O N T A R I O C O U R T O F J U S T I C E

CITATION: R. v. So, 2019 ONCJ 44

DATE: 2019-01-28

COURT FILE NO.: Central East - Newmarket 4911-998-18-00922

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

PERRY SO

Before Justice P.N. Bourque

Reasons for Judgment

Released on January 28, 2019

G. Elder................................................................................................................ for the Crown

P. Lindsay...................................................................................................... for the Defendant

BOURQUE J.:

Overview

[1] The defendant was stopped for a highway traffic offence and it quickly turned into a drinking and driving investigation. The defendant failed an ASD test at the roadside and afterwards blew 110 and 130 milligrams of alcohol in 100 millilitres of blood. into an Intoxilyzer 8000C. The defence served notices of applications under section 24(2) to exclude the breath test results and alleged breaches of sections 7, 8, 9 and 10(b), of the Canadian Charter of Rights and Freedoms.

Andrew Milliard

[2] ...is a breath technician with the York Regional Police and has been a police officer for 16 years. His timelines are as follows:

Time

Event

01:56

He was notified the defendant would be requiring a breath test; officer already at 2 District performing another breath test.

02:09

Received grounds for arrest at 01:32. Officer in charge did a HTA stop and then had suspicion of alcohol in body of defendant and performed ASD demand; performed ASD test and failed. Arrested at 01:44; this gave Milliard grounds to give a breath demand.

02:28

Performed diagnostic.

02:31

Second diagnostic performed.

02:33

Calibration check; result within 10 milligrams of alcohol of 100 millilitres of blood.

02:36

Completed self-breath test, resulting in zero. Officer was satisfied the machine was in working order.

02:37

Received defendant and instructed the defendant in the use of the mouthpiece and device and device went through a further air blank diagnostic and calibration check.

02:43

First sample into machine reading of 131 milligrams of alcohol in 100 millilitres of blood.

03:04

Provided second sample directly into the devise as per the first sample and reading was 117 milligrams of alcohol in 100 millilitres of blood.

[3] The officer was cross-examined about the Alcotest 6810 roadside device and he believed that the officer at the scene should wait 15 minutes for mouth alcohol and 5 minutes if the driver had been smoking a cigarette and he thought these things were in the manufacturer’s manual. The officer was shown the manufacturer’s manual (Exhibit 1) and he agreed there was no reference there to waiting for cigarette smoke. He stated that he believed that it was part of his training to consider mouth alcohol, food and cigarette smoke before giving the ASD.

Yasir Kahn

[4] …is a York Regional Police officer of some two years’ experience. His timelines are as follows:

Time

Event

01:32

Doing radar enforcement in York Region. Clocked a Dodge Ram Truck doing 95 in a 60 kilometre an hour zone. Did a traffic stop. Told the driver (the defendant) that he was stopping him for speeding. The officer noticed that the defendant was slow to respond to what he was asking and the officer asked him if he had anything to drink and the defendant stated “one beer”.

01:34

The officer made an ASD demand as he had a suspicion that the defendant might have been an impaired driver, drinking more than the legal limit.

01:35

After reading the demand, the officer asked him to return to his car to put out his cigarette and the officer decided to wait 5 minutes because of the cigarette smoke. He stated that he believed that there was a YRP Intranet site with such instructions upon it. He also asked officer Sirotkin to check the site to determine the correct time to wait.

01:43

The officer retrieved the defendant from his car and administered the ASD test and the defendant provided a fail sample.

01:44

The officer arrested the defendant.

01:52

The officer read the full rights to counsel and when asked if he understood the defendant said “Yes, I do”.

01:53

Caution read. When asked if he wished to say anything the defendant said: “No, I had a long day”.

01:53

Breath Demand; when asked if he understood, the defendant said “I do”.

[5] The officer was shown a York Regional Police directive (Exhibit 2) which stated:

4. If an Officer believes that the driver has recently been smoking tobacco or any other product in the form of a cigarette or e-cigarette, a delay of two minutes in administering the ASD is required to ensure that the electrochemical sensor of the device is not prematurely damaged.

