Court File and Parties

Ontario Court of Justice

Date: 2018-05-08

Court File No.: Lindsay 171684

Between:

Her Majesty the Queen

— and —

Reaad Ferose

Before: Justice S.W. Konyer

Heard on: May 1, 2018

Reasons for Judgment released on: May 8, 2018

Counsel

Ms. M. Tait — counsel for the Crown

Mr. P. Stiles — counsel for the defendant Reaad Ferose

Judgment

KONYER J.:

[1] Introduction

[1] Reaad Ferose is charged with operating a motor vehicle on Dec 9, 2016 with more than 80 mgs of alcohol per 100 ml of his blood, contrary to s.253(1)(b) of the Criminal Code. At trial, he claimed that his rights guaranteed by ss. 8, 9 and 10(b) of the Canadian Charter of Rights and Freedoms were infringed, and sought an order excluding evidence of the results of the analysis of his breath samples as a remedy for these breaches. The Crown conceded a single breach of his s.10(b) rights following a blended trial and Charter voir dire, but disputes the remaining alleged breaches. Further, the Crown argues that exclusion of the breath readings is not warranted even if I find more than one breach of Mr. Ferose' Charter rights. The defence implicitly conceded that a finding of guilt must follow if the breath readings are not excluded.

[2] Facts

[2] The facts of the case are generally not contentious and can be briefly summarized. On Dec 9, 2016, Mr. Ferose was driving eastbound on Ramsay Road in the City of Kawartha Lakes. At approximately 4:40 p.m., he approached a RIDE program that had been set up by two OPP officers, PC Cappus and PC MacInness, close to an intersection. The RIDE set up involved the officers each parking their cruiser on opposite shoulders of Ramsay Road in a small valley between two hills. This location was deliberately chosen to permit the officers to observe vehicles approaching from either direction, with no exits from Ramsay Road available to approaching vehicles.

[3] PC MacInness observed Mr. Ferose' vehicle approach and make a u-turn approximately 400m from the RIDE set up. He alerted PC Cappus, whose cruiser was facing that direction, and PC Cappus quickly gave pursuit. Mr. Ferose, who testified on the Charter voir dire, said that he turned around because he was late driving his son to a hockey game. He thought that he had come across either an accident or a RIDE program and was concerned that he would be delayed even more, so he turned around to find an alternate route.

[4] A traffic stop was conducted without incident. PC Cappus approached the vehicle and spoke to Mr. Ferose through an open driver's window. He immediately detected an odour of alcohol on Mr. Ferose' breath and observed that his eyes were "red rimmed". He also saw a young male in the front passenger seat. Mr. Ferose admitted consuming one alcoholic beverage "earlier". Based on his observations and the admission of consumption, PC Cappus formed a belief that Mr. Ferose had alcohol in his body.

[5] On request, Mr. Ferose exited the vehicle and accompanied the officer to the rear of his cruiser, where an ASD (approved screening device) demand was made. Mr. Ferose complied, and a fail result was obtained on an approved device. No issue was taken with the operation or functioning of the device used by PC Cappus. Once the fail result was obtained, PC Cappus arrested Mr. Ferose for the offence of operating a motor vehicle with more than 80 mgs of alcohol in 100 ml of blood at 4:44 p.m. Once he arrested Mr. Ferose, PC Cappus handcuffed him to the front and lodged him in the rear of his cruiser. He told Mr. Ferose that he did not want his son to see him being arrested. Mr. Ferose was also concerned about what would happen to his son once he was arrested. At this time, PC Cappus requested assistance over his police radio from PC MacInness, who responded in less than one minute.

[6] By the time PC MacInness attended the scene, PC Cappus was speaking to the boy outside of the vehicles. Both officers said that the boy, who was 12 years old, was upset. PC Cappus attempted to calm and reassure the boy, and asked PC MacInness to get contact information for the boy's mother from Mr. Ferose. This information was provided, and PC MacInness took the boy with him to his cruiser while calls were placed to his mother and they waited for a tow truck.

