Court Information

Ontario Court of Justice

Date: September 4, 2019

Court File No.: Brampton 17-0274

Between:

Her Majesty the Queen

— and —

Julian Azeredo

Before: Justice M.M. Rahman

Heard on: August 7 and 8, 2019

Reasons for Judgment released on: September 4, 2019

Counsel

Ysolt Brar — counsel for the Crown, respondent

Alexei Zaitsev — counsel for Julian Azeredo, the defendant/applicant

Judgment

RAHMAN J.:

1. Overview

[1] Shortly after midnight on December 29, 2017, Peter Mendonca and Lisa Toste were waiting to make a left turn onto Britannia Road when they noticed a car driving towards them slowly. Mr. Mendonca swerved to his right to avoid a collision. Ms Toste and Mr. Mendonca noticed the car continue and then strike the road's centre median. They made a u-turn to follow the car and called 911 to report what they believed was a drunk driver. They followed the car to a residential street where they noticed it hitting a snowbank.

[2] Police eventually arrived to find the defendant/applicant, Julian Azeredo, in the driver's seat of the car. Much of the car, including the applicant and his passenger, were covered in Cheetos or some other kinds of chips. Because the applicant appeared disoriented and showed other signs of impairment, he was arrested for impaired operation of a motor vehicle. Once he was taken back to 11 Division, he was assessed by an officer who performed a drug recognition evaluation (DRE). After that assessment, the officer formed the opinion that the applicant was impaired by a central nervous system depressant, and required him to provide a urine sample. Forensic analysis of that sample confirmed the presence of Alprazolam, a central nervous system depressant, as well as a metabolite of tetrahydrocannabinol (THC).

[3] The applicant is charged with impaired operation. The only issue at his trial is the constitutionality of the evaluating officer's DRE of the applicant and seizure of the applicant's urine sample. The applicant argues that his s. 8 right to be secure against unreasonable search and seizure was breached because the DRE was not conducted as soon as practicable. He argues that a 25-minute delay occasioned by a second call to duty counsel rendered the DRE, and seizure of his urine sample, unconstitutional. He says that the second call was unnecessary because the police did not ask him if he needed a second consultation, nor was it reasonable for them to believe he required a second consultation. The applicant says that the breach and its impact were sufficiently serious that the evidence should be excluded under s. 24(2) of the Charter.

[4] These reasons explain why I find that the applicant's s. 8 Charter right was not breached and, alternatively, why I would not exclude the evidence under s. 24(2).

2. Section 8 of the Charter

2.1. Facts

[5] Peel Regional Police Constable Brian Mortotsi arrested the applicant after finding him in the driver's seat of the car, and believing him to be impaired. Cst. Mortotsi told the applicant he was being arrested for being impaired by drug or alcohol. At the time, he did not smell alcohol, and was uncertain exactly what was causing the applicant's signs of impairment. Cst. Mortotsi read the applicant a DRE demand. He testified that he read the DRE demand because he believed that an Intoxilyzer test was part of the DRE, and it was the safer demand to make because he was uncertain whether alcohol was involved. The officer also read the applicant his rights to counsel at the scene. The applicant said he did not want to call a lawyer.

[6] Once they arrived at 11 Division, Cst. Mortotsi asked the applicant if he was sure he did not want to speak to a free lawyer. He said he asked this question because, in his experience, people sometimes change their minds once they arrive at the police division. The applicant then said he did wish to speak to a lawyer. The officer placed a call to duty counsel.

[7] Cst. Mortotsi told duty counsel only that the applicant had been arrested for impaired driving, without specifying the manner of alleged impairment. He testified that is normally what he tells duty counsel, and that he would not normally specify whether it was for alcohol or drugs. The applicant started his consultation with duty counsel at 1:05 am. At the same time, Cst. Mortotsi went to speak to Cst. Baron the evaluating officer who would perform the DRE.

[8] Cst. Mortotsi testified that when speaking to Cst. Baron, Cst. Baron told him to call duty counsel back to ensure that the lawyer knew that the police suspected drug impairment. Cst. Baron did not recall specifically directing Cst. Mortotsi to call duty counsel back, but he did say that he wanted the applicant to be clear that he would be subject to a DRE. Cst. Baron said he wanted to ensure that the applicant "got advice about what was going to happen." Cst. Mortotsi called duty counsel back at 1:19 am to clarify that the applicant was in custody for drug impairment. Duty counsel called back at 1:27 am and the applicant spoke to duty counsel between 1:28 am and 1:31 am. The applicant entered the breath testing room where the DRE was conducted at 1:32 am.

2.2. Parties' Positions

[9] The applicant argues that the second call to duty counsel was unnecessary. Mr. Zaitsev says that his client never asked to speak with counsel a second time, nor did Cst. Mortotsi ask his client whether he wanted to speak with counsel a second time. Moreover, he said that Cst. Mortotsi could have told duty counsel initially that the arrest was for impairment by drug, since he had already administered the DRE demand at the roadside. Mr. Zaitsev says that the delay occasioned by the second call meant that the DRE was not done as soon as practicable. He argues that s. 254(3.1) requires that the evaluation be administered as soon as practicable and, if it is not, the testing and subsequent seizure of bodily samples violates s. 8 of the Charter because they are no longer authorized by law.

