Court Information

Court: Ontario Court of Justice

Date: June 19, 2018

Court File No.: Gore Bay

Parties

Between:

Her Majesty the Queen

— And —

Steven William Green

Judicial Officer and Counsel

Before: Justice V. Christie

Heard on: February 27, 2018 and May 8, 2018

Reasons for Judgment released on: June 19, 2018

Counsel:

• R. Huneault, counsel for the Crown
• J. Chapman, counsel for the defendant Steven Green

Charge

Steven William Green stands charged that:

On or about the 29th day of March 2017 at the Township of Central Manitoulin in the said region having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood did operate a motor vehicle contrary to section 253(1)(b) of the Criminal Code.

The Crown elected to proceed summarily.

Facts

Constable Robertson's Evidence

One witness was called at this trial – Constable John Robertson.

On March 29, 2017, Constable Robertson, an officer with the Ontario Provincial Police, was on duty working a night shift from 6:00 p.m. to 4:00 a.m. He was performing general law enforcement duties and was alone in his police vehicle.

At 10:45 p.m., he was parked at the intersection of Blue Road and Yonge Street in Central Manitoulin doing R.I.D.E. stops. He was in a fully marked vehicle with his lights activated. He was in uniform. He was stopping vehicles travelling north and south on Yonge Street. He testified that he was several kilometres away from any police detachment. In cross-examination, he confirmed that he had no instruction from anyone to set up the R.I.D.E. stop. He agreed that this intersection is approximately 5 to 6 kilometres south of Mindemoya. There were no lights and no buildings in that area. Constable Robertson stated that he had performed a R.I.D.E. stop at this location on several occasions. He agreed that there is not much traffic at that location and he was not sure how many cars came by that night. Constable Robertson stated that he was stopping everyone that night as they approached the R.I.D.E. stop. According to Constable Robertson, the R.I.D.E. stop was primarily to check if the drivers were sober but also, pursuant to the Highway Traffic Act, he was authorized to ask for documents, such as a driver's licence, registration, or proof of insurance.

The Stop

At 11:15 p.m., he observed a motor vehicle approaching his location, moving south on Yonge street. He saw headlights. It was an ATV, specifically a white Honda Rubicon. The vehicle was travelling in the centre of the south bound lane approaching the R.I.D.E. stop location. Constable Robertson was outside wearing a reflective vest and holding a flashlight. There were no other vehicles around at the time. He was not using a speed radar, but believed that the vehicle was travelling at a normal rate of speed. As the ATV got closer to the officer, it slowed down. There was one person on the ATV – just the operator. Constable Robertson agreed in cross-examination that there was no reason to stop the ATV for an offence, other than he was not traveling on the side of the road. Constable Robertson stated that the ATV should be traveling on the shoulder of the road or as close to the right side of the road as possible. This ATV was traveling down the middle of the south bound lane. Constable Robertson did agree, however, that this was not uncommon.

The ATV pulled to the right and stopped in the location where the officer indicated to stop. There were no problems with the stop. Constable Robertson approached the driver and said he was conducting a R.I.D.E. stop. The operator was wearing a brown coat, black pants, green rubber boots and a helmet. The officer believed that the helmet had a visor which was raised. Constable Robertson asked the operator if he had consumed alcohol in the preceding hours. The operator provided an answer. Constable Robertson asked for documentation, including a driver's licence, permit for the ATV, and proof of insurance. Constable Robertson stated that as a result of the initial conversation, there was no reason to believe that the driver had consumed alcohol. Constable Robertson stated that the reason for the detention at this time was to get the documents.

Detection of Alcohol

The operator shut off the ATV and got off the vehicle. Constable Robertson did not ask the operator to get off the vehicle, rather he did this on his own. The operator stood in front of Constable Robertson. The operator reached into his pocket and retrieved his driver's licence without any difficulty and handed it to Constable Robertson. When he retrieved his licence from his pocket, Constable Robertson could smell an odor of alcohol, however, he did not know where the odor was coming from. There were no other people in the area. The photo on the driver's licence matched the person that was operating the ATV and it was in the name of Steven William Green. The officer had never met this individual before that night. The other 2 documents were not provided and so Constable Robertson repeated his request for the documentation. The operator made an utterance and then went to the front of the ATV. The operator retrieved the documents from a compartment in the front of the ATV and handed the documents to Constable Robertson. When the operator handed the documents to Constable Robertson, he made further utterances, and the officer noted an odor of alcohol coming from the breath of Mr. Green. His helmet was on and open at the time. Constable Robertson testified that Mr. Green had no difficulty speaking and that his speech was normal. He was being cooperative.

Roadside Screening Device

When Constable Robertson detected the odor of alcohol coming from Mr. Green's breath, he stated that he had formed reasonable grounds. At 11:17 p.m., 2 minutes after he stopped the vehicle, he then made a roadside breath demand and asked him to attend at the cruiser for that purpose. Constable Robertson asked Mr. Green to take off his helmet. Mr. Green took off his helmet and placed it on the front of the ATV. Mr. Green then walked from the front of the ATV to the police cruiser. The surface was hard top, gravel. He was wearing reasonable footwear. His walk to the police vehicle was normal.

At the police vehicle, Constable Robertson directed Mr. Green to stand at the back corner of the vehicle and then asked him to sit in the rear of the vehicle. Mr. Green sat in the rear of the police vehicle with his feet outside. At this time, Constable Robertson made a more formal demand for the roadside screening device from a card that he carried with him. Constable Robertson believed that Mr. Green provided a response and that he had no difficulty understanding. Constable Robertson was standing outside the car.

According to Constable Robertson, the reason he did not have him perform the roadside screening device test while he sat on his ATV was for Mr. Green's safety and his own safety. Constable Robertson testified that the safest place for both of them was in the cruiser, not on the side of the road. He was concerned about vehicular traffic. Mr. Green was polite and cooperative. There was no reason to think he would become violent. Constable Robertson stated that it is standard practice to place the person in the back of the car to perform the test for safety reasons. He agreed this is not a busy highway, but is still a roadway.

Constable Robertson testified that he had an approved screening device in his police vehicle, a Dräger Alcotest 6810. The device was calibrated and valid. The last accuracy check was done on March 27, 2017. Constable Robertson demonstrated the use of the approved screening device. He gave a sample himself to make sure it was working properly and demonstrated to Mr. Green with a mouthpiece. Constable Robertson's reading was 0. He gave Mr. Green a fresh mouthpiece. Mr. Green opened the package without difficulty and gave a sample of his breath. At that time, he was still seated in the back of the cruiser with his legs outside. Constable Robertson was standing outside the car.

Sometime before Mr. Green gave a sample of his breath, Constable Robertson provided him with two cautions about consuming alcohol shortly before the test.