[7] In the meantime, PC Cappus returned to his cruiser. He read Mr. Ferose his right to counsel and caution from the standard police issued card at 4:54, some 10 minutes after he was placed under arrest. Both officers conceded that there were no exigent circumstances present to justify the delay in informing Mr. Ferose of his right to counsel. PC Cappus agreed that he could have informed Mr. Ferose of his right to counsel immediately after his arrest, but that he thought dealing with the child first was "the right thing to do". For his part, Mr. Ferose denied that he was informed of his right to counsel at the roadside, but he also agreed that he was upset and distracted by the situation and concern for his child. He conceded that he did not remember everything he was told by the officers at the roadside.

[8] PC Cappus said that Mr. Ferose understood his right to counsel, and expressed a desire to call a lawyer. After he read the right to counsel and caution, PC Cappus transported Mr. Ferose to the City of Kawartha Lakes OPP detachment. They arrived at 5:17 p.m. PC Cappus realized on the drive that he had forgotten to read the breath demand to Mr. Ferose. He did this at 5:18 in the sally port of the OPP detachment, then escorted Mr. Ferose into the cell block. He was booked and then lodged in a cell at 5:26.

[9] At this point, PC Cappus initiated a further conversation with Mr. Ferose about how to implement his right to counsel. He asked Mr. Ferose which lawyer he wanted to call, and was told by Mr. Ferose that he did not know because he had never needed a criminal lawyer before. PC Cappus then suggested that he speak to duty counsel, and Mr. Ferose agreed to follow this suggestion. PC Cappus placed a call to duty counsel at 5:27. There was some delay in duty counsel calling back, and Mr. Ferose did not speak to duty counsel until 5:55 p.m.

[10] While waiting for a call back from duty counsel, PC Cappus conveyed his grounds to Sgt. Tabor, the Qualified Technician on duty. She had already been alerted to the need for her services, and had readied the Intoxilyzer 8000C, an approved instrument, to receive samples for analysis before Mr. Ferose even arrived at the detachment. At 6:01, Mr. Ferose was turned over to Sgt. Tabor. She made a breath demand from him at 6:02 from the standard issued police card, which tracks the language of s.254(3) of the Criminal Code.

[11] Sgt. Tabor analyzed samples of breath provided by Mr. Ferose into the approved instrument at 6:06 and 6:29, both of which produced truncated readings of 130 mgs of alcohol per 100 ml of blood. No challenge was taken to Sgt. Tabor's qualifications, the manner in which she set up or used the instrument, or that the instrument was in proper working order.

[12] Charter Analysis

[12] I will consider the alleged Charter breaches in turn.

1. The Section 8 Claims

[13] Section 8 of the Charter provides that "everyone has the right to be secure against unreasonable search or seizure". The defence claims that the police lacked reasonable grounds to seize samples of Mr. Ferose' breath, and to search those samples using the Intoxilyzer. Since this search was warrantless, it is presumptively unreasonable. This means that the Crown must prove on a balance of probabilities that the police had reasonable grounds to demand that Mr. Ferose provide a sample of his breath for analysis, and that the demand was lawful. To be lawful, an officer must believe that the subject of the demand was committing an offence under s. 253 within the preceeding three hours, and the demand must be made "as soon as practicable" once this belief is formed: see s.254(3).

[14] Reasonable grounds has a subjective and objective component. There is no dispute that PC Cappus subjectively believed that Mr. Ferose had committed an over 80 offence within the preceeding three hours when he demanded a sample of Mr. Ferose' breath at 5:18. Further, I have no difficulty finding that PC Cappus' belief was objectively reasonable based on a totality of the circumstances. These included the fact that Mr. Ferose attempted to evade the RIDE program, the odour of alcohol on his breath, redness to his eyes, admission of prior alcohol consumption, and his failure on the ASD.

[15] Although I find that PC Cappus had reasonable grounds to arrest Mr. Ferose and to make a demand pursuant to s.254(3) requiring Mr. Ferose to provide samples of his breath for analysis into an approved instrument, it is clear that he did not make the demand until 34 minutes after Mr. Ferose was arrested. Section 254(3) requires that the demand be made "as soon as practicable" once the officer making the demand has formed reasonable grounds to believe the person has committed a drinking and driving offence. The term "as soon as practicable" has been interpreted to mean as soon as reasonably possible. There is no dispute that PC Cappus failed to comply with this requirement. In fact, the officer appeared not to understand the reason why he had been trained to make a breath demand immediately after making an arrest in a drinking and driving case where he intends to require the arrestee to provide samples.

