Court File and Parties

Ontario Court of Justice

Date: 2018-03-06

Court File No.: 16-07342

Between:

Her Majesty the Queen

— and —

Zanyar Raaneyi

Judgment

Evidence heard: February 20, 21, 2018

Delivered: March 6, 2018

Counsel:

• Mr. Philip Hsiung, counsel for the Crown
• Mr. David Gomes, counsel for the defendant

KENKEL J.:

Introduction

[1] Mr. Raaneyi was stopped for a mobile RIDE drinking and driving check. He failed two Approved Screening Device (ASD) tests and further testing on an Approved Instrument at the station showed two truncated readings of 140mgs. He was charged with driving with a blood alcohol concentration in excess of the legal limit (Over 80).

[2] At the conclusion of the evidence, only the Charter issues remain. The defence application poses five questions for decision:

• Did the officer have a reasonable suspicion for the ASD demand based on the odour of alcohol coming from the car where other persons were present inside?
• Was the informal demand a "demand" as required under s.254(2)?
• Although the officer recognized the need to wait 15 minutes and re-test the accused based on information the accused provided after the first ASD test, was the officer's wait a few minutes short such that the later AI demand was objectively unreasonable?
• Should the information component of s.10(b) be expanded to require an officer to provide information in all cases about the ways in which a request to call counsel might be implemented if the accused does not have a lawyer of choice? If the accused asks to speak to duty counsel, must the officer provide further options such as searching the internet to find a lawyer?
• Did the officer undermine solicitor-client privilege by referring to the accused's discussion with duty counsel ("the lawyer probably would have told you, you have to provide samples") while making the Approved Instrument demand?

[3] The defence submits the breaches alleged are serious and bring the administration of justice into disrepute. The breath test evidence should be excluded pursuant to s.24(2). The Crown submits that the accused's Charter rights were not breached and the Charter application should be dismissed.

ASD – Reasonable Suspicion

[4] Constable Skanes smelled an odour of alcohol coming from inside the vehicle where the driver and passengers were present. He also noted the driver had bloodshot eyes, which in his experience can indicate alcohol consumption. The defence submits that the officer should have removed the accused from the vehicle to confirm that the odour of alcohol was coming directly from him. Without taking the accused out, the officer could not be certain that the odour was coming from the driver. In those circumstances the defence submits that the ASD demand was illegal and a breach of the accused's s.8 Charter right to be free from unreasonable search or seizure. The Crown submits that the officer's suspicion was a reasonable one.

[5] In my view, the defence submission misstates the legal test. Section 254(2) requires only a reasonable suspicion. The officer is not required to investigate to the point where he eliminates any other possibility (beyond a reasonable doubt) nor is the officer required to investigate to the point where the evidence shows it's more likely than not that the accused has been drinking (balance of probabilities). See: R v Doyle 2017 ONSC 1826 at para 31, R v Chehil 2013 SCC 49 at para 34.

[6] If an officer pulled over a car at random late at night, did not smell alcohol or see any indicia of drinking but suspected the driver might have been drinking merely because he was out late at night, that suspicion would not be objectively reasonable. "A reasonable suspicion is one that has some objective facts to support it, as opposed to a purely subjective hunch" – R v Mason 2013 ONCJ 328 at para 8, R v Kang-Brown 2008 SCC 18 at para 165. Here the objective facts that supported the officer's suspicion were the odour of alcohol in the vehicle and the driver's bloodshot eyes. The odour of alcohol in the vehicle alone is sufficient to support a reasonable suspicion whether or not there are other passengers in the vehicle – R v Mason at para 12. The officer's suspicion was reasonable in this case.

ASD – No Formal Demand

[7] Constable Skanes did not read the ASD standard demand from his card as was his usual practice. He testified that his note to that effect made later at the station was incorrect. He did make an informal demand. He asked the accused driver whether he had been drinking that night. The accused denied drinking but said his passengers had been drinking. After smelling the odour of alcohol in the car and noting the accused had bloodshot eyes, he said to the driver "I'm going to give you a test just to make sure." The officer went to back to his car and then returned with the ASD. He discussed the ASD test further and the accused told him that he'd done a roadside test years before. The officer then demonstrated the procedure with a self-test. He directed the accused to provide a sample in the same manner and the accused complied.

