Court Information

Ontario Court of Justice

Date: 2018-07-13

Court File No.: 4911-998-17-06089

Between:

Her Majesty the Queen

— AND —

Jozef Wach

Before: Justice A.A. Ghosh (delivered orally)

Heard: June 21, 2018

Reasons for Judgment released: July 13, 2018

Counsel

T. Hamilton — counsel for the Crown

R. Loccisano — counsel for the defendant Jozef Wach

Judgment

Overview

[1] Mr. Jozef Wach was tried before me for operating a motor vehicle while having an excess blood alcohol concentration, contrary to section 253(1)(b) of the Criminal Code. The defence submits that the approved screening demand was not made "forthwith". Accordingly, Mr. Wach applies to exclude the breath readings for submitted violations of sections 8, 9 and 10(b) of The Charter.

Summary of the Evidence

[2] Constable Devin Moggy testified that on July 2, 2017 at approximately 3:40 a.m. he observed a vehicle being operated with a burnt out headlight. Accordingly, the officer effected a traffic stop pursuant to section 62(19) of the Highway Traffic Act. Both vehicles pulled into the parking lot of a gas station off of Highway 400. Mr. Wach was the driver.

[3] At some point during his roadside interaction with the defendant, Constable Moggy developed a suspicion that Mr. Wach had alcohol in his body and determined that he would issue an approved screening demand. There was a delay of at least five minutes between the formation of this suspicion and the provision of the approved screening demand to the defendant.

[4] The officer attributed this delay primarily to his assessment that Mr. Wach was unduly talkative. He also agreed that instead of immediately issuing the demand, he called into his communications unit inquiring about the availability of a qualified technician.

[5] Constable Moggy made the approved screening demand and had the device on hand. Mr. Wach registered a "fail" reading and he was arrested for driving with an excess blood alcohol concentration. He was provided with the standard right to counsel, caution and approved instrument demand.

[6] Mr. Wach ultimately provided two samples of breath into an approved instrument operated by a qualified technician: 204 and 200 milligrams of alcohol in 100 millilitres of blood.

Analysis

The Law

[7] The following issues require determination:

(i) "Forthwith" demand: Was the approved screening device demand and the associated sample provided "forthwith" as required by sections 8, 9, 10(b) of the Charter and by section 254(2) of the Criminal Code?

(ii) Charter remedy: If there were any violations of the applicant's Charter rights, should the breath readings be excluded pursuant to s.24(2)?

The Approved Screening Device Demand and the "Forthwith" Requirement

[8] Section 254(2) of the Criminal Code requires that upon being subjected to an approved screening demand, the detainee must provide a sample "forthwith". The associated jurisprudence has directed that the officer must also provide the demand "forthwith" upon developing a reasonable suspicion, justifying the suspension of the detainee's Charter rights, notably the right to counsel pursuant to section 10(b).

[9] The freedoms against unreasonable search and seizure in s.8 and against arbitrary detention in s.9 are also engaged by the screening procedure. The infringements of these Charter rights are justified by section 1 of the Charter given the immediacy requirement of the demand and the pressing societal objective in addressing impaired driving: R. v. Quansah, 2012 ONCA 123.

[10] As the court noted at paragraph 26 of Quansah: "The term 'forthwith' in s.254(2), therefore, means 'immediately' or 'without delay' and indicates a prompt demand by the peace officer and an immediate response by the person to whom the demand is addressed: see Woods, at paras. 13-4 and 44. However, in unusual circumstances 'forthwith' may be given a more flexible interpretation than its ordinary meaning strictly suggests." An appreciation of the context of any delay from suspicion to demand was confirmed to be necessary.

[11] The Court of Appeal in Quansah noted that the "immediacy requirement must take into account all the circumstances," and proceeded to provide examples where a brief delay arising between the formation of the suspicion and the articulation of the demand may be permitted. One of the circumstances for consideration must include whether or not the police "could realistically have fulfilled their obligation to implement the detainee's s.10(b) rights before requiring the sample": para. 49.

[12] While the submitted decisions addressing the "forthwith" issue are helpful, the facts here are distinguishable.

Finding of Fact

The Delay Between Suspicion and Demand

[13] There is some disagreement regarding the length of the delay between the formation of the requisite suspicion and the provision of the demand. The following sequence of events is not in dispute:

(i) 3:40 a.m.: Constable Moggy observed a burnt out headlight on Mr. Wach's vehicle. He determined to stop the vehicle and followed it.

(ii) 3:45 a.m.: A traffic stop was effected. The officer remained in his cruiser for approximately a minute as he conducted computer inquiries regarding the licence plate and registered owner.

(iii) 3:46 a.m. (or shortly thereafter): Constable Moggy attended at the driver's side window and spoke with Mr. Wach.

(iv) 3:50 a.m.: The officer used his lapel radio to inquire of his communications centre about the availability of a qualified technician. By this time, he had formed his suspicion that Mr. Wach had alcohol in his body.

(v) 3:51 a.m.: A supervising officer advised Constable Moggy that the police service would defer further inquiries regarding the availability of a qualified technician until the approved screening result had been obtained.

(vi) 3:55 a.m.: Constable Moggy read the approved screening demand to the defendant.

(vii) 3:56 a.m.: The officer provided to Mr. Wach instructions and a demonstration regarding the provision of a proper breath sample.

(viii) 3:58 a.m.: The defendant provided a sample of breath and registered a "fail" reading.

