Court File and Parties

Ontario Court of Justice

Date: 2018-12-11

Court File No.: 18-0818

Between:

Her Majesty the Queen

— and —

Andrew Bazely

Before: Justice G.L. Orsini

Heard on: November 30, 2018

Reasons for Judgment released on: December 11, 2018

Counsel

Ms. M. Jones — counsel for the Crown

Mr. R. Venables — counsel for the accused Andrew Bazely

Judgment

ORSINI J.:

Introduction

[1] Andrew Bazely is charged with operating a motor vehicle with a blood-alcohol concentration in excess of the allowable limit. He urges me to exclude his breath readings and find him not guilty because the arresting officer violated his rights under sections 8 and 10(b) of the Canadian Charter of Rights and Freedoms. Specifically, he says the arresting officer did not have sufficient grounds to make an Approved Screening Device (ASD) demand or an Intoxilyser demand and that there was a six minute delay in advising him of his rights to counsel following his arrest.

[2] The case rises or falls on the outcome of the Charter application which was heard during the course of the trial. No other defence was advanced.

[3] For the reasons that follow, I reject the section 8 Charter argument and find that the breath readings should be admitted into evidence despite a breach of s. 10(b) of the Charter.

Evidence

[4] The evidence is not seriously in dispute.

[5] On March 17, 2018, shortly after 8 p.m., Constable Banks was operating a marked cruiser northbound on Komoka Road in Middlesex Centre when she observed a vehicle, subsequently determined to have been operated by Mr. Bazely, approaching from the opposite direction, with its high beams on.

[6] Constable Banks observed that the driver of the vehicle failed to lower the vehicle's high beams and that that vehicle swerved towards the outside lane marker as it passed her cruiser. She turned her cruiser around and caught up to the vehicle which swerved onto the outside lane marker a second time. On each occasion, she described the swerve in terms of a gradual drifting as opposed to a sudden manoeuvre.

[7] Based on her observations, Constable Banks activated her emergency lights, causing the vehicle to pull over to the shoulder of the roadway. She then approached the driver's side of the vehicle, advised Mr. Bazely of the reason for the stop and requested his driver's licence and insurance documents.

[8] Constable Banks made the following observations with respect to Mr. Bazely:

(a) his movements were slow when retrieving his licence and insurance documents;

(b) he had a glazed look in his eyes; and

(c) he was chewing gum.

[9] Constable Banks detected an odour of alcohol from within the vehicle but could not determine if it was coming from Mr. Bazely or his passenger. In response to questioning, Mr. Bazely admitted to consuming one alcoholic drink at 1 p.m. and stated that his passenger had also consumed alcohol.

[10] Ultimately, Constable Banks determined that Mr. Bazely had a slight odour of alcohol on his breath. She made this determination after he complied with her request to spit out his gum and accompany her to the rear of his vehicle where she spoke to him. Based on her observations, she believed his consumption to be more recent than 1 p.m.

[11] Mr. Bazely subsequently complied with an ASD demand and registered a "fail". No issue was taken with respect to the wording of the demand itself.

[12] As a result, at 8:32 p.m. she arrested him for the offence before the court and handcuffed him. By that time, a male officer had arrived on scene. The male officer searched Mr. Bazely and placed him in the rear of Constable Banks' cruiser.

[13] Constable Banks did not provide Mr. Bazely with his rights to counsel or caution until 8:38 p.m., six minutes after his arrest. Mr. Bazely indicated he did not have his own lawyer and expressed a desire to speak to duty counsel. She subsequently read him the standard breath demand at 8:40 p.m.

[14] In the intervening six minute period, Constable Banks said she attended back at the vehicle to explain the situation to the male passenger and confirm he had a way of getting back home. She then took some time putting the ASD back into the trunk of her cruiser.

[15] When asked about her grounds for making the ASD demand, Constable Banks did not specifically say she formed reasonable grounds to suspect that Mr. Bazely had alcohol in his body and had operated a motor vehicle within the preceding three hours. Instead she referenced her observations including the driving behaviour and Mr. Bazely's admission of having consumed alcohol and the odour of alcohol on his breath.

[16] When asked for her grounds to arrest Mr. Bazely and demand for a sample of his breath for analysis by a qualified technician, Constable Banks referenced the fail on the ASD in addition to her observations.

