Court Information

Ontario Court of Justice

Date: 2019-06-03

Court File No.: 18-36188: Central East Region: Oshawa Courthouse

Parties

Between:

Her Majesty the Queen

— AND —

Kumargurupan Arumugan

Judicial Officer and Counsel

Before: Justice Peter C. West

Heard on: June 3, 2019

Oral Reasons Released: June 3, 2019

Counsel:

• Mr. F. Stephens — counsel for the Crown
• Mr. A. Zaitsav — counsel for the defendant, Kumargurupan Arumugan

Decision

WEST J.:

Charge and Charter Application

[1] Mr. Arumugan is charged with refusing or failing to provide a sample of his breath into an approved screening device contrary to ss. 254(2) and 254(5) of the Criminal Code. On June 3, 2019, Mr. Arumugan pleaded not guilty to the charge. A Charter application was brought by the defence alleging the approved screening device (ASD) demand was not made forthwith and further that Mr. Arumugan's first language was Tamil and "special circumstances" existed such that he did not understand the ASD demand made to him or the right to counsel pursuant to s. 10(b).

[2] The Crown called the investigating officer, P.C. Sarah Vandenburg. The defence elected to call no evidence on the Charter application, which was being conducted as a blended hearing or on the trial proper, which was his right. The only evidence therefore was the evidence of P.C. Vandenburg. At the conclusion of the Crown's case and just prior to oral submissions the defence abandoned the Charter argument relating to "special circumstances" because of language.

Facts

The Traffic Stop

[3] On July 8, 2018, at approximately 12:51 a.m., P.C. Vandenburg was on uniform patrol on Taunton Road westbound with her partner when she observed a Honda Pilot, license # BZDK577, being driven in an erratic fashion, weaving within its lane, almost striking a light standard in a center median at Lakeridge Drive in Ajax, Ontario. A traffic stop was effected on Taunton Road just west of Lakeridge. P.C. Vandenburg activated her overhead lights and had to use her air horn and siren to get the vehicle to stop. The vehicle made an abrupt stop.

Initial Interaction with the Driver

[4] P.C. Vandenburg approached the driver's door and the driver had lowered the window only 2 inches. She requested the driver to roll the window all the way down. The driver rolled the window half way but was looking straight ahead through the windshield and would not turn to speak to the officer. The officer leaned into the driver's seat and the driver turned his face to the right when he answered the officer's questions. She was unable to smell any odour of any alcoholic beverage coming from the mouth of the driver. The driver spoke with an accent that P.C. Vandenburg believed was Sri Lankan. Mr. Arumugan spoke to her in English and never indicated he did not understand what she was saying or asking of him. P.C. Vandenburg believed they were able to communicate with each other.

[5] She asked the driver where he was coming from and he told her Markham. When she told him he was driving in the wrong direction he told her he was going to Oshawa. Defence counsel argued this exchange demonstrated Mr. Arumugan did not understand English or the questions P.C. Vandenburg was asking. The officer testified she believed Mr. Arumugan understood English and was able to communicate with her in English and that his confusion over directions in terms of where he was coming from and going had more to do with confusion caused by the consumption of alcohol. I agree with the officer's characterization of these answers.

[6] P.C. Vandenburg asked if the driver had consumed any alcohol that night. At first he indicated "no alcohol" but in further conversation he advised he had consumed a few beers "many hours ago." She was still unable to detect any odour of alcohol coming from his breath as when he answered her questions he continually turned his head to the right so she was unable to detect anything.

Documentation Check

[7] P.C. Vandenburg indicated she requested documents, including a Ontario photo driver's licence, from Mr. Arumugan and he provided them to her. She testified she checked these documents with dispatch and everything came back with negative results. In cross she was shown her radio log, Exhibit 2 and the Detailed Call Summary, Exhibit 1, which showed these documents were not checked until 1:02 a.m. P.C. Vandenburg agreed from these documents this must have been when she checked Mr. Arumugan's documentation.

Formation of Reasonable Suspicion

[8] Just before 12:58 a.m., P.C. Vandenburg detected a faint odour of alcohol coming from Mr. Arumugan's breath when he exhaled slightly. It was at this point she testified she formed her reasonable suspicion Mr. Arumugan had alcohol in his body based on the totality of the circumstances presented: his erratic driving, his eventual admission of consuming a few beers many hours ago and now the faint odour of alcohol on his breath when he exhaled slightly with a "deep sigh." She testified she immediately made an ASD demand pursuant to s. 254(2):

I demand that you provide a sample of your breath into an ASD to enable a proper analysis of your breath to be made and that you accompany me now for that purpose of taking the sample. Do you understand?