[10] The respondent argues that Cst. Mortotsi acted reasonably in calling duty counsel a second time. Ms Brar argues that the officer should not be faulted for ensuring that the applicant's consultation was an informed one. She also says that it would have made little sense to ask the applicant if he wished to call duty counsel again given his state of confusion while he was at the booking desk.

2.3. Is the as Soon as Practicable Requirement a Statutory Pre-Condition?

[11] It is far from clear that the DRE must be performed as soon as practicable to be authorized by law. I recently considered the analogous provision in s. 254(3) of the Criminal Code dealing with the demand for breath samples. In R. v. Agnihotri, I held that s. 254(3) does not require breath samples to be taken as soon as practicable to be lawful. I found that, as a matter of statutory interpretation, the provision of samples as soon as practicable was the obligation of the driver, and not a legal pre-condition for their seizure. I rely on the reasoning in that case and I am not persuaded that the language of s. 254(3.1), under which the demand was made to the applicant, yields a different result.

2.4. The Evaluation was Done as Soon as Practicable

[12] In any event, if s. 254(3.1) does require an evaluation to be done as soon as practicable, I find that it was.

[13] Cst. Mortotsi's decision to call duty counsel back was done out of an abundance of caution. It was done for the applicant's benefit – to ensure that he had a properly informed consultation with duty counsel. It is hard to fault the officer for doing this. That is especially so given the applicant's confused state during booking.

[14] Moreover, while Cst. Mortotsi could have initially told duty counsel that the applicant might face a drug evaluation, I cannot find that his failure to do so was so unreasonable. He told duty counsel that the applicant was being arrested for impaired operation. On its own, that was reasonable. It complied with s. 10(b). The applicant knew he had been given a demand. Had that been all the officer said, the applicant would have no s. 10(b) complaint. After speaking with Cst. Baron, a decision was made to ensure that the applicant's consultation with counsel was meaningful.

[15] This is also not a case like R. v. Davidson, where the defendant waived his right to counsel. Rather, here, the applicant asserted his right to counsel and the police simply tried to ensure he could properly exercise it. Even though the police may not have been required to call back duty counsel, their doing so was diligent. They were trying to ensure that the applicant could properly exercise his right to consult counsel. In short, the delay is reasonably explained by the police making a cautious decision to protect an important Charter right.

[16] Because the applicant has raised the as soon as practicable issue as a Charter issue, the Crown need only demonstrate a timely seizure on a balance of probabilities, rather than beyond a reasonable doubt (as is the case where it seeks to rely on the presumption of identity in s. 258(1)(c)). The police are not held to a standard of perfection in the performance of their duties. It is not this court's job to play Monday morning quarterback in deciding whether an officer conducting an impaired driving investigation at 1:00 am could have done things better. There is also some irony in the fact that the applicant is arguing that the police's good faith attempt to protect one important Charter right results in the violation of another.

[17] I find that the Crown has demonstrated that the test was done as soon as practicable.

3. Section 24(2)

[18] In the event that my conclusion on s. 8 is wrong, I will consider whether s. 24(2) of the Charter would require exclusion of the evidence.

[19] On the first step of the R. v. Grant inquiry, the question is whether the breach is serious. If there was a breach here, it was committed in good faith. Cst. Mortotsi was trying to protect the applicant's right to counsel. This is also apparent in Cst. Mortotsi's decision to ask the applicant if he wanted to call a lawyer even after he had initially declined the opportunity to consult counsel. In choosing to protect one right, he may have violated another. It is hard to imagine a better example of good faith. This step of the Grant inquiry favours admission.

[20] The second step of the Grant inquiry considers the impact of the breach on the applicant's Charter-protected interests. It is true that the compelled performance of tests and seizure of urine have a significant impact on a detainee's Charter-protected interests. However, the fact that the evidence here was discoverable significantly mitigates the seriousness of the breach. This is not a case where the police had no basis to compel the applicant to perform the DRE. There is no issue that there were reasonable grounds to issue the demand. The question here is one of timing. In other words, had the breach not occurred, the evidence would have been discovered in any event. The fact that the evidence was discoverable leads me to conclude that the second stage of the Grant inquiry also favours admission.

[21] The third step of the Grant inquiry considers society's interest in the adjudication of the case on its merits, and whether the truth-seeking function of the criminal trial process is better served by admission or exclusion. In this case, the DRE evidence is the principal evidence proving the impaired charge. Without it, the Crown would have no case. The results of the analysis of the applicant's urine sample, while not essential to the Crown's case here, provide support for the DRE's conclusion. Therefore, this stage of the Grant inquiry favours admission.

[22] Because all three stages of the Grant inquiry favour admission, had I found a Charter breach in this case, I would still have admitted the evidence.

4. Conclusion

[23] Mr. Zaitsev acknowledged at the end of his submissions that, if the court dismissed the Charter application, he had no arguments on the merits. That was a wise concession.

[24] The evidence establishes, beyond any doubt, that the applicant was impaired by drug when he was driving on December 29, 2017. The applicant performed poorly on the DRE. The evaluating officer's opinion that the applicant was impaired by a central nervous system depressant is fully supported by the results of the DRE. The toxicology report confirms the officer's opinion regarding the class of drug.

[25] I find the applicant guilty of operating a vehicle while impaired by a drug.

Released: September 4, 2019

Justice M.M. Rahman