Court File and Parties

Court of Justice of Ontario

Reference: R. v. Bamusamba, 2019 ONCJ 724

Date: October 7, 2019

File No.: OTTAWA 18-A9697

Between:

Her Majesty the Queen

— and —

Glody Iyeti Bamusamba

Reasons for Judgment

Delivered by the Honourable Judge Julie I. Bourgeois

Counsel:

• S. Lichti, for the Crown
• P. Voinea, for the Accused

JUDGE BOURGEOIS:

Introduction

[1] Mr. Glody Bamusamba faces two charges dated February 12, 2018 – namely, operating a motor vehicle while his ability to operate it was impaired by alcohol, contrary to s. 253(1)(a); and failing or refusing to comply with an order to provide breath samples necessary for proper analysis to determine the concentration of alcohol in his blood pursuant to s. 254(5) of the Criminal Code (CC).

[2] Through his counsel, he brought an application under the Canadian Charter of Rights and Freedoms (the Charter) alleging that his rights under ss. 8, 9, and 10 of the Charter were violated by police officers due to a delay he characterizes as 27 or 20 minutes between the time the officer formed reasonable suspicion that Mr. Bamusamba had alcohol in his system and the time she gave the order to provide a breath sample in an approved screening device (ASD). Accordingly, the defence argues that during this time, Mr. Bamusamba was not informed of the reason for his detention or of his right to counsel. He seeks a remedy under s. 24(2) of the Charter, excluding the evidence collected. This application was heard integrally with the trial.

[3] Here is a summary of the salient facts of this matter, necessary for the analysis of the issues.

Facts

[4] Constable Renée Mathieu was on patrol with her colleague and training officer, Constable Menendez, when she observed, at 1:32 a.m., the vehicle driven by Mr. Bamusamba at the intersection of Summerville and Hollington streets in Ottawa. She noticed that the car remained stationary for a period longer than normally expected at a stop, approximately twenty seconds. The car made the turn as signaled on Hollington, but the officer noted that the vehicle's license plate was expired. She therefore intercepted the vehicle at approximately 1:33 a.m. She made the following observations:

• She noted four occupants
• The windows were extremely fogged due to the cold
• She advised her dispatcher and proceeded to the driver's side of the car
• The driver, Mr. Bamusamba, lowered the window; she noted a strong smell of burnt marijuana coming from inside the car
• She requested the usual documents – Mr. Bamusamba provided a driver's license but asked to call his brother, the owner of the car, to locate the insurance card – she permitted him to do so
• During this exchange, she noted a smell of alcohol on his breath and his eyes were bloodshot

[5] She returned to the patrol car and at 1:38 a.m. communicated with the dispatcher. She confirmed the validity of the driver's license.

[6] Sometime between 1:40 a.m. and 1:44 a.m., she returned to the car to check whether Mr. Bamusamba had managed to locate the insurance card by communicating with his brother. During this exchange, she noted that the smell of alcohol on his breath was more pronounced.

[7] Although the precise times at this point regarding what the officer did precisely were somewhat difficult to follow during her testimony, a review of all of her evidence demonstrated the following:

[8] Around 1:45 a.m. – she asked him to exit his vehicle – on re-examination, she explains that the reason for this request was to ensure that the smell was really coming from the driver and not from the other passengers in the car and that she therefore had sufficient grounds to order him to provide a breath sample. She noticed instability on his feet as he exited his car. She testified that thus, with the smell, the bloodshot eyes, and this last observation of instability, she had reasonable suspicion to believe he had alcohol in his blood, and therefore gave him the order to provide a breath sample in the ASD. She explained in cross-examination that once she developed her grounds, she had the obligation to give the order immediately.

[9] She demonstrated how to provide a breath sample and confirmed that Mr. Bamusamba understood how to provide the sample. Mr. Bamusamba complied, but the first sample was not sufficient for analysis. He therefore provided a second sample; however, the device returned an internal system error message. Believing that the extreme cold of that evening was the cause of this device malfunction (it was -40 degrees Celsius that night), at 1:56 a.m. she requested that a colleague bring her another ASD.

[10] While waiting for the arrival of a second ASD, she gave him a second order to provide a breath sample at 1:59 a.m. Constable Mathieu does not recall Mr. Bamusamba telling her he was cold, but she was cold. She therefore invited him to sit on the back seat of the patrol car with the heating on. Constable Richard Zulys arrived at the scene at 2:01 a.m. with an ASD and at 2:02 a.m. she administered the test with this second device in the patrol car, but with the rear door open. Mr. Bamusamba provided an adequate sample, the device analyzed it and gave a fail result.