Right to Counsel and Caution

[9] Mr. Arumugan answered, "Yes." P.C. Vandenburg knew she did not have an ASD with her so she requested one over the radio. Exhibit 1 shows this was requested at 12:58:36 a.m. P.C. Vandenburg then advised Mr. Arumugan of his right to counsel as she did not know when an ASD would arrive at their location. Mr. Arumugan answered "Yup" to whether he understood his right to counsel. When asked if he wanted to call a lawyer he answered, "No." He was also cautioned and indicated "Yup" when asked if he understood the caution.

Waiting for the ASD

[10] While waiting for the ASD to arrive P.C. Vandenburg found out Mr. Arumugan was coming from a celebration with possibly some former school mates. The celebration was also a celebration of his country Sri Lanka.

ASD Preparation and Demonstration

[11] At 1:08 a.m. the ASD arrived on scene and P.C. Vandenburg prepared it to take a sample. It should be noted counsel was not raising any concerns or issues with the calibration or whether the 6810 Draeger ASD was working properly. P.C. Vandenburg demonstrated for Mr. Arumugan how to use the ASD and provide a sample by providing her own sample of breath, which resulted in a zero. P.C. Vandenburg had not consumed any alcohol that day. She asked if Mr. Arumugan had any medical conditions that would prevent him from providing a sample of his breath. He advised he did not.

Attempts to Provide Sample

[12] P.C. Vandenburg took out a new mouthpiece and provided it to Mr. Arumugan who put it on the ASD. P.C. Vandenburg demanded he provide a sample of his breath and she explained for Mr. Arumugan he had to blow for 3 to 5 seconds, put his teeth on the mouthpiece so they did not interfere with his breath as he blew, she told him not to put his tongue on the end of the mouthpiece and to form a tight seal with his lips around the mouthpiece so no air escaped. When Mr. Arumugan at 1:10 a.m., provided his first attempt, he blew one quick, sharp blow, which caused the ASD to indicate insufficient sample.

[13] P.C. Vandenburg testified for at least another 7 to 8 times she explained to Mr. Arumugan how he had to blow into the ASD 3 to 5 seconds in order to provide a proper sample. She instructed him in the same steps indicated above on each occasion he attempted to provide a sample. In addition she demonstrated a 3 to 5 second blow of air and asked Mr. Arumugan to blow into the air himself for 3 to 5 seconds, which he was able to do. However, as soon as he put his lips on the mouthpiece of the ASD and blew into it, he was only able to provide a sharp, short blow, which was not sufficient to provide a proper sample of his breath for analysis by the ASD.

[14] On the totality of the evidence it is my view Mr. Arumugan was deliberately not following P.C. Vandenburg's instructions so that he would provide a proper sample of his breath. This was a continuation of the steps taken by Mr. Arumugan at the outset of the traffic stop and the officer's investigation so that he did not speak directly to P.C. Vandenburg such that she would be able to smell his breath. In my view this was simply a continuation of his attempts not to provide a suitable sample.

Arrest and Caution

[15] P.C. Vandenburg cautioned Mr. Arumugan of the consequence of not providing a suitable sample of his breath pursuant to the ASD demand and that he would be charged with refuse or fail to provide a sample. After the next occasion that Mr. Arumugan did not provide a suitable sample of his breath by only providing a sharp, short blow, P.C. Vandenburg arrested Mr. Arumugan for fail to provide sample.

[16] She once again read him his right to counsel. When asked if he understood, he answered, "Yea." And when asked if he wanted to call a lawyer, he said, "No." He was also cautioned and he said, "Yea" when he was asked if he understood the caution. He was released at 1:47 a.m., on an appearance notice and a taxi was arranged by the officers to drive him home.

Legal Analysis

The "Forthwith" Requirement

[17] The defence submitted that P.C. Vandenburg did not make the ASD demand "forthwith" and therefore the demand was not proper. Consequently, the defence argued Mr. Arumugan did not need to provide a sample of his breath because it is not a proper demand.

