Ontario Court of Justice

Date: 2018-10-18

Court File No.: Central East - Newmarket 4911-998-17-05074

Between:

Her Majesty the Queen

- AND -

Arthur Weeks

Before: Justice P.N. Bourque

Reasons for Judgment

Released on October 18, 2018

Counsel:

• P. Hsiung for the Crown
• B. Brody for the Defendant

BOURQUE J.:

Overview

[1] The defendant was stopped by a police officer, failed the ASD, and afterwards blew 160 mgs into the Intoxilyzer. He was charged with driving with excess alcohol. A trial has ensued with a plethora of Charter challenges.

Adam Van Loemen

[2] …is a York Regional Police officer of about 15 years' experience. He gave his evidence viva voce and using the video of his in-car camera.

[3] He sees the defendant car in a plaza near a drug store after 02:00 hours and the drug store is closed. He sees the vehicle go to the plaza entrance and pause for 5 seconds before turning onto an empty street. He follows and sees the car driving normally. He runs the plates and discovers the defendant has outstanding drug charges.

[4] He wishes to check for sobriety and turns on his lights and the defendant turns onto St. John's Side Road and stops.

[5] The officer goes up to the car and engages in conversation with the defendant driver. There is another man in the passenger seat. The officer smells alcohol coming from the car. The passenger is becoming nervous. The officer smells burnt marijuana. He sees an open beer bottle in the car.

[6] He believes the passenger is becoming increasingly agitated and he tells them to get out of the car as he is going to search pursuant to the Liquor Licence Act. He calls for back up.

[7] He asks the defendant and his brother to stay on the sidewalk. Officer Creed and another come to the scene. The officer and Creed do a search of the vehicle and Creed finds two open beer bottles and the witness finds a small quantity of marijuana in the console. The officer states that he is forming a suspicion that the defendant has alcohol in his body but hands over the drinking and driving investigation to Officer Creed.

[8] This officer has no further dealings with the defendant at the roadside. He has some further action at the detachment and he gives the defendant a summons for Highway Traffic Act and Liquor Licence Act offences.

[9] The officer was cross-examined extensively about his motivation for the stopping of the motor vehicle. In his evidence in-chief, he stated that all the factors together and especially the stopping for 5 seconds before turning on the empty road was the prime factor. He denied that by allowing the vehicle to proceed for 2 to 3 minutes, he would have been putting the public in danger and thus his real motivation was to search a car, which he had seen stopped in a drug store parking lot late at night.

[10] He stated that he felt that the absence of any traffic on the road made him believe that there was no danger in letting the driving continue and in any event, the actual driving did not seem to pose a danger. He stated that he stopped the vehicle to complete his investigation by checking personally on the sobriety of the defendant.

[11] The defence further states that when the defendant was stopped, he was asked questions about the stop at the drug store and not a question about any issues of impairment. That is true, but it is clear that the officer (within seconds of the interview at the roadside) began to ask questions about the presence of open alcohol bottles in the car and asked about why there was the smell of alcohol. The officer indicated that the first 3 questions were about his being in the parking lot and his movement, but the next 5 questions were directed to the issue of drinking and driving.

[12] The officer in cross-examination was aware of his duty to provide rights to counsel upon detention but felt this matter was complicated by the fact that the passenger was having personal issues (he was having an anxiety attack) and the officer wished to search the vehicle under the Liquor Licence Act because of seeing beer in the car. The officer was adamant that while there was a possibility of marijuana in the car that was just one of the matters he was becoming suspicious of.

[13] With regard to the timing of the ASD demand, the officer admitted that when the defendant stepped out of the vehicle, that is probably when his reasonable suspicion of alcohol in his body crystallized.

Joshua Creed

[14] …is a York Regional Police officer with about two and-a-half years' experience. He gave his evidence viva voce and through the in-camera video and audio system. The following is a combination of his evidence.