Mr. Green attempted to provide a sample in the road side screening device at 11:19 p.m. A suitable sample was obtained and the device showed a result of "fail". According to Constable Robertson this signifies that the reading is in excess of 100 mg of alcohol in 100 ml of blood. At that point, Constable Robertson formed reasonable and probable grounds that Mr. Green's blood alcohol was above 80 mg and advised him that he was under arrest for that charge at 11:20 p.m.

Arrest and Rights to Counsel

After Constable Robertson advised Mr. Green of the arrest, he asked Mr. Green to step outside of the vehicle. Constable Robertson advised Mr. Green that he would be searched and cuffed to the front and that his property would be retained until his release. Mr. Green was then placed back in the cruiser, seated normally in the rear seat on the driver's side. Once in the police vehicle, seated in this fashion, at 11:24 p.m., Constable Robertson provided rights to counsel and a caution to Mr. Green. At 11:26 p.m., he provided the breath demand from a pre-printed card. Mr. Green was responsive to these rights and cautions and was cooperative throughout. Constable Robertson had no doubt that he understood what was being asked of him and what was being read to him. When given his rights to counsel, Mr. Green asked to speak to Joe Chapman. Constable Robertson advised Mr. Green that when they got to their location he would facilitate that request. Mr. Green indicated that he understood.

In cross-examination, Constable Robertson confirmed that he had a personal cell phone with him that night but that the OPP do not issue a cell phone for officers to carry while on duty. Constable Robertson agreed that Mr. Green had a cell phone but that there would have been no way to give him privacy.

Waiting at the Scene

At 11:29 p.m., Constable Robertson advised dispatch of what was occurring, requested a tow truck and requested that a breath technician attend to obtain samples of Mr. Green's breath. Constable Robertson stated in cross-examination that he is a qualified breath technician but that it is not normal for the arresting officer to be the breath technician. Constable Robertson made the determination at that point that it would be a few minutes for a tow truck to arrive and given the remote location, with no residences in the area, he decided to stay at the scene until the tow truck arrived or a back-up officer arrived, so that the ATV would not be stolen or damaged.

While waiting for the tow truck or back up to arrive, Constable Robertson and Mr. Green had a normal friendly conversation. Mr. Green's speech pattern was normal but the odor of alcohol was stronger once they were in this enclosed space.

At 11:44 p.m., the tow truck arrived, and one minute later, Constable Haner arrived.

Transport to Detachment

Constable Robertson testified that there were three possible locations for him to attend for the breath test, however, UCCM was the closest. Constable Robertson had an on air conversation with Officer Leighton and he said he would go to the UCCM station to prepare the breath testing equipment. Constable Robertson left the scene at 11:47 p.m., three or four minutes after the tow truck and Constable Haner arrived.

Constable Robertson agreed in cross-examination that when he left the area of Blue Road and Yonge Street at 11:47 p.m., he drove through Mindemoya. It was suggested to him that he could have stopped there to afford Mr. Green with the opportunity to consult with counsel. He stated that there is no lock up and no privacy area in the Mindemoya detachment. There would have been nowhere for Mr. Green to exercise his right to counsel in private and to allow Constable Robertson to watch him.

They arrived at the UCCM detachment at 12:00 a.m. There was no conversation between Mr. Green and Constable Robertson on the way to the detachment, but the odor of alcohol was strong in the vehicle and on Mr. Green's breath.

At the detachment, Constable Robertson drove into the sally port. He assisted Mr. Green out of the vehicle, as the back of the cruisers are tight and he had difficulty. Constable Robertson did not attribute that to anything other than the tight space and that he was wearing bulky clothes. Mr. Green was walking normally without any issue.

Consultation with Counsel

Inside the station, the handcuffs were removed. Mr. Green removed his outer clothing. Mr. Green provided the police with his cell phone and said he had Mr. Chapman's personal cell number in his phone and asked to be able to retrieve it. However, the phone was without power. With the permission of Mr. Green, the police charged the phone to get the number. At 12:14 a.m., the phone was charged. Mr. Green was allowed to use the phone and looked up the number for Mr. Chapman. He then gave the number to the police. When the police had the number, they called Mr. Chapman.

At 12:16 a.m., Mr. Green was put in the interview room and Constable Robertson called the number but received no answer. Constable Robertson checked for the office number of Joe Chapman and it matched the number they were already given. They were unable to leave a message. Constable Robertson then advised Mr. Green of the steps taken to reach Mr. Chapman and he said he wished to speak to duty counsel.

Constable Robertson called duty counsel at 12:24 a.m. Two minutes later, duty counsel called back and was transferred to Mr. Green in the interview room where he could speak privately. Four minutes later, Constable Robertson observed Mr. Green sitting on a chair with no phone. He was not sure how long the call lasted. Constable Robertson advised Constable Leighton of the grounds for his arrest and information for the alcohol influence report while Mr. Green was speaking to duty counsel.

At 12:31 a.m., Constable Robertson advised Constable Leighton that they were ready to proceed. At 12:34 a.m., Constable Robertson transferred Mr. Green from the interview room to the breath room. Mr. Green was observed to be walking normally. Mr. Green was handed over to Constable Leighton.

Breath Samples

According to the certificate of a technician, marked as Exhibit 1, the first sample was completed at 00:44 on the 30th of March 2017 and produced a result of 118.

After the first breath sample, Constable Robertson advised Mr. Green of the fact that his cell phone had been going off and chiming, receiving text messages and of a name coming up repeatedly. Mr. Green called the person between the two tests and Constable Robertson knew that because that person arrived at the station during the second test.

Mr. Green was returned back to the breath room at 1:02 a.m.

According to the certificate of technician, marked as Exhibit 1, the second sample was completed at 1:06 am, on the 30th day of March 2017 and produced a result of 106.

Constable Robertson was advised of the results of the two tests. Mr. Green had been arrested for the offence of over 80 at the roadside so he was not re-arrested.

At 1:33 a.m., Mr. Green was released on a promise to appear and was released to the person that came to meet him.

Position of the Parties

Defence Position

Mr. Chapman, on behalf of Mr. Green, made four main arguments, specifically:

1. "As Soon as Practicable" Argument

The breath samples were not provided "as soon as practicable", given that the officer made the demand and then proceeded to hold Mr. Green in custody on the side of the road in a police car while he waited for a tow truck for 23 minutes. Accordingly, it was argued that the officer failed to comply with the statutory provision under which they arrested him.

2. Section 9 Charter Violations – Arbitrary Detention

The detention at the roadside was contrary to s. 9 of the Charter for two reasons. First, it was submitted that the officer conducting a R.I.D.E. check had no authority to detain Mr. Green and ask for documents such as a driver's licence, registration or insurance. Second, it was submitted that Mr. Green was arbitrarily detained when he was placed in the police car to provide a sample of his breath into the approved screening device, as this was not reasonably necessary in the circumstances. According to Mr. Chapman, there was no true safety issue, as this was an isolated area with very little traffic and lights flashing, and nothing about the accused's demeanour would lead to a safety concern.