[18] Section 254(2) reads:

(2) Where a peace officer reasonably suspects that a person who is operating ... or who has the care or control of a motor vehicle ... has alcohol in the person's body, the peace officer may, by demand made to that person, require the person to provide forthwith such a sample of breath as in the opinion of the peace officer is necessary to enable a proper analysis of the breath to be made by means of an approved screening device... ( Emphasis in original )

[19] Section 254(2) does not explicitly require that the police officer's demand be made "forthwith;" rather, it only specifically requires that the motorist provide a breath sample "forthwith." However, it is implicit that the demand must be made by the police officer as soon as he or she forms the reasonable suspicion that the driver has alcohol in his or her body. That is the only interpretation that would be consistent with the limit on the s. 10(b) right to counsel in that section. R. v. Quansah, 2012 ONCA 123, at para. 25.

Jurisprudence on "Forthwith"

[20] Justice Durno, in R. v. Gill, [2011] O.J. No. 3924 (Ont. S.C.), at paras. 26-33, has succinctly summarized the law on the meaning of "forthwith":

26 It is an offence to fail or refuse, without lawful excuse, to comply with a demand made under s. 254(2)(b). s. 254(5). The criminal conduct consists of a proper demand and an unequivocal refusal to comply. The offence is complete when the refusal is given. R. v. Degiorgio, 2011 ONCA 527 at para. 42

27 When a peace officer makes an ASD demand the motorist is detained. Thomsen v. The Queen, (1988), 40 C.C.C. (3d) 411 (S.C.C.). Once a person is detained, s. 10(b) of the Charter requires the officer to inform the detainee of his or her rights to retain and instruct counsel without delay and to provide the detained with an opportunity to exercise those rights. However, the right to counsel is not absolute and is subject to reasonable limits prescribed by law. R. v. Orbanski; R. v. Ellis, (2005), 196 C.C.C. (3d) 481 (S.C.C.). One of the reasonable limits is a valid ASD demand. Thomsen, supra.

28 What makes s. 254(2)(b) a reasonable limit is the "forthwith" requirement, a requirement that is inextricably linked to its constitutional integrity. It addresses the issues of unreasonable search and seizure, arbitrary detention and infringement of the right to counsel notwithstanding ss. 8, 9 and 10(b) of the Charter. Absent this requirement, s. 254(2)(b) would not pass "constitutional muster." R. v. Woods, 2005 SCC 42, at para. 15, 29.

29 "Forthwith" means immediately or without delay. This immediacy requirement is implicit in relation to the police demand and explicit in relation to the driver's response. It connotes a prompt demand and an immediate response. It also provides the constitutional boundaries within which s. 254(2)(b) is meant to operate. Woods, supra, at para. 13, 28 and 44.

30 The boundaries within which Charter rights are justifiably infringed have recently been described by the Court of Appeal as the "forthwith window." R. v. Degiorgio, supra, at para. 49. It is the period in which the detained person can be required to respond to a valid ASD demand by either providing a suitable sample, failing or refusing to provide a suitable sample. During that window, the detainee can incur criminal liability by failing or refusing to provide a sample unaffected by the Charter. Degiorgio, supra, at para. 34 and 47.

31 When the "forthwith window" opens and closes is determined with respect to the right to counsel. The critical question is whether there was a realistic opportunity for the detainee to consult counsel before being confronted with the ASD and required to provide a suitable sample. R. v. Cote, (1992), 70 C.C.C. (3d) 280, cited with approval in Woods, supra, at para. 35. It is not simply an opportunity to contact counsel. Rather, there must be a realistic opportunity to contact, seek and receive advice before being confronted with the ASD. R. v. Torsney (2007), 217 C.C.C. (3d) 571 (Ont. C.A.).

32 Whether that "realistic opportunity to consult counsel" exists is a question of fact to be determined considering all the circumstances in the case. R. v. Latour, (1997), 116 C.C.C. (3d) 279 (Ont. C.A.), Torsney, supra, at para. 8. Courts have considered the following non-exhaustive list of circumstances:

i. the time the officer believed the ASD would arrive (R. v. George, (2004), 187 C.C.C. (3d) 289 (Ont. C.A.));

ii. the time between the demand and the taking of the sample (Latour, supra);

iii. the time between the demand and the ASD's arrival (George, supra and R. v. Yamka (2011), 267 C.C.C. (3d) 81 (S.C.J.));

iv. the day of the week and/or time at which the detainee would have been attempting to contact counsel (R. v. Singh, (2005), 24 M.V.R. (5th) 19 (Ont. C.A.));

v. whether the detainee had a cell phone, although this factor in itself is not determinative (George, supra, at para. 42; R. v. Beattie, [2009] O.J. No. 4121 (C.J.));

vi. the actual time it took for the ASD to arrive (Latour, supra);

vii. whether there was an explanation for the delay (R. v. Fildan, [2009] O.J. No. 3604 (S.C.J.)); and

viii. whether the detainee contacted counsel at the station after being arrested (Torsney, supra).

