Court File and Parties

Ontario Court of Justice

Date: 2018-11-16

Court File No.: Newmarket 17-01080

Between:

Her Majesty the Queen

— and —

Eva Kubacsek

Judgment

Evidence heard: October 30, 2018

Delivered: November 16, 2018

Counsel:

• Ms. Melissa Daigle — counsel for the Crown
• Mr. David Cohn — counsel for the defendant

KENKEL J.:

Introduction

[1] Constable Codlin was doing paperwork in a mall parking lot on a Sunday morning when he noticed a car park near an LCBO store that was about to open. What drew his attention was the fact that the car parked on top of one of the marked lines taking up two spaces. The driver later exited the store with a brown bag in her hand. She made an improper turn into the wrong lane then another improper turn. The driver's plate validation was expired. The officer conducted a traffic stop. After speaking to Ms. Kubacsek he detected an odour of alcohol coming from her breath.

[2] The unusual circumstance in this case – he did not have an approved screening device (ASD) with him as all of the devices in his district are calibrated on alternate Sunday mornings and there was not one available at the start of his shift. He was not sure a device could be made available that morning. PC Codlin asked the accused for her driver's license and she presented a health card, then later presented her license. He contacted dispatch and requested that an officer trained in Standard Field Sobriety Tests (SFST) attend the scene to conduct an evaluation. He also asked for an ASD to be brought if one was available. Minutes later the dispatch operator confirmed that a device could be brought to the scene in 10 minutes.

[3] Once the officer confirmed that an ASD could be brought to the scene he made a screening device demand and advised the driver of her right to speak with a lawyer. As the wait for the device would be up to 10 minutes he advised her she could speak with a lawyer while waiting. At her request he provided her with the duty counsel number. A second officer who attended, PC Aselton, noticed that as the duty counsel number was provided to the accused she wasn't dialing in her phone application but instead had WhatsApp displayed. He helped her find the call application for the phone. He wanted to make sure the number was dialed so she could speak to duty counsel. After the device arrived the accused failed the ASD test and subsequent approved instrument tests at the station showed she had a blood alcohol level in excess of the legal limit. She was charged with "Over 80".

[4] This case turns on consideration of several alleged Charter breaches:

• Section 7 – Lost evidence – PC Codlin's in-car video was not disclosed.
• Section 8 – ASD demand not made "forthwith".
• Section 9 – Accused's detention to and after the unlawful demand was arbitrary.
• Section 10(b) – Failure to provide right to counsel advice immediately, failure to implement the request to speak to duty counsel at the roadside.
• Section 24(1) – Stay of proceedings to remedy lost evidence.
• Section 24(2) – Exclusion of the breath test evidence as a remedy for the alleged breaches.

Times

[5] PC Aselton's video and the evidence of both officers establish the following times:

• 11:03 PC Codlin conducts traffic stop of Ms. Kubacsek
• 11:04 PC Codlin smells alcohol on the accused's breath. PC Aselton arrives on scene.
• 11:06 Request for driver's license. Accused asked to step out.
• 11:06 Accused advised she's being investigated for impaired driving.
• 11:07 Accused exits vehicle.
• 11:08 Officer forms reasonable suspicion after detecting odour and questions about timing of drinking show grounds for s.254(2) demand.
• 11:09 Officer reads a caution to the accused in relation to impaired investigation. Accused advised not to drinking anything as she would "have to do a test" in relation to that investigation. As she gathered her purse she's told she cannot leave the scene.
• 11:09 Officer requests an SFST officer be brought to the scene.
• 11:10 Officer asks if an ASD could be brought to the scene.
• 11:10 Officer again reminds the accused she's being investigated for impaired driving in response to her statements.
• 11:13 PC Codlin advised an ASD can be brought to the scene. He then calls the station to get an estimated time of arrival.
• 11:13 Accused took wine bottle from back and put it in her cup holder. Cautioned not to drink further. Police put the wine bottles in her trunk.
• 11:16 PC Aselton reminds the accused again she's being investigated for impaired driving. He advises the accused they've confirmed an ASD is coming but there would be a 10 minute wait. She's told she could call a lawyer during the wait and she asks to call duty counsel as she has no money for a lawyer.
• 11:18 PC Codlin reads right to counsel advice and s.253(2) demand.
• 11:18 Accused takes a Lorazepam pill. Officers confirm it's her prescription.
• 11:19 Officers provide the duty counsel number and help her dial
• 11:24 PC Lewis arrives with ASD.
• 11:26 ASD test conducted and accused registers a Fail.
• 11:27 Accused in handcuffs is placed in PC Codlin's vehicle.
• 11:29 PC Codlin leaves scene with accused.
• 11:30 PC Codlin stopped and read RTC again and s.254(3) demand.
• 12:13 Duty counsel called from the station.
• 12:20 Accused speaks to Duty counsel.
• 12:25 Accused taken to breath test room.
• 12:35 First breath test completed.
• 15:00 Accused released and driven home by officer.

