Court File and Parties
Court File No.: Toronto Region Date: 2018-01-08 Ontario Court of Justice
Between: Her Majesty the Queen — and — Shatelle Mangar
Before: Justice L. Feldman
Heard: November 3, 2017
Reasons for Judgment released: January 8, 2018
Counsel:
- S. Walker, for the Crown
- A. Ross, for the accused Shatelle Mangar
FELDMAN J.:
Introduction
[1] Shatelle Mangar entered not guilty pleas to charges of Operation over 80 and Disobey Stop Sign, a Highway Traffic Act offence. It is alleged that the defendant drove her motor vehicle while having more than the legal limit of alcohol in her blood system.
[2] The Crown called the arresting officer in support of its case. Counsel for the accused submits that the officer breached her s. 10(b) Charter rights by failing to provide the defendant an opportunity to consult counsel when there was a realistic opportunity to do so in the period of time between the officer forming his reasonable suspicion and the arrival of the roadside screening device (ASD).
[3] He says this ultimately led to an unlawful seizure of Ms. Mangar's breath into an Intoxilyzer instrument at the police station, breaching her s. 8 rights. He submits that the breath readings should be excluded under s. 24(2).
The Evidence
[4] On June 9, 2016, P.C. Trevor Perry saw the accused drive through a stop sign on Malvern St. and then turn right at Mammoth Hall Trail in Scarborough. As the defendant was passing the officer, he turned on his emergency lights and camera. He yelled at her to stop and pull over. She stopped her vehicle in the middle of the road.
[5] P.C. Perry got out of his cruiser and asked her to pull over. She backed up and put her car in park. She was not close to the curb. The officer let her know that she was being recorded.
[6] P.C. Perry observed that the defendant looked tired and had bloodshot eyes. He could smell a strong odour of alcohol on her breath. He saw that her pants were undone and her belt unbuckled.
[7] Ms. Mangar told the officer she was coming home from work as a security officer at a condominium building. Although she at first denied having anything to drink, when pressed, she admitted consuming some alcohol while helping a resident in the building. P.C. Perry observed that she turned her face away from him as she spoke.
[8] The officer reasonably suspected that Ms. Mangar had alcohol in her system. The time was 7:18 a.m. He immediately requested an ASD. At 7:19 a.m., he made a roadside demand.
[9] P.C. Perry was close to 42 Division and believed a device would be brought within a short time, perhaps 5-6 minutes. He sent out a wide broadcast to that station. Sgt. Crampton responded that he would bring a roadside instrument.
[10] While waiting, the officer asked Ms. Mangar for her documents. She seemed to mumble. He again noted she had a strong odour of alcohol on her breath and that her eyes were bloodshot.
[11] Anticipating the arrival of the instrument, P.C. Perry escorted his detainee to the front of his cruiser where they waited and made small talk. He did not ask if she had a cell phone, but agreed that was likely the case.
[12] P.C. Perry told the court that while he expected the instrument to arrive within a short time, were it to take up to 10 minutes he would provide rights to counsel in the interim to his detainee.
[13] Sgt. Crampton arrived with the device, a Drageer Alcotest 6810, at 7:29 a.m. P.C. Perry turned on the machine, self-tested it in front of the accused and demonstrated its use. It had last been calibrated on June 3. He believed it was in proper working order.
[14] Ms. Mangar provided a suitable sample of her breath into the instrument. At 7:31 a.m., she registered a Fail. Satisfied there were reasonable and probable grounds, the officer arrested the accused.
[15] As required by policy, P.C. Perry typed arrest information into his computer, commencing at 7:35 p.m., in order to facilitate entry into the booking hall. He left the scene at 7:52 a.m., arriving at 41 Division at 8:14 p.m. Prior to parading the defendant, he obtained special permission for her to use a washroom, as she requested.
[16] Ms. Mangar was paraded at 8:36 p.m. and then escorted to the report room. There, at 8:44 p.m., P.C. Perry placed a call to duty counsel, who called back at 8:55 p.m. The defendant spoke in private to counsel until 9:00 p.m.
[17] Ms. Mangar was taken to the breath room at 9:01 p.m. There, at 9:11 p.m., she provided a suitable sample of her breath that resulted in a reading of 140 mgs. Her second test, at 9:34 p.m., registered 130 mgs.
Was There a Realistic Opportunity for the Defendant to Consult Counsel?
[18] In R. v. Quansah, 2012 ONCA 123, at paras. 45-49, LaForme J.A. summarizes the factors to consider in determining if the immediacy requirement for the demand in Code s. 254(2) is met. He noted that the analysis of whether the roadside tests were taken immediately or "forthwith" was to be done contextually, "striking a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights".
[19] He said that the demand itself must be made promptly once the officer forms the reasonable suspicion that the driver has alcohol in his or her body. In effect, 'forthwith' contemplates a prompt demand and an immediate response where any delay "must be no more than is reasonably necessary to enable the officer to discharge his or her duty under this provision".
[20] An example of this flexibility occurs where breath tests cannot be performed right away because an ASD is not immediately available. In this regard, the 'forthwith' criterion is not met where the police "could realistically have fulfilled their obligation to implement the detainee's s. 10(b) rights" while awaiting the instrument's arrival.