[6] The officer testified that he was given the essence of this information by another officer at the scene. He decided to wait longer as he felt he should do so to assure the accuracy of the result.

[7] In cross-examination, the officer was taken extensively through Exhibit 3 (with the use of a transcript which with corrections both counsel stated was accurate). The officer admitted on the transcript that the other officer (Sirotkin) tells him that he should wait 10 minutes. The officer still insists that Sirotkin tells him at some point that the wait is 2 minutes but that is not on the transcript. I do note that there is extensive discussion between the witness and Sirotkin about the time and very much of it is marked “Inaudible”. I also note that only this witness was mic’d in this video, as Officer Sirotkin’s mic would only be attached to his video (which was not played).

[8] The officer reviewed the fact that after the arrest, the searching of the defendant and the placing of him in the cruiser, the officer attended (along with Sirotkin) in dealing with the defendant’s property. From Exhibit 3, it would appear that this took some 2 to 2 ½ minutes. Part of that time was taken up by Sirotkin having a conversation with the defendant about various items of his property.

[9] After reading the rights to counsel at 1:51:50, there is the following conversation:

KHAN: Do you wish to call a lawyer now?

SO: Mh-hmm, sure.

KHAN: We’re going to the station. We’ll get in you in touch with a – do you have a lawyer or do you want me to get a Duty Counsel.

SO: No.

KHAN: …for you

SO: I don’t have a lawyer.

KHAN: We can get you a Duty Counsel Lawyer for you. Is that okay?

SO: Sure.

[10] The officer then goes on to give the secondary caution and the breath demand.

[11] At the station in the booking room, there is a conversation about a lawyer and the officer confirms that the defendant has asked to speak to duty counsel. The duty sergeant goes on to confirm that the defendant has “the right to retain and instruct counsel without delay”. There is a further discussion between the defendant and the sergeant and the officer about the defendant’s apparent confusion between Legal Aid and duty counsel.

Defence

Perry So

[12] ... he defendant, testified on the Charter issues only.

[13] Specifically, it was his evidence that while he understood the rights to counsel and everything that the officers told him, he did not understand that he had any other “options” when it came to the counsel issue, and he felt that if he did not have a lawyer, his only other choice was duty counsel. He said that he wished to call his friend Dennis Yen, as he testified that he thought his friend could help him get a lawyer. He testified that, in fact, within hours of his release he called this friend and this friend gave him the name of a lawyer. He said that because he felt he did not have the option of calling this friend, he did not ask the officer to do so and indeed he felt intimidated into not asking.

[14] In cross-examination, it was pointed out that the rights to counsel read by the officer included the phrase “You have the right to telephone any lawyer you wish”. It was also pointed out that this defendant raised 3 separate issues with the officers, including the wish to have his coat done up and asking to go to the washroom. Perhaps more relevant is his request to have some clarification of the distinction, if any between duty counsel and Legal Aid. Clearly he was giving thought to the issue of counsel here and felt able to raise it with the officers. The question I ask myself is why would he be constrained to ask if he could call a friend to get a lawyer. I also note that he (at the time he was arrested) did not know whether this friend had a lawyer or not.

[15] What he did say in examination in-chief and in cross-examination is that he never asked or told any officer that he wanted to call his friend and neither did he ask any other assistance in getting in touch with some other lawyer.

Artsiom Sirotkin

[16] …is a York Regional Police officer and attended at the scene and joined officer Khan. He testified (with the aid of Exhibit 3 “A” And 3 “B”) that he recalled a discussion with Officer Khan about the cigarette smoke issue, but he did not recall looking up any directive on his computer nor did he remember saying that the time to wait was some 2 minutes, rather than the 10 minutes that was discussed with Khan initially.