[16] Although he had the necessary grounds to make the breath demand, the demand made by PC Cappus was not lawful as it did not comply with s.254(3). To be reasonable, a warrantless search must also be authorized by law: see R. v. Guenter, 2016 ONCA 572, leave refused [2016] SCCA No. 433, at para. 85. The onus in on the Crown, therefore, to prove that Mr. Ferose' breath was seized pursuant to a lawful demand.

[17] The Crown points out that s.254(3) requires only that a prompt demand be made by "a" peace officer, and argues that there is no requirement that the arresting officer be the one to make the demand. The Crown argues that Sgt. Tabor made a demand in compliance with the section once she formed the requisite grounds. In support of its position, the Crown relies on the decision of the Ontario Court of Appeal in R. v. Guenter, supra. In that case, the arresting officer forgot to make a demand at the scene, but the Qualified Technician made a prompt demand once informed by the arresting officer of her grounds. The court held that despite the section's lack of clarity, the "as soon as practicable" requirement can be satisfied by any peace officer who forms reasonable grounds and makes a prompt breath demand. In that case, the Qualified Technician was provided information by the arresting officer, and testified at trial that based on that information he formed his own grounds for believing that Mr. Guenter had committed a drinking and driving offence, and promptly made a breath demand: see R. v. Guenter, supra, at paras. 90-94. In those circumstances, the Court of Appeal held that the trial judge committed no error in finding that the demand made by the Qualified Technician was a lawful demand.

[18] In Mr. Ferose' case, however, Sgt. Tabor testified that PC Cappus provided her with his grounds for arresting Mr. Ferose and making a breath demand. She did not testify that she formed her own grounds for believing that Mr. Ferose committed an offence based on the information provided to her. Although one might reasonably infer that this was the case since she went on to make her own breath demand, the inelegant wording of s.254(3) requires that the officer making the demand form the requisite grounds. It seems to me that if the Crown intends to rely upon a breath demand made by a Qualified Technician rather than the arresting officer, the Crown needs to prove that the Qualified Technician formed her own grounds.

[19] Furthermore, even if a simple recitation of his grounds by PC Cappus to Sgt. Tabor were sufficient to satisfy the requirements of s.254(3), I cannot be satisfied on the evidence before me that Sgt. Tabor made her demand promptly once she received this information. I know that she made her breath demand at 6:02, one minute after Mr. Ferose was turned over to her custody. But the evidence is unclear as to when she received PC Cappus' grounds. Sgt. Tabor testified that she did not make a note of the time, and could only say that she received grounds prior to 6:01.

[20] PC Cappus said he conveyed his grounds to Sgt. Tabor "shortly after" placing the call to duty counsel at 5:27. The next information he provided about timing was that he placed a further call to duty counsel at 5:52 because no one had responded to his message by that point. This time, a call back was received at 5:55, and Mr. Ferose was taken to a private room to speak with duty counsel before being turned over to Sgt. Tabor at 6:01. The only reasonable inference I can draw from this evidence is that PC Cappus provided his grounds to Sgt. Tabor sometime between 5:27 and 5:55, but more likely closer to the earlier time. From the description of the grounds given by both officers in court, this would not have taken more than a minute or two at most.

[21] Therefore, even if Sgt. Tabor formed her own grounds based on the information she received from PC Cappus, this likely occurred approximately 30 minutes before she made her own breath demand. No explanation was offered for this delay. In fact, I know from the evidence that Mr. Ferose was waiting in his cell for most of this period, and that Sgt. Tabor had completed setting up the approved instrument before he even arrived at the detachment. In those circumstances, I am unable to find Sgt. Tabor made her demand as soon as reasonably possible.

[22] Accordingly, the Crown has failed to prove that Mr. Ferose' breath samples were seized pursuant to a lawful demand, a requirement for a reasonable search. The Crown has not discharged its onus on the s.8 application, and I find that Mr. Ferose' right to be secure from unreasonable search and seizure was infringed.

