ONTARIO COURT OF JUSTICE

CITATION: R. v. Hancock, 2019 ONCJ 139 DATE: 2019 03 19 COURT FILE No.: 17-A12598

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

WILLIAM HANCOCK

Before Justice David Berg

Heard on December 24, 2018 Reasons for Judgment released on March 19, 2019

D. Rodgers........................................................................................... counsel for the Crown R. Addelman................................................................................ counsel for the defendant

Berg J.:

[1] William Hancock is charged that on September 3, 2017 he had the care and control of a motor vehicle while his ability to operate said vehicle was impaired by alcohol. Also arising out of that incident is a charge alleging that he had the care and control of the motor vehicle in question having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams in 100 millilitres of blood. The Crown has elected to proceed by way of summary conviction. Mr. Hancock has pleaded not guilty.

[2] The evidence was heard and the submissions made on December 24, 2018.The hearing was what is referred to as a “blended trial”. That is to say, the evidence heard on the trial proper is also admissible in support of Mr. Hancock’s Charter applications. I note that at the end of the evidentiary portion of this trial, Mr. Rodgers, for the Crown, invited me to dismiss the count of impaired driving. Thus at this point, Mr. Hancock faces only the count of over 80.

[3] Also at the end of the evidence, Mr. Addelman conceded that absent Charter issues, the Crown appears to have established its case against the defendant. Thus, the only issue or issues to be decided by me are those pursuant to the Charter.

[4] Mr. Hancock submits to me that the breaches to his Charter rights were two-fold. First of all, he argues that the delay between the formation of the grounds to make the ASD demand and the actual making of that demand resulted in a contravention of s. 254(2)(b) Criminal Code requirement that the demand be made ‘forthwith’ and that this contravention resulted in a breach to his section 8 and 9 Charter rights. Secondly, the defence submits that during the time period between forming her reasonable suspicion and the arrival of the ASD on scene, the investigating officer should have provided Mr. Hancock with his rights to counsel and as she did not, Mr. Hancock’s section 10(b) Charter rights were violated. It is the defence position that as a result of either alleged breach or as a result of the two breaches in combination, the breath samples that were ultimately taken by a qualified breath technician should be excluded from this trial.

The Evidence Relevant on the Charter Applications

[5] On September 3, 2017, the Ottawa Police Service received a call from a citizen who was concerned about the behaviour of a man who had entered a fast food restaurant after parking his car. It seems that the citizen was concerned that that man was driving in a state of impairment. Constable Coburn was dispatched to investigate along with her partner Constable Robertson who was in a separate scout car. At this time, Constable Coburn had been a police officer for slightly more than one year and prior to this incident, she had never arrested someone for an alcohol related driving offence.

[6] Upon arriving on scene at 6:32 p.m., Constable Coburn located Mr. Hancock seated in the driver’s seat of his car in the restaurant parking lot. His engine was running and his lights were on. She parked her police vehicle two to three feet behind his car and then walked over to his window. He was looking down at his cell phone and didn’t notice her standing there for two or three seconds so she knocked on his window. He lowered the window and Constable Coburn explained that she had been dispatched to investigate a possibly impaired driver. Mr. Hancock explained that he had just purchased some food and was on his way home. During the course of this brief conversation, and despite the strong ambient smell of fried chicken in the car, Constable Coburn detected the faint smell of alcohol coming from Mr. Hancock’s breath. As a result, she asked him about his alcohol consumption. He responded that he had consumed a beer forty-five minutes earlier. Constable Coburn noted also that Mr. Hancock’s speech was slow and slightly slurred. This resulted in her forming a reasonable suspicion. Consequently, she advised Mr. Hancock that she was detaining him in order to have him use an approved screening device (ASD) although she did not make a formal demand. The evidence did not go so far as to provide me with her exact words or whether Mr. Hancock indicated that he understood the entirety of what she had said.

