided to follow the defendant's vehicle and to investigate. He activated his in-car camera at 2:13 AM and at 2:14 AM initiated the stop near the Eglinton Avenue exit ramp.

[13] When he spoke with the defendant, who was the sole occupant of the car, he could smell alcohol. As well, the defendant admitted to consuming one drink a few hours earlier, around 10 PM.

[14] The officer advised the defendant that he would read the formal demand shortly and asked Mr. Balakrishnan to turn off his vehicle. The defendant complied. This happened at 2:16 AM. The officer then requested that an ASD be brought to the scene. The radio call was at 2:17 AM. At 2:19 AM the formal demand was read. The defendant said he understood and would comply. The officer testified that he noticed the defendant glaring at him and became aware that the defendant had begun to record their interaction on his cellphone.

[15] When he was asked in cross-examination why he did not provide the defendant with the rights to counsel at that time knowing that the device was still being transported to the scene, Sergeant Sammut explained there was not a lot of time for that. He explained that it was only ten (10) minutes between the time of the request and the arrival of the device to the roadside. He explained that had it taken longer for the device to arrive, he would have read the rights to counsel to the defendant.

[16] At 2:26 AM, Sergeant Sinclair arrived on scene and advised that another officer was on his way with the device. Constable Prethun arrived with the ASD at 2:28 AM; nine minutes after the formal demand for a breath sample was made.

[17] Constable Prethun testified that Sergeant Sammut asked him to take over the investigation and that Sergeant Sammut stood by as Constable Prethun administered the roadside test. He did this after receiving information from Sergeant Sammut about his grounds for stopping the defendant and after confirming the defendant's identity.

[18] The defendant asked if he could record the investigation and he went to his car to get his cellphone which he then placed near the ASD device. There is no issue that the device, a Drager Alcotest 6810, is an Approved Screening Device, or that it had recently been calibrated.

[19] Officer Prethun is trained in administering the test and was not aware of any defects or problems with the test. He administered a self-test to satisfy himself that the device was in proper working order. He explained to the court that a "fail" result means the person's blood alcohol has more than 80 mg of alcohol in 100 ml of blood. An "alert" means the blood alcohol count is between 50 and 80. For readings below 50 mg of alcohol, the device provides a specific number of milligrams of alcohol per 100 millilitres of blood.

[20] The first sample the defendant provided was not sufficient to provide a reading. The second attempt was "a good blow" and at 2:34 AM a "fail" result was obtained.

[21] The defendant was arrested at 2:34 AM. Constable Prethun testified that he advised the defendant of the reason for his arrest and made the approved instrument demand. The defendant was confused as to what the "fail" result meant and why another test was necessary. Constable Prethun testified that he explained to the defendant what the second test was for.

[22] The defendant asked to redo the ASD test, but Officer Prethun, who is a Qualified Breath Technician, refused the request. He explained in his evidence that he "had grounds" to arrest the defendant for the offence of "over 80 operation" and that is what he did.

[23] At 2:35 AM, the defendant was given his rights to counsel. As well, at 2:36 AM the secondary caution was read to him. At 2:37 AM, Constable Prethun made the approved instrument demand. The defendant indicated that he did, in fact, wish to speak to a lawyer.

[24] The third officer on scene, Officer Sinclair, was tasked with impounding the defendant's car.

[25] Officer Sammut undertook to search the defendant's car. After some time, he found the defendant's wallet which he then took to Traffic Services to enter into the defendant's property bag.

[26] Sergeant Sammut recalled that the defendant and Officer Prethun left the scene to go to Traffic Services shortly after 2:40 AM. He himself left the scene at 2:49 AM.

[27] Constable Prethun confirmed that he placed the defendant in his police vehicle at 2:39 AM after searching the defendant. At 2:49 AM, he and the defendant left for Traffic Services in his vehicle. He testified that in the intervening ten (10) minutes he secured the defendant's property and input information into the in-car computer.

[28] On the evidence, the delay in departing the scene has been explained. However, the question for the court to determine was whether it was reasonable and whether it was necessary in the circumstances.

[29] The defence submission was that Officer Prethun should have departed the scene immediately and tasked the other officers with inputting the information into the police computer system.