[17] Mr. Bazely subsequently provided suitable samples of his breath into the Intoxilyzer 8000C. It is conceded that Mr. Bazely had more than 80 mg of alcohol in 100 ml of blood at the time of driving.

[18] When questioned about the ASD in examination-in-chief, Constable Banks stated the following:

Question: What does the result of a fail mean to you?

Answer: The fail means that he has blown, he has more than 80 mg of alcohol in his blood. So at that time I advised him he was under arrest and that he would be transported to our detachment for a breath sample.

Question: Can you just state specifically for us what your grounds were for the arrest?

Answer: So obviously what I had said previously— the glazed eyes, the slow body movements, obviously the driving behavior that I had seen, the odour of an alcoholic beverage on his breath and obviously the fail on the approved screening device.

[19] When questioned about the same issue in cross-examination the following exchange took place:

Question: …and then you arrested him for over 80 because you indicated to my friend the approved screening device is set to fail at 80 mg of alcohol.

Answer: I believe its set to fail at 50 but it gives us our grounds for arrest.

Question: Okay, so you have grounds to arrest with the fail at 50?

Answer: Yes

[20] The court then took a recess, after which the following exchange took place:

Question: Officer before we took a break, you indicated to me you arrested my client because in your experience, in your training, the approved screening device is set to fail at 50 mg?

Answer: That's what I, I believed so. Or sorry no, not 50, 100, sorry 100 um so that to ensure that it will be over 80.

Question: Okay now which is it because you testified to three different numbers at this point in time?

Answer: I apologize sorry. The screening device I believe is set to 100.

Question: What does your training…do you recall your training?

Answer: From my training I know that if you blow a fail that it's at that point you have grounds for the arrest. It's my understanding its set to 100.

Question: And what is that understanding, how did you obtain that understanding?

Answer: From speaking with other breath techs.

Question: Were you ever trained in using the alcotest 6810?

Answer: Yes.

[21] She went on to testify that her understanding, having received some online training within the last 4 to 5 years, was that the device would display either an alert or fail — that an alert tells you there should be a three day suspension and that a fail would result in an arrest and transportation to the detachment for a Breathalyzer test.

[22] When asked about her specific understanding on the night the accused was arrested she said she understood that a fail meant that Mr. Bazely was arrestable for over 80 because a fail meant that "he was over 80".

[23] When asked about the timing of rights to counsel, Constable Banks said that such rights should be provided "as soon as practicable" following an arrest. This was after the 6 minute delay was pointed out to her, and after having initially agreed that such rights were to be provided immediately upon arrest.

[24] She agreed she could have provided rights to counsel prior to attending back to Mr. Bazely's vehicle to speak with the passenger. She expressed the view that the delay in this case was not unduly long or unreasonable.

Position of the Parties

Defence

[25] The defence says that there is no evidence the officer formed the requisite reasonable suspicion that Mr. Bazely had alcohol in his body prior to administering the ASD demand. The defence says that Mr. Bazely's admission to having consumed alcohol at 1 p.m., some 7 hours earlier, is not a basis upon which the officer could reasonably have suspected he still had alcohol in his body. At the very least, the defence says, the officer never specifically expressed such a suspicion.

[26] The defence further argues that the officer did not have reasonable and probable grounds to arrest Mr. Bazely and make a further breath demand. The defence points to the officer's testimony that she believed the ASD was calibrated to fail at 50 mg. While she subsequently corrected herself, the defence says this nevertheless raises a reasonable doubt as to what exactly the officer had in her mind when she made the arrest.

[27] Finally, the defence says that the six minute delay in providing rights to counsel is a serious breach and should result in an exclusion of the breath readings in this case. The defence says that the contrary finding in Jennings has been appropriately distinguished on the basis that it involved a s. 8, as opposed to a s. 10(b), Charter breach. The defence relies on a number of post-Jennings cases where a 10(b) Charter breach resulted in the exclusion of breath readings.

Crown

[28] The Crown says I am entitled to draw the reasonable inference that the officer had the grounds to make a roadside demand i.e., that she reasonably suspected Mr. Bazely to have alcohol in his body and to have been operating a motor vehicle within the preceding 3 hours. The Crown says that there is no requirement that the officer use specific terminology or words provided I am satisfied on her evidence that she formed the requisite suspicion.

[29] The Crown also takes the position that the officer had reasonable grounds to arrest Mr. Bazely and make a subsequent demand for a sample of his breath for analysis by a qualified technician based on the fail result on the approved screening device as well as the other observations she made.