Note that these times includes events that started or occurred shortly before the stated time or that were ongoing and continued after the stated time.

Sections 7, 24(1) – Lost Video

[6] Constable Codlin's in-car video was not disclosed. The officer did activate his lights and later did see the video so he believes there was a record. He doesn't know why video services was unable to locate the video. It should have automatically uploaded on return to the station. It's possible it was misfiled when it was uploaded. There may be other possibilities but PC Codlin wasn't familiar with the details of video storage and retrieval.

[7] The defence submits another video should have been saved. PC Lewis attended the scene to drop off an ASD. His video equipment may have activated so it's possible a video was created. That may not have been stored in association with this incident unless PC Lewis filed it that way. As PC Lewis wasn't otherwise involved in the investigation beyond dropping off the device it's reasonable that he may not have taken steps to preserve that short video. The defence points to the moment when the accused was saying things about speaking to counsel as something that might have been captured by PC Lewis' video, but he was on the other side of the road with a median in between, speaking to another officer. It's unlikely anything helpful would have come from the Lewis video. In any event there is no contest of fact regarding the accused's utterance that she didn't speak to counsel. Her statement was preserved in the officer's notes and both parties referred to that evidence. The lack of the Lewis video could not reasonably have any impact on this trial.

[8] It's not plain whether PC Codlin's video was lost due to negligence or for some technical reason. We did not hear from any witness from video services and the limited evidence at trial on this point provides no basis for a finding of unacceptable negligence. It would have been helpful to have PC Codlin's in-car video, but Constable Aselton arrived on scene a minute later and his in-car video record was available. Both parties made reference to that video record and the testimony of both officers. The defence has not proved a s.7 breach, but even if there were a breach there would be minimal prejudice to the defence given the available video and the detailed evidence of both officers. A stay of proceedings would not be appropriate.

Section 10 – Right to Counsel

[9] Within minutes of the traffic stop, the investigation turned to a potential criminal offence. Ms. Kubacsek was advised of the change before the officer had determined whether he had grounds for roadside testing. The officer complied with the s.10(a) Charter requirement to provide notice of the reason for detention.

[10] Upon detention s.10(b) of the Charter requires that the accused be advised of the right to retain and instruct counsel without delay. Police are permitted to delay giving that right to counsel advice in drinking and driving cases for the purpose of conducting investigation at the roadside including Approved Screening Device (ASD) tests or Standard Field Sobriety Tests (SFST). The officer need not conduct roadside testing if that's not necessary. The officers in this case were entitled to determine whether grounds existed for arrest or for a roadside test.

[11] At 11:08 a.m. PC Codlin formed the reasonable suspicion required for a s.254(2) demand for roadside testing. He cautioned the accused again about being investigated for impaired driving and he advised her that she would have to do a test in that regard so she shouldn't be drinking the alcohol in her car. He called police dispatch to determine whether a SFST officer could attend the scene. A minute later after no response he asked if there was an ASD ready that could be brought to the scene. Three minutes later he was told that an ASD could be brought. He called back to ask for arrival time and at 11:16 he was told that there would be a 10 minute wait. Once the officers determined that an ASD was available and that the test could be administered in a timely way PC Codlin provided the accused with right to counsel advice and read the s.254(2) demand.

[12] From 11:08 to 11:16 the officers weren't sure that a roadside test could be administered in a timely way. They were entitled to make the inquiries they did, but they did not have a reason to suspend right to counsel advice during that period when it was not plain if any roadside test could be administered. There is a s.10(b) breach during that period.

[13] At 11:16 given the time to that point and a further 10 minute wait PC Aselton advised Ms. Kubacsek she could call a lawyer from her car in privacy. She was concerned about paying for that call so he advised her of the availability of free duty counsel. At her request he gave her the duty counsel number. PC Aselton looked at the accused's phone to see if she was able to dial the number. He noticed that she had the wrong application open. He helped her open her phone application and made sure she dialed the number.

