Court File and Parties
Ontario Court of Justice
Date: 2017-11-23
Court File No.: Newmarket 15-03687
Between:
Her Majesty the Queen
— and —
Nerjet Persaud
Before: Justice Joseph F. Kenkel
Judgment
Delivered November 23, 2017.
Counsel:
- Michael Ventola, for the Crown
- Ernst Ashurov, for the defendant
KENKEL J.:
Introduction
[1] Constable Prieur of the Ontario Provincial Police (OPP) was working at a RIDE program checkstop when he noticed something unusual – a car drove onto the off-ramp but then came to a stop about 5 car lengths away from the checkstop. He signalled to the driver to move forward but the driver did not comply. The officer walked towards the car and continued to signal to move forward but the car didn't move. Constable Prieur spoke with the driver Mr. Persaud. The odour of alcohol on the accused's breath led to an Approved Screening Device (ASD) test. The failure of that test led to an Approved Instrument (AI) demand and further testing at the station. The approved instrument tests showed the accused had a blood alcohol level almost triple the legal limit (210mgs – 240mgs at the time of operation) which led to the charge before the court – operating a vehicle with a blood alcohol level in excess of the legal limit (Over 80).
[2] The Crown has proved that the accused was driving as alleged and there is no evidence that would detract from the reliability of the approved instrument test results. The toxicologist's evidence relates those readings to the time of driving. The defence submits that the breath test evidence should be excluded to remedy five alleged Charter breaches:
Section 8 - The defence submits that the approved screening device demand was misworded and therefore unlawful so the roadside test conducted pursuant to that demand and the later approved instrument tests breached the accused's s.8 Charter rights.
Section 8 – There is inconsistent evidence as to the last accuracy check for the approved screening device and therefore the officer could not reasonably rely upon the fail result as grounds for the approved instrument demand.
Section 8 – The approved instrument tests were not taken "as soon as practicable" as required by s. 258(1)(c)(ii). The defence submits that the breach of that statutory condition not only deprives the Crown of the presumptions in that section but also breaches the accused's s.8 Charter rights as an illegal search.
Section 8 - The accused was provided with a blanket for privacy purposes in the cell but the defence submits that the police were obliged to instruct him in the use of that blanket in relation to toilet privacy and the failure to do so breached the accused's s.8 Charter rights.
Section 10(b) – The accused requested to speak to counsel of choice but could not remember his lawyer's full name or phone number. At his request the officer called his wife to obtain the name and number but she didn't have that information. The defence submits that the police offer to call duty counsel at that point breached the accused's s.10(b) right to speak to his counsel of choice.
[3] The defence submits that each of the alleged breaches is serious and that the breath test evidence must be excluded pursuant to s.24(2) of the Charter. The Crown submits that there is no Charter breach. The Crown is not relying upon the s.258(1)(c)(ii) presumption as they have tendered the evidence of a toxicologist to relate the readings to the time of driving. In the alternative, the breaches alleged were minor and applying the test in R v Grant 2009 SCC 32 they could not reasonably result in the exclusion of reliable breath test evidence.
Charter s.8 – Read the Wrong Demand
[4] The arresting officer had grounds to administer an approved screening device test. In examination-in-chief he testified that he, "read the ASD demand" from the OPP issued card in his notebook. The officer's evidence was that he administered a roadside test using a Draeger 6810 which is an approved screening device. When asked to read out the wording of the demand he read the approved instrument demand from the standard card. Later when the officer was asked about the wording of his AI demand, he said "I demand that you provide suitable samples of your breath ... I'm sorry I read the wrong one… I demand that you provide suitable samples of your breath into an approved instrument …."
[5] In his evidence at trial the officer read the approved instrument demand wording from the standard OPP card when describing his ASD demand. A few minutes later when he read the approved instrument demand he mentioned he'd made a mistake and he then read the proper wording of the AI demand. The defence submits that the approved instrument wording read prior to the ASD test was illegal as the officer had no grounds to make an approved instrument demand at that time. The resulting ASD test was therefore illegal and a serious breach of the accused's s.8 rights.