Date	Event
June 12, 2017 02:28	Notified that P.C. Van Loemen had made a traffic stop.
02:28	Witness arrives at the scene and sees a car pulled over on St. John's Side Road with two men (including the defendant) standing on the sidewalk talking to police officers. The officer approached the car and saw two ½ empty beer bottles in the centre console of the car. He spoke to Van Loemen who advised that no one was under arrest. He also said he was going to "tox" the defendant and the officer assumed that was to administer the ASD.
02:32	The officer went over to the driver of the car and smelled an odour of alcohol and asked him if he had anything to drink. The defendant stated that he had one drink at 6:00 p.m. the day before.
02:37	The officer read the ASD demand. After three attempts which failed, the defendant provided a suitable sample into the ASD and it registered a "fail". The officer testified the device was calibrated and was operating properly.
02:39	The defendant is placed under arrest, searched and handcuffed and placed in the rear of the officer's cruiser. The defendant can be heard on the video exhibit protesting his innocence and wondering why he was arrested as he was just going a short distance to pick up his "drunk" brother.
02:43	The defendant is read a caution and rights to counsel. In response to the rights to counsel, the defendant says he understood and speaks the name of at least two lawyers he wants to call, but settles on the name of Dan Mideo.
02:46	The officer reads the breath demand.
02:48	The officer departs with the defendant for 2 District.
03:09	The officer arrives at 2 District. The defendant was booked by the duty sergeant and was placed in a cell.
03:24	The officer places a call to lawyer Dan Mideo and gets an answering machine and leaves a message to call back.
03:29	The call not being returned, the officer calls duty counsel.
03:38	The officer takes the defendant to the telephone room and the call with duty counsel is completed at 03:45. The defendant is taken to the breath tech.
04:16	The defendant is returned to the officer and documents are served.

[15] The officer was cross-examined about issues of potential mouth alcohol. He indicated that he found two opened bottles of beer in the car. While he thought it was a possibility that the defendant was drinking in the car, he also stated that the defendant told him his last drink was at 6:00 p.m., even though he did not believe him. In any event, it was his evidence that he relied upon the result of the ASD in making his determination to arrest and he believed he could rely upon it.

[16] The officer was questioned about the issue of counsel of choice. It was apparent that after he had found a number for the lawyer Dan Mideo, he called it and finding an answering machine, he left a message. It does not appear from his evidence alone that he even consulted with the defendant before calling duty counsel. He did not ask the defendant about any other means of contacting his lawyer, or whether there was some other lawyer (the defendant had mentioned another name in the police cruiser) whom he would like to call. I noted the officer's comments that "It was late and I'm gonna call number and then put him in touch with duty counsel". I believe that the response to "late" refers to the hour and the likelihood of getting a reply.

[17] With regard to the timing of events at the roadside, the officer indicated that from the time he formed his reasonable suspicion of alcohol in the body of the defendant, to the making of the ASD demand, was some 5 minutes.

Aaron Sidenberg

[18] …is a York Regional Police officer and a breath technician. He stated that he was present when the defendant was booked. He stated that as part of the conversation, there was a conversation between the arresting officer and the defendant about counsel. The video of the interaction was played for the officer but he stated that he had difficulty making out exactly what was said and he testified largely from his recollection. He stated that the defendant indicated again that his lawyer was Dan Mideo. He stated that Officer Creed asked whether he thought that Dan Mideo would actually be there and asked the defendant that if Mr. Mideo was not available, would he speak to duty counsel, and the defendant answered with "that's fine".

[19] The officer then testified about the attendance in the breath room and particularly his statement that at that time, Dan Mideo had not returned the call for half-hour (it was actually 22 minutes) and did the defendant speak to duty counsel. The defendant confirmed his discussion with duty counsel. The officer then said that if Dan Mideo called, he would let him speak to him. In cross-examination, he admitted that he did not question the defendant about whether he still wished to speak to Dan Mideo and he believed that he had satisfied himself that the defendant had spoken to counsel and he had left the implementation of that right to Officer Creed. He did not ask the defendant if he was satisfied with the advice he got and the defendant did not volunteer any dissatisfaction about duty counsel. He stated he had no reason from his demeanour to believe he was dissatisfied.