[11] She placed him under arrest for impaired driving and Constable Menendez conducted a search; she read him his rights to counsel and caution at 2:10 a.m. and at 2:12 a.m. she read him the caution under s. 524 as well as the order to provide a breath sample for analysis in an approved device. They left the scene at 2:14 a.m. and arrived at the police station at 2:23 a.m. Mr. Bamusamba was presented to the sergeant at the cells; special agents then searched him and from 2:53 a.m. to 3:18 a.m. he was put in contact with a second lawyer, the first not being available to take the call at 2:50 a.m. During this time, Constable Mathieu gave her grounds to the qualified technician at the breathalyzer, Constable Graeme Bean, and at 3:24 a.m. custody of Mr. Bamusamba was transferred to Constable Bean.

[12] Constable Bean testified and the audio-visual recording of his interview with Mr. Bamusamba in the breath sample collection and analysis room was filed as evidence. Constable Bean is a qualified and trained technician in the use of the 8000C Intoxilyzer device. He ensured the proper functioning of the device in question by performing the internal verification steps and at 3:27 a.m. he read the caution and the order to provide a sample to Mr. Bamusamba. He gave him a mouthpiece, asking him to blow into the piece to practice, but also to ensure that air circulated freely through it without obstruction. When Mr. Bamusamba was practicing in the mouthpiece before it was connected to the approved device, Constable Bean testified that he could feel the air blown by Mr. Bamusamba coming out of the piece and thus confirm that the latter was capable of providing an adequate sample.

[13] A long series of 15 attempts can be observed on the recording filed as evidence. Constable Bean describes that sometimes he could see that Mr. Bamusamba was letting air escape on the sides of the mouthpiece because his lips were not sealed around the mouthpiece opening; on other occasions, the breath sample was not strong enough to register a sufficient volume of air for analysis; at other times he stopped and resumed, thus interrupting the sample and preventing analysis. Constable Bean informed Mr. Bamusamba of the consequences of not completing a sample for analysis and warned him of his last chance to complete providing a sample. He changed the mouthpiece during the process and also noted that it was not blocked.

[14] Constable Bean noted the red eyes, the smell of alcohol on the breath and eventually in the ambient air while the approved device was emptying; he also noted Mr. Bamusamba's fine motor skills when the latter dropped the mouthpiece. Finally, he noted that Mr. Bamusamba was cooperative and that his speech and balance were good. When he asked him if there was a reason preventing him from providing or completing a breath sample, Mr. Bamusamba's initial response was no. Later, during the failed attempts, Mr. Bamusamba said he suffered from asthma. The constable therefore asked him if he was having an asthma attack at that moment – Mr. Bamusamba answered no.

[15] Mr. Glody Bamusamba testified.

[16] He explained that he was at home all day until he left to work his shift from 4 p.m. to 9 p.m. as a cook in a restaurant in Gatineau. After his shift, when he was in the parking lot of his residence, his friend called him to ask him to come pick him up with two other people in the west end of Ottawa. He therefore took approximately thirty minutes to drive to pick up his friends at the party where they were. He arrived shortly before 10 p.m. At the party, he went in to greet the people there, but since he did not know many people there, he returned to his car to wait for his friends. He did not check the time when police intercepted him, but he does not dispute that it was 1:32 a.m.

[17] He states that he did not drink any alcoholic beverage, neither at work nor at the party. He also states that one of the friends he was picking up smoked a marijuana joint in the car while waiting for the other two and while driving after the party, but he did not smoke.

[18] When he took the return route, he realized that his cell phone battery could not withstand the cold. There were four people in the car when he arrived at the stop and saw a car approaching at high speed. It was his friends who told him it was a police car since he had not noticed. He stopped when the lights came on.

[19] He testifies that the officer told him she had received a call about a suspicious car circulating in the area and then asked for his papers, telling him there did not appear to be insurance for the car. In cross-examination, he explains that he does not remember the officer telling him at first contact that she detected the smell of alcohol on his breath, but he remembers that when she shone the light in his eyes she asked him if he had smoked or drunk.

[20] He gave her his driver's license and the car registration; she went to the patrol car and upon her return asked for the physical insurance paper. He asked to reach his brother since he could not find it in the car. The officer permitted him and in attempting to use the phone of the passengers in the automobile, he realized it would be complicated without his own phone where his brother's number was.

[21] He says he remembers trying to communicate with the officer, but it was difficult because his friends were talking in the car and he had difficulty with the officer's accent. He therefore proposed to get out of the car. In cross-examination, however, he states that he does not remember whether he exited his vehicle before or after she gave him the opportunity to call his brother. He spoke in French with English words while the officer spoke in English, also trying to communicate by gestures. She allegedly told him he spoke like someone who had been drinking.

