Court Information

Information No.: 17-1900

Ontario Court of Justice

Her Majesty the Queen v. Darin Trevor Luz

Reasons for Judgment

By the Honourable Justice S.N. Latimer

On January 25, 2018 at Kitchener, Ontario

Appearances

• J. Melo – Counsel for the Crown
• D. Doney – Counsel for Darin Trevor Luz

Thursday, January 25, 2018

Reasons for Judgment

LATIMER, J. (Orally):

These are my reasons for a decision on the Charter application and judgment in this matter.

Introduction

Darin Trevor Luz is charged that he, on March 9th, 2017, in Cambridge, Ontario, did operate a motor vehicle while impaired and while he has a blood-alcohol concentration in excess of the legal limit. He has brought an application to exclude evidence, based on alleged violations of Sections 8, 9 and 10(b) of the Charter, flowing out of the police failure to be in a position to administer, forthwith, an approved screening device test, pursuant to Section 254(2) of the Criminal Code.

The principal issue the applicant has raised, in the phraseology of impaired-driving litigation, is the George Issue. It is submitted that a reasonable opportunity existed for him to consult counsel before the ASD test was administered and, therefore, his roadside detention was contrary to statute and, hence, unlawful and arbitrary. This would additionally mean that there was no lawful basis to demand that he provide breath samples into the Intoxilyzer, back at the police station, and that the subsequent conscription, in this regard, was unreasonable and obtained in violation of Section 8 of the Charter.

Finally, and importantly, if the applicant is correct, and there was a reasonable opportunity to consult counsel before the roadside screening test could be administered, the Section 10(b) violation, that traditionally exists when motorists are detained, would not be saved by Section 1 of the Charter, as would be the case if the detention complied with the Criminal Code, see R. v. Thomson, 1998 1 SCR 640, 40 CCC (3d) 411.

Facts

Constable Katja Fischer is a uniformed police officer who, on March 9th, 2017, was working traffic patrol for the Waterloo Police Service. While approved screening devices were available for use from a police division, on this particular day, she did not have one with her on patrol, which she acknowledged was an error, given the fact that she was conducting traffic-related investigations, which commonly involve concerns regarding drivers who have consumed alcohol.

At 6:25 p.m., Constable Fischer observed a car, that she ultimately determined was being driven by the applicant, Mr. Luz. This vehicle, she described as travelling southbound on Ainslie Street North in Cambridge. Constable Fischer's vehicle was behind the applicant's, and she observed his car swerving back and forth, in its own lane, as well as swerving in close proximity with another vehicle, in the other southbound lane, on two occasions, almost colliding with that vehicle. Constable Fischer conducted a traffic stop, and the applicant stopped his vehicle without issue.

Once the car was stopped, the applicant immediately exited, leaving the door open. This was odd to Constable Fischer, and attracted her attention. During their interaction, she noted his eyes were bloodshot; she smelled alcohol coming "from his body", and he appeared to be acting nervously. She had a conversation with him, where he acknowledged that he had consumed two glasses of wine. He also fumbled with his documents, when she requested to see them.

At 6:27, she determined that she "had grounds for alcohol influence, but not enough for impairment." She also stated, at a different point in her evidence, that, based on the applicant's driving skills at the time, the way he behaved in her presence, his conduct with regard to the documents and jumping out of the car, as well as the odour of alcohol on his body, she suspected that he had consumed alcohol. Later, after she was recalled by the Crown, she testified that she believed he was driving under the influence of alcohol or while he had alcohol in his blood system or body.

She made a standard approved-screening-device demand, off of a pre-printed form in her notebook, at 6:27 p.m. Being without an ASD herself, she used her personal radio to request another officer provide one.

She was advised, by Constable Mark Hammer, that he was "just around the corner," with such a device. She understood this to mean that Hammer was "not far away." This call, and the subsequent response, occurred at 6:30 p.m. Fischer testified that the three-minute period between 6:27 and 6:30 was consumed with her reading the demand and having a discussion with the applicant. I understood this to mean a discussion about the testing process and what would be required of him. The applicant agreed to provide a sample.