2. The Section 9 Claim

[23] Section 9 of the Charter provides that "everyone has the right not to be arbitrarily detained or imprisoned." The onus is on Mr. Ferose as claimant to prove a breach of this right on a balance of probabilities.

[24] It is well established that the police are authorized by law to detain and investigate motorists to ensure their sobriety. Once PC Cappus formed a reasonable suspicion that Mr. Ferose had alcohol in his body, he was justified in continuing this detention to determine whether he was committing an offence. Once the ASD failure provided him with reasonable grounds to believe that Mr. Ferose was committing an offence, he was entitled to arrest Mr. Ferose in order to prevent a continuation or repetition of the offence: see R. v. Cayer.

[25] What the police were not entitled to do, however, was to detain Mr. Ferose for the purpose of complying with a s.254(3) demand, since no lawful demand was ever made to him. A detention that is not authorized by law is arbitrary and violates s.9: R. v. Grant 2009 SCC 32, [2009], 2 S.C.R. 353, at para. 54. Mr. Ferose was released following the breath testing procedure on a promise to appear in court at 7:17 p.m., exactly 2 hours after he arrived at the station. Some of the period during which he was detained at the OPP detachment was for the purpose of administering breath tests. Two demands were made to him to provide breath samples and to "accompany the peace officer for this purpose": s.254(3). Since I have found these demands to be unlawful, it follows that no lawful authority existed for Mr. Ferose' detention for this purpose.

[26] Mr. Ferose has therefore proven a breach of his right not to be arbitrarily detained.

3. The Section 10(b) Claims

[27] Section 10(b) of the Charter provides that "everyone has the right on arrest or detention … to retain and instruct counsel without delay and to be informed of that right." The onus is on Mr. Ferose as claimant to prove a breach of this right on a balance of probabilities.

[28] It is now settled that "without delay" in the context of the right to counsel means immediately: see R. v. Suberu, 2009 SCC 33, [2009] S.C.J. No. 33, at para. 41. The Supreme Court made it clear that no concerns other than officer safety, public safety or a limit prescribed by law and justified under s.1 of the Charter can relieve the police of their obligation to immediately inform detainees of their right to counsel: see Suberu, supra, at para. 42. The Crown conceded in argument that there were no officer or public safety concerns that justified the 10 minute delay in the right to counsel being provided to Mr. Ferose in this case. Although the officer's reasons for wanting to comfort and reassure Mr. Ferose' child are understandable, they do not justify the failure to immediately inform Mr. Ferose of his right to counsel.

[29] Further, I agree with the defence that the police failed to properly implement Mr. Ferose' expressed wish to speak to counsel. When he was informed of his right to counsel, he said that he wanted to call a lawyer. There is no dispute that PC Cappus complied with the informational component of the right to counsel. When asked at the detachment which lawyer he wanted to call, the evidence of both Mr. Ferose and the officer was that he responded with words to the effect that he did not know as he had never previously needed a criminal lawyer. This prompted PC Cappus to suggest that he place a call to duty counsel, and Mr. Ferose agreed. PC Cappus did not offer to provide Mr. Ferose with a phone book, lawyer's list or any other tool that would allow him to attempt to access a lawyer other than duty counsel. When asked specifically whether he offered options other than duty counsel, PC Cappus responded "I don't think I would have. I don't see why I would have."

[30] Where a detainee expresses a desire to exercise their 10(b) rights, the police have a duty to facilitate a reasonable opportunity for the detainee to contact counsel. Although Mr. Ferose did not have a particular lawyer in mind, he apparently recognized the importance of getting advice from a qualified lawyer. In R. v. Ali, 2018 ONCJ 203, Burstein J. reviewed the authorities governing the implementational duties on the police when a detainee expresses a desire to speak to a lawyer. I agree with his conclusion that "the duty to facilitate contact with counsel means providing the detainee with access to a real telephone": see para. 48. Burstein J. also notes that in Alberta, the standard 10(b) Charter warning includes a reference to the availability of free duty counsel and then goes on to state "[i]f you wish to call any other lawyer, a telephone and telephone books will be provided for you": see para. 49.