3. Section 10(b) Charter Violation – Right to Counsel

Mr. Green's right to counsel was violated. There were no rights to counsel or caution given until after the approved screening device was administered. According to Mr. Chapman, Mr. Green should have been given his rights to counsel when he was initially detained in the police car. Further, Mr. Chapman submitted that the ability to exercise right to counsel was prolonged unnecessarily. There were a number of ways he could have been given rights to counsel both before and after he was placed in detention, for example in the cruiser with his cell phone, at the Mindemoya OPP detachment or sooner at the UCCM detachment. Mr. Chapman submitted that the 23 minute delay at the side of the road waiting for a tow truck or back-up was not a legitimate reason to delay rights to counsel. Further, Mr. Chapman submitted that the police have a positive duty to inquire if the accused has a cell phone to facilitate his right to counsel.

4. Exclusion of Evidence

The defence submitted that the breach of s. 10(b) was serious in that sitting on the side of the road waiting for a tow truck and delaying Mr. Green's right to counsel was simply unacceptable and represented a complete failure to respect a very fundamental right. The defence conceded that the impact was fairly minor as the officer did not attempt to elicit evidence from Mr. Green during this time. It was submitted that the samples needed to be excluded to preserve the long term reputation of the administration of justice. The police and society need to recognize that the right to consult with counsel is a serious and important right that must not be subordinated to minor administrative undertakings.

Crown Position

The Crown submitted that it has long been established that the random stopping of motorists for the purpose of spot check procedures, to check the driver's licence and proof of insurance and to observe the motorist's condition or sobriety is a reasonable limit on a person's rights and freedoms. Whether the traffic stop turned into a review of proper documentation for the vehicle or a drinking and driving investigation is of no consequence. The officer was acting with lawful authority.

With respect to Mr. Green being arbitrarily detained when requested to accompany the officer to the cruiser, the Crown submitted that the case of R. v. Williams, [2017] O.J. No. 5787 (C.J.), decided this issue and post-dated cases referred to and relied on by the defence. The Crown submitted that the roadside safety concerns expressed by the officer make sense given the fact that this was night time on a rural road where vehicles can be expected.

With respect to the s. 10(b) issue, the Crown submitted that the question to be considered is whether the officer could realistically have fulfilled the obligation to implement the accused's section 10(b) rights, considering the officer's expectation concerning the length of the delay, the actual length of the delay, the availability of a telephone, the length of time required to consult with counsel, and what if anything was happening during the delay. The Crown stated that the availability of a telephone at the roadside is frankly unknown as Mr. Green's cell phone was dead and had to be charged at the station. In any event, the Crown argued that even if the Court were to find a breach of s. 10(b), the evidence should not be excluded pursuant to s. 24(2) of the Charter.

With respect to the "as soon as practicable" requirement, the Crown submitted that the tests must be taken within a reasonably prompt time and the Court must consider whether the police acted reasonably. The Crown submitted that in the knowledge that the delay would be limited, Constable Robertson did the only reasonable thing he could which was to maintain the security of the ATV which was under the officer's charge.

Analysis

"As Soon as Practicable"

In this case, the "as soon as practicable" argument was made only relying on the statute, not on the Charter.

The "as soon as practicable" requirement contained in section 258(1) of the Criminal Code means that the tests be taken within a reasonably prompt time under the circumstances. There is no requirement that the tests be taken as soon as possible. The touchstone for determining whether tests were taken "as soon as practicable" is whether the police acted reasonably. Whether the samples were obtained "as soon as practicable" is a question of fact. The provisions are to be interpreted in a reasonable manner consistent with Parliament's purpose in facilitating the use of this reliable evidence. See: R. v. Vanderbruggen (2006), 206 C.C.C. (3d) 489 (Ont. C.A.); R. v. Phillips (1988), 42 C.C.C. (3d) 150 (Ont. C.A.); R. v. Letford (2000), 150 C.C.C. (3d) 225 (Ont. C.A.)

In this case, following the roadside device being administered, and following rights to counsel, caution and a breath demand, the officer waited for a tow truck. This is the period of time that the defence takes issue with and states that this is not "as soon as practicable". The timeline was as follows:

• 11:19 p.m. - roadside device was administered
• 11:20 p.m. – arrest, searched, cuffed and placed back into the cruiser
• 11:24 p.m. – rights to counsel and caution
• 11:26 p.m. – breath demand
• 11:29 p.m. – called dispatch for tow truck and requested breath technician
• 11:44 p.m. – tow truck arrived, Constable Haner one minute later
• 11:47 p.m. – left the scene
• 12:00 a.m. – arrived at UCCM
• Mr. Green asked to use his phone to retrieve a number for Mr. Chapman. The phone was dead and Mr. Green provided permission for the police to charge his phone
• 12:14 a.m. – phone was charged and the number was retrieved
• 12:16 a.m. – attempt to call Mr. Chapman was unsuccessful
• 12:24 a.m. – police called duty counsel
• 12:26 a.m. – duty counsel called back and spoke to Mr. Green
• 12:30 a.m. – Mr. Green was finished speaking with duty counsel
• 12:34 a.m. – Mr. Green into the breath room
• 12:44 a.m. – first breath sample obtained
• 1:06 a.m. – second breath sample obtained

The evidence in this case is that Constable Robertson maintained the security of the ATV for a period of time at the roadside. He made the determination that it would be a few minutes for a tow truck to arrive and given the remote location, with no residences in the area, he decided to stay at the scene until the tow truck arrived or a back-up officer arrived, so that the ATV would not be stolen or damaged. There is no reason to disbelieve his evidence.

Constable Robertson called for the tow truck three minutes after making the breath demand. The tow truck arrived 15 minutes after the call to dispatch. Given the nature of the location and the type of vehicle (being an ATV as opposed to a car), Constable Robertson did the only responsible thing that he could do, which was to maintain the safety and security of the vehicle.

Even with this delay, both samples were taken within less than two hours from the time the ATV was stopped.

It is the view of this Court that the breath samples were taken "as soon as practicable" in the circumstances.

Charter Violations

Section 9 – R.I.D.E. Stop and Request for Documentation

First the defence argued that Mr. Green was arbitrarily detained when the officer requested documentation. According to the defence, the police have no lawful authority to ask for such documentation during a R.I.D.E. stop.

The random stopping of motorists for the purpose of spot check procedures, to check the driver's licence, registration, and proof of insurance, to check the mechanical fitness of the vehicle, and to observe the motorist's condition or sobriety, has been found to be a reasonable limit on a person's rights and freedoms. Spot checks and random stops violate s. 9 of the Charter, but are justified under s. 1. See: R. v. Hufsky, [1988] 1 S.C.R. 621 (S.C.C.); R. v. Ladouceur, [1990] 1 S.C.R. 1257 (S.C.C.)