At 6:35 p.m., Constable Hammer arrived on scene with the device. He provided it to Constable Fischer, who took it out of the box, turned it on, prepared it for use, tested it on herself, to determine that it was in working order, and then explained its use to the applicant. After doing so, and after the device was in "ready mode", she obtained a new mouthpiece for the applicant to provide a breath sample. He did so and registered a fail. She understood a fail to mean that he had 100 milligrams of alcohol, or greater, in 100 millilitres of his blood. On this basis, she arrested him for driving while over 80.

The first ASD test and the fail, and the subsequent arrest, all occurred at approximately 6:45 p.m. Fischer did not arrest the applicant for impaired operation of a motor vehicle. As adduced by Mr. Doney in cross-examination, Fischer did not believe him to be impaired by alcohol, at the time she requested the ASD, that is at 6:27 p.m.

Constable Fischer did provide the applicant his rights to counsel, for the first time, at 6:46 p.m. He indicated he wanted to speak to Stephen Gehl, a local lawyer. He understood his rights, and did not wish to comment or answer any questions, and exercised his right to speak to a lawyer of his choice, in this case, Mr. Gehl.

At 6:49 p.m., Fischer read a standard issue breath demand, again from her pre-printed form in her notebook, and left the roadside area at 6:52. She arrived at the closest police station, South Division, at 6:58 p.m.

At the station, the applicant was brought in, "paraded" before the staff sergeant, and Constable Fischer explained to the staff sergeant the reasons why she had arrested the applicant. He was then taken to an interview room, at approximately 7:00 p.m., for the purpose of facilitating access to counsel. Fischer looked up Mr. Gehl's number, called him and waited for a return call.

At 7:21 p.m., he called back, and the applicant was given a private opportunity to speak to counsel. Fischer told him to knock on the door when the call was over. At 7:44 p.m., Fischer had not yet heard a knock, and entered the room herself, to ascertain whether the call was complete or ongoing. She indicated this was, in her experience, an unusually long time for someone to speak to their lawyer. The applicant still had the phone in his hand, and she asked him if he was still speaking to counsel. He handed her the phone. She testified that all she heard was "dead air" and was therefore satisfied that the consultation was complete. The applicant was brought back into an interview room, to await the breath technician's readiness.

At 7:49 p.m., Fischer escorted the applicant into the breath room. She stayed in the room, and noted the first successful sample was obtained at 7:56 p.m., after multiple (I believe it was four) unsuccessful or "not suitable" samples. As evidenced by Exhibit 2, the applicant provided two samples – 7:56 and 8:22 p.m. – registering two truncated readings of 150, well in excess of the legal limit.

Proximate to the second breath sample, Fischer believed she observed "slurred speech" on the part of the applicant. The applicant called no evidence on the motion.

Law

The Forthwith Window

The core issue on this application relates to the legality of a 254(2) Code demand, which permits a peace officer to demand a motorist provide a sample of his breath at the roadside, if the officer suspects that he is driving with alcohol in his body. The suspicion must also be objectively reasonable.

Section 254 of the Code authorizes the circumstances under which motorists may be detained and compelled to provide breath samples, without prior judicial authorization. The motorists' Charter rights are suspended for a brief period of time, while at the roadside, see Thomson, supra. This suspension requires that the roadside testing procedure proceed with dispatch, see R. v. Woods 2005 SCC 42, 2005 2 S.C.R. 205, pp 26 & 36. See also R. v. Quansah, 2012 ONCA 123, 286 CCC (3d) 307, pp 25-28, 45-49.

In R. v. Degiorgio, 2011 ONCA 527, 275 CCC (3d) 1, Justice LaForme, writing for the court, described the period of time in which the statute permits a detainee's right-to-counsel to be suspended, as the "forthwith window". See Paragraph 49 of the judgment, where Justice LaForme writes:

"The right to counsel is triggered upon detention at the roadside. That right is, however, effectively suspended by operation of Section 1 of the Charter, for the time period captured by the requirement the sample be taken forthwith. If the demand is made and the sample provided within the forthwith window of time, the Charter is not breached. If, however, the forthwith window expires, then the taking of a sample without first providing the detainee an opportunity to contact counsel is an infringement of Section 10(b) that cannot be saved by Section 1."