[30] Constable Prethun explained that any arrestee's information must first be inputted into the computer before the arrestee can be booked at Traffic Services ("TSV") or at any police division. He also testified that if it is not done at the scene, then he would have to do it at the station in the sally port before entering the building.

[31] The type of information that needs to be inputted is the person's date of birth, time of arrest, name of officer who conducted the search of the defendant, et cetera. This is a data entry type of process. Constable Prethun also made an inquiry of Sergeant Sammut about the towing of the vehicle and was advised that a contract company would be contacted. Constable Prethun testified that there was no one else who could have input the information into the computer, and that as the arresting officer it made sense for him to do it. I accept this explanation as being a reasonable one, one that was the most efficient in the circumstances.

[32] Constable Prethun testified that there was no uncertainty about where the tests would be administered. He understood that he would be taking the defendant to TSV since that is where the closest breath technician was located.

[33] Officer Prethun travelled directly to TSV. He arrived at TSV at 3:04 AM. He was able to go directly into the sallyport, but had to wait about two minutes before he could enter TSV. TSV is located in the southwest part of the city, on Hanna Rd. The trip from the scene of the arrest to TSV took seventeen (17) minutes.

[34] The defendant was paraded at 3:08 AM. The booking process took until 3:18 AM, a period of ten minutes. A Level 2 search was also conducted within this timeframe.

[35] At 3:22 AM, Officer Prethun contacted duty counsel and the defendant was able to speak with counsel right away.

[36] The qualified breath technician, Police Constable Wrong, testified that he started preparing the instrument at 3:20 AM, which is when he was advised he would be administering a breath test. He testified that the instrument was ready by 3:28 AM.

[37] There is no direct evidence of exactly how long the consultation with duty counsel lasted. There is direct evidence from Constable Prethun that it started at or just after 3:22 AM, and there is circumstantial evidence that it concluded shortly before 3:34 AM, a period of twelve minutes, at most.

[38] The breath technician, Officer Wrong, testified that after the instrument was prepared to receive samples, he heard the door to the sound booth open, and from that he inferred that it was the defendant who had completed his consultation, and was ready to have the tests administered. He did not administer any other tests that morning.

[39] The evidence is that at 3:33 AM, the videotape shows that the technician, Police Constable Wrong, was in the breath room alone and that by 3:34 AM, the defendant was also in the breath room with the breath technician. This is when the first test started. The reading from this sample yielded a blood alcohol count of 162 mg of alcohol in 100 ml of blood.

[40] Officers Sammut and Prethun were both present in the breath room when the tests were administered. Prior to the second test, the defendant asked to use the washroom and the officers granted his request. This explains some of the delay between the tests. The second test was administered at 4:10 AM. This sample indicated a blood alcohol count of 147 mg in 100 ml of blood.

[41] The breath technician, Officer Wrong, testified that the two (2) readings were "in good agreement".

[42] Based on the results of the breath test, the defendant was charged with "Over 80 operation" at 4:15 AM. He was released from the station on a Promise to Appear (a "Form 10") at 7:00 AM.

C. Issues

1) Grounds for Arrest

[43] I will deal firstly with the grounds for arrest and secondly with the section 10(a) issues, both of which, in my view, can be disposed of summarily.

[44] In his evidence Officer Sammut did use an awkward turn of phrase when he stated that he formed the suspicion that the defendant was drinking while driving. It is clear from his evidence that he did not actually observe any actual drinking while driving, nor was this issue pursued in cross-examination.

[45] Given his interaction with the defendant, the response he got from the defendant about the consumption of an alcoholic beverage that evening and his own olfactory observations coming from the defendant while he spoke with him, I am satisfied that the officer did in fact have ample grounds to support a reasonable suspicion that the defendant had alcohol in his body at the time he was driving. I agree with the Crown that the officer's awkward evidence in this regard subsumes the test. There is no magical incantation necessary as held in R. v. Merrill, 2006 O.J. No. 1986, at para. 11. The suspicion, I find, was an objectively reasonable one.