The police are granted authority through various pieces of legislation, including, for example, the Highway Traffic Act and Compulsory Automobile Insurance Act. According to the Highway Traffic Act in Ontario, as it read at the time of these events:

32 (1) No person shall drive a motor vehicle on a highway unless the motor vehicle is within a class of motor vehicles in respect of which the person holds a driver's licence issued to him or her under this Act.

33 (1) Every driver of a motor vehicle or street car shall carry his or her licence with him or her at all times while he or she is in charge of a motor vehicle or street car and shall surrender the licence for reasonable inspection upon the demand of a police officer or officer appointed for carrying out the provisions of this Act.

216 (1) A police officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a motor vehicle to stop and the driver of a motor vehicle, when signalled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop.

According to the Compulsory Automobile Insurance Act, R.S.O. 1980, c. 83:

3(1) An operator of a motor vehicle on a highway shall have in the motor vehicle at all times,

(a) an insurance card for the motor vehicle; or

(b) an insurance card evidencing that the operator is insured under a contract of automobile insurance,

and the operator shall surrender the insurance card for reasonable inspection upon the demand of a police officer.

In R. v. Ladouceur, [1990] 1 S.C.R. 1257 (S.C.C.), the Supreme Court of Canada considered the legality of random stops made by the police and stated, in part, as follows:

Le Dain J., writing for a unanimous court, held that the random stops conducted under the spot check program and authorized by s. 189a(1) of the Highway Traffic Act did not violate the Charter. He concluded that, although the random stop constituted arbitrary detention in violation of s. 9 of the Charter, it was justified under s. 1. He also held that the random stop did not constitute an unreasonable search and seizure in violation of s. 8 of the Charter. In holding that the random stops, though violating s. 9, were justified under s. 1, he stated at pp. 636-37:

In view of the importance of highway safety and the role to be played in relation to it by a random stop authority for the purpose of increasing both the detection and the perceived risk of detection of motor vehicle offences, many of which cannot be detected by mere observation of driving, I am of the opinion that the limit imposed by s. 189a(1) of the Highway Traffic Act on the right not to be arbitrarily detained guaranteed by s. 9 of the Charter is a reasonable one that is demonstrably justified in a free and democratic society. The nature and degree of the intrusion of a random stop for the purposes of the spot check procedure in the present case, remembering that the driving of a motor vehicle is a licensed activity subject to regulation and control in the interests of safety, is proportionate to the purpose to be served.

There are few distinctions between the random stop under consideration in the case at bar and the random stop dealt with by this court in Hufsky. In both cases the stop was conducted in order to check licences, insurance, mechanical fitness and, although never explicitly stated at the appellant's trial, the sobriety of the driver. In both cases the police actions were authorized primarily by s. 189a(1) of the Highway Traffic Act, which granted them absolute discretion to stop motorists in the lawful execution of their duties. Finally, the respondent Attorney General of Ontario relied on exactly the same extrinsic evidentiary material in each case to justify the random stops.

In R. v. Stroeder, Justice O'Connor discussed the legalities of the R.I.D.E. program. He stated:

[18] In spot checks, known sometimes as R.I.D.E. programs, the police are limited to checking for sobriety, licences, ownership, insurance, and mechanical fitness of cars. In R. v. Mellenthin (1992), 76 C.C.C. (3d) 481 (S.C.C.), Cory J. states at 487:

The programs are justified as a means aimed at reducing the terrible toll of death and injury so often occasioned by impaired drivers or by dangerous vehicles. The primary aim of the program is thus to check for sobriety, licenses, ownership, insurance and mechanical fitness of cars. The police use of check stops should not be extended beyond these aims. Random stop programs must not be turned into a means of conducting either an unfounded inquisition or an unreasonable search.

[19] It has been held that spot checks constitute an arbitrary detention and therefore they violate s. 9 of the Charter. However, the brief and relatively innocuous detention involved is justified under s. 1 of the Charter, given the purpose of the stop, as enunciated by Cory J. above. See Ladoucer (1990, 56 C.C.C. (3d) 22, at 36 and following.

In R. v. Nolet (2010) 1 S.C.R. 850, the Supreme Court of Canada considered how a roadside stop can evolve as it unfolds. The Court stated in part as follows:

3 Clearly random checks of vehicles for highway purposes must be limited to their intended purpose and cannot be turned into "an unfounded general inquisition or an unreasonable search": R. v. Mellenthin, [1992] 3 S.C.R. 625, at p. 624

4 Nevertheless, roadside stops sometimes develop in unpredictable ways. It is necessary for a court to proceed step by step through the interactions of the police and the appellants from the initial stop onwards to determine whether, as the situation developed, the police stayed within their authority, having regard to the information lawfully obtained at each stage of their inquiry.

23….A roadside stop is not a static event. Information as it emerges may entitle the police to proceed further, or, as the case may be, end their enquiries and allow the vehicle to resume its journey.

In this case, Constable Robertson was acting with lawful authority in conducting the R.I.D.E. stop. Further, he was legally authorized to ask for a driver's licence, registration and insurance, to check the mechanical fitness of the vehicle and further to check for the sobriety of the operator. Constable Robertson was doing exactly what he was lawfully entitled to do. In other words, the officer was acting under lawful authority when he stopped the vehicle and while he was requesting documentation. It was during that time, specifically, when Mr. Green handed over documents to the officer, that Constable Robertson smelled alcohol coming from Mr. Green's breath. It was at that point that he formed reasonable suspicion and he made the roadside demand.

As noted in R. v. Williams, [2017] O.J. No. 5787 (C.J.) at para 28, the threshold for detaining a person for the purpose of administering a roadside screening device is low:

It merely requires that the officer have a reasonable suspicion that the driver of a motor vehicle has any amount of alcohol in his or her body.

Having considered the facts of this case, there was no arbitrary detention of Mr. Green in these circumstances.

Section 9 – ASD Administered in the Rear of the Police Cruiser

The defence further asserted that Mr. Green was arbitrarily detained when he was placed in the rear of the police car to provide a sample of his breath into the approved screening device. Several cases were provided for consideration on this point.

In R. v. McGuffie, 2016 ONCA 365, [2016] O.J. No. 2504 (C.A.), the Ontario Court of Appeal considered s. 8, 9 and 10(b) rights in the context of an accused being handcuffed, searched, and placed in the back of a cruiser while police conducted a 30 minute investigation, without having arrested him or provided rights to counsel. The Court determined that the accused's right to be free from arbitrary detention was infringed by Constable Greenwood when he confined Mr. McGuffie in the back of the cruiser. The Court stated at paragraph 38:

38 The duration and nature of a detention justified as an investigative detention must be tailored to the investigative purpose of the detention and the circumstances in which the detention occurs. A brief detention on the street to question an individual implicated in a criminal investigation involving ongoing events may be justifiable under the Mann criteria, but under those same criteria imprisonment in a police cruiser while handcuffed for some indefinite period while an officer carries out other aspects of a criminal investigation could not be justified. The police cannot use investigative detention as an excuse for holding suspects while the police search for evidence that might justify the arrest of the suspect. Nor does investigative detention mean that the police can detain suspects indefinitely while they carry out their investigation.