In this regard, the provision attempts to balance individual rights with our societal interest in identifying and deterring impaired driving. Roadside breath testing assists the police in determine which motorists need to be detained or arrested, and which can be left to go on their way. Section 254(2), however, requires that the police, upon deciding to rely upon the provision, enact its authority forthwith. In Woods, Justice Fish, writing for the Supreme Court, explained the purpose of the forthwith language at Paragraph 29:

"The forthwith requirement of Section 254(2) of the Criminal Code is inextricably linked to its constitutional integrity. It addresses the issues of unreasonable search-and-seizure, arbitrary detention and the infringement of the right to counsel, notwithstanding Sections 8, 9 and 10 of the Charter.

In Interpreting the forthwith requirement, this court must bear in mind not only Parliament's choice of language, but also Parliament's intention to strike a balance in the Code between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights."

In Quansah, Justice LaForme, again writing for the court, summarized the surrounding appellate jurisprudence regarding the forthwith requirement, beginning at Paragraph 45:

"In sum, I conclude the immediacy requirement in 254(2) necessitates the court to consider five things:

• First, the analysis of the forthwith or immediacy requirement must always be done contextually. Courts must bear in mind Parliament's intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.

• Second, the demand must be made by the police officer promptly, once he or she forms the reasonable suspicion the driver has alcohol in his or her body. The immediacy requirement, therefore, commences at the stage of reasonable suspicion.

• Third, forthwith connotes a prompt demand and an immediate response; although, in unusual circumstances, a more flexible interpretation may be given. In the end, the time from the formation of reasonable suspicion to the making of the demand, to the detainee's response to the demand, by refusing or providing a sample, must be no more than is reasonably necessary to enable to the officer to discharge his or her duty, as contemplated by Section 254(2).

• Fourth, the immediacy requirement must take into account all the circumstances. 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 this is not 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.

• Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee's Section 10(b) rights, before requiring the sample. If so, the forthwith criterion is not met."

R. v. George: A Realistic Opportunity to Consult Counsel

In 2004, the Ontario Court of Appeal released its judgment in George, 2004 189 OAC 161, 187 CCC (3d) 289. The facts are relevant to the present determination. An officer stopped Nicholas George in the early morning, while he was operating a motor vehicle in the Greater Toronto Area.

The officer developed a suspicion that George had been operating his car with alcohol in his body. He made a roadside demand, under the operative section of the Code. However, the officer did not have an ASD with him. He requested one and was told that there would be a delay of 15 to 20 minutes, for the device to arrive. Mr. George was told he was not under arrest but, if he left the scene, he would be charged with refusing to provide a breath sample.

The nearest police station was around the corner from where the detention was taking place. George was not told that he could contact a lawyer, nor was there any discussion of cell phones. George testified, on the voir dire, that, had he been given an opportunity to consult counsel, he would have done so at the roadside.

The device arrived 16 minutes after the demand had been made. It was made ready in two minutes, and a sample was provided, registering a fail. Following an over-80 arrest, the officer found Mr. George's cell phone in his car.

A trial judge found a Section 10(b) violation and excluded the evidence. That result was upheld on summary conviction appeal. On the further appeal to the Court of Appeal, leave was granted, but the Crown's appeal was dismissed. Justice Gillese, writing for the court, reviewed the relevant jurisprudence for the Supreme Court and from her own court. She cited R. v. Cote, (1992), 70 CCC (3d) 280, from the Court of Appeal, where Justice Arbour, as she then was, wrote, at Page 285, that:

"If the police officer is not in a position to require that a breath sample be provided by the accused before any realistic opportunity to consult counsel, then the officer's demand is not a demand made under 238(2)."

I note 238(2) is the precursor of Section – to the present 254(2).

Justice Gillese relied upon the following factors in concluding that: "Such a realistic opportunity existed with regard to Mr. George's circumstances."

1. The officer's awareness of a likely 15-to-20-minute delay before the device would arrive.

2. The actual 18 minutes between the demand and testing.

3. The existence of the cell phone.

4. The existence of phones at nearby police station.

5. Acceptance of the fact that Mr. George, on the evidence, would have used a phone to contact a lawyer.

Thus, the Court of Appeal was satisfied the demand was unlawful, and that a realistic opportunity to consult counsel existed. The 10(b) violation was properly established.