[30] Finally, the Crown concedes that the six minute delay in advising Mr. Bazely of his right to counsel amounts to a breach, but argues that the admission of the breath sample into evidence would not bring the administration of justice into disrepute.

Analysis

Section 8 — The ASD Demand

[31] Section 8 of the Charter provides that everyone has the right to be free from unreasonable search and seizure. The Crown bears the burden of showing on a balance of probabilities, that the warrantless seizure of Mr. Bazely's breath was reasonable. R. v. Haas

[32] Pursuant to section 254(2)(b) of the Criminal Code, Constable Banks could only make an ASD demand if she reasonably suspected that Mr. Bazely had alcohol in his body and had been operating a motor vehicle in the preceding three hours.

[33] There must be both a subjective and objective basis for the reasonable suspicion. R. v. Bernshaw.

[34] The absence of either a subjective or objective basis for such a suspicion will render the demand invalid. The seizure of a breath sample would be a violation of the subject's right to be free from unreasonable search and seizure. R. v. Grant

[35] Whether an officer subjectively formed a reasonable suspicion is a question of fact. As with all questions of fact, the court is entitled to draw reasonable inferences from the evidence.

[36] Where an officer does not specifically testify to having formed the requisite suspicion, it is open to the court to infer that he or she did so based on the totality of the officer's evidence. No "magic words" are required in order to communicate the officer's suspicion. R. v. Kurmoza, [2017] O.J. No. 1243 para. 36; R. v. Fleming, [2016] O.J. No. 3574 para. 13

[37] It must be remembered that the standard of "reasonable grounds to suspect" involves possibilities, not probabilities: R. v. Williams, (2013) ONCA 772, para. 22, citing R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 38; R. v. Chehil, 2013 SCC 49, [2013] S.C.J. No. 49 at para. 27;

[38] I am satisfied that Constable Banks subjectively believed that Mr. Bazely had alcohol in his body and had operated a motor vehicle within the preceding three hours. Mr. Bazely was the driver of a vehicle she had just stopped. There was some irregular driving. He admitted to consuming alcohol at 1 p.m. The officer believed his consumption of alcohol to more recent than that. He had an odour of alcohol on his breath. She said his movements were slow and he had a glazed look in his eyes. She said that all of these factors caused her to make the ASD demand.

[39] I find that the officer's suspicion was objectively reasonable.

Section 8 — The Intoxilyzer Demand

[40] In order to make a demand to section 254(3) of the Code, the officer must have reasonable grounds to believe the person is committing, or has committed within the preceding three hours, an offence under section 253 of the Code as a result of the consumption of alcohol.

[41] Constable Banks testified that she arrested Mr. Bazely for over 80 because of "the glazed eyes, the slow body movements, obviously the driving behavior that I had seen, the odour of an alcoholic beverage on his breath and obviously the fail on the approved screening device." She went on to state her understanding that a "fail" meant that he had more than 80 mg of alcohol in his blood.

[42] In cross-examination, she said the device was calibrated to fail at 50 mg of alcohol but then corrected herself saying that the device was calibrated to fail at 100 mg. She then repeated that the "fail" result meant that the individual had more than 80 mg of alcohol in their blood.

[43] I am satisfied that Constable Banks had reasonable and probable grounds to arrest Mr. Bazely and make a demand for a sample of his breath pursuant to s. 254(3) of the Code. Although, at one point, she testified that the ASD was calibrated to fail at 50 mg, she quickly realized she misspoke, and returned to her initial understanding that the device was calibrated to fail at 100 mg and that the "fail" meant Mr. Bazely had more than 80 mg of alcohol in his blood. I am satisfied that the officer misspoke when she said the ASD failed at 50 mg.

[44] For these reasons, I find that there was no section 8 Charter violation in this case.

Section 10(b) of the Charter

[45] Section 10(b) of the Charter provides an arrestee the right to retain and instruct counsel without delay and to be informed of that right.

[46] The words "without delay" mean that officers have an obligation to inform the detainee of their right to counsel "immediately", subject to concerns for officer or public safety or reasonable limitations prescribed by law or otherwise justified under section 1 of the Charter. R. v. Suberu, 2009 SCC 33, 245 C.C.C. (3d) 112 (SCC) at para. 42

[47] The Crown appropriately conceded a breach s. 10(b) of the Charter in this case. The officer clearly delayed informing Mr. Bazely of his right to counsel. She acknowledged she could have done so at the time of arrest and prior to attending back at Mr. Bazely's vehicle to speak to the passenger. It was an avoidable delay.