2) Section 10(a)

[46] As for the defendant being informed of the reasons for his arrest, Constable Prethun testified that he advised the defendant that he was arrested for "over 80". The defendant was confused about why another breath test was necessary and the officer explained to him what the second test was for. I accept the officer's evidence as both credible and reliable on this point. There is no evidence to contradict the officer's evidence. The Charter application on this ground is unsupported and therefore denied.

[47] I will now turn to the issues raised by the defence related to the timing of the breath testing. I will firstly address the timing of the Approved Screening Device at the roadside, and secondly the timing of the approved instrument at Traffic Services.

3) Delay Relating to the ASD – the "Forthwith" Requirement

[48] Section 254(2)(b) of the Criminal Code of Canada ("the Code") provides that where a peace officer has reasonable grounds to make an approved screening demand, the officer "may, by demand, require the person to" //…// to provide forthwith a sample of breath …" (emphasis added)

[49] In R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205, the court held that an ASD breath sample is legally obtained where it is either provided forthwith, pursuant to a lawful demand under s. 254(2), or provided voluntarily. The court also held that "forthwith" connotes a prompt demand by the peace officer and an immediate response by the driver. Furthermore, the immediacy requirement in s. 254(2) must take into account all of the circumstances, such as whether a device is readily available or needs to be brought to the scene. See R. v. Quansah, 2012 ONCA 123 at 21-23, and 48-49.

[50] The officer who stopped the defendant did not in fact have a screening device with him. He called for one and one was brought to the scene. The vehicle stop was initiated at 2:14 AM, the radio call officer requesting that a device be brought to the scene was made at 2:17 AM and at 2:19 AM the formal ASD demand was read. The device arrived on scene at 2:28 AM, nine (9) minutes after it was requested. The first suitable sample was provided at 2:34 AM.

[51] When does the "forthwith window" begin? Common sense dictates that the calculation of the delay in this case began from when the demand was made until the arrival of the device, and not when the stop was initiated until the first suitable sample was received. Had the officer had a device with him, he would still have had to spend time getting the device ready, and conducting a self-test et cetera.

[52] This issue was squarely addressed in R. v. Gill, 2011 ONSC 4728, where Justice Durno noted at paragraph 45 that the appropriate calculation is between the time the demand is made and the arrival of the screening device. The "operational time" during which the device is prepared, its use explained or demonstrated, is constant whether the ASD is on hand or not. That time should not be part of the delay calculation when considering the "forthwith" issue.

[53] The ultimate purpose of the forthwith inquiry is to determine the permissible time during which a detainee's section 8, 9, and 10(b) Charter rights are justifiably suspended in order to facilitate the ASD test. When considering the forthwith requirement, the court must consider the entire contextual circumstances specific to the case. See R. v. Quansah, supra.

[54] Two specific inquiries the court often makes are: 1) whether an ASD was readily available, and if not, the relevant delay in waiting for one to arrive, and 2) whether there was a realistic opportunity to consult counsel while waiting for the ASD to arrive. The analysis is always case-specific.

[55] In the particular circumstance of this case the delay was nine (9) minutes from the time the demand was made until the arrival of the device. In R. v. Gill, 2011 ONSC 4728 at para 35, Justice Durno of the Superior Court reviewed a number of "forthwith" cases. He noted that where the delays were in a range of six (6) to eleven (11) minutes, the courts found that there was no realistic opportunity to consult counsel. See also R. v. Torsney, 2007 ONCA 67 at para. 13.

[56] Firstly, I find that the ASD demand was made promptly after the formation of the proper grounds, and, secondly, in light of the nine (9) minute delay in transporting the device to the scene, that the test was conducted "forthwith". Finally, I find that there was very little time to afford the defendant his rights to counsel in the nine (9) minute delay.

[57] The court can infer that the defendant did not have a number for private counsel since he ultimately consulted with duty counsel at Traffic Services. At the scene, he would have had to call the 1-800 number where an immediate response is not a given, especially in light of the time of night the incident occurred. We know that at 3:22 AM there was no wait for duty counsel; but in absence of any other evidence, the court cannot conclude that the defendant would have had immediate access to duty counsel more than an hour earlier at approximately 2:19 AM.

[58] In all of the circumstances, I conclude that there was no violation of the defendant's Charter rights arising from the nine (9) minute delay in administering the ASD test.