Two other appellate decisions are worthy of mention: R. v. Torsney 2007 ONCA 67, 217 CCC (3d) 571 – Justice Marc Rosenberg, writing for the court, addressed a factual circumstance where an ASD arrived, three minutes after a roadside demand was made. Testing follow shortly thereafter, leading to a total delay of approximately six to seven minutes. The Court of Appeal found this to be, "Well within the periods of time that have been said to comply with the legislation."

At Paragraph 12, Justice Rosenberg further wrote:

"The question to be asked is whether, in the circumstances, the police officer was in a position to require that a breath sample be provided forthwith, that is before there was any realistic opportunity for the appellant to consult counsel.

The answer, in our view, is yes, and the machine was at the scene and ready for use within six or seven minutes of the demand. The demand was made at 2:35 a.m. On the record, in this case, any attempt by the appellant to contact and consult counsel within the space of six or seven minutes, at that time in the morning, would have been futile. The proof of that lies in the appellant's attempt to contact a lawyer after he'd been arrested at 2:43 a.m. and taken to the station, pursuant to a breathalyzer demand.

According to the evidence, at the station, it took the appellant, 'a lot of effort to get his phone call to his lawyer, and he phoned more than one number to try to get through.' Nothing on this record leads us to believe that the situation would have been different, had the appellant attempted to contact and consult with counsel at the roadside."

Finally, in R. v. Singh, [2005] O.J. No. 4787, 24 MVR (5d) 19, the Court of Appeal addressed a situation with 16 minutes of total delay between demand a first test attempt. Mr. Singh did not ultimately provide a sample, and was charged with refusal. At trial, he argued the demand was not forthwith, or lawful, and therefore an essential element of the refusal offence was not made out. Justice Steven Clark ruled otherwise and convicted. A summary conviction appeal Justice overturned that result and entered an acquittal. The Crown further appealed to the Court of Appeal.

In an oral endorsement, a panel of the Court of Appeal granted the Crown's leave to appeal, and restored the conviction that was entered at trial. The ASD demand occurred at 11:45 p.m.; the officer was told that a device was on its way, which he believed meant 5 to 10 minutes away. It arrived 11 minutes later, at 11:56. Six minutes after, the test was conducted.

The Court of Appeal pointed to the trial judge's findings with regard to the time of night, and the officer's belief as to the likely length of delay before arrival, and his very likely finding (that is the trial judge's) that Mr. Singh did not have a cell phone, as a reasonable basis for the judge's conclusion that there was not a reasonable opportunity to consult counsel.

Analysis

These cases help me focus on the relevant factual considerations, with regard to the so-called George Issue, whether there was a reasonable opportunity for the applicant to consult counsel at the roadside. This is a fact specific, contextual assessment of all the relevant circumstances.

I conclude there was not such an opportunity in this case, for the following reasons:

1. There is no evidence of any kind that a phone was available, at the roadside, to allow for a consultation to occur. While I do accept that the time of day is such that counsel would reasonably be expected to be available – or potentially available – there is simply no evidence, in this case, of any way or method to contact counsel.

2. Officer Fischer was told that Hammer was "just around the corner", and interpreted that to mean a device was not far away. This was a reasonable belief, in the circumstances, that would not have triggered concerns, like those that should have existed in George, to facilitate access to counsel during the resulting delay.

3. Constable Fischer made her demand at 6:27 p.m., and requested the device at 6:30 p.m., after discussing the test process and explaining it to the applicant. I accept this three minutes was reasonably spent as part of the normal testing process.

4. The device arrived five minutes after requested. This actual delay of five minutes accords with Fischer's belief of how long it would take. It is not inordinately long, as seen in some of the related jurisprudence.