Further it was held that the accused's rights under s. 10(b) were also breached as no rights to counsel were provided during this time. Further, there was a breach of s. 8, in that the detention of the accused in the back of the cruiser was unlawful and on the reasoning in Aucoin could not therefore provide a basis for the warrantless search of the accused during the pat-down search. The court held that the evidence, in that case drugs, should have been excluded and entered acquittals.

In the case of R. v. Azarnush, [2016] O.J. No. 3248 (C.J.), the accused was placed in the back seat of the cruiser, the back doors were closed and locked while the officer interrogated and admonished the accused for 15 minutes. Justice Green held:

[37] Detention, then, must be viewed as a dynamic rather than static state in which the quality, length and vagaries of the event are subject to constant constitutional scrutiny. An "over-holding", as it is sometimes called, is a relatively common illustration of this principle, as obtains in circumstances where an initially lawful detention may be found to transgress s. 9 due to its unjustified duration….

[40] Whatever his initial range of charging options and suspicions, conducting a locked-box alcohol detection experiment was not the reason Stangeways closed and locked the cruiser door on the defendant. This claim, in my assessment, is an after-the-fact rationalization for Strangeways' excessive zeal. His manifest purpose, I find, was to chastise the defendant – a purpose rooted in caprice and the officer's personal and idiosyncratic approach to traffic enforcement rather than any lawful authority with which he was vested. In short, Strangeways' grounds for confining the defendant as he did rendered the detention patently arbitrary…..The officer's treatment of the defendant in the rear of the cruiser – the locked doors, the shaming ritual, the failure to afford contingent rights – only compounded the constitutional trespass.

[42] Short of physical confinement, there were ample "other reasonable means" by which Sgt. Strangeways could have completed his investigation of the defendant's offensive driving behaviour or, to the extent that the consumption of alcohol was a factor, determined whether the defendant driver had alcohol in his body. Strangeways ventured none of these less intrusive measures. He instead immediately opted to effectively cage the defendant in the rear of his cruiser. However, the violation of s. 9 is here not merely founded on an officer's failure to employ a minimalist approach to detention. The defendant's physical confinement in the police vehicle was not grounded in any objectively reasonable concerns. Its purpose was capricious and irrelevant to any legally countenanced justification – the very definition of arbitrary.

The evidence in this case was excluded.

In R. v. Cole, 2017 ONCJ 83, [2017] O.J. No. 977 (C.J.), the accused was likely subjected to a pat down search and was secured in the back of the cruiser for the approved screening device to be administered. Justice Schreck held:

[34] Cst. Caplan secured Mr. Cole in the back of his cruiser prior to administering the ASD. Mr Cole submits that he had no justification for doing so and that this violated his s. 9 Charter rights.

[35] Crown counsel concedes this breach as well. Again, he was correct to do so. A detention of this nature is justified only when reasonably necessary, as was made clear in R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408, a case involving a similar decision to secure an individual in the back of a police car…

[46] The impact of the s. 9 breach was more significant. While the detention was relatively brief in duration, as the Supreme Court of Canada recognized in R. v. McKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250 (at para 133), "an arbitrary detention of any length…has a substantial impact on a person's Charter-protected interests". See also R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para 31. In R. v. McGuffie (2016), 2016 ONCA 365, 336 C.C.C. (3d) 486 (Ont. C.A.), an unjustified detention in the back of a police cruiser was referred to as "imprisonment" (at paras. 38, 39, 44 and 79), although I note that the detention in that case was of longer duration and the accused was handcuffed.

Ultimately, Justice Schreck excluded the evidence in this case.

In the case of R. v. Anand, [2017] O.J. No. 3523 (C.J.), the accused was subjected to a pat down search and was locked in the back of the cruiser. Justice Mackay held that:

[10] ……..Officer Sklery could have easily had Mr. Anand attend at his passenger side door or the back of her cruiser to perform the roadside test. Placing Mr. Anand in the back of her police car with the door locked was a breach of his s. 9 Charter right.

[23] Having balanced the relevant factors and bearing in mind all the circumstances of this case, I am not persuaded that the evidence should be excluded. While the conduct of the police resulted in both s. 9 and s. 8 Charter breaches, those breaches had a limited impact on Mr. Anand's Charter-protected interests and there is a strong societal interest in a trial on the merits. I find that the admission of the evidence would not affect the preservation of the reputation of the administration of justice.

In the case of R. v. Williams, [2017] O.J. No. 5787 (C.J.), during the roadside screening device test, Mr. Williams was locked in the rear of the cruiser, and Constable Halfyard sat in the front seat with a partition between the front and rear. The screening device was given through the partition. Following a call to dispatch to get a tow truck and another officer to assist with the seizure of the vehicle, Mr. Williams was removed from the rear of the cruiser, handcuffed, and patted down for officer safety, before being returned to the rear of the police vehicle. The officer testified that given all of the circumstances, he felt that providing the screening device in the rear of the cruiser was the safest location for himself and his ability to control everything. The Williams case referred to the case of R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408, which stated in part:

Accepting as the trial judge did, that Constable Burke was concerned about the appellant walking away, I am nonetheless of the view that in the context of this case, in order to justify securing the appellant in the back seat – knowing that this would also entail a pat-down search – detaining the appellant in that manner had to be reasonably necessary. In other words, the question to be asked is whether there were other reasonable means by which Constable Burke could have addressed his concern about the appellant disappearing into the crowd, short of doing what he did. If there were other reasonable means to ensure the appellant would not flee the scene, then detaining him in the police cruiser would not be said to be reasonably necessary and would thus have continued an unlawful detention within the meaning of section 9 of the Charter.

In Williams, Justice Freeman concluded:

[30] …There must be coherent and tangible reasons in this case to rely on officer safety as a reason to justify the placement of Mr. Williams in the rear of the locked cruiser. The reasons provided by Constable Halfyard – namely, the presence of traffic, the time of night, lighting conditions, the fact that it was an alcohol-related investigation, and the presence of the passenger in Mr. Williams' motor vehicle – are all generic concerns that would be present in many drinking and driving investigations. There was nothing specific to this investigation that would raise concerns for officer safety, such that would justify locking Mr. Williams up to conduct the ASD test.

[31] The balance of the factors relied upon were for the convenience of the officer, namely, warmth, and the ease of making notes during an investigation. Mr. Williams was not asked whether he would be more comfortable in the rear of the police vehicle. I conclude that there factors were for the comfort of Constable Halfyard, and do not justify the placement of Mr. Williams in the rear of the police vehicle.

The Court found that these circumstances amounted to a s. 9 violation, however, indicated that it would not result in exclusion pursuant to s. 24(2). However, the court then went on to consider s. 10(b) and excluded the evidence on that basis.