[21] In R. v. Devji, [2009] O.J. No. 1924 (Ont. S.C.), the ASD arrived within 9 minutes of the demand. The sample was taken 4 minutes later. The court held that there was no realistic opportunity for the accused to speak with counsel. I agree with Blishen J., at para. 32, that, in assessing all of the circumstances in this regard, the officer's expectation as to the arrival of the screening device is a relevant factor.
[22] As well, the feasibility of facilitating a private call in a relatively short time frame at the roadside is also to be considered. Justice Blishen noted, at para. 35, some of the factors which may diminish a realistic opportunity, including the need to search the detainee, finding a secure location, providing access to telephone numbers and time to consult. In addition, it can't be known how long it will be before private or duty counsel may call back.
[23] Of significance, in the case at bar, it is unknown what Ms. Mangar's intention was regarding counsel. What is known is that this experienced officer was mindful that he was close to 41 Division and expected the instrument to arrive in 5-6 minutes or he hoped, within 10 minutes. It arrived in 11 minutes. As Paciocco J., as he then was, said in R. v. Ruck, 2013 ONCJ 527, at para. 40, the officer's reasonable belief about the expected delay is a central factor to consider in assessing the possibility of accommodating rights to counsel in the time available.
[24] This factor was not at play in R. v. David, [2017] O.J. No. 4760 (Ont. C.J.), where the officer did not know, nor did he ask, when the ASD might arrive. He believed it would take no longer than 15-20 minutes. He conceded that the accused could have exercised her rights to counsel within that time frame. Felix J. found a breach of s. 10(b).
[25] Of note, he held, at para. 39, that where the officer believes the delay will be short, based on factors such as experience and proximity to a police station, there is no need to provide rights to counsel.
[26] Mr. Ross makes reference to the decision of McArthur J., as she then was, in R. v. Shelton, [2017] O.J. No. 3427 (Ont. C.J.), where the delay was 9 minutes. In finding a s. 10(b) breach, Justice McArthur felt the officer erred in concluding that she could not provide privacy for a call to counsel. As well, she relied on the fact that the officer had no subjective belief when the device would arrive, a material distinction from the expectation of P.C. Perry in this case.
Conclusion
[27] The evidence indicates that P.C. Perry had a reasonable expectation that the ASD would be brought in short order. He was prepared to act on the accused's rights within 10 minutes. It is unknown at the time what Ms. Mangar's intention was with regard to her rights to counsel.
[28] In my view, P.C. Perry was entitled to wait a reasonable time in light of his subjective belief that the instrument would arrive in a matter of minutes. Given all that is involved in providing access to counsel, including completion of the call, I am not left in reasonable doubt that the additional time here was sufficient to provide a realistic opportunity to consult counsel.
[29] This is reinforced by the fact that at the station, it required 16 minutes to facilitate private access to counsel. This factor is relevant to a consideration of any realistic opportunity at the scene: R. v. Devji, at paras. 40-41.
[30] I am not persuaded that there has been a breach of the defendant's s. 10(b) rights.
Section 24(2)
[31] If I am in error, and there has been a s. 10(b) violation, I would not, following a Grant analysis, accede to an application to exclude the breath readings under s. 24(2). In R. v. Grant, 2009 SCC 32, the court, in considering exclusion, must assess and balance the effect of admitting the evidence on the public's confidence in the justice system, following three lines of inquiry.
[32] These include: (i) the seriousness of the Charter-infringing state conduct; (ii) the impact of the breach on the Charter-protected interests of the accused; and (iii) society's interest in the adjudication of the case on its merits.
[33] The first inquiry considers the nature of the police conduct that infringed the Charter right and led to the discovery of the evidence. The more severe or deliberate the state conduct that led to the violation, the greater the need for the court to dissociate itself from that conduct by excluding the impugned evidence, in this way helping to preserve public confidence in the administration of justice.
[34] The second inquiry assesses the extent to which the violation undermined the defendant's Charter-protected interests. The more serious the breach, the greater the risk admission of the evidence would bring the administration of justice into disrepute.
[35] At the third stage, the court is to balance the truth-seeking function of a trial on the merits and the long-term effect of exclusion of the evidence. The reliability of the evidence and its importance to the Crown's case are factors to be considered.
[36] On the first ground, while rights to counsel are a fundamental right, any delay here was minimal. Additionally, the officer did not act in bad faith, nor was he negligent. Assuming a close to the line breach, the seriousness was of a minor nature. It would not favour exclusion of the evidence.
[37] I would take a different view regarding the second line of inquiry. Again, assuming a breach, the defendant was subject over a number of hours to arrest, handcuffing, detention, seizure of breath and fingerprinting, although the process of collecting a sample of the detainee's breath is considered minimally intrusive: Grant, at para. 111. I would be slightly inclined, given this interference with the detainee's liberty and security interests, to exclude the breath readings.
[38] In relation to the third ground, the breath readings are reliable evidence important to the prosecution's case. It would be in the public interest that the trial of this serious charge be held on its merits.
[39] An assessment and balancing of these factors would, in my view, favour inclusion of the readings. In the result, there will be a finding of guilt.
Released: January 8, 2018
Signed: "Justice L. Feldman"