[6] I agree with the defence that the officer's testimony with respect to the ASD demand was inconsistent. He testified that he read an approved screening device demand from the standard OPP card. He had an approved screening device with him and it was already set up. He certainly had grounds for an ASD demand and that was the test he administered. The differences in the two demands are subtle and primarily involve the words "approved screening device" as opposed to "approved instrument." It appears that the discrepancy was not noticed by the Crown at trial as the officer was not asked to explain the reference to "approved instrument" in the "approved screening device" demand he read out. The officer apparently noticed the error shortly afterwards when reading the AI demand from the same standard card.
[7] It's not plain that the officer made the same mistake at the roadside and read the wrong demand from the card. The mix-up in wording at trial was an exception to the careful and detailed evidence he gave with respect to the other steps of this drinking and driving investigation. Given that he was making an approved screening device demand on reasonable suspicion and that he was doing so from a standard card, on the balance of probabilities I find it more likely that he read the proper ASD demand at the roadside than he by chance made the same mistake in wording.
[8] If he did read the wrong wording at the roadside, the defence submits that the resulting demand was illegal and everything that flowed from that demand should be excluded from evidence. The defence submits that R v Waisanen 2015 ONSC 5823 directs that strict compliance with the statute is required for a lawful demand. The Crown submits that unlike Waisanen this is not a s.258(1)(c) case as the Crown has tendered toxicology evidence. Where the presumption is not engaged, Waisanen does not apply – R v Jin 2017 ONCJ 499.
[9] In R v Ghebretatiyos [2000] OJ No 4982 (SCJ) at paras 19-20, Justice Hill observed that s.254 does not prescribe any particular wording for the demands authorized in that section. Courts take a "flexible yet functional approach, focusing on whether the vehicle driver understood he or she was required to give a sample of breath." As Justice Bhabha noted in Jin at paras 51-56, Waisanen was not a Charter case on this issue and the court did not consider the general validity of a misworded demand. Justice Campbell considered the narrow issue of whether the Crown had proved the technical requirements of s.258(1)(c) that would permit reliance on the presumptions in that section. It is in that context – relying upon a statutory short cut – that courts have required "strict compliance."
[10] In Jin the court found that a misworded demand was not fatal to the Crown's case where the Crown was not relying upon the s.258(1)(c) presumptions. In this case if the wrong demand was read at the roadside it's very unlikely the accused would have appreciated the slight difference in wording. It was plain to Mr. Persaud that the officer was demanding that he provide a breath sample into the device at hand which was an approved screening device. Mr. Persaud was not misled and he complied with the demand. The officer made the demand on reasonable suspicion and administered the test in a reasonable manner. Applying a functional and flexible approach to these facts shows the Crown has proved a lawful demand even if the demand wording referred to "instrument" instead of "screening device."
[11] If there were a s.8 breach in these circumstances it would be a very technical one with no impact at all on the accused or his s.8 rights. The officer had the necessary grounds and administered the test directly. Applying the test in R v Grant 2009 SCC 32, society's interest in the adjudication of the case on its merits would necessarily prevail. To exclude reliable breath test evidence in these circumstances would bring the administration into disrepute.
Section 8 – Evidence of ASD Accuracy Check?
[12] The arresting officer testified that the approved screening device used was calibrated within 6 months. He explained that the Alcotest would not function if it had not been calibrated within 182 days or 6 months which is the prescribed time. There was an accuracy check April 16, 2015 which he described in examination-in-chief as still current as of May 3rd, 2015. The officer conducted a self-test and he found that the device was working properly.
