Ontario Court of Justice

Date: 2019-09-23

Court File No.: Newmarket 18-01710

Between:

Her Majesty the Queen

— and —

Adib Tawil

Judgment

Evidence and Submissions Heard: 23 September, 2019

Delivered: 23 September, 2019

Counsel:

• Mr. Tony Vanden Ende, counsel for the Crown
• Mr. Rudi Covre, counsel for the defendant

KENKEL J.:

Introduction

[1] Constable Naughton was conducting radar speed enforcement late at night on Highway 7 in Markham when Mr. Tawil's vehicle drove past, travelling 107km/hr in a 60km/hr zone. After a lengthy chase where Mr. Tawil did not respond to lights, sirens and air horn blasts he eventually pulled into a plaza and stopped. The officer spoke to Mr. Tawil and asked for his license, insurance and registration. She advised him of the reason for the stop. While speaking with him she noticed an odour of alcohol coming from his mouth area. His eyes were "red and glossy." Mr. Tawil asked questions about the determination of speed then told the officer several times that his brother was a police officer with the York Regional Police. After speaking with the driver, PC Naughton conferred with a second officer PC Wenzel who had arrived at the stop just after she did. Constable Wenzel then spoke with Mr. Tawil and made an Approved Screening Device (ASD) demand. The accused's failure of the ASD test resulted in reasonable grounds for an Approved Instrument (AI) demand. The results of the AI tests led to the "Over 80" charge before the court.

[2] Upon completion of the evidence the submissions of both counsel identified one narrow area of concern with two issues for decision – whether the fact that the investigating officer took several minutes to confer with a colleague reasonably results in a finding that the ASD test was not taken "forthwith", if so whether the breath readings should be excluded as a remedy for the breach pursuant to s 24(2).

ASD Test Forthwith

[3] Constable Wenzel made the ASD demand. There's no issue that he made a timely demand once he'd received information from PC Naughton and confirmed that information by his own observations. The ASD test was subsequently administered immediately. The defence application refers not to the actual demand made, but the failure of PC Naughton to make a demand after speaking with the accused minutes earlier.

[4] Section 254(2) did not specifically require that a demand be uttered "forthwith" but appellate courts have held that it's implicit in the notion of a timely test that an officer make a demand once he or she forms the required reasonable suspicion. A timely demand is part of the overall requirement that the test be administered "forthwith" – R v Quansah 2012 ONCA 123, [2012] OJ No 779 (CA).

[5] Constable Noughton agreed in cross-examination she could have made an ASD demand after speaking with the accused. She had an ASD in her vehicle and was in position to administer the test. She hesitated to do so and decided to speak to the other officer before taking that step. While she did not make any excuse for the delay, there was evidence that she was a new officer operating on her own for about a month and this was her first drinking and driving investigation without a coach officer. After she spoke to PC Wenzel who was also a new officer, Constable Wenzel confirmed the information and an ASD demand and test quickly followed.

[6] The in-car video shows that PC Noughton was at the driver's side window speaking with Mr. Tawil at 02:12:24 h. After a minute and a half, by 02:13:53h the discussion was complete and I find that she was in the position of having a reasonable suspicion to make an Approved Screening Device demand at that point. While the defence is right that the odour of alcohol and other observations would have been made quickly, forming reasonable suspicion is a process which I find was complete by the time she left the driver's window. She returned to her vehicle to place the accused's documents there and to remove her microphone and then she spoke to PC Wenzel. Constable Wenzel acted quickly upon receiving information about the accused and he testified that he made an ASD demand at approximately 02:17:00h. Given the video evidence and the very brief discussion described, I find that PC Wenzel made the ASD demand shortly after he arrived to speak with Mr. Tawil at 02:17:00 and before Mr. Tawil got out of the car for the ASD test at 02:17:37. I find the demand was likely made at approximately 02:17:30h.

[7] Assuming that the administration of the test would have occurred in the same fashion if PC Noughton had made the ASD demand, the total delay caused by her conference with PC Wenzel from 02:13:53 to 02:17:30 is about three minutes and thirty-seven seconds.

[8] It's not plain that a pause of just over three minutes for new officers to confer breaches the s 254(2) requirement that the test be administered "forthwith" where the demand and test otherwise were conducted with dispatch. Officers may delay making a demand where reasonably necessary and given the careful approach of the arresting officer I find the Crown has proved that the delayed demand was a reasonable step in this particular case. In the alternative, if the demand delay did amount to a s 8 breach it's a very small one. Although a s 9 breach is alleged, the detention of the accused was not arbitrary. He was not otherwise free to go as there was a parallel traffic investigation that resulted in a speeding charge.

Charter s 24(2)

[9] If there were a breach, applying the test in R v Grant 2009 SCC 32, I find that it was not a serious one. It was motivated by inexperience and the officer's careful approach. There was no apparent impact on the rights sections 8 and 9 were meant to protect. The initial officer had the required grounds for the test. The accused was also detained for the ongoing speeding investigation. Mr. Tawil stayed in his own car not subject to any restraint during the few minutes the officers conferred. The reliability of the Approved Instrument tests results was conceded, and they are central to the Crown's case. Society's interest in adjudication of the case on its merits favours inclusion of that relevant and reliable evidence. Balancing all of the factors, I find that to exclude the breath test evidence in this case for such a trivial breach would bring the administration of justice into disrepute.

Conclusion

[10] The Charter application is dismissed. It's conceded the Crown has otherwise proved the charge alleged beyond a reasonable doubt. There will be a finding of guilt.

Delivered: September 23, 2019

Justice Joseph F. Kenkel