Analysis

[17] The defendant raises Charter issues and I must answer the following questions:

HAS THIS DEFENDANT BEEN DENIED HIS 10(A) RIGHTS BECAUSE THE OFFICER TOOK TIME TO SEARCH HIM AND DEAL WITH HIS PROPERTY ISSUES BEFORE READING HIS RIGHTS TO COUNSEL?

[18] I decline to find any breach of the defendant’s Charter protected rights on these facts. I will not do a section 24(2) analysis on this alleged breach as the defendant did not argue this breach in his final submissions.

HAVE THE DEFENDANT’S SECTIONS 8 AND 9 RIGHTS BEEN BREACHED IN THE LENGTH OF TIME IT HAS TAKEN BETWEEN THE DEMAND FOR A ROADSIDE SAMPLE AND THE FULFILLMENT OF THAT DEMAND?

[19] The officer made a demand for a roadside sample of the defendant’s breath at 01:34. He paused at 01:35 and asked him to wait. The first sample was received into the ASD at 01:43. That is a total time of some 9 minutes.

[20] While some of this delay can simply be attributed to the taking of the defendant out of the car and preparing the device and instructing the defendant in its use, the defendant looks at the time beginning at 01:35 when the officer intentionally stopped the process because of his belief that he should delay taking the sample for a period of time because of cigarette smoke on the breath of the defendant. There is no direction in the instruction manual of the Alcotest 6810 device that there be any delay for cigarette smoke. There is a directive from the York Regional Police (Exhibit 2) which directs that a delay of 2 minutes is mandated, to make sure the device is “not prematurely damaged”. The officer testified that Officer Sirotkin told him to wait 2 minutes but he decided to wait a longer period of time. In the video camera recording of the scene (Exhibit 3), the officer’s account of what actually transpired is contradicted. In the video, the officers speak of a delay of some 10 minutes.

[21] This is clearly a contradiction of the officer’s testimony. However, in assessing what happened, I have the video, and am not left in doubt about the timeline. In any event, the officer did not wait 10 minutes. From start to finish, it is some 9 minutes. While some of this delay can be attributed to the intentional delay, it is clearly under 10 minutes and more than 2 minutes.

[22] Ultimately I must decide whether a delay of several minutes, while induced by the directives of their superiors, is clearly not mandated by the manufacturer of the device. In determining whether the delay constitutes a breach of the “forthwith” requirement (in section 254 (2) (b)), I must have recourse to the law. If I find that it was not taken forthwith, then I must determine whether that invalidates the reasonable grounds which the fail result of the ASD gave to the officer in arresting the defendant and giving him a demand for a breath sample into the Intoxilyzer 8000C.

[23] In R. v. Quansah, 2012 ONCA 123, The Court of Appeal set out a 5 item test:

45 …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.

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 s. 254(2).

48 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 that is no 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.

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.

[24] I find that there was not sufficient time for the provision of any 10(b) rights.

[25] I find that the officer made a prompt demand after forming his suspicion of alcohol in the defendant’s body.

[26] Items 3 and 4 are dependent on the decision as to whether the error of the police, in thinking that there should be a delay of some 2 to 10 minutes (the actual delay was from 5 to 8 minutes), robs them of the requirement that the delay was no more than was “reasonably necessary”. This investigation was not perfect. Does this lack of perfection leading to an extra detention of some 5 to 8 minutes lead to the inexorable conclusion that the forthwith requirement is no longer met? I find it does not. Such a determination is based mainly on the length of the delay. Even taking into account the lack of candor of the officer as to the proposed length of the delay and the actual reasons for it, it was based upon his misapprehension of what was actually required. This could have been fatal if the delay was prolonged. I find that it was not.

[27] An ancillary question is whether the officer, who expressed a subjective opinion that the defendant had committed an offence under section 253(1)(b) as a result of the failure of the ASD, in waiting for the issue of cigarette smoke to be resolved, no longer had objective grounds. The defence argues that because the reason for the two minute delay set out in the York Regional Police Directive is related to a potential damage to the device and not specifically to the accuracy of the result on that occasion, then such a delay is unreasonable and does not fit in with the rubric as enunciated in R. v. Mastromartino, 2004 28770.