In the case at bar, the facts are very different from the cases provided by counsel and considered above. The following facts of this case are of note:

1. Mr. Green was not searched prior to sitting on the rear driver's side seat.
2. Mr. Green was not cuffed prior to sitting on the rear driver's side seat.
3. Mr. Green was never fully inside the cruiser during the administering of the roadside device. Throughout the entire time, he was seated on the rear driver's side seat with his legs outside and the door open. He was not fully inside the cruiser until after his arrest.
4. Mr. Green was never locked inside the cruiser during the administering of the roadside device.
5. The period of time taken to conduct the roadside screening test was very brief. According to the timeline provided by Constable Robertson, reasonable suspicion was formed at 11:17 p.m. and Mr. Green was asked to accompany him for the purpose of the screening device test. At 11:19 p.m., Mr. Green provided a sample into the approved screening device. At 11:20 p.m., Mr. Green was advised of his arrest and removed from the car for a search. At most, the length of time for the administration of the approved screening device was three minutes, or likely less, given that Mr. Green and the officer walked to the cruiser together.
6. The interaction between Constable Robertson and Mr. Green appeared to be pleasant at all times.

Both from an objective and subjective standard, it was reasonably necessary for Constable Robertson to have Mr. Green accompany him to the cruiser. Constable Robertson stated that the reason he did not have him perform the roadside screening device test while he sat on his ATV was for Mr. Green's safety and his own safety. Constable Robertson testified that the safest place for both of them was in the cruiser, not on the side of the road and he was concerned about vehicular traffic. It was night time on a rural road where vehicles could be expected to travel. There were no lights or buildings in the area. The roadside safety concerns expressed by the officer make sense. Having Mr. Green sit on the driver's side rear seat of the cruiser, with his legs outside and the door wide open, amounts to nothing more than offering Mr. Green a safe place to sit while the test was administered.

There was no breach of s. 9 of the Charter in these circumstances.

Section 10(b)

The section 10(b) argument is also twofold. The first issue argued by the defence was that rights to counsel should have been provided when Mr. Green was arbitrarily detained in the back of the cruiser for the approved screening device to be administered. The second issue argued was that the 23 minute delay while waiting for a tow truck was unreasonable and violated the applicant's section 10(b) Charter right to retain and instruct counsel without delay. According to the defence, the police have a duty to inquire if the accused has a cell phone to facilitate his right to counsel, especially in this case, where the officer had seized the accused's cell phone upon his arrest and was holding it during the 23 minute wait for the tow truck.

A number of cases were provided by counsel and have been considered by this Court.

In R. v. George, [2004] O.J. No. 3287 (C.A.), the Court of Appeal for Ontario was considering circumstances in which an approved screening device was not readily available – in fact it was 18 minutes between the demand and the taking of the roadside sample. The Court stated in part as follows:

27 Before turning to Cote and Latour, it is useful to recall the parameters established by the decisions of the Supreme Court of Canada in this matter. To begin, it is accepted that where a roadside breath demand is made, the driver is detained and his or her s. 10 rights under the Charter are prima facie triggered. However, if the demand is validly made pursuant to s. 254(2) of the Criminal Code in that it is made "forthwith", the police officer need not advise the detainee of this or her s. 10 (b) rights because, although s. 245(2) violates s. 10 (b), it is a reasonable limit prescribed by law and justified under section 1 of the Charter. See R. v. Thomsen (1988), 40 C.C.C. (3d) 411 (S.C.C.)

28 It is also accepted that if a roadside demand is made and a sample is not provided "forthwith" because the approved screening device is not readily available, the demand is not valid and does not justify a failure to provide s. 10(b) rights. See R. v. Grant (1991), 67 C.C.C. (3d) 268 (S.C.C.)

29 Based on Grant, it is understood that to be "forthwith", the demand must be that the detainee provide a sample after "a brief period of detention", if not "immediately".

33 ….In accordance with Cote, the ready availability of a telephone is a relevant factor for the court to consider in determining whether a detainee had a reasonable opportunity to consult with counsel during the period of time between the issuance of the demand and the time at which the demand could actually be carried out.

42 In the instant case, the officer was aware that there would likely be a delay of fifteen to twenty minutes before the screening device arrived. In the face of that information, it was incumbent upon the officer to take reasonable steps to facilitate the respondent detainee's right to consult counsel. Such steps would involve asking the detainee whether he had a cellular telephone. In this case, the evidence is that the respondent would have used his cellular telephone and called his lawyer. I consider the proximity of the cellular telephone more fully below.

55 ….Since there was no delay between the demand and the production of the sample, the officer in Sadlon was in a position to require that a breath sample be provided by the detainee before the detainee had any realistic opportunity to consult with counsel. Since there was no period of delay during which the detainee could have consulted counsel, the proximity of a telephone did not impact on the court's determination that the demand was valid.

The question is whether there was a realistic opportunity to contact, seek and receive legal advice from counsel. See: R. v. Torsney (2007), 2007 ONCA 67, 217 C.C.C. (3d) 571 (Ont. C.A.), para 13

In R. v. Mittleholt, [2005] O.J. No. 5800 (C.J.), the court was similarly dealing with a situation where there was a delay in the arrival of the roadside screening device. The question again was whether the accused would have had a reasonable opportunity to consult with counsel while the officer was awaiting the delivery of the roadside screening device by another officer. The Court stated, "The officer has a positive duty to inquire into the possibility that the accused had a cell phone, according to paragraph 42 of George. The fact that there was only three minutes between the demand and the arrival of the roadside screening device is irrelevant in the circumstances of the officer's response. The same with respect to his ability to get counsel – that is, for the accused to get counsel on the phone considering that he had used the cell phone moments before."

This Court was also referred to the case of R. v. Rienguette, [2015] O.J. No. 4647 (Sup. Ct.). In that case, Justice Gordon was also dealing with a situation where there was a delay between the roadside demand and the actual providing of the roadside sample. The delay was approximately 13 minutes. The court identified the issues as being whether or not the officer could realistically have fulfilled the obligation to implement the accused's section 10(b) rights. The Court stated in part:

18…..That determination would require consideration of the following factors:

1. The Officer's expectations concerning the length of the delay;
2. The actual length of the delay;
3. The availability of a telephone;
4. The length of time required to consult with counsel;
5. What, if anything, was happening during the delay.

In the case of Rienguette, the Court found no breach of s. 10(b).

It is the view of this Court that there was no delay from the time of the roadside breath demand being made to the time of the roadside screening device being administered. In fact, counsel has not suggested such a delay occurred. The delay in this case came after the roadside test was administered. The suggestion by counsel is that the delay of 23 minutes while the police waited for a tow truck and /or back up amounted to a violation of s. 10(b). The cases provided by both counsel do not address this issue but rather a delay in administering the roadside screening device.

Where there is no delay between the demand and the roadside screening device being administered, no rights to counsel are required to be given. See R. v. Thomsen (1988), 40 C.C.C. (3d) 411 (S.C.C.); R. v. George, [2004] O.J. No. 3287 (C.A.). No such delay occurred in this case and, therefore rights to counsel were not required prior to the roadside screening device.

