Court Information
Ontario Court of Justice
Date: October 16, 2018
Court File No.: Halton 17-820
Parties
Between:
Her Majesty the Queen
— And —
Sean Szaloczi
Before the Court
Justice: D.A. Harris
Heard on: April 23, 2018 and July 9, 2018
Reasons for Judgment released: October 16, 2018
Counsel
Robert Fetterly — counsel for the Crown
Adam Little — counsel for the defendant Sean Szaloczi
Decision
D.A. HARRIS J.:
Facts and Charge
[1] Sean Szaloczi was charged with failing to provide a sample of his breath into an approved screening device.
[2] Crown counsel elected to proceed summarily in this matter. Mr. Szaloczi pled not guilty.
[3] Halton Regional Police Constable Michael Wheeler testified for the Crown. The defence called no evidence.
Issue
[4] Most of the elements of this case are not in dispute. The only issue before me is whether the demand that Mr. Szaloczi provide a sample of his breath into an approved screening device was a valid demand. Counsel for Mr. Szaloczi argued that it was not because it was not made forthwith.
Legal Framework: The "Forthwith" Requirement
[5] The Ontario Court of Appeal made it clear in R. v. Quansah that an approved screening device demand must be made "forthwith".
[6] "Forthwith" does not mean "within a reasonable time". It is to be a "prompt" demand and in certain circumstances that may mean "immediately".
[7] However, LaForme J.A. qualified this stating:
In my respectful opinion articulation of the precise linguistic equivalent for 'forthwith' is less important than a careful consideration of all the circumstances of the particular case. The legal context for this consideration is the objective that 'forthwith' sets out, namely a prompt demand and an immediate response, ultimately taking no more than the time reasonably necessary for the prompt performance of the steps contemplated by s. 254(2).
[8] Further he set out certain specific circumstances that I should consider:
These may include a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed to ensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns. These are examples of delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty. Any delay not so justified exceeds the immediacy requirement.
[9] I note the words, "these may include", and, "these are examples", and interpret those to mean that this may be a comprehensive list, but not an exhaustive one.
[10] I note further that Justice LaForme refers to a decision by Hill, J. of the Superior Court of Justice, in which several additional examples are recited where, despite a short delay, the immediacy requirement would be met.
[11] The three examples given are:
(1) Where the police officer takes further reasonable steps (such as sobriety and physical coordination tests) to determine whether there are reasonable grounds for an intoxilyzer demand;
(2) Where the officer asks questions to learn the amount of alcohol said to have been consumed -- with confidence that only one drink was consumed, the constable may direct the motorist on his or her way;
(3) Where legitimate public safety or similar exigencies arise justifiably explaining a brief delay preventing immediate communication of a formed intention to demand and undertake ASD testing.
[12] Justice LaForme goes on to say:
In my view, all these examples are instances where the assessment of the "forthwith" requirement is based on whether a short delay is reasonably necessary to accomplish the objectives of s. 254(2).
Facts of the Case
[13] In this case Constable Wheeler testified that while seated in an unmarked police minivan, he saw a motor vehicle driven by Mr. Szaloczi turn onto Bronte Road in Oakville. The vehicle fishtailed during the turn, meaning that the back end of the vehicle swung towards the curb and then back towards the centre line. It then straightened out and proceeded along Bronte Road.
[14] Constable Wheeler pursued the vehicle and conducted a traffic stop at 8:52 p.m.
[15] He told Mr. Szaloczi that he was being stopped for making an unsafe turn.
[16] Mr. Szaloczi replied that the vehicle was new and had all-season tires.
[17] Constable Wheeler began to detect the odour of alcohol on Mr. Szaloczi's breath. He asked if Mr. Szaloczi had been drinking and was told, "No".
[18] Mr. Szaloczi provided documents requested by Constable Wheeler who took them back to his police vehicle. He testified that he liked to do a records check and learn who he was dealing with before making a breath demand. He also intended to reflect on which demand was appropriate in this case.
[19] He returned to Mr. Szaloczi's vehicle and made an approved screening device demand at 8:59.
[20] Clearly the demand was not made immediately in this case. It was made five to seven minutes after Constable Wheeler had reason to suspect that Mr. Szaloczi had alcohol in his body.
Analysis
[21] The issue then is whether I am satisfied that in the circumstances it was made promptly.
[22] In determining this, I note the following.
[23] Constable Wheeler did not have to wait for an approved screening device to be brought to him. He had one with him.
[24] He did not delay making his demand because of concerns as to when Mr. Szaloczi consumed his last drink and whether there might be a problem with residual mouth alcohol.
[25] He explained that he liked to take time to reflect on the appropriate demand to make and that it was his practice to do this.
[26] While I am satisfied that this might be justified in the appropriate circumstances, I am not satisfied that he was justified in doing this in the present case.
[27] All he had to go on was the fact that Mr. Szaloczi's vehicle fishtailed when making a turn. Mr. Szaloczi provided an explanation which might or might not have been true but the driving was not anywhere near bad enough to form reasonable and probable grounds that Mr. Szaloczi's ability to drive was impaired by alcohol.
[28] There were no problems with his speech or his dexterity or his eyes.
[29] The odour of alcohol coming from his breath did not change this. It served only to provide a basis for Constable Wheeler to make the approved screening device demand that he ultimately did make.
[30] I am not satisfied that it should have taken more than a minute of reflection, if that, to reach that conclusion.
[31] I note further that Constable Wheeler did not take any further investigative steps during this time to determine whether there were reasonable grounds to make an intoxilyzer demand.
[32] The onus is on the Crown to prove beyond a reasonable doubt that the demand was a valid one.
[33] After taking all of this into account, I am not satisfied that Constable Wheeler's desire to reflect on the evidence was a valid reason to delay making the approved screening device demand in this case.
Officer Safety Argument
[34] That then leaves Constable Wheeler's explanation that he wanted to run Mr. Szaloczi's name through the police computer so that he would know who he was dealing with. He cited officer safety as his reason for this.
[35] I must determine whether this was "an articulated and legitimate safety concern" such as was referred to in R. v. Quansah, supra that would justify the delay in making a demand.
[36] If so, all police officers would be justified in doing this in each and every case. Mr. Szaloczi had done nothing to prompt Constable Wheeler to check his record. It was simply Constable Wheeler's practice to do so.
[37] Further, it would make no difference whether, like here, the officer learned of a potential security issue or not. Every officer would be permitted to put off making a demand forthwith while he or she ran a records check on a suspected driver.
[38] Constable Wheeler could have mentally prepared himself for all possible safety issues without taking the 5, 6 or 7 minutes to conduct the records check. In saying that, I note that he was not the only police officer at the scene. His partner, Constable Coysh was also there, available to assist with officer safety.
Conclusion
[39] After considering all of the evidence in this case, I am not satisfied that the Crown has proven beyond a reasonable doubt that the demand was made forthwith. In the result I am not satisfied that the demand was a valid one.
[40] The charge is dismissed.
Released: October 16, 2018
Signed: Justice D.A. Harris