5. The next 10 minutes, after the device arrived, also require scrutiny. I find this longer than it should have taken. In my mind, the delay that occurred here, beyond what it normal and generally acceptable, results from the fact the device was not originally with Officer Fischer. The time spent checking the device on herself, and otherwise satisfying herself that it was in proper operating condition, could, in part, have been done earlier, when the applicant, or any other citizen, was not detained and their Charter rights suspended. 10 minutes is an overly-lengthy period of time in the circumstances. However, despite this finding, I do not accept, on an overall basis, that it creates a situation where there was a realistic opportunity to consult counsel, as the cases have defined this term. See, for example, Torsney, at Paragraph 13, Degiorgio, supra – and see also R. v. Yamka 2011 ONSC 405, 267 CCC (3d) 81, pp 42-50.

6:27 to 6:30 was reasonably spent by Constable Fischer articulating the demand and explaining the matters to the applicant. 6:30 to 6:35 was a five-minute delay, waiting for the device. Some period of the next 10 minutes (my best estimate is three minutes) was unreasonable because it was delay solely caused because of the absence of the device in the first place. This creates approximately eight minutes of delay, driven by the absence of the device. In circumstances where the test was conducted 18 minutes after the suspicion was formed – on the facts of this case, I accept that the forthwith window was still open, that is there was not a reasonable opportunity for the applicant to consult counsel.

6. I note that, at approximately 7:00 p.m., counsel was contacted at the police station, called back at 7:21 p.m. The consultation lasted, on the evidence, for approximately 23 minutes. Both of these time periods – the time required to get counsel on the phone and the consultation process itself – individually well exceed the period of time spent at the roadside. In concert, they amount to 43 minutes required to, in the words of Justice Rosenberg in Torsney, "Contact, seek and receive advice from counsel." No such opportunity existed at the roadside, in the present case.

7. Finally, although not expressly required for my conclusion in this case, I note there is no evidence before me that the applicant would have wished to contact counsel from the roadside, if he had been given an opportunity to do so. While he did contact counsel, post-arrest – excuse me – so did Ms. Yamka, in the case before Justice Durno. Like the applicant, Ms. Yamka did not testify on the voir dire at trial. At Paragraph 49, Justice Durno wrote that there was, "no evidence to support her speculation, on appeal, as to what she might, would or could have done, had the rights been given."

In the circumstances of the present case, I am not satisfied that, had there been a phone at the roadside, or some method of contacting – which, I have found, did not exist – this applicant would have wished to contact counsel from the roadside.

In conclusion, the facts of this case do not satisfy me that there was a realistic opportunity for Mr. Luz to contact counsel from the roadside. The forthwith window was still open. The 254(2) demand was lawful. No constitutional violation arises, in the circumstances.

With regard to the broader Section 8 enquiry, I am satisfied, on the evidence, that Constable Fischer had a lawful basis to make the ASD demand, and had ample grounds, following the fail result, to arrest the applicant for the 253(1)(b) criminal offence.

While the officer did not perfectly craft her language, both during her initial testimony and when she was recalled, the so-called magic words are not required to comply with the relevant provisions – See R. v. Clarke, 2001 MVR (4d) 298, per Durno, J. On all the evidence, I am satisfied that both demands were lawful and that reasonable-and-probable grounds existed for the applicant's arrest. The Charter application is dismissed, and the breath-sample evidence will be admitted at trial.

Trial Issues

Impaired Operation of a Motor Vehicle

The law in this area is clear and likely does not bear repeating. Proof beyond a reasonable doubt of impairment, even slight, of a motorist's ability to drive is sufficient to base a conviction. See R. v. Stellato, (1993), 78 CCC (3d) 380 ONCA – confirmed, 1994 2 S.C.R. 478. As is often said, however, what is required is evidence of at least slight impairment, not slight evidence of impairment. The burden of proof must be kept front of mind in this regard. In the present case, the evidence does not establish proof of impairment, beyond a reasonable doubt.

Officer Fischer, a trained police officer, observed the defendant's driving, movements and physical indicia at the roadside. In her opinion, she did not have grounds for an impaired arrest. I accept that this was the correct conclusion, on the evidence available to her. It factors into my conclusion the Crown has not proven impaired operation to the criminal standard. Nothing of particular consequence, beyond slurred speech in the breath room (for which I was not shown a video to assess for myself) occurred following the arrest.