With respect to the delay that occurred after the roadside screening device, the case of R. v. Manninen, [1987] 1 S.C.R. 1233, discussed the duty of the police as being informational and implementational. The Supreme Court stated in part as follows:

21 In my view, s. 10(b) imposes at least two duties on the police in addition to the duty to inform the detainee of his rights. First, the police must provide the detainee with a reasonable opportunity to exercise the right to retain and instruct counsel without delay. The detainee is in the control of the police and he cannot exercise his right to counsel unless the police provide him with a reasonable opportunity to do so. This aspect of the right to counsel was recognized in Canadian law well before the advent of the Charter. In Brownridge v. The Queen, [1972] S.C.R. 926, a case decided under the Canadian Bill of Rights, Laskin J., as he then was, wrote at pp. 952-53:

The right to retain and instruct counsel without delay can only have meaning to an arrested or detained person if it is taken as raising a correlative obligation upon the police authorities to facilitate contact with counsel. This means allowing him upon his request to use the telephone for that purpose if one is available.

The duty to facilitate contact with counsel has been consistently acknowledged under s. 10(b) of the Charter by the lower courts: R. v. Nelson (1982), 3 C.C.C. (3d) 147 (Man. Q.B.); R. v. Anderson (1984), 10 C.C.C. (3d) 417 (Ont. C.A.); R. v. Dombrowski (1985), 18 C.C.C. (3d) 164 (Sask. C.A.), and the Ontario Court of Appeal in this case. In Dombrowski, the Court held that, where a telephone is available at an earlier occasion, there is no justification for delaying the opportunity to contact counsel until arrival at the police station.….

23 Further, s. 10(b) imposes on the police the duty to cease questioning or otherwise attempting to elicit evidence from the detainee until he has had a reasonable opportunity to retain and instruct counsel. The purpose of the right to counsel is to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights. In this case, the police officers correctly informed the respondent of his right to remain silent and the main function of counsel would be to confirm the existence of that right and then to advise him as to how to exercise it. For the right to counsel to be effective, the detainee must have access to this advice before he is questioned or otherwise required to provide evidence. I discussed the duty imposed on the police in the context of a breathalyzer demand in R. v. Therens, [1985] 1 S.C.R. 613, at p. 624:

I do not want to be taken here as giving an exhaustive definition of the s. 10(b) rights and will limit my comments in that respect to what is strictly required for the disposition of this case. In my view, s. 10(b) requires at least that the authorities inform the detainee of his rights, not prevent him in any way from exercising them and, where a detainee is required to provide evidence which may be incriminating and refusal to comply is punishable as a criminal offence, as is the case under s. 235 of the Code, s. 10(b) also imposes a duty not to call upon the detainee to provide that evidence without first informing him of his s. 10(b) rights and providing him with a reasonable opportunity and time to retain and instruct counsel.

In the case of R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, the Supreme Court of Canada considered delay that had occurred while the accused was receiving medical treatment. At the time of his arrest, he was informed of his Charter rights, including his right to counsel, and was asked whether he wanted to call a lawyer. The accused responded that he wanted to speak both to his father and to his lawyer. At no time was the accused given access to a phone while at the scene of the accident. The accused was taken by ambulance to the hospital for examination. At the hospital, a nurse took five vials of blood from the accused. The police later demanded and obtained a second set of samples of the accused's blood for investigative purposes. At no point during the accused's time in hospital did the police attempt to provide him with an opportunity to speak to his lawyer or determine whether such an opportunity was even logistically or medically feasible.

The Court stated in part as follows:

21 The purpose of the s. 10(b) right is "to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights": Manninen, at pp. 1242-43. The right to retain and instruct counsel is also "meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination": R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 40. Access to legal advice ensures that an individual who is under control of the state and in a situation of legal jeopardy "is able to make a choice to speak to the police investigators that is both free and informed": R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 25.

22 In R. v. Bartle, [1994] 3 S.C.R. 173, Lamer C.J. explained why the right to counsel must be facilitated "without delay":

This opportunity is made available because, when an individual is detained by state authorities, he or she is put in a position of disadvantage relative to the state. Not only has this person suffered a deprivation of liberty, but also this person may be at risk of incriminating him- or herself. Accordingly, a person who is "detained" within the meaning of s. 10 of the Charter is in immediate need of legal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty ... . Under s. 10(b), a detainee is entitled as of right to seek such legal advice "without delay" and upon request... . [T]he right to counsel protected by s. 10(b) is designed to ensure that persons who are arrested or detained are treated fairly in the criminal process….

23 He also confirmed the three corresponding duties set out in Manninen which are imposed on police who arrest or detain an individual:

(1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;

(2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and

(3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).

(Bartle, at p. 192, citing Manninen, at pp. 1241-42; R. v. Evans, [1991] 1 S.C.R. 869, at p. 890; and R. v. Brydges, [1990] 1 S.C.R. 190, at pp. 203-4.)

24 The duty to inform a detained person of his or her right to counsel arises "immediately" upon arrest or detention (Suberu, at paras. 41-42), and the duty to facilitate access to a lawyer, in turn, arises immediately upon the detainee's request to speak to counsel. The arresting officer is therefore under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonably available opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances (R. v. Luong (2000), 2000 ABCA 301, 271 A.R. 368, at para. 12 (C.A.)). Whether a delay in facilitating access to counsel is reasonable is a factual inquiry.

25 This means that to give effect to the right to counsel, the police must inform detainees of theirs. 10(b) rights and facilitate access to those rights where requested, both without delay. This includes "allowing [the detainee] upon his request to use the telephone for that purpose if one is available" (Manninen, at p. 1242). And all this because the detainee is in the control of the police and cannot exercise his right to counsel unless the police give him a reasonable opportunity to do so (see Brownridge v. The Queen, [1972] S.C.R. 926, at pp. 952-53).

26 Until the requested access to counsel is provided, it is uncontroversial that there is an obligation on the police to refrain from taking further investigative steps to elicit evidence (R. v. Ross, [1989] 1 S.C.R. 3, at p. 12; R. v. Prosper, [1994] 3 S.C.R. 236, at p. 269).

27 The majority in the Court of Appeal was of the view that in light of Cst. MacGillivray's acknowledgement that he could have provided his own cell phone, the "'mistake' in failing to provide it" gave rise to a breach of s. 10(b). The Crown takes issue with this finding, and I agree that in light of privacy and safety issues, the police are under no legal duty to provide their own cell phone to a detained individual.

28 But the police nonetheless have both a duty to provide phone access as soon as practicable to reduce the possibility of accidental self-incrimination and to refrain from eliciting evidence from the individual before access to counsel has been facilitated. While s. 10(b) does not create a "right" to use a specific phone, it does guarantee that the individual will have access to a phone to exercise his right to counsel at the first reasonable opportunity.