[14] The accused appeared to be speaking with someone on the phone but the officers did not monitor the call. After that conversation Ms. Kubacsek told PC Codlin that the duty counsel had not spoken with her. We have no evidence as to what happened when she called duty counsel, but her statement afterwards led the officer to believe that she had been put on hold. In the cross-examination of PC Codlin it was shown that it's also possible to reach a voicemail system if a lawyer is not available, although the accused's statement is more consistent with having spoken with someone. Duty counsel records do not show legal advice being given to Ms. Kubacsek so that's consistent with her statement that she was unable to speak with one of their lawyers.

[15] By that point the ASD had arrived. The officer was able to administer the test immediately. The "forthwith" immediacy requirement includes reasonably necessary delay where breath tests cannot be conducted immediately because a device is not available. One of the circumstances that determines whether the delay is reasonable is whether the police could have fulfilled their obligation to implement the accused's s10(b) rights before conducting the test – R v Quansah 2012 ONCA 123. Here the officers tried to implement the accused's s.10(b) rights at the roadside but she was unable to speak with a duty counsel lawyer before the device arrived. Whether she was put on hold or reached voicemail it's plain that there wasn't a lawyer available at that particular time to speak with her. As it turned out the officers were able to administer the ASD test before the s.10(b) right to consult with counsel could be successfully implemented.

[16] This situation – right to counsel attempted but not completed – is somewhat similar to the circumstances in R v Soule 2018 ONSC 9083 where the accused was provided informal right to counsel advice, allowed to search for a lawyer's number, but before he could speak with a lawyer the ASD device arrived. The Summary Conviction Appeal Court held that the officer was not required to "hold off" the ASD test to permit consultation with counsel. Where the breath test can be administered before the accused speaks with counsel it is within the "forthwith window". The officer was right not to delay the test despite the fact that the accused had been offered an opportunity to speak with counsel and wasn't able to reach a lawyer.

[17] I find the officers complied with s.10(a) of the Charter. Section 10(b) was engaged when the officers held the accused in investigative detention but were not certain they could make any demand under s.254(2). The failure to provide right to counsel advice at that time breaches s.10(b). The device arrived before there was a realistic opportunity to consult with counsel at the roadside despite the call made to duty counsel. There is no further s.10(b) breach. The accused spoke to duty counsel later at the station before approved instrument testing.

Sections 8, 9 – ASD Demand Not Forthwith

[18] Constable Aselton arrived on scene at 11:06 and spoke with PC Codlin. He was aware that Codlin was investigating possible driver impairment. The accused was asked to step out of her vehicle. At 11:07 PC Aselton advised the accused she was being investigated for impaired driving. He smelled the odour of alcohol on her breath. He asked her whether she'd had any alcohol that morning and received a response. He asked when the drinks were consumed and was told it was hours prior. He testified that by 11:08:19 based on the odour and the further questions about the timing of consumption he formed a reasonable suspicion that she had been driving with alcohol in her body.

[19] PC Codlin could have formed a reasonable suspicion earlier when he first smelled alcohol, but officers are entitled to investigate whether a s.254(2) demand is required before deciding whether to make such a demand. In some cases their observations will lead to a conclusion of impairment leading to arrest without the need for roadside testing. In other cases like this one where those signs were not observed the officers ask about alcohol consumption and timing to try and determine whether there are grounds for a demand or reasons not to administer a test. The investigation from 11:04 to 11:08 a.m. was reasonable as it was properly focused on this issue.

[20] At 11:09 a.m. Constable Aselton advised Ms. Kubacsek that she was being investigated for impaired driving. He told her not to drink any of the alcohol she had in her vehicle "because we have to do a test". Although the Crown is not relying on this exchange as a demand, I note that those words conveyed many of the components of a s.254(2) demand – the nature of the investigation and the reason for her detention and the fact that she has to do a test in that regard. It's plain in context that the test could only relate to alcohol impairment, particularly where she's told not to drink further alcohol. The mandatory nature of the test was conveyed – "we have to do a test".

[21] PC Aselton did not read the formal ASD demand at that time because he did not know whether they could obtain an SFST officer or an ASD in time to administer either test "forthwith" as required by s.254(2). From 11:09 a.m. to 11:13 a.m. the accused was subject to an investigative detention pending a response from the station at to whether an officer or ASD device could be brought to the scene. The officers were right to make a further inquiry to ensure the device could be brought in a timely way. Once the officers received confirmation that an ASD could be brought to the scene within 10 minutes they returned and spoke with Ms. Kubacsek. She was advised of her right to speak with a lawyer and a formal ASD demand was read by PC Codlin.