[7] Constable Coburn did not note down the time that she formed her reasonable suspicion nor did she have an exact recollection thereof. However, she was able to provide an approximate reconstruction of the timing of her actions. She knew that she had arrived on scene at 6:32 p.m. and also was able to testify that she had called at 6:36 p.m. for her partner, Constable Robertson, to bring an ASD to her location. She recalled that she made the call for an ASD approximately one to two minutes after forming her reasonable suspicion. In cross-examination, she indicated that whereas she did arrive on scene at 6:32 p.m., it took her a little while to park, get out of her scout car, approach Mr. Hancock’s car, get his attention and have him roll down his window. Thus she testified that she probably began speaking with Mr. Hancock at 6:34 p.m. Given that she had but a brief initial conversation with Mr. Hancock, I find that she formed her reasonable suspicion at approximately 6:34 p.m. I do not accept the defence submission that Constable Coburn formed her reasonable suspicion at 6:32 p.m. I am aware that the qualified breath technician, Constable Wiegelmann, had noted 6:32 p.m. as the time of the offence. However, as his only source of information was Constable Coburn, I suspect that his notation is in error. The time of 6:32 p.m. was merely the time that she arrived on scene to investigate the possibility of there being an impaired driver. The two minutes that she required to conduct her investigation and form her suspicions are entirely reasonable in the circumstances of this case.

[8] What occurred during the period between the forming of a reasonable suspicion at 6:34 p.m. and the request made by Constable Coburn at 6:36 p.m. for an ASD to be brought to her location? I must say that the evidence for these two minutes is a bit sparse. The officer testified that upon forming her suspicion, she advised Mr. Hancock that he was being detained and the reason for it. This is hardly likely to have taken two minutes.

[9] As we have seen, Constable Coburn requested an ASD at 6:36 p.m. To do so, she used her vest radio as she was standing beside Mr. Hancock’s car. She was advised by Constable Robertson that he would bring a device to her and he did so at 6:46 p.m. I will now examine what occurred (and what did not) from 6:36 p.m. to 6:46 p.m.

[10] After calling for an ASD, Constable Coburn asked Mr. Hancock to get out of his car whereupon she escorted him over to her cruiser parked close by. She placed him in the back seat and left the door open; he was not handcuffed as he was very polite and cooperative. She then made an ASD demand at 6:39 p.m. The defendant indicated that he understood the demand. She explained to him that as she did not have an ASD with her, that they would have to wait for an officer to bring one. She also provided him with a ‘soft caution’ with respect to talking about the incident and to explain why he was being detained. Mr. Hancock remained in the back seat of the police cruiser until Constable Robertson arrived on scene with the ASD. To be clear, at no time during this period was Mr. Hancock ever provided with his rights to counsel nor had he been so advised earlier after Constable Coburn formed her reasonable suspicion at 6:34 p.m. and before calling for an ASD at 6:36 p.m.

[11] It is of no little importance to the issue at hand that I examine Constable Coburn’s understanding of the situation between 6:36 p.m. and 6:46 p.m. Upon using her vest radio to request the delivery of an ASD, it seems that Constable Robertson responded and indicated that he would do so. Constable Coburn had no reference in her notes nor any recollection as to how long Robertson said it would take if indeed he did provide any such indication. Coburn testified that she was partnered with Robertson that day. When she advised dispatch at 6:22 p.m. that she would attend the scene, she recalled that Robertson was not far from her initial location. While it was her evidence in chief that she could not recall if she had known at the time whether or not Robertson had an ASD on board his scout car, she conceded under cross-examination that her notes actually indicate that Robertson advised her that he would have to go to a police station to pick one up before attending at her location; she had overlooked that notation when reviewing her notes before coming to testify. Ultimately, Constable Coburn testified that while she was aware at the time that she had detained the defendant, that she knew he had a cell phone with him, and that there was nothing preventing her from providing him with his rights to counsel while waiting for the ASD to be delivered, she did not do so because she believed that the ASD would be delivered within a reasonable time period: ten to fifteen minutes. She felt that it was reasonable to detain someone in these circumstances without providing rights to counsel due to her training at the Ontario Police College. It was her evidence that the training provided there suggested that ten to fifteen minutes was a reasonable time delay in this context. She advised me that she had been instructed that if an officer learned that the delay was going to be longer, the officer should consider enabling the detainee to make a call to counsel. She reiterated that she could not say at trial if she had been aware at the time how long Constable Robertson was going to take to bring the ASD to her. However, she clarified that she did not facilitate a call to a lawyer between 6:36 p.m. and 6:46 p.m. because “I did not have information that would lead me to believe that it would be longer than ten to fifteen minutes.” I note that in cross-examination, she did state that at the time, she had no idea how long it was going to take Robertson to bring her the ASD.