[13] In cross-examination eleven months after his testimony in-chief it was suggested to the officer that the last accuracy check for the approved screening device was within two weeks of the incident. The officer agreed. He added that the ASD would not have operated if the necessary accuracy check was not current. The officer's video discussion with the breath technician relaying grounds referred to calibration but did not refer to an accuracy check. The defence submits that the officer's evidence on this point was inconsistent and the officer's reliance upon the failure of the ASD test was therefore not objectively reasonable.
[14] The Crown is not required to prove that the ASD was calibrated or in fact in good working order, only that the officer had objectively reasonable grounds to believe it was in good working order – R v Topaltsis, [2006] OJ No 3181 (CA). Subsequent cases have emphasized that the Crown is not required to call evidence regarding calibration to establish reasonable grounds – R v Beharriell 2014 ONSC 1100, R v Huang 2014 ONSC 4785. Reference to accuracy checks is a more recent argument, but trial courts have generally held that the same principles apply – R v Prashad 2015 ONCJ 706, R v Lefebvre 2016 ONCJ 408, R v Pierce [2016] OJ No 6990 (CJ), R v Deslautels [2017] OJ No 2983 (CJ).
[15] The arresting officer's evidence as a whole indicated that he believed the ASD to be in working order. Central to that belief is his understanding that if the required checks and calibrations were not done per schedule the device would not conduct a test. The officer conducted a self-test that evening and found the device to be in working order. The officer reasonably relied on the results of that test and the fact that the ASD proceeded with the test as indicating that it was in proper working order. I can't find that the inconsistency in relation to the timing of accuracy checks reasonably detracts from his conclusion in that context. I find that the Crown has proved the approved instrument demand was made upon objectively reasonable grounds.
Section 8 – ASAP as a Charter Issue?
[16] The "as soon as practicable" (ASAP) requirement in s.258(1)(c)(ii) is not a Charter issue – R v Mawad 2016 ONSC 7589. To rely upon the presumptions in s.258 the Crown must prove compliance with the requirements of that section including proof that the samples were taken "as soon as practicable." Failure to prove that pre-condition means the Crown cannot rely upon the presumptions but it doesn't involve a breach of a constitutional right. The approved instrument "search" was reasonable and conducted on reasonable grounds. The Crown's loss of a statutory presumption could have no effect on the accused's privacy rights to be secure against unreasonable search and seizure.
[17] The accused was stopped at 1:35 a.m. A screening device demand was read at 1:37 a.m. A fail result was displayed at 1:44 a.m. after the fifth attempt. The accused was arrested at 1:45 a.m. Right to counsel advice, cautions and an approved instrument demand were read at 1:49 a.m. The officer left the scene at 2:00 a.m. and arrived at the Aurora OPP at 2:27 a.m. After booking the officer discussed counsel of choice with Mr. Persaud and called his wife twice. After speaking with Mr. Persaud's wife and then Mr. Persaud the officer called duty counsel at 2:42 a.m. Mr. Persaud's conversation with duty counsel ended at 2:57 a.m. Mr. Persaud was then delivered directly into the custody of the breath technician for testing which proceeded without delay. The defence submits that unexplained delay such as the 11 minutes at the roadside before the officer left to go to the station breach the "as soon as practicable" requirement. The defence has cited trial decisions that find a breach of the ASAP requirement for delays as short as 11 minutes.
[18] I agree with the Crown that the defence submission on this point is inconsistent with the instruction in R v Vanderbruggen, [2006] OJ No 1138 (CA). The s.258 "as soon as practicable" requirement means, "nothing more than that the tests were taken within a reasonably prompt time under the circumstances" – Vanderbruggen at para 12. The court specifically rejected the "as soon as possible" test argued here. "The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably" – Vanderbruggen at para 12. Applying that test to the evidence in this case it's plain that the officers acted reasonably throughout. The Crown has proved compliance with the "as soon as practicable" requirement and the other requirements of that section. If that finding is in error the test results remain admissible, the presumptions do not apply but the Crown toxicology evidence filed as Exhibit #3 relates the readings to the time of driving.