[22] Once out of the car, he testifies that she asked him to return to the car to get his cell phone, but the officer refused. He still wanted to find the insurance proof to provide to her. When his counsel asks him if he had the chance to call a lawyer, would he have done so, he answers no, because he was on the street, but he did so at the police station. He also testifies that this option was not a priority for him at that time because he wanted to cooperate with her and respond to her request to provide proof of insurance and be able to take the alcohol test.

[23] He indicates that after the first test in the device, he blew two or three times, but without precise result. He knew he could not return to his car, but was cold so he proposed going into the patrol car. The constable allegedly responded yes, why not. He indicates that while waiting for the second ASD in the patrol car, he could see his friends looking at him through the windshield. He therefore wanted his phone to communicate with them to let them know what was happening and for the proof of insurance she was asking for.

[24] According to him, the officer never spoke to him about a lawyer until they arrived at the police station; she never informed him of his right to counsel at the roadside, at least he does not remember her doing so and he cannot say whether or not she did so around 2:10 a.m. as she indicated in her testimony.

[25] Regarding his attempts to provide a breath sample in the approved device, Mr. Bamusamba testifies that he felt willing to blow and although he is in good health, he explains that he sometimes has difficulty breathing when he sleeps at night because his nostrils become blocked. He also testifies that although he had asthma problems as a child, he has not suffered from respiratory problems since arriving in Canada in 2014. He notes, however, that it was very cold that evening and he felt heaviness in his lungs and dizziness when he attempted to provide the breath samples.

Charter Application

[26] I will address the Charter application first.

[27] Through his counsel, Mr. Bamusamba argues that the decision of Judge Durno in R. v. Yamka, 2011 ONSC 405 is useful for our purposes of analyzing ss. 8 and 9 since there is a delay of approximately twenty minutes between the officer's observations and the order to provide a breath sample in the ASD. The pertinent facts in Yamka are that following a collision, the officer made observations of the driver that led him to reasonably suspect she had alcohol in her system and to want to order her to provide a breath sample. However, the officer did not give this order because he believed he had to immediately give her the ASD once he had given the order. Since he had forgotten to bring the ASD with him when leaving the station, he had to ask a colleague to bring one. He then detained the driver in the patrol car while waiting for the ASD to arrive, approximately ten minutes, without informing her of her right to counsel and without giving her the order to provide a breath sample. In this matter, counsel also cited R. v. Fildan, [2009] OJ No. 3604 (S.C.J.).

[28] It is in this context that Judge Durno explains at paragraph 27 that when the officer forms (i) reasonable suspicion to believe that a driver has alcohol in his or her body and (ii) the corresponding intention to administer an ASD test, the order must be given immediately. In other words, the order to provide a sample must be given immediately when the officer has formed reasonable suspicion based on his or her observations and the intention to administer an ASD test. A police officer who does not give the order immediately when these two elements are met is not compliant with the "immediately" component and is therefore not authorized by s. 254(2) of the CC. Thus, samples obtained in this context are obtained in violation of s. 8 of the Charter.

[29] This is so because the Supreme Court of Canada (SCC) in R. v. Woods, 2005 SCC 42, at paragraph 29, held:

The requirement of immediacy provided for in s. 254(2) of the Criminal Code is inextricably linked to the constitutional integrity of this provision. It justifies abusive searches, perquisitions and seizures, arbitrary detention and infringement of the right to assistance of counsel, despite ss. 8, 9 and 10 of the Charter.

[30] But it is important to note what is "immediate" in this context. For clarity, I will reproduce paragraph 27 in its entirety as expressed by Judge Durno:

Pursuant to s. 8, everyone has the right to be secured against unreasonable search and seizure. An ASD demand must occur "forthwith" upon the officer forming the reasonable suspicion that the driver has alcohol in his or her body and the corresponding intention to administer an ASD test.

[emphasis added]

[31] Here, Constable Mathieu made certain observations early in her interaction with Mr. Bamusamba – she noted that there were 4 people in the car; she noted a smell of burnt marijuana in the car; she also noted Mr. Bamusamba's red eyes and a smell of alcohol on his breath. She did not form the intention at that moment to administer an ASD test to him. She rather continued her verifications under the Highway Traffic Act, namely the confirmation of insurance. When she returned to the car after making the usual verifications on her end and after giving Mr. Bamusamba the opportunity to communicate with his brother, she noted that the smell on his breath was more pronounced. In order to ensure that the smell was coming from him and not from the other passengers, she asked him to exit his vehicle. In doing so, she noted his instability and it is therefore at that moment that she concluded she had sufficient grounds to suspect he had alcohol in his body and immediately gave him the order to provide a breath sample in the ASD. She had the ASD in the trunk of her car; she demonstrated how to use it and administered the test immediately.