33 I would also add for occasions when the detainee has a cell phone, whether they had the number for counsel or would rely on duty counsel with its "call back" feature. It would also be important to determine if they had counsel's number, whether it was an office number, 24 hour pager, or cell number as well as the previously noted time of day and day of the week the call would be placed.

[21] Justice Durno suggests (at para. 35) that the appropriate calculation is the time from forming the reasonable suspicion and when the device is with the demanding officer. "Operational time", namely the time required for the officer to prepare the equipment, and ensure it is working properly and the time required to explain its use or where the detainee makes numerous attempts before providing a proper sample, should be deducted where the end of the time period is when the sample is actually obtained. (See also R. v. Bernshaw (1994), 95 C.C.C. (3d) 193 (S.C.C.), at pp. 104-105 and R. v. Yamka, [2011] O.J. No. 283 (Ont. Sup. Ct.), at paras. 42-45)

Application to This Case

[22] In this case P.C. Vandenburg read Mr. Arumugan his right to counsel when she realized she needed to request an ASD be brought to the scene. It is not necessary to determine whether the delay between the making of the ASD demand and when the ASD arrived on scene created a realistic opportunity for Mr. Arumugan to consult with counsel. Mr. Arumugan did not want to exercise his right to counsel and he did not request to speak to a lawyer, which would have imposed the implementational duties necessary for P.C. Vandenburg to put him in touch with a lawyer.

[23] The defence here is arguing that the fact P.C. Vandenburg was incorrect in her recollection that she obtained Mr. Arumugan's documentation and checked it in her cruiser before forming the reasonable suspicion, this meant there would have been a minute or two delay in making the ASD demand after P.C. Vandenburg had formed her reasonable suspicion and therefore the demand was not made "forthwith." The defence then submits because the ASD demand was not made "forthwith" Mr. Arumugan did not have to comply with it.

[24] P.C. Vandenburg was clear in her evidence that she did not believe she had reasonable suspicion until after she detected the odour of alcohol on Mr. Arumugan's breath, after he made a "deep sigh" and exhaled. She testified she formed her reasonable suspicion at 12:58 a.m. after she detected this odour and she was not moved from this position. I accept P.C. Vandenburg's evidence on this issue and I find she made the ASD demand "forthwith" after forming her reasonable suspicion. Further, in my view the 5 minute time period from the traffic stop until she detected the odour of alcohol at 12:58 a.m., and then formed her reasonable suspicion from the totality of the circumstances accorded with the various pieces of her investigation she described.

The Quansah Test

[25] In R. v. Quansah, 2012 ONCA 123, at paras. 45-49, the Court held that:

In sum, I conclude that the immediacy requirement in s. 254(2) necessitates the courts to consider five things.

First, the analysis of the forthwith or immediacy requirement must always be done contextually. Court 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 that the driver has alcohol in his or her body. The immediacy requirement, therefore, commences at the state 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 the officer to discharge his or her duty as contemplated by s. 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 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.

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.

Findings

Understanding and Deliberate Non-Compliance

[26] I find on the totality of the evidence Mr. Arumugan clearly understood P.C. Vandenburg's instructions on how to provide a proper and suitable sample of his breath into the ASD. Unfortunately, he had no intention of providing a proper and suitable breath sample and I find he was playing games by not providing a long enough breath to activate the ASD to analyze his breath. This finding is supported by Mr. Arumugan's actions when he was first stopped when he initially denied consuming alcohol followed by his admission of consuming a few beers many hours previously, as well as his actions concerning his reluctance to open his window properly or to turn his head to face the officer, rather, he turned his head to the right towards his passenger so P.C. Vandenburg could not smell his breath. This was done in my view to circumvent the officer being able to detect the odour of alcohol on his breath.

Language and Communication

[27] Although the defence abandoned the "special circumstances" Charter argument, it is my view Mr. Arumugan understood everything that was said to him by P.C. Vandenburg. His responses to questions was appropriately responsive and indicated he understood.

Conclusion

[28] Therefore, considering the totality of the evidence I find Mr. Arumugan wilfully failed to comply with P.C. Vandenburg's ASD demand pursuant to s. 254(2).

Released: June 3, 2019

Signed: Justice Peter C. West