33 …..Constitutional rights cannot be displaced by assumptions of impracticality. Barriers to access must be proven, not assumed, and proactive steps are required to turn the right to counsel into access to counsel.

In the case at bar, it is the view of this court that the following facts are relevant to repeat:

(1) The roadside screening device was administered at 11:19 p.m., four minutes following the stop of the ATV and two minutes following the demand.

(2) Mr. Green was seated on the rear driver's side seat with his legs out of the vehicle. The door was open.

(3) After the test was administered and a "fail" was noted, Mr. Green was advised of his arrest at 11:20 p.m., was asked to get out of the vehicle at which time a pat-down search was done, and he was handcuffed. Mr. Green was then placed back into the rear of the cruiser, at which time the Court assumes that the door was shut and he was locked inside.

(4) Mr. Green was then read his rights to counsel and cautioned at 11:24 p.m.

(5) At 11:26 p.m., Constable Robertson read a formal breath demand.

(6) At 11:29 p.m., Constable Robertson advised dispatch of the events and requested a tow truck and a qualified breath technician.

(7) While waiting for the tow truck or back-up to arrive, Constable Robertson and Mr. Green had a normal friendly conversation in the police cruiser.

(8) At 11:44 p.m., the tow truck arrived and Constable Haner arrived one minute later.

(9) Constable Robertson left the scene with Mr. Green at 11:47 p.m.

(10) They arrived at the UCCM Police detachment at 12:00 a.m.

(11) Mr. Green asked to use his telephone to retrieve the number of his counsel of choice, Joe Chapman, however, the cell phone was dead. Mr. Green allowed the police to charge his phone.

(12) The telephone was charged at 12:14 a.m. and the number was retrieved.

(13) At 12:16 a.m., the police attempted to call Mr. Chapman but there was no answer and no ability to leave a message.

(14) At 12:24 a.m., duty counsel was called.

(15) At 12:26 a.m., duty counsel called back and spoke to Mr. Green

(16) Mr. Green was finished speaking to duty counsel at 12:30 a.m.

(17) The breath samples were obtained at 12:44 a.m. and 1:06 a.m.

It was unclear to this Court whether Mr. Green still had possession of his phone at the roadside. He presumably would have had his phone at the time the approved screening device was administered, as no search had yet occurred. However, at 11:20 p.m., Mr. Green was searched. This Court does not recall any evidence from Constable Robertson about the cell phone at that time. However, Constable Robertson did testify that when they arrived at the UCCM detachment, the handcuffs were removed, Mr. Green took off his outer clothing and that Mr. Green provided police with his cell phone. Mr. Green stated that he had Mr. Chapman's personal cell number and asked to be able to retrieve that number. Police were willing to accommodate this request, however the phone was without power. With Mr. Green's permission, the police charged the phone to get the number. From this evidence, it would appear that Mr. Green had his cell phone on his person until he arrived at the detachment and provided it to the police to have it charged. Further, and perhaps more importantly, there was no evidence as to whether the phone had any battery power while the roadside investigation was occurring. The evidence was clear that the cell phone was dead shortly after the arrival at the police detachment. Therefore, the availability of a telephone at the roadside in this case is unknown.

The defence also suggested that rights to counsel could have been afforded to Mr. Green at the Mindemoya detachment, which was on the way to the UCCM detachment. The evidence of Constable Robertson was that the Mindemoya detachment does not have any facility to allow for a person to have a private conversation with counsel while still in the control and view of the police. Given this evidence, it would not be reasonable to expect the officer to have stopped at the Mindemoya detachment for this purpose.

Finally, no evidence was elicited or obtained from Mr. Green during this time. There was a casual friendly conversation between Mr. Green and Constable Robertson in the car. Mr. Green was afforded the opportunity to speak to counsel prior to providing breath samples at the UCCM detachment.

Mr. Green was advised of his rights to counsel shortly after he was advised of his arrest. Mr. Green indicated that he did wish to speak to counsel to which the officer responded that he would facilitate that when they arrived at their location. Constable Robertson waited for a tow truck to arrive to ensure the safety and security of Mr. Green's vehicle prior to leaving the area. As soon as they arrived at the station, steps were taken to afford Mr. Green with the opportunity to speak to counsel. Absolutely no evidence was elicited from Mr. Green during this time.

As stated in Taylor, the burden is on the Crown to show that a given delay was reasonable in the circumstances. Whether a delay in facilitating access to counsel is reasonable is a factual inquiry. Considering all of these circumstances, it is the view of this court that no breach of s. 10(b) occurred, as Mr. Green had access to a phone to exercise his right to counsel at the first reasonable opportunity.

Given this conclusion, it is unnecessary to consider exclusion of the evidence pursuant to s. 24(2), however it will be addressed briefly below.

Section 24(2)

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on the public's confidence in the justice system, having regard to "the seriousness of the Charter-infringing state conduct, the impact of the breach on the Charter-protected interests of the accused, and the societal interest in an adjudication on the merits": R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 85.

The public has an interest in an adjudication of the merits of a case where, as here, the evidence sought to be excluded is reliable and key to the case. However, the public also has an interest "in ensuring that the justice system remains above reproach in its treatment of those charged with these serious offences": R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 80

As to the seriousness of the breach, the Court must consider whether sitting on the side of the road waiting for a tow truck and delaying rights to counsel was a serious Charter violation. In the circumstances, this Court would say it was not. Such a breach must be considered in the context of the case and why that delay was occurring. Constable Robertson was concerned about Mr. Green's vehicle which was sitting on the roadside in a rural area. The vehicle was the responsibility of the police. There was friendly conversation during this time but the officer was not eliciting any information. It is unclear as to whether the cell phone had any power at that time. The facilitation of rights to counsel was attempted at the station immediately after retrieving the number, and after that call was unsuccessful, the police put Mr. Green in touch with duty counsel as requested.

Regarding the impact of the breach, the defence conceded that the impact of the Charter breach in this case was fairly minor in that the officer did not attempt to elicit evidence from Mr. Green during the time that they waited for the tow truck. Further, providing breath samples is a "minimally intrusive" procedure. In this case, Mr. Green did speak to counsel prior to providing breath samples.

Finally, exclusion in this case would leave no evidence for the Crown to prove the case against Mr. Green. Mr. Green submitted that this is necessary to preserve the long term reputation of the administration of justice as the right to consult with counsel is a serious and important right that must not be subordinated to minor administrative undertakings. In R. v. Grant, 2009 SCC 32, the court noted that in deciding this issue, significant emphasis should be placed on the reliability of the evidence obtained.

Considering these factors, even if a breach had occurred, the circumstances of this case would not lead to exclusion of the evidence.

Conclusion

The Crown has proven the offence beyond a reasonable doubt. Steven Green is found guilty of the offence of "over 80".

Released: June 19, 2018

Signed: Justice V. Christie