[28] Specifically, he points to the phrase that a wait is appropriate “if the officer honestly and reasonably felt that an appropriately short delay was necessary to obtain a reliable reading”. The officer believed it was a reliability of the sample issue. I accept his evidence in that regard. In any event, I find that there is no real distinction to be made between whether the reading was reliable or whether the machine will be damaged. A damaged machine will probably not return a reliable result.

[29] Even if there is a beach, I cannot find that there would be any reason under the Grant analysis that there would a suppression of the breath test results.

[30] With regard to the first ground, the defendant states that the actions of the police cannot be seen as merely a technical but were more indicative of some bad faith. He points to the discrepancy between Officer Khan and Officer Sirotkin about the time to wait for the tobacco smoke. Even if I do not find that Officer Khan lied, even if he was simply mistaken, does that impart some element of bad faith. I find that while neither officer could quote chapter and verse, the directive of the York Regional Police about the tobacco smoke, they were obviously aware of some mandated wait, and whether it was from their general training or the fact they may have seen the directive sometimes in their careers was unknown.

[31] Officer Khan, in any event, did not wait 10 minutes, but instead the delay was some 4 to 6 minutes. He clearly wanted to not wait more than was absolutely necessary and for that reason, I do find that the actions of the police were based on an error (induced by their training) but it did not amount to bad faith. I cannot find (as was found in R. v. Au-Yeung, 2010 ONSC 2292, [2010] O.J. No. 1579) that this amounted to some willful blindness. As a result, I find this to be a neutral factor.

[32] With regard to the secondary ground, I must assess the impact upon the charter protected interests of the defendant. In R. v. Jennings, 2018 ONCA 260, the court ruled that in a section 8 breach (no reasonable and probable grounds for arrest because of a lack of objective grounds to support the ASD result), the only period of time that should be considered is the time of detention in order to perform the ASD test. In that regard the court, in my opinion, overruled R. v. Au-Yeung, where the court felt that the entire period in detention up to the final release of the defendant at the station should be considered. The court reasserted the words in R. v. Grant which stated that ASD tests are minimally intrusive. Some subsequent decisions have held that this analysis does not apply when there is (as is the case here) also a Section 9 charter challenge. I disagree.

[33] I believe that Jennings also applies to a section 9 challenge. What is at stake for an individual giving a roadside breath sample is the same, whether it is a section 8 or section 9 characterization.

[34] With regard to the tertiary ground, it would favour admission. Breath tests are very reliable and the offence is serious.

Has this defendant’s section 10(b) rights been infringed?

[35] The facts of this case are very much like any number of cases.

(i) The defendant is given his rights to counsel as per the words approved in countless appellate court decisions starting from the seminal decision in R. v. Bartle[^1]. As pointed out by Henschel J. in R. v. Ruscica, 2017 ONCJ 864, Nowhere in Bartle did the Supreme Court indicate that the police must go further and inform an individual who does not know a lawyer of the steps that might be taken to identify a private lawyer;

(ii) The rights to counsel includes the information (as required in Bartle) about the availability of a free duty counsel system to provide quick legal advice and the number to contact them;

(iii) The rights to counsel also includes the phrase “You have the right to telephone any lawyer you wish”. In our case this right was repeated by the sergeant at the booking desk;

(iv) The defendant indicated at the scene (and indeed in our case while giving evidence in court) that he understood all aspects of the rights to counsel;

(v) The defendant indicates that he wishes to speak to counsel;

(vi) The defendant indicates that he does not have his own lawyer and indeed provides no further information at any time during the entire period up to and including the breath test procedure, any possible inkling that he has his own lawyer, wishes to seek someone else’s advice about getting consulting a lawyer, wishes to consult any information source to seek a lawyer, or is even giving any thought to any of the above;