[12] Constable Coburn testified that due to her training, she was aware that when a person is detained, they are entitled to have their rights to counsel provided to them. She clarified that when a person is under arrest, she is going to give them their right to counsel as essentially, the person is entitled to contact a lawyer without delay. In Mr. Hancock’s case, while he was detained, she did not provide him with his rights to counsel because she was waiting for the arrival of the ASD. It is clear to me that on September 3, 2017, Constable Coburn, due to her training, did not feel that there was any immediate need to provide Mr. Hancock with his rights to counsel prior to his failing the ASD test. From her evidence, it is clear that on September 3, 2017, she was of the view that the fact that he was detained as opposed to under arrest meant that she could hold off providing him with his rights to counsel so long as that delay was no more than ten to fifteen minutes.

[13] Constable Robertson arrived on scene with the ASD at 6:46 p.m. The evidence of Constable Coburn was that she then made a second ASD demand at 6:49 p.m. She could not recall exactly what transpired during the intervening three minutes. However, she stated that she would have met with her partner and explained the situation to him, taken over the ASD that he had brought, and then set it up on the back of her cruiser. I find that the three minute delay here was occasioned by the logistical requirements of the situation.

[14] Ultimately, Mr. Hancock provided a suitable breath sample at 6:51 p.m. A minute later, the ASD registered a ‘fail’ whereupon she placed him under arrest at 6:52 p.m. At 6:56 p.m., she provided the defendant with his rights to counsel. He responded that he understood his right and indicated that he would call a lawyer when they got to the police station. Constable Coburn read out the cautions and s. 524-warning at 6:57 p.m. She testified that she forgot to read the breath demand until they arrived at the police station; it was made at 7:13 p.m. At 7:33 p.m., Mr. Hancock was put in contact with his lawyer of choice: Richard Addelman. Constable Coburn then met at that time with Constable Wiegelmann, the qualified breath technician in order to provide this latter with the grounds that he required to make the demand of the accused for the breath samples. Constable Coburn physically transferred Mr. Hancock to Constable Wiegelmann at 7:44 p.m. and then took him back into her custody at 8:24 p.m. Mr. Hancock was ultimately released by the cell block sergeant on a Promise to Appear.

[15] I will now briefly summarize Constable Wiegelmann’s evidence as to what occurred in the breath room with Mr. Hancock. Having been notified that his services as a qualified breath technician would be required, Wiegelmann returned to the police station arriving at 7:20 p.m. He took custody of Mr. Hancock, as we have seen, at 7:44 p.m. He immediately provided the defendant with his rights to counsel and the cautions. Then, at 7:46 p.m., he made the breath demand. Mr. Hancock indicated that he understood the demand. The samples were taken at 7:46 p.m. and 8:09 p.m. both resulted in truncated readings of 200 milligrams of alcohol in 100 millilitres of blood. Constable Wiegelmann indicated that Mr. Hancock was cooperative during this process.