[31] I further agree with his conclusion that "when the police choose to maintain control over the tools necessary for a detainee to exercise their 10(b) rights, the police thereby assume constitutional responsibility for using those tools in the same manner as any reasonable detainee facing an urgent need to contact counsel": Ali, supra, at para. 59. This is hardly a novel proposition, and there is a substantial body of case law in Ontario to similar effect. The problem with the conduct of the police in Mr. Ferose' case is that when he expressed a desire to contact counsel but did not have lawyer in mind, he was only informed of one available tool: free duty counsel. He was not informed that he had a right to make reasonable efforts (or that the police would make reasonable efforts on his behalf) to use other readily available tools, like phone books, lawyer's lists, the Law Society database, or internet searches. These are all tools that an informed person in today's era could reasonably be expected to utilize if presented with an urgent need for legal advice. If the police insist on maintaining control over a detainee's ability to access counsel, then in my view they have an obligation to ensure that the detainee is fully informed about his or her options. A detainee ought not to be convinced by the very officer who has arrested him to accept the most convenient option for the police – the toll-free duty counsel number.

[32] For these reasons, I find that Mr. Ferose has proven a breach of both the informational and implementational component of his s.10(b) right.

4. The Section 24(2) Analysis

[33] Section 24(2) of the Charter provides that where evidence has been obtained in a manner that infringed any guaranteed right, "the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute."

[34] The law on 24(2) has been settled since the Supreme Court decision in Grant, supra. To decide this issue, I first need to answer three questions:

• How serious were the Charter infringements?
• What impact did those infringements have on Mr. Ferose' interests?
• What effect would an exclusion of the evidence have on society's interests in having this case decided on its merits?

[35] I will consider each question in turn. Once I have considered each of these factors, I will need to balance them in order to decide the 24(2) issue.

i) The Seriousness of the Charter Infringements

[36] Charter infringements can range in seriousness on a "spectrum from mere technical breaches at one end to bad faith violations at the other": see R. v. Jennings, 2018 ONCA 260, at para. 26. Clearly, the more serious the police conduct resulting in the breach or breaches, the more this branch of the test will favour exclusion. Wilful or reckless disregard by the police of Charter standards will also make the conduct more serious.

[37] In this case, the s.8 breach was technical and therefore less serious. Objectively speaking, both PC Cappus and Sgt. Tabor had reasonable grounds to believe Mr. Ferose committed the offence with which he was ultimately charged. They were entitled to make a demand compelling him to provide breath samples. What they each failed to do was to make the demand promptly. Although it is troubling that neither officer seemed to have a real appreciation of the reason why the law requires the police to promptly inform a detainee of their intention to elicit incriminating evidence from him or her, they each failed to comply with a technical requirement of an opaquely worded section of the Criminal Code.

[38] The s.9 breach was also technical in nature. Again, the police had grounds to arrest and detain Mr. Ferose, and a lawful basis for demanding that he provide a breath sample. His detention was arbitrary only because of the failure of the police to comply with the technical requirements of s.254(3).

[39] The first s.10(b) breach I have found can hardly be described as technical in nature, since the Supreme Court has made it clear that detainees must be informed of their right to counsel immediately in all cases. Nevertheless, a 10 minute delay brought about because of a natural concern on the part of the arresting officer for the emotional well-being of the arrestee's child, a concern shared by the arrestee himself, cannot be properly situated anywhere but at the less serious end of the spectrum. Further, no efforts were made to elicit incriminating information during this period. This breach was minor.

[40] The second 10(b) breach I have found is more serious in nature. The arresting officer convinced Mr. Ferose to accept duty counsel, and appeared to have no appreciation of the need to do anything more to facilitate Mr. Ferose' wish to call a lawyer. I accept that PC Cappus honestly believed that he was doing all that the law required of him. At the same time, however, "ignorance of Charter standards must not be rewarded or encouraged, and negligence or wilful blindness cannot be equated with good faith": see Grant, supra, at para. 75. I find that PC Cappus was negligent in failing to inform Mr. Ferose of his right to access a telephone and other tools in order to search for a lawyer. He should not have been erroneously told that duty counsel was his only option if he did not already have his own lawyer.