Section 9 Charter Challenge

Did the officer have grounds to stop the defendant's car?

[20] The officer testified that there were several factors which led him to stop the car, including the sitting in the parking lot of a drug store late at night, and the pause for 5 seconds before he made a turn onto an empty road. The officer had several concerns but he articulated that he wished to stop to check for sobriety. He has an absolute right to do this.

[21] The defence suggests that the officer is actually lying (he accused him of lying during his cross-examination). I cannot agree with this assessment. I found the experienced officer to be articulate and honest about all of his dealings with the defendant that evening. The fact he did not tell the defendant that this was his concern in the first words to the defendant does not detract from this. Within seconds of his interaction with the defendant at the roadside, he was asking questions about his alcohol consumption and indeed making observations of open beer in the car and the smell of alcohol. The officer may well have also been concerned about potential drug issues. He knew that the defendant was awaiting trial on drug offences. An officer can have more than one concern and potential line of investigation when he stops a motor vehicle. The wish to check for sobriety need only be one of the factors, and indeed need not be the principal one.

Did the officer have reasonable and probable grounds to arrest the defendant for driving with excess alcohol?

[22] The defence has challenged the evidence of Officer Van Loemen. I found that the officer was not seriously challenged in his credibility. He answered thoughtfully the defence questions, and while admitting various possible scenarios put to him, he did not waver from his assertion that issues of sobriety (and thus the right to stop under the Highway Traffic Act) were part of his concern. I accept his evidence with regard to the stop and the subsequent actions at the roadside.

[23] As I view the evidence, the presence of a car in a parking lot late at night with two people in it and especially the driving to the stop sign and the remaining at the stop sign for some 5 seconds (when there was no traffic) would objectively give the officer the grounds to eventually stop the car and inquire further. The fact that he followed for a period of time to see if further grounds developed does not detract from this.

[24] The defendant states that while Officer Creed had a reasonable suspicion that the defendant had alcohol in his body, and thus could make the ASD demand, he should have waited 15 minutes for any potential blood alcohol to dissipate before conducting the ASD. Having not done so, his subjective belief is not reasonable and indeed he admitted in testimony that in "retrospect" he should have waited.

[25] With regard to Officer Creed's evidence, he stated in chief and in re-examination that he did not feel the need to wait as the defendant specifically told him he had nothing to drink for several hours before the stopping. He was aware of the open bottle of beer in the car (there were two) and agreed that there was a possibility in his mind that the defendant may have consumed some of the beer as he drove. He felt that the device was operating properly and he ultimately testified that he believed he could rely upon the result.

[26] In my opinion, the officer's belief and the objective factors surrounding the belief, are to be judged by his actions and belief at the roadside, not his belief while in the witness box, several months (or years) later. As stated in R. v. McCormack, [2008] O.J. No. 93, "different officers may assess similar circumstances differently in deciding whether some brief delay is necessary in the administration of the 254(2) test without either view being unreasonable".

[27] In any event, I believe that the recent Court of Appeal decision in R. v. Notaro, 2018 ONCA 449, speaks to approach to be taken to the mouth alcohol issue. As stated at par 54:

…It is incorrect that an officer – who has information that raises the possibility that a suspect may have residual mouth alcohol at the time an ASD test is administered – cannot rely on an ASD fail result unless she's has considered the presence of residual mouth alcohol. Whether she can rely on a fail result depends instead on whether the subjective and objective components of the reasonable grounds test are met.

[28] In our case, the officer smelled alcohol on the breath of the defendant. He was also informed that he was the driver of a vehicle that had been recently stopped by Officer Van Loemen. He asked the defendant when he had his last drink and the defendant said that he had drunk several hours before. Even if he had reason to disbelieve the response does not mean that it follows that he would be convinced that the defendant had a drink of alcohol within the past 15 minutes. As stated in McCormack, "there was no credible evidence beyond a possibility, compelling the constable to doubt the accuracy of the ASD reading".