Issues and the Law

[16] There are two issues that I must deal with. First of all, there is the delay in making the ASD demand. Secondly, there is the alleged breach of Mr. Hancock’s right to counsel during the period that Constable Coburn was waiting for the arrival of the ASD. Dealing first with the delay in the making of the demand, I note that the officer formed her reasonable suspicion at 6:34 p.m. At that time, she indicated to the defendant words to the effect that she was detaining him and that she would request an ASD. Mr. Rodgers, for the Crown, conceded that this would not qualify as an ASD demand; the Crown relies on the formal ASD demand made at 6:39 p.m. The following facts are to be kept in mind here: I have not heard any explanation for the delay from 6:34 p.m. to 6:36 p.m.; Constable Coburn requested an ASD by using her vest radio while standing right beside Mr. Hancock who was still seated in his car; and that before she made the ASD demand at 6:39 p.m., the officer had the defendant get out of his car and then placed him in the back seat of her cruiser before making the demand.

[17] It is clear that an ASD demand must be made “forthwith” as per section 254(2) Criminal Code. The Ontario Court of Appeal, in R. v. Quansah, 2012 ONCA 123 at paragraph 46-49, found that the words “… the peace officer may, by demand, require the person … to provide forthwith a sample of breath …” to mean

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

47 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 the officer to discharge his or her duty as contemplated by section 254(2).

48 Fourth, the immediacy requirement must take into account all the circumstances. These may include a reasonably necessary delay where breath rests 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 that is no more than reasonably necessary to enable the officer to properly discharge his or her duty. Any delay not so justified exceeds the immediacy requirement.

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

[18] This requirement for immediacy is central to the constitutionality of section 254(2) Criminal Code. As stated by Fish J in R. v. Woods, 2005 SCC 42 at paragraph 15, “… but for its requirement of immediacy, s. 254(2) would not pass constitutional muster.”

[19] It is to be remembered that we are not here dealing with the fact that Constable Coburn did not have an ASD with her and was thus required to request that another officer bring one to her location. In other words, we are not here dealing in a strict sense with the delay in actually administering the ASD test. What we are dealing with is the independent fact that Constable Coburn delayed making the demand for five minutes after forming her reasonable suspicion. I have not been provided with any explanation as to this delay and thus there are no unusual circumstances to consider. I find that Mr. Hancock’s s. 8 and s. 9 Charter rights have been breached. I turn now to the second alleged breach.

[20] After forming her reasonable suspicion and subsequently making a request for an ASD, Constable Coburn moved the defendant from his car to her cruiser. She then basically went into stand-by mode. She seemingly did nothing more than keep an eye on the cooperative Mr. Hancock while waiting for Constable Robertson to arrive. It is perhaps understandable that she did not provide him with his rights to counsel prior to requesting the ASD; it is clear from her evidence that she did not know initially where Robertson was located and whether he had an ASD with him. However, it is clear that after going on the radio to make the request, she was aware that Robertson would have to go to a police station to retrieve an ASD and then come over to her location. The reason that she did not address the issue of s. 10(b) Charter with Mr. Hancock from 6:36 p.m. to 6:46 p.m. was that she anticipated that the ASD would arrive within a reasonable time period. She had been trained to consider ten to fifteen minutes to be a reasonable time in this context. There was no issue here of any circumstance that might have required her to hold-off giving Mr. Hancock his rights to counsel. The ten minutes were more than ample for the constable to have performed this necessary duty.

[21] Mr. Rodgers suggested during submissions that for these ten minutes to have been a breach of the defendant’s rights, there would have had to have been a realistic opportunity for him to have consulted with a lawyer. Respectfully, this position would not seem to give appropriate weight to the informational component of this right in a case like the one at bar where the time of arrival of the ASD is unknown to the investigating officer. That being said, however, it does appear to have the support of appellate authority (e.g., R. v. Torsney, 2007 ONCA 67) Of interest then, in light of the Crown position, is that Mr. Hancock had a cell phone with him and, when at the police station, spent roughly ten minutes on the phone with his counsel of choice. Therefore, if a failure to provide the informational component of this right is indeed not sufficient by itself to establish a breach in the case at bar, the facts in evidence establish that there did exist a realistic opportunity for Mr. Hancock to consult with his lawyer while waiting the ten minutes for the arrival of the ASD. I refer here to R. v. George, 2004 CanLII 6210 (ON CA), [2004] O.J. no. 3287 (C.A.) at paragraph 33 and R. v. Quansah, 2012 ONCA 123 at paragraph 49. I conclude on the basis of the foregoing that Mr. Hancock’s section 10(b) Charter right was breached by Constable Coburn.