[14] The Crown submitted that the reasonable suspicion crystallized at 3:50 a.m., grounding a five minute delay between suspicion and demand. Mr. Wach's counsel invited me to find a range of delay between five to nine minutes, given the officer spoke to the defendant for approximately four minutes before inquiring about a qualified technician and that he failed to make a specific note of the time he formed the suspicion.

[15] Constable Moggy testified that he formed his suspicion just before he radioed about the prospect of a qualified technician at 3:50 a.m. He maintained throughout cross-examination that his suspicion did not form before that time. At some point during the four minute period at the driver's side window, he detected an odour of alcohol from Mr. Wach's breath and obtained upon inquiry an admission of the consumption of "two beers".

[16] While the officer could not testify with any precision about when he detected the odour and received the admission, I find that this was reasonably explained by the circumstance of a talkative detainee. I also find that the officer credibly testified that it took some time for his suspicion to gel given the relatively innocuous signs of consumption of alcohol.

[17] The traffic stop was effected due to a burnt out headlight. There was no problematic driving observed. The officer detected an odour of alcohol and observed red, watery eyes. At some point, there was an admission of consumption.

[18] However, despite being talkative, Mr. Wach was verbally responsive and his speech was not slurred. In these circumstances, I find that officer's evidence reasonable, that his suspicion evolved over the course of several minutes of interaction. Constable Moggy's testimony that he made the radio call regarding the qualified technician right after forming his suspicion is also reasonable and was not undermined during cross-examination.

[19] Accordingly, I find that the reasonable suspicion was formed at 3:50 a.m. There was a five minute delay between the formation of the suspicion and the provision of the approved screening demand.

Determining Compliance with the "Forthwith" Requirement in This Case

[20] The five minute delay between suspicion and demand was informed by two circumstances. The first circumstance, being the radio call about the qualified technician, is more straightforward to address. Approximately a minute after making the inquiry, the officer received guidance to conduct the screening test before the inquiry would be further pursued.

[21] Constable Moggy explained that he was being proactive in making the inquiry. The OPP in this region services a large geographical region. Qualified breath technicians are sometimes in limited supply and occasionally have to travel some distance from other townships to attend the Aurora detachment for breath testing. Four further minutes followed before the breath demand was read. From the officer's evidence, this period was entirely informed by the second circumstance: the exceptional chattiness of the defendant.

[22] Constable Moggy described Mr. Wach as "jovial" and "so talkative". The officer testified repeatedly that he had a difficult time interjecting and "getting a word in edgewise". The officer was aware at the time of the stop that the provision of the demand must be made "forthwith". He insisted that he was not waiting for a response to his breath technician inquiry to make the demand, but that he was simply attempting to navigate an unduly chatty detainee for the entirety of the delay.

[23] By way of illustration, the officer testified that Mr. Wach repeated that he was a driving instructor. The defendant discussed his plans to go to Parry Sound for vacation. I accept that there is nuance to the officer's characterization of the defendant as talkative. He acknowledged during cross-examination that he was able to ask Mr. Wach questions and received appropriate responses.

[24] During the five minute delay between the formation of the suspicion and the provision of the demand, the officer did not leave the driver's side window. He was not attending to any concerns extraneous to the investigation. The screening device was on hand. The officer was alone late at night with an impaired driving suspect at the side of the highway. There was no realistic opportunity to implement the right to counsel.

[25] The dynamic between a lone officer and any detainee can be fragile and capable of rapid and unexpected deterioration. This concern can be amplified in the roadside context where the driver who retains control over his vehicle has consumed alcohol. Again, the traffic stop was for a burnt out headlight. Mr. Wach presented as loquacious and jovial. The officer was about to demand that his detainee engage in an incriminating procedure that could result in a criminal charge.

[26] The facilitation of compliance with the demand is correlative to the discharge of the officer's duty pursuant to s.254(2). Constable Moggy exercised his judgment to allow Mr. Wach to talk and to wait briefly for an appropriate moment to make the demand. I find that this delay was "reasonably necessary for the proper administration of the roadside test": Quansah, supra, para. 51.

[27] Considering the context of the stop, notably informed by the circumstance of an exceptionally talkative detainee, I find that the five minute delay was reasonably necessary. Accordingly I find that the demand was made forthwith and that there is no consequent violation of the Charter.

No Remedy

[28] If I have erred in finding that the demand was made forthwith, in weighing the Grant factors as they apply to section 24(2) of the Charter, I would not have excluded the evidence: R. v. Grant, 2009 SCC 32.

[29] I would characterize any violation as technical and less serious. The delay was for a relatively brief five minutes. The officer was aware of the need to provide a timely demand. The articulated basis for the delay was almost entirely rooted in his interaction with the defendant. There was no realistic opportunity to consult counsel at roadside.

[30] The approved screening procedure in this case reliably provided grounds in the face of relatively innocuous signs of consumption. The evidence ultimately obtained in the breath readings is reliable and crucial to the Crown case. There is obviously a compelling societal interest in having drinking and driving cases determined on their merits. In balancing the three factors identified by the Supreme Court in R. v. Grant, supra, I would admit the breath readings.

[31] There is no further impediment to the substantive reception of the breath readings. The defendant was operating a motor vehicle with a blood alcohol concentration in excess of the legal limit. Mr. Wach please stand. I find you guilty. My thanks to counsel.

Released: July 13, 2018

Signed: Justice A.A. Ghosh