Section 24(2) of the Charter

[48] The question remains as to whether the breath readings should be excluded from the trial process. This requires an assessment of the impact of admitting the evidence on public confidence in the administration of justice, having regard to the seriousness of the Charter infringing conduct, its impact on the Charter-protected interest and society's interest in adjudicating cases on their merits (R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353).

[49] I find the seriousness of the breach in this case to be in the moderate range. While it was neither prolonged nor deliberate, it cannot be said to have been done in good faith. Officers should know that such rights are to be provided immediately, subject to the above-noted exceptions. There is no excuse for the belief that "without delay" means "as soon as practicable" or whenever the officer feels it is most convenient. I note that there is no evidence that this has become a systemic problem within the local police forces that service the London community. As a result, in my view, this factor moderately favours excluding the breath readings.

[50] I find that the breach had virtually no impact on Mr. Bazely and that this factor favours admission of the breath readings. No questioning occurred during the six minute delay and there is no evidence of any utterances being made during this time. There is no evidence that the delay impacted him in deciding whether to speak to counsel or whom he should speak to. There is no evidence that he had access to a cell phone during the six minute delay. In any event, Constable Banks said she could not have afforded Mr. Bazely the privacy necessary to facilitate contact with counsel while at the scene.

[51] The third factor to be considered is society's interest in the adjudication of the case on its merits. Breath readings are reliable evidence, and excluding them would effectively "gut" the Crown's case. The truth seeking function of a trial would be seriously undermined. This factor favours admission of the breath readings.

[52] I am mindful of the growing list of cases where a s. 10(b) Charter violation has resulted in the exclusion of breath readings and where courts have distinguished the result in R. v. Jennings, 2018 ONCA 260, [2018] O.J. No. 1460, on the basis that it involved a less serious s. 8 Charter violation. I am also mindful that each case is dependent on its own facts and that not all 10(b) Charter violations are alike.

[53] Many of the 10(b) Charter cases resulting in exclusion of breath readings involved a violation of the right to counsel of choice, where the impact on the Charter protected interest was more significant than is the case here.

[54] R. v. Middleton, [2018] O.J. No. 2956 Parry J. was dealing with a breach of the right to counsel of choice in circumstances where the police steered the defendant towards duty counsel and were indifferent to clear indications he did not understand the advice he was given. (see also R. v. Kuviarzin, [2018] O.J. No. 3271; R. v. Kowalchuk, [2018] O.J. No. 5250; R. v. Chiefari, [2018] O.J. No. 4419)

[55] R. v. Rampersaud, 2018 ONCJ 697 involved a six minute delay in providing rights to counsel. However, this alone did not account for the exclusion of the breath readings. The defendant spoke to a paralegal and not to counsel. The officer did not advise the defendant of the difference between the two. As a result, the court found that the officer failed to facilitate access to counsel.

[56] In other cases, courts have focused on the seriousness of the delay in providing rights to counsel.

[57] R. v. Simpson, 2017 ONCJ 321 dealt with a seven minute delay in providing rights to counsel in circumstances where the seriousness of the Charter violation was underscored by the systemic nature of delays in providing rights to counsel by Peel Region police officers. The Court cited a number of local cases as examples. A similar finding was made in R. v. Williams, [2017] O.J. No. 5787 where there was a five minute delay in providing rights to counsel by yet another Peel Region police officer.

[58] There is no evidence in this case of a systemic problem in providing rights to counsel by local police services. This is not a case where Mr. Bazely was deprived of his right to counsel of choice. I find the delay in advising him of his right to counsel had no impact on his ability to obtain legal advice prior to providing his breath samples.

[59] Given the reliability of the breath readings, and the public's interest in adjudicating impaired driving cases on their merits, I find that the admission of the breath readings would not bring the administration of justice into disrepute.

Conclusion

[60] For all of the above reasons, I find Mr. Bazely guilty of operating a motor vehicle with a blood alcohol level in excess of 80 milligrams of alcohol per 100 millilitres of blood, contrary to section 253(1)(b) of the Criminal Code of Canada.

Released: December 11, 2018

Signed: Justice G.L. Orsini