Section 24(2) Charter and the Remedy

[22] Having found two discrete breaches of Mr. Hancock’s Charter rights, I turn now to the issue of remedy. The defence seeks the exclusion, pursuant to section 24(2) Charter, of Mr. Hancock’s blood alcohol readings. I must conduct my analysis pursuant to the direction provided by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32. Specifically, three factors are to be considered: 1) the seriousness of the Charter-infringing state conduct; 2) impact on the Charter-protected interests of the accused; and 3) society’s interest in an adjudication on the merits. Once I have conducted these three separate analyses, I must then determine whether, on balance, the admission of the evidence obtained by means of the Charter breaching conduct would bring the administration of justice into disrepute.

The Seriousness of the Charter- Infringing State Conduct

[23] Fundamentally, the courts are to dissociate themselves from state conduct that deviates from the rule of law. As stated at paragraph 72 of Grant, “[t]he more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct…”. The Supreme Court continued:

74 State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute.

75 … “Good faith” on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith …

[24] By itself, the breach of Mr. Hancock’s Charter rights that resulted from the delay in making the ASD demand cannot, in my opinion, be here placed at the most serious end of the spectrum. It may have been due to Constable Coburn’s inexperience. However, given the evidentiary record and the lack of any explanation as to how the delay came to occur, I am unable to find it to have been trivial.

[25] The failure of the constable to respect Mr. Hancock’s section 10(b) Charter rights for the ten minutes while she was waiting for the other officer to bring the ASD to her location, I find to be a much more serious breach. I base this characterization on the fact that Constable Coburn testified that she had been trained at the Ontario Police College that in this context, a delay of ten to fifteen minutes is reasonable without taking anything else into consideration. This state induced ignorance of Charter standards in one of its agents “must not be rewarded or encouraged”. Ultimately, I find that in combination, these two breaches are serious Charter- infringing state conduct. I would have made the same finding just on the basis of this 10(b) breach by itself.

The Impact on the Charter-Protected Interests of the Accused

[26] At this stage, I am enjoined by the decision in Grant to “[evaluate] the extent to which the breach actually undermined the interests protected by the right infringed.” While the taking of samples by means of an ASD and/or an intoxilyzer are not very invasive, the importance of the timeliness of the ASD demand and the fact that the section 1 Charter mandated suspension of section 10(b) Charter is not open ended, militate towards exclusion. I repeat the comment of Fish J in Woods cited above: “… but for its requirement of immediacy, s. 254(2) would not pass constitutional muster.”

Society’s Interest in an Adjudication on the Merits

[27] Society generally wishes to have trials decided on their merits. Thus “the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or its exclusion” (Grant, at paragraph 79). The evidence that is here being sought to be excluded is scientifically reliable. It is important to the Crown’s case; should this evidence be excluded, the Crown’s case must fail. Given that the readings obtained were high, the societal interest would be commensurate. As a result, this third inquiry would favour inclusion.

Balancing of the Three Factors

[28] I am of the opinion that a balancing of these three factors leans heavily in favour of exclusion of the disputed evidence. I find particularly egregious the fact that it seems that new officers, at least on the evidence before me, are not being trained appropriately in the application of Charter rights at the roadside.

Conclusion

[29] Given the foregoing, the readings obtained by Constable Wiegelmann from Mr. Hancock that evening are excluded. Obviously, the Crown is no longer in a position to prove the count of having care and control of a motor vehicle having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams in 100 millilitres of blood. That charge is dismissed.

Released: March 19, 2019

Signed: Justice David A. Berg