[41] Having said this, the situation in this case is markedly different from that in Ali, supra. In that case, Mr. Ali requested a specific lawyer, the police were grossly negligent in their failure to make reasonable efforts to contact that lawyer, he accepted duty counsel only as a last resort, and he complained to the police about the advice he received after speaking to duty counsel. Mr. Ali's ability to consult with his counsel of choice was completely undermined by unacceptable negligence on the part of the police.

[42] In Mr. Ferose' case, on the other hand, the police did not directly interfere with his ability to receive legal advice from his preferred counsel. Rather, they failed to inform him of tools that he could have used to search for a lawyer other than duty counsel. Although I am troubled by PC Cappus' apparent tendency to simply default to duty counsel, the negligence here does not rise to the same level of gross negligence displayed in cases like Ali.

[43] I find that the s.10(b) implementational breach in this case was moderately serious. In my assessment, the cumulative effect of the multiple Charter breaches in this case favours exclusion of the evidence to a moderate degree.

ii) The Significance of the Impact of the Infringements

[44] This line of inquiry calls for an assessment of how much the infringements actually undermined Mr. Ferose' Charter-protected interests. Again, there is a spectrum: "[t]he impact of a Charter breach may range from fleeting and technical to profoundly serious": Grant, supra, at para. 76. As the seriousness of the incursion into the protected interest increases, so does the risk that the admission of the evidence will bring the administration of justice into disrepute.

[45] The unreasonable search in this case had some impact on Mr. Ferose' privacy interests, but it is now settled that breath testing such as was done here is minimally intrusive: R. v. Jennings, supra, at para. 27-32.

[46] The arbitrary detention that occurred in this case had a minimal impact on Mr. Ferose' liberty interests, since the police had the lawful authority to arrest and detain him for a lawful purpose other than the breath demand, which was technically deficient. The intrusion on his liberty interests was also minimal.

[47] Section 10(b) protects citizens' interests in having prompt access to legal advice when they are put in a position of disadvantage relative to the state, so that, in part, detained or arrested persons can make informed choices about whether and how to cooperate with the state investigation.

[48] Mr. Ferose' s.10(b) interests were not affected in any meaningful way by the 10 minute delay before he was informed of his right to counsel since the police did not seek to elicit incriminating information from him during this time and since he still had sufficient time to decide whether to exercise this right.

[49] It is difficult to assess the extent to which Mr. Ferose' interests were affected by the manner in which PC Cappus effectively steered him to duty counsel. There is no evidence before me that he received inadequate advice, or that even had any concern about his consultation with duty counsel. Mr. Ferose made no complaint to the police after speaking to duty counsel, nor did he elicit any evidence on the Charter voir dire that he was subjectively dissatisfied with duty counsel or that the advice he received was objectively deficient. In the absence of such evidence, it would be speculative for me to conclude that there was any impact on his interest in having access to meaningful legal advice. This is a very different situation than in a case like Ali, supra, where the trial judge was able to conclude on the evidence before him that Mr. Ali felt deprived of the ability to consult with a lawyer he trusted.

[50] On the second branch of the Grant analysis, I therefore conclude that the impact on Mr. Ferose' Charter-protected interests was minimal despite the multiple Charter infringements that occurred. This factor favours inclusion of the evidence.

iii) The Societal Interest in a Trial on the Merits

[51] Both counsel concur that this branch of the Grant tests favours admission of the breath readings, which are reliable evidence. I agree. Exclusion of the breath readings would gut the Crown's case and deny the public of a trial on the merits on a serious criminal offence.

iv) Balancing the Factors

[52] Balancing the Grant factors leads me to conclude that the readings in this case should not be excluded from evidence. In other words, it has not been established that admission of the breath readings in this trial would bring the administration of justice into disrepute.

[53] Verdict

[53] In the absence of any evidence to the contrary, the readings constitute proof that Mr. Ferose' blood alcohol concentration exceeded 80 mgs of alcohol per 100 ml of blood at the time of driving, and he is found guilty.

Released: May 8, 2018

Signed: "Justice S.W. Konyer"