[29] Based on all of the above, I believe that once he was satisfied that he had received a suitable sample of breath and believed that the ASD device was functioning properly, I believe he had the necessary subjective belief and objective grounds to arrest the defendant for driving with excess alcohol.

Did the Officer comply with 254(2)(b)?

[30] The defence argues that the officer did not comply with the "forthwith" requirement in section 254(2)(b) both in not making the demand "forthwith" after forming his reasonable suspicion and then not have the ASD test conducted "forthwith".

[31] Officer Van Loemen, in his testimony, indicated that his reasonable suspicion probably crystallized when the defendant got out of the car and the officer then confirmed that the smell of alcohol was coming from his mouth and was not just in the car. The officer approached the vehicle at 02:26. By 02:29, he had confirmed the smell and his reasonable suspicion was there. The drinking and driving investigation was handed over to Officer Creed who did not make the demand until 02:37, some 8 minutes after Officer Van Loemen formed his suspicion. However, it was 02:32 that Officer Creed made up his own mind with regard to this suspicion. Therefore, I am of the view that the facts support the finding that Creed was doing his own investigation and after reaching that stage, the delay between suspicion and the demand was some 5 minutes. The question is, does this offend the "forthwith" requirement?

[32] I have reviewed a recent decision of my brother judge Ghosh J. in R. v. Wach, 2018 ONCJ 611, where he found that a 5 to 9 minute delay did not offend the "forthwith" requirement. In that case, as in the case at hand, the officer was attending to several duties pertaining to the investigation (calling for a breath tech, checking for officer safety). The delay was reasonably necessary for the proper administration of the "roadside test". I also do not believe that R. v. Quansah, 2012 ONSC 262, [2012] O.J. No. 79 is offended. While the case uses the words "immediately" and it denotes "a prompt demand and an immediate response", it also goes on to state that the immediacy requirement must take into account all the circumstances.

[33] While some judges may disagree, I do not find that in the context of an investigation at the roadside, with the officer having to be briefed by the original officer and then forming his own grounds, is such a length of time as to offend this requirement.

Were the Defendant's 10(a) Charter Rights Infringed?

[34] The defence states that the officer did not immediately inform him of the reasons for the detention and then did not immediately inform him of his rights to counsel.

[35] The officer stopped the defendant and one of the reasons was to check for sobriety. While that was not the first question he asked the defendant, the discussion moved (within seconds) to inquiries about the defendant's alcohol consumption. I believe that the defendant would have been aware of that as a focus of the investigation. With regard to the issue of rights to counsel, the time from the stop (02:27) to the eventual arrest (02:39) was some 11 or 12 minutes. In that time, Officer Van Loemen questioned the defendant and the passenger in the vehicle, asked both of them to step out of the vehicle, briefed the two officers (including Creed) who came to assist, assisted Creed in a brief search of the car for evidence, then Creed spoke to the defendant, formed his grounds, and then prepared and administered an ASD.

[36] The defendant asserts that while issues of rights to counsel can be delayed in ASD cases, because the officer was also pursuing a drug investigation (and an LLA investigation) this rights to counsel could no longer be delayed. With all respects, I disagree. If the defendant was seeking to exclude statements which relate to any drug or non-drinking and driving prosecution, then he may have a point. However, we are dealing with a drinking and driving offence. It is settled law that barring some real delay, the provision and facilitating the rights to counsel before the ASD test is made is not necessary. I rely upon the decision in R. v. Gunn, 2015 ONCJ 218 at paras 34-46.

[37] In any event, I specifically find that this officer was conducting a multifaceted investigation. I accept his evidence that he wished to stop the car for several reasons. The fact that the first question out of his mouth was not related to drinking and driving does not change my opinion. He was asking questions about drinking and driving within seconds of the conversation beginning. I also find that for the purposes of the analysis in R. v. Quansah, 6 to 8 minutes to facilitate the rights to counsel at the roadside was reasonably necessary for the completion of that task.

Were the defendant's 10(b) Charter rights infringed?