[59] The defence also raised as a related issue the officer's refusal to administer a second ASD test despite the defendant's request for one. The officer explained that the fail gave him the grounds to make the approved instrument demand.

[60] There is no inherent right for a defendant to have a second ASD test administered. The issue of a second test usually arises in the context of concerns about residual mouth alcohol. That is far different from a driver requesting or demanding a second test for his own satisfaction. It is also important to bear in mind that that result of the screening test is not the basis for charge, but rather the basis for the approved instrument demand. It is those results on which the charge is ultimately based. The first test is a screening mechanism, hence the name "approved screening device".

[61] I have not been provided with any cases that suggest that there is any obligation on an officer to administer a second ASD test simply because the defendant requests one. It is also mildly ironic that the defendant complains about the delay in administering both sets of tests, yet, had the officer complied with his request, both of the tests would have been delayed even further. This issue, I find, has no merit.

4) Delay with the Approved Instrument Testing – "As Soon As Practicable"

[62] This delay is concerned with the period of time from when the ASD result was obtained and the breath samples provided into the approved instrument. The defence submits that the second set of tests at the station were not administered "as soon as practicable" and as such were not in compliance with s. 258(1)(c)(ii) of the Code.

[63] It is trite to say that the test for determining if the approved instrument breath samples were provided is not "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. Vanderbruggen, [2006] O.J. No. 1138 at para. 12.

[64] In R. v. Vanderbruggen, supra, at para. 13, the Court of Appeal for Ontario explained that:

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…

[65] In any event, it is important to bear in mind that the requirements of s. 258(1)(c)(ii) relate to the presumption of identity. It provides an evidentiary shortcut for the crown, but does not impose an upper limit of two hours for the testing. The burden is on the Crown to establish that the samples were taken "as soon as practicable".

[66] There was a brief delay in making the approved instrument demand, however, I find that it was of no consequence since the officer had to complete various tasks before leaving for Traffic Services. Had the demand been read right away, the delay in arriving at TSV would be the same.

[67] The defence submitted that there may have been stations that were closer in proximity to where the defendant was stopped. That may be, but it is not only a police station that is required. There needs to be a qualified breath technician present as well, ready and able to administer the test. On the evidence heard, the only breath technicians or the closest ones on duty were at TSV. I found no merit to this complaint.

[68] Counsel for the defendant also raised the question of why an approved instrument could not have been brought to the scene, since Sergeant Prethun was himself a breath technician. However, on Officer Sammut's evidence, the closest approved instrument he knew of was the one was at Traffic Services. It would also have taken the same amount of time or more to bring the instrument to the scene since there are steps that need to be taken, including tests: calibration and self-tests conducted before any breath samples could be collected. There was evidence that this process could take as long as eight (8) minutes. I find that this was, at best, a very impractical option; and not one that would have resulted in the tests being administered any sooner than they were in fact administered.

[69] Finally, the defendant has complained about that portion of the overall delay that resulted after the defendant had consulted duty counsel. There was direct evidence of when the consultation began, but no direct evidence of when the process was completed. There is circumstantial evidence that it ended when the door to the consultation room was opened. In absence of any other evidence, it is not an unreasonable inference that this is when the call to duty counsel ended. I accept the evidence about when the call to duty counsel was made. The delay in completing the process has been explained: the officers were waiting for the consultation to end. Having presided over many such cases I have observed that some consultations are very brief, while others take longer. In the absence of any other evidence as to how long the process actually took, I cannot find that the time it took to conclude that the process was inordinately long or unreasonable.

[70] Having reviewed what the officers did after the ASD result was obtained, I find, that there is no particular period in this chronology which on its face seems inordinately long, or concerning. The over-all time period has been explained and I find that it is not unreasonable.

[71] In the result, I find that the requirements of s. 258 of the Code have been met. There is no merit to the argument that the breath samples were not administered as soon as practicable. The presumption of identity applies.

[72] In the result, I make a finding of guilt on the sole charge of driving "over 80".

Released: November 16th, 2017

Signed: Justice Bhabha

[1] See exhibit #1: DVD of roadside stop etc.