Reasonable-and-probable grounds for an arrest is well short of factual proof, beyond a reasonable doubt, of impairment. See R. v. Censoni, [2001] O.J. No. 5182, 22 MVR (4d) 178 ONSC pp31. I accept, as counsel drew out in cross-examination, that there is a potential for the purported indicia of impairment, or alcohol consumption, to be something else entirely. The ambiguity in the evidence does not allow me to conclude the officer's observations are factual proof of impairment by alcohol. Even if they did, the facts of this case do not establish proof beyond a reasonable doubt. So, Mr. Luz will be found not guilty of Count 2 on the information.

Driving with Excess Blood Alcohol

With regard to the over 80 charge, counsel submits that the as soon as practicable component, in Section 258(1)(c)(ii) of the Code has not been made out. As Justice John McInnes succinctly explained in R. v. Parvinian, 2017 ONCJ 134 pp9, "The phrase 'as-soon-as-is-practicable' means nothing more than that the tests were taken within a reasonably-prompt time, under the circumstances, and does not mean as soon as possible."

The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably. R. v. Vanderbruggen, [2006] O.J. No. 1138, 206 CCC (3d) 489 ONCA pp12. In the Vanderbruggen judgment, a decision written, again, by Justice Rosenberg, the court further stated, at Paragraph 13:

"In deciding whether the tests were takes as soon as practicable, the trial judge should look at the whole chain of events, bearing in mind that the Criminal Code permits an outside limit of two hours, from the time of the offence to the taking of the first test. The as soon as practicable requirement must be applied with reason. In particular, while the Crown is obligated to demonstrate that, in all of the circumstances, the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody." [citations omitted].

The timeline in the present case is as follows:

• 6:25 – Traffic stop.
• 6:27 – Suspicion formed; demand made.
• 6:30 – Request for ASD to be delivered to the scene.
• 6:35 – ASD arrives.
• 6:45 – Fail results; the defendant is arrested.
• 6:46 – The rights-to-counsel begin.
• 6:49 – There is a breath demand.
• 6:52 – The officer and the defendant leave the roadside.
• 6:58 – They arrive at the division, paraded, counsel is called.
• 7:21 – Consultation with counsel begins.
• 7:44 – Officer enters the room; the call with counsel has been completed.
• 7:49 – The defendant is brought into the breath room.
• 7:56 – The first sample obtained.

On these facts, I am satisfied that the tests were taken within a reasonably-prompt time; I have no doubt in that regard. The entire chain of events, from the traffic stop to the first test, was 91 minutes. There is no inordinate or lengthy delay, either in totality or in any particular period of time.

Counsel focussed, in submissions, on the fact that the applicant was in the interview room, seemingly consulting with counsel, for a lengthy period of time. I accept, as a fact, the defendant has been speaking to counsel, essentially up until the time the officer entered the room. He had been told to knock when the call was over. He had not knocked. The police are obligated to ensure privacy when a detainee is exercising their right to legal advice.

I do not understand how, on any construction of the facts, the time period between 7:21 and 7:44 p.m. could be considered unreasonably long in the circumstances. I find it was reasonably used for the purpose of permitting access to counsel.

I have examined the entirety of the evidence. There was some delay at the roadside, both waiting for the ASD and administering it – I have reviewed that above. That delay, in the circumstances of this case, does not create any undue overall delay. The breath samples were taken in a reasonably-prompt manner. I find they were taken as-soon-as-practicably, as that term has been defined.

Disposition

The Crown has proven, beyond a reasonable doubt, the defendant drove his motor vehicle while possessed of a blood-alcohol concentration in excess of the legal limit. All essential elements of that offence have been made out.

Darin Luz will be found guilty of the over 80 charge, Count 1 on the information, and not guilty on Count 2, impaired operation.

Certificate of Transcript

Form 2 – Certificate of Transcript (Subsection 5(2)) Evidence Act

I, Mark R. McKerlie, certify that this document is a true and accurate transcript of the recording of R. v. Luz in the Ontario Court of Justice held at 85 Frederick St. Kitchener, ON taken from Recording No. 4411_CrtRm-405_20180125_093520__6_LATIMESC.dcr, which has been certified in Form 1.

Date: February 9, 2018