[8] The defence submits that s.254(2) permits an ASD test to be taken by demand. The lack of a formal demand here rendered the test illegal. The informal demand was ambiguous and could have referred to any roadside sobriety test. The arrest, detention of the accused and subsequent testing at the station were all pursuant to an illegal initial search. The Crown submits that s.254(2) permits the officer to require a test "by demand" but the section does not prescribe a specific wording for that demand.

[9] The guiding principle with respect to s.254 demands has long been encapsulated by the phrase, "there are no magic words." A section 254(2) demand need not be in any particular form, provided it is made clear to the driver that he or she is required to provide a sample of breath forthwith. This can be accomplished through words or conduct – R v Torsney 2007 ONCA 67 at para 6 Leave Refused [2007] SCCA No 126, R v Neitsch 2007 ABCA 226.

[10] In this case the driver was advised he would be tested in the context of a conversation about drinking and driving. If there was any ambiguity about the nature of the test it was resolved moments later by the presentation of the screening device. The officer demonstrated the test procedure and then directed the accused to provide a sample. The accused understood and provided a suitable sample on the first attempt. The Crown has proved that through words and conduct the officer complied with s.254(2) including the demand requirement.

ASD – Failure to Wait 15 Minutes

[11] After he failed the ASD test, the accused advised the officer that he had used mouthwash "5 minutes ago". He made that statement at 1:24:56 as recorded on the in-car video. PC Skanes recognized that the accused's statement created a concern about mouth alcohol – if the mouthwash contained alcohol and if there was residual alcohol present in the accused's mouth at the time of the ASD test, it might have affected the result. The officer properly concluded he could not rely upon that test. He advised Mr. Raaneyi that there had to be a 15 minute gap between the time he used the mouthwash and the time of a test. Constable Skanes waited 10 minutes from the time the accused said he used mouthwash "5 minutes ago" then conducted a second test at 1:35:05 a.m. using a different ASD device. The result was a "Fail" showing the accused had a blood alcohol concentration of 100mgs or more.

[12] The defence submits that the officer should have waited "another minute or two" given a moving time estimate by the accused and the defence evidence showing the accused's stated time estimate may not have factually been correct. Relying on the second Fail result in those circumstances as grounds to arrest, detain and demand further tests at the station is a serious breach of Charter sections 8 and 9.

[13] Both parties agree the officer properly identified the need for a second test and properly identified the waiting time as 15 minutes. The fact that the accused confirmed the 5 minute estimate just over a minute later doesn't reasonably "move the timeline". The accused's testimony on the Charter voir dire that he used the mouthwash to attempt to hide the smell of alcohol on his breath when he saw the police lights come on to pull him over (1:21:38) may well be true, but the officer reasonably based his wait on the information provided by the accused at the time. There's no evidence of a s.8 breach.

Right to Counsel – Steering to Duty Counsel

[14] Mr. Raaneyi was arrested after he failed the second ASD test. While he was doing a pat down search of the accused the officer said, "Would you like to call a lawyer when you get to the police station?" The accused told the officer he didn't have a lawyer. PC Skanes said (at 1:36), "You don't have a lawyer, would you like a free lawyer, the Ontario government offers it?" The accused replied "Yes". Constable Skanes testified that later in the cruiser at 1:41 a.m. he provided formal right to counsel advice read from a card in standard terms including, "You have the right to retain and instruct counsel without delay, you have the right to telephone any lawyer you wish …" At the station right to counsel advice was reviewed at booking. Constable Skanes explained that Mr. Raaneyi was asked again if he wanted to call his own lawyer as it's a mandatory question during that process. Mr. Raaneyi called duty counsel and received legal advice at the station. In cross-examination PC Skanes testified that if the accused had asked to speak to a private lawyer he would have tried to accommodate that by allowing the accused to search the internet on his phone or via computer. If the accused asked to call a relative to obtain a lawyer's name or number Constable Scanes said he would have facilitated that as he's done in many cases.

[15] Mr. Raaneyi testified on the Charter voir dire that he called duty counsel because that was the only option he was offered. If he had been told he could call a lawyer other than duty counsel he would have asked the police to call his sister to obtain a lawyer for him. In cross-examination he agreed his requests at the time to call his mother or sister were only for the purpose he stated on the station video – to let them know he wouldn't be home right away so they wouldn't worry. He didn't want the police calling them. He was not asking to call them to contact a lawyer for him because he didn't think of it at the time. Mr. Raaneyi did not express any dissatisfaction with the legal advice received at the time nor did he mention any such issue in his voir dire testimony.