[38] The defendant asserts that the actions of the officers at the station effectively precluded him from exercising his right to counsel of choice and instead (as stated by Langdon, J. in R. v. Zaidi, [2007] O.J. No. 4105) simply "defaulted" to duty counsel, mere moments after calling the lawyers number.

[39] I have noted above the officer's evidence (or lack of evidence) about the interaction (or lack of interaction) with the defendant. It is clear that the officer was of the view that the call would not be returned and therefore there was no need to wait and he immediately referred the defendant to duty counsel. The defendant did consult with duty counsel. There was no discussion with the defendant with any adequacy (or lack of adequacy) of the advice and the defendant did not specifically complain about the advice and nor did he reassert his wish to speak to his own lawyer.

[40] However, there was a conversation at the booking desk about duty counsel. Officers indicated to the defendant that they would call Dan Mideo and if there was no contact, then the defendant could then consult with duty counsel. I believe that the evidence showed that the defendant agreed with that suggestion.

[41] The Crown argues that the defendant had the benefit of duty counsel, and having done so, was under an obligation to be more assertive in seeking out his counsel of choice. While the Crown agreed there is no evidence of the officer waiting more than a few minutes before contacting duty counsel, he does point to the discussion in the booking room. It is clear from that discussion that when the scenario is put to the defendant that lawyer Dan Mideo may not be available this time of night, and that duty counsel could be called, the defendant replied "that's fine".

[42] The Crown also points to the evidence of the breath tech who told the defendant that it was half-hour since the call to Dan Mideo (it was actually 22 minutes), and that if Mideo did call, he would stop the process.

[43] I will find as a fact that the officer made no notes of any conversation between himself and the defendant about any interaction after his call to Dan Mideo. But for the conversation in the booking room about the potential unavailability of duty counsel, it may be easy to believe that the officer was steering the defendant to duty counsel without the defendant's wishes and without any information.

[44] It is certainly possible that the officer could have done more to follow up with the defendant afterwards and see if the defendant wished something further, either by way of seeking another number or indeed seeking another lawyer.

[45] While the facts are never exactly the same, I am of the view that the totality of the conversations with the officers would have led Officer Creed to assume that if there was no response to his call to Dan Mideo, then the defendant wished to speak to duty counsel. The subsequent actions of the parties seemed to bear this out. The defendant did speak to duty counsel and made no further request to speak to Dan Mideo.

[46] The defendant did not testify, and while that is not necessary, I have no evidence which would run contrary to the evidence at the scene.

[47] As per R. v. Willier, 2010 SCC 37, [2010] SCJ No. 37, "in no way did the police interfere with Mr. Willier's right to a reasonable opportunity to consult with counsel of choice…".

Section 24(2) Analysis

[48] Having rejected the many and varied Charter applications in this case, it is not necessary for me to engage in a s.24(2) analysis. I would say, however, that I agree with defence counsel's submission that with the exception of the "counsel of choice" issue at the station, none of the other possible breaches would in themselves lead to an exclusion of evidence. Whether several or all of them together would lead to such a result would be too speculative for me to say.

[49] With regard to the "counsel of choice" issue, if I was incorrect in my analysis, I would still have to say that the breach was very technical. In that sense, while counsel of choice is an important issue, the defendant agreed in advance that if his counsel could not be reached, that he would accept duty counsel. That was a reasonable choice to make and after receiving his legal advice, the defendant proceeded without protest. This would also make the impact upon his Charter protected interests quite minimal. As for the third factor, there is a strong societal interest in determining drinking and driving cases on their merits and of course (as stated in many other cases), the breath readings are highly reliable evidence and are crucial to the Crown's case.

Conclusion

[50] Having rejected all of the applications by the defendant, I admit into evidence the certificate of the breath technician and I find him guilty of the offence of operating a motor vehicle with 160 milligrams of alcohol in 100 millilitres of his blood, which exceeds the statutory limit.

Released: October 18, 2018

Signed: "Justice P.N. Bourque"