[22] The defence submits that the s.254(2) requires an officer to make an ASD demand immediately upon formation of a reasonable suspicion, regardless of whether they know whether they are in position to administer that test or any test forthwith or at all. I disagree that s.254(2) mandates such an artificial exercise.

[23] To make a s.254(2) demand an officer needs the required reasonable suspicion but also needs to know if they can administer the test being demanded within the forthwith timeframe set out in that section. In this case the officer formed a reasonable suspicion by 11:08 a.m. but could not have made a demand at that time because he didn't know whether an SFST officer would attend the scene, or if an ASD could be brought or if neither were available. Given the unusual situation with ASD calibration on Sunday mornings the officer asked dispatch to search for an SFST officer, then asked for an ASD. Dispatch did not identify a SFST officer but three minutes later they replied that an ASD could be made available. Three minutes after that they confirmed that an ASD would arrive within 10 minutes. Once he had the information that the device was not being serviced and could be brought within that time PC Codlin read the formal ASD demand and provided right to counsel advice.

[24] Section 254(2) does not require that a demand be uttered "forthwith". Courts have held that it's implicit in that section that an officer make a timely demand, but that demand is part of the overall requirement that the ASD test be administered "forthwith" – R v Quansah 2012 ONCA 123. In this case the officer made the demand immediately after receiving the necessary information that he could administer a test in a timely way. As it turned out, the test was administered forthwith before the accused had the opportunity to consult with counsel. The Crown has proved the demand was made as soon as it could have been made and does not breach s.8.

[25] In the alternative, if there were a breach, the fact that the accused had been told in informal terms of the reason for her detention, the nature of the investigation, the fact that she would be doing a test in relation to that investigation in circumstances that make it plain it related to alcohol and her fitness to drive, provided the accused with most of the information a formal demand would have conveyed. The only missing component was to identify the test – ASD or SFST – but the officers could not have done that until they had that information. The seriousness of a s.8 breach would be diminished by the information provided by the officers, the caution given and the attempt to assist the accused in speaking with duty counsel.

Section 24(2)

[26] The defence submitted in strong terms that this was a poor example of roadside investigation. The officers were faced with an unusual situation and they followed logical steps in their investigation. Not everything they did was perfect, but that's not the standard. While they could have provided right to counsel advice earlier in the process they provided s.10(a) advice immediately upon the change in the investigation. The accused was cautioned, advised they were investigating impairment and she was told that she'd been tested in that regard. They kept her informed at each step. When they learned there would be a 10 minute wait for the ASD they helped her try to contact duty counsel but that wasn't successful. They ensured she spoke to duty counsel at the station prior to approved instrument testing. After she was released the officer drove her home.

[27] The section 10(b) breach in this case lasted 8 minutes. It arose out of an unusual situation. The breach wasn't serious and was followed by the attempted call to duty counsel showing the officers were mindful of the accused's s.10(b) rights.

[28] The breach had minimal impact on the accused given the short time and the fact that the accused had been fully advised of the nature of the investigation and read a caution in that regard prior to the breach. Breath samples are minimally intrusive – R v Jennings 2018 ONCA 260. The reliability of the approved instrument breath test evidence was not challenged at trial. Society's interest in adjudication on the merits favours admission. In this case all three Grant 2009 SCC 32 factors favour admission of the breath test evidence.

Conclusion

[29] The applicant has failed to prove the s.7 breach alleged. In the alternative the impact of the breach is minimal and a stay of proceedings is not warranted. The Crown has proved that the ASD test was administered forthwith so there is no s.8 breach. In the alternative the factors cited above significantly diminish the impact any breach would have in this case and the Grant factors could not reasonably lead to the exclusion of the approved instrument test evidence, even combined with the short s.10(b) breach. The applicant has proved a s.10(b) breach on the balance of probabilities but the s.24(2) analysis does not lead to the exclusion of evidence. The accused's detention was not arbitrary. There's no s.9 breach.

[30] The Crown has otherwise proved the charge alleged beyond a reasonable doubt. There will be a finding of guilt.

Delivered: November 16, 2018

Justice Joseph F. Kenkel