(vii) When the defendant does not indicate that he has counsel and does not state any of the above, the officer asks him if he wishes to consult with duty counsel, and the defendant replies in the affirmative;

(viii) The defendant is eventually put in touch with duty counsel, and has a private conversation;

(ix) The defendant proceeds from that conversation and provides his breath samples without a word of complaint and without seeking any further clarification of his legal rights and obligations;

(x) The defendant in or case testified that he felt somehow precluded from asking the officers if he could telephone his friend. Whether he felt precluded or not I will never know for sure, but what I do know is that the officers never ever gave him any possible reason to come to that conclusion. In fact all of his outward actions (he did ask them for things on 3 separate issues) would indicate to this trier of fact that he asked all of the questions that he wanted to ask. Such a finding is further confirmed by his own evidence that he was not aware at the time that this friend Dennis even had a lawyer to recommend. I believe it is more likely than not that he did not make the request because it was not something that he was concerned about at the time.

[36] Based upon all of the above, I find that the police officers did not “steer” him to duty counsel. I also find that there was nothing in what the officers did which would lead any reasonable thinking person to the belief that he had only two options.

[37] As per R. v. Willier, 2010 SCC 37, [2010] S.C.J. No. 37, “In no way did the police interfere with Mr. Willier’s right to a reasonable opportunity to consult with counsel of choice…”. As also said in Ruscica at para 64:

…Nowhere did the Supreme Court suggest that it was incumbent on the police to propose or provide an opportunity for McCrimmon to identify other private counsel before suggesting and facilitating access to duty counsel.

[38] I also note a similar result in the following cases in the OCJ, at Newmarket: R. v. Liao (unreported) November 8, 2018, R. v. Lau (unreported) Jan 8, 2019, R. v. Weeks, 2018 ONCJ 722, R. v. Reyes, 2015 ONCJ 561.

[39] The defendant ultimately argued that in this case the officer should have mentioned that he could use the telephone. In defense counsel’s submission that would have made all the difference “in this case”. That may be so, “in this case”. That however does not answer the question as to whether the officers steered him to duty counsel. I do not find that he was steered to duty counsel. I do not find that asking the defendant if he has a lawyer or does he wish to call duty counsel unfairly limits his options.

[40] I note in Reyes that Justice Ghosh reviewed the possibilities which would be apparent if each warning had to be tailored to the particular thoughts of a detainee when any such thoughts are not expressed to the officers. The recent decision of R. v. Mumtaz, 2019 ONSC 468, I believe confirms my analysis in this case. It being a Superior Court decision on a summary conviction appeal, it is a binding authority.

[41] Even if I had found a breach in this case, I would have not made a ruling to exclude the evidence here.

[42] As per the first ground in Grant, I adopt the statements of Ghosh J. that while a violation of the right to counsel is generally serious, I would not find any breach here to be serious. The applicant exercised no diligence in pursuing counsel of choice. He readily consulted duty counsel and expressed no dissatisfaction at the time with the advice received. His testimony that he was dissatisfied with the advice does not undermine this fact. There is no evidence of a Charter-deficient systemic approach to facilitating the right to counsel of choice when the detainee is reasonably diligent. I find this favours admission.

[43] I find that the officers were diligent in providing the defendant his rights to counsel and in following up with any questions that he had. They were polite at all times and as I have found, they were not directing him to duty counsel. I find no bad faith on the part of the officers. This ground would favour admission.

[44] The tertiary ground favours admission, as the test results are reliable and the charges are serious, and should be decided on their merits.

Conclusion

[45] I dismiss the Charter applications in this matter and I admit into evidence the results of the breath tests and find the defendant guilty of the offence of operation of a motor vehicle with a blood alcohol concentration of 110 milligrams of alcohol in 100 millilitres of blood.

Released: January 28, 2019

Signed: “Justice P.N. Bourque”

[^1]: 1994 64 (SCC), [1994] 3 S.C.R. 173.