[16] The defence submits that the informational component of s.10(b) requires the officer to do three things:

• advise the detainee of the right to speak to a lawyer,
• advise the detainee of the availability of duty counsel and legal aid if charged,
• advise the detainee of the right to search for a private lawyer via internet or third party if they wish to obtain legal advice but don't have a lawyer and don't wish to speak to duty counsel.

[17] The defence submits that the officer in this case failed to advise the accused of the third option and steered the accused towards duty counsel. Although the accused was content to speak with duty counsel at the time, he would have made another choice if it had been offered. Steering the accused towards duty counsel in that fashion and not informing the accused of other options is a breach of s.10(b). The Crown submits that there is no breach. The officer provided the required s.10(b) advice. The accused's acceptance of duty counsel engaged only an implementation duty on the officer to facilitate that request.

[18] In R v Brydges, the Supreme Court set out the informational component of s.10(b). The majority held that an officer is required to advise a detainee of two things:

• the right to call a lawyer,
• the availability of duty counsel and the existence of legal aid plans.

[19] The informational duty imposed on the police is, "relatively straightforward" but there are, "specific, narrowly defined circumstances" where additional information may be required – R v Willier 2010 SCC 37 at para 31. The need for further information may be created by an accused's response to the right to counsel advice.

[20] If the person detained says that they do not understand the right to counsel advice the police must provide further information to facilitate understanding. If the detainee asks to call a specific lawyer but can't reach that person, before they abandon their request to speak with a lawyer altogether, the police are required to advise that person of their right to a reasonable opportunity and the police obligation to hold off their investigation until then (Prosper warning) – Willier at para 32. Even in that situation where a person cannot reach specific counsel, it does not interfere with the right to counsel of choice if the police remind the detainee of the immediate availability of duty counsel – Willier at para 43.

[21] Mr. Raaneyi was provided with right to counsel advice informally at the moment of arrest and in formal terms in the police car. Both times the officer provided the advice required by Brydges. I disagree with the defence that an officer is required to add further scenarios to the standard advice. What happens next after the standard advice is given depends upon the detainee's response. If the detainee asks to call a particular lawyer or search for a private lawyer, the police have a duty to implement that at the station.

[22] Mr. Raaneyi's testimony that he would have preferred to have the police call his sister at 2 a.m., wake her up, and have her search the internet for an available lawyer rather than speak to duty counsel seems unlikely, particularly where he expressed no concern about duty counsel at the time. In any event, the fact that he now thinks he may have done things differently does not retroactively create a Charter breach.

[23] Mr. Raaneyi chose duty counsel when it was offered. He did not ask about other options nor did he indicate any reluctance to speak to duty counsel. Given his response, PC Skanes was not required to discuss other options. He did not "steer" the accused to duty counsel, but provided the required advice and acted to implement the accused's request.

Right to Counsel – Undermining Privilege/Legal Advice

[24] During the test process, the breath technician made a demand for samples. During that demand, made in a conversational way, the officer included words to the effect that, "… your lawyer probably would have told you, you have to provide samples". The defence submits that this reference to legal advice was an attempt to invade solicitor-client privilege and undermine the accused's s.10(b) right.

[25] The breath technician explained that he referred to the lawyer because sometimes test subjects don't believe him that the tests are legally required and he thinks the reference to likely legal advice helps the subject understand the duty to comply with the demand. The breath technician's description of the conversation accords with the breath room video record. The conversation was relaxed and friendly. The officer did not attempt to elicit information about the accused's discussion with duty counsel nor did he attempt in any way to undermine that advice.

[26] I agree with the defence that the reference to legal advice was unnecessary, but there is no evidence the officer was trying to invade privilege or undermine the legal advice given.

Conclusion

[27] The Crown has proved the ASD test was based upon reasonable suspicion as required by s.254(2). The officer's words and conduct conveyed the demand required by that section and the accused complied. When the accused provided further information that caused a concern about mouth alcohol, the officer conducted a second test after waiting 15 minutes based on the time provided by the accused. The Crown has proved the officer had reasonable grounds for the Approved Instrument Demand.

[28] The defence has failed to prove the two s.10(b) breaches alleged on the balance of probabilities. The Charter application is dismissed. The Crown has otherwise proved the elements of the offence beyond a reasonable doubt.

Delivered: March 6, 2018

Justice Joseph F. Kenkel