[32] There is no binding jurisprudence that supports the proposition that police must limit themselves to a certain number of observations to arrive at a conclusion of reasonable grounds to believe a driver has alcohol in his or her body in order to form the intention to administer the ASD test. On the contrary, our Court of Appeal cited examples provided by Judge Hill in R. v. Fildan, supra:

40 In R. v. Fildan (2009), 69 C.R. (6th) 65 (Ont. S.C.J.), several additional examples are recited where, despite a short delay, the immediacy requirement would be met. At para. 39, Hill J. describes three of them:

(1) Where the police officer takes further reasonable steps (such as sobriety and physical coordination tests) to determine whether there are reasonable grounds for an intoxilyzer demand (R. v. Smith (1996), 105 C.C.C. (3d) 58 (Ont. C.A.) at para. 19, 27, 57) or

(2) Where the officer asks questions to learn the amount of alcohol said to have been consumed — with confidence that only one drink was consumed, the constable may direct the motorist on his or her way: (Megahy, at para. 17-8), or

(3) Where legitimate public safety or similar exigencies arise justifiably explaining a brief delay preventing immediate communication of a formed intention to demand and undertake ASD testing.

41 In my view, all these examples are instances where the assessment of the "forthwith" requirement is based on whether a short delay is reasonably necessary to accomplish the objectives of s. 254(2).

R. v. Quansah, 2012 ONCA 123

[33] I accept Constable Mathieu's testimony regarding the sequence of events. Although she is not particularly precise about the hours and minutes of each of her observations, she was able to explain how she managed to reconstruct them based on concrete tools at her disposal such as the times recorded on the computer used to make CPIC searches or at the Ministry of Transportation or the times recorded in her communications with the dispatcher. Although it would be preferable for the times of interactions or interventions to be recorded more precisely in order to facilitate the work of counsel in advising their clients and the decisions of persons accused of offences in setting a trial date or not, the state of the notes and Constable Mathieu's testimony are satisfactory, that is, sufficiently explained for the court to understand the course of her interaction with Mr. Bamusamba.

[34] What is important to consider here is the moment when her intention to give the order crystallizes with her reasonable suspicion to believe that Mr. Bamusamba has alcohol in his body. The "immediate" component of s. 254(2) must align with the reasonable suspicion to believe and the intention to give the order to provide a sample. In this case, that is what occurred – once Constable Mathieu satisfied herself that she had reasonable grounds to believe there was alcohol in Mr. Bamusamba's body, she formed the intention to administer the test to him and she immediately gave him the order. I am satisfied by Constable Mathieu's testimony that she knows her obligations under s. 254(2) and I am satisfied that she complied with her obligations in that regard.

[35] There is no breach of Mr. Bamusamba's rights under s. 8 of the Charter.

Section 9 Analysis

[36] With respect to s. 9 of the Charter, I conclude that Mr. Bamusamba was indeed detained, but not arbitrarily. The detention of Mr. Bamusamba was authorized in these circumstances not only by provincial legislation permitting police to verify that the driver's and vehicle's documentation is in proper order in this case, but also to verify the driver's sobriety (see R. v. Ladouceur, [1990] 1 S.C.R. 1257; R. v. Hufsky, [1988] 1 S.C.R. 621; and R. v. Wilson, [1990] 1 S.C.R. 1291).

Section 10 Analysis

[37] Now addressing rights under ss. 10(a) and (b) – namely the right to be informed of the reason for detention and the right to counsel.

[38] Constable Mathieu's evidence in cross-examination is that although she made observations of the driver between 1:33 a.m. and 1:38 a.m., these observations only raised suspicions that perhaps Mr. Bamusamba was driving with alcohol in his body. It was only when she returned to the car and made further observations between 1:45 a.m. and 1:56 a.m. and formed reasonable suspicion that she advised him of her investigation for impaired driving. Indeed, the reason for her initial interception of the vehicle was not for the purpose of investigating sobriety, but rather documentation – it was during her interaction with the driver that things changed. The evidence in examination-in-chief is not precise, and indeed does not appear to directly address this question.

[39] But Mr. Bamusamba for his part testified that the officer informed him from the first interaction, namely when she shone the light in his eyes asking him if he had drunk or smoked and informing him that she could detect a smell of alcohol on his breath.

[40] It is clear from