Charter s.10(b) – Counsel of Choice
[19] When advised of his right to speak with a lawyer at the roadside, Mr. Persaud told the arresting officer, "Yes I would like to call." At the station he told the officer he'd like to speak to a lawyer named "Saloman" as recorded in the officer's notes. The accused did not spell the name or indicate whether it was a first or last name but he told the officer his wife would have contact information. Mr. Persaud provided the officer with his wife's first and last name and her cellphone number. The officer immediately called Mr. Persaud's wife and reached her on the second call. She told PC Prieur that the lawyer's information was at their business shop and she was unable to go to there to get that information at that time (2:42 am). The officer then spoke with Mr. Persaud and advised him that his wife was not able to get the information. He offered to call duty counsel and the accused agreed. Mr. Persaud spoke with duty counsel and did not express any dissatisfaction with that call to the arresting officer. He was taken for breath testing and Mr. Persaud told the breath technician that he had spoken to a lawyer and was he was satisfied with that call.
[20] Mr. Persaud testified on the Charter voir dire. He said that he knew a lawyer Jeremy Solomon as a customer of his auto body shop. He kept Mr. Solomon's card at his business. When the arresting officer asked about his lawyer's name Mr. Persaud said he told the officer, "Mr. Soloman is my lawyer." He knew the spelling of the lawyer's last name but didn't spell it because he wasn't asked. He said he knew the lawyer's first name at the time but did not tell the officer, again because he wasn't specifically asked. When he was told that his wife could not get the lawyer's information Mr. Persaud recalled the officer offered to call duty counsel, "And I said yes." Later in examination-in-chief referring to that same time he said, "I tell them I wanted to speak to my own lawyer … think it was duty counsel or something I don't know exactly …. I said I would rather speak to my own lawyer." Mr. Persaud explained that he didn't feel he had a choice at that point because he didn't have a phone number for his lawyer and he didn't know any other lawyers so he said yes to duty counsel.
[21] Mr. Persaud testified that he was "not satisfied at all" with the conversation with duty counsel as he felt rushed. In examination-in-chief he was asked whether he told any police officer he wasn't satisfied and he said, "No." When his lawyer asked him why he didn't complain to an officer he said, "Because I wasn't satisfied." Mr. Persaud's responses on this point were confusing, but with further questions Mr. Persaud explained that he didn't think he would get another call and he decided to contact his lawyer after his release from the station. Mr. Persaud's testimony called into question the adequacy of the legal advice provided, but after a break for instructions defence counsel confirmed they were not alleging inadequate assistance of counsel.
[22] Mr. Persaud admitted in cross-examination he didn't recall when he provided his lawyer's last name to the arresting officer. "I can't remember exactly …. I'm not sure where I told them." He explained he could have told the officer the lawyer's first name but he did not do so because the officer did not specifically ask. In cross-examination Mr. Persaud said that when the officer offered to call duty counsel he told the officer he wanted to speak to his own lawyer. Later in cross-examination he gave a different answer – that he did not say to the officer he wanted to speak to his own lawyer, but that's what he was thinking. He agreed that the only thing he told the officer in response to the offer of duty counsel was "yes". He could not recall if the arresting officer asked him whether he was satisfied with the duty counsel advice. He did not remember whether the breath technician asked him about speaking with duty counsel. He did not recall telling the breath technician he was satisfied with the advice received but he agreed that it was possible he did.
[23] Both officers were sober and acting in a professional capacity. Their recollection was assisted by detailed notes made at the time of the events. The evidence of each officer was internally consistent. In the context of all of the evidence I find that both officers were credible and reliable witnesses.
[24] I approach Mr. Persaud's evidence with caution given his high blood alcohol level at the time of the events and his stated lack of memory on many points. Mr. Persaud's explanation for failing to provide his lawyer's full name to the officer was not credible. When asked his wife's name he provided full particulars, including her full name. If he had known the lawyer's full name it's not credible that he would choose to withhold the first name only because the officer didn't specifically ask. It's plain that Mr. Persaud provided the officer with the information he had – the lawyer's last name – and he hoped his wife would have further information.
[25] Mr. Persaud's evidence as to whether he was satisfied with the duty counsel conversation was internally contradictory. In both examination-in-chief and cross-examination he said he told the officer he wasn't satisfied with that call. Later in cross-examination he agreed that he had never said that to the officer. It was something he thought but what he said to the officer was "yes." The latter memory is consistent with the breath technician's credible evidence. I find Mr. Persaud's confusion on this central point and his stated lack of memory of other important details detracts from the reliability of all of his evidence.
[26] Mr. Persaud provided the arresting officer with the limited information he had and a possible way to obtain further information. The officer immediately acted on that information but was unable to obtain further particulars. The one name that Mr. Persaud had couldn't reasonably have led to further efforts to locate that lawyer and Mr. Persaud did not request any further search or suggest other counsel. He acted with diligence in choosing to speak with duty counsel. He told the breath technician he was satisfied with the call. There's no evidence of a s.10(b) breach.
Section 8 – Cell Toilet Privacy
[27] The cell video shows that just over a minute after he was placed in the cell, Mr. Persaud was given a blanket or gown for privacy. The officer was unsure which but both items as described would cover a sitting person to the floor. There was also a blanket on the bench. On the cell wall right by the toilet there was a large sign with an illustration of a camera pointing to a nearby camera and reminding the occupant that the area is being recorded.
[28] Mr. Persaud testified on the s.8 voir dire that he had been told there was video monitoring in his cell. He didn't remember whether the officer provided him with a privacy blanket although the officer's credible evidence on that point is confirmed by the cell video. He remembered seeing the video camera. He said he didn't see the large picture of a camera with a video warning on the wall right by the toilet as shown in the cell video. He was facing that sign when he urinated. If he saw the sign he said he didn't pay any attention to it. The cell video does not show his genitals and Mr. Persaud agreed that what's visible on the video is similar to what one might see using public urinals which he said doesn't bother him.
[29] The defence submits that there is no evidence the officer reviewed and instructed the accused in the use of the privacy blanket or gown in relation to toilet privacy. Without such instruction the accused could not have known how one might use the blanket or gown to ensure privacy. Further, the defence submitted that men stand up to urinate which would require particular instruction and perhaps further accommodation to ensure privacy. The defence submits that the circumstances in this case are similar to R v Mok 2014 ONSC 64 where a s.8 violation was found. The Crown submits that the provision of a blanket or gown is sufficient to ensure privacy for those who wish to do so.
[30] Mr. Persaud had little memory on this point. He chose to urinate without using the blanket provided despite the video warnings. I agree with the Crown that providing a blanket or gown as described in the evidence was reasonable and sufficient to ensure privacy if Mr. Persaud had any concern in that regard. I disagree with the defence that the police must review various toilet scenarios with persons detained. The use of a blanket or gown in that context is obvious regardless of gender. There is no evidence of a s.8 breach.
Conclusion
[31] I find that the Crown has proved the approved screening device test was conducted pursuant to lawful demand based on an objectively reasonable suspicion. I find the Crown has proved the approved instrument demand was based on objectively and subjectively reasonable grounds. The Crown has proved the breath tests were conducted, "as soon as practicable" and otherwise the toxicologist's evidence marked as Exhibit 3 relates the readings to the time of driving. The accused was given a means to have personal privacy in the cell but chose not to use it. The arresting officer made reasonable efforts to contact counsel of choice, but when that failed the accused reasonably opted to speak with duty counsel and later told the breath technician he was satisfied with that call. There's no evidence of a Charter breach.
[32] The Crown has otherwise proved each element of the offence alleged beyond a reasonable doubt. There will be a finding of guilt.
Delivered: November 23, 2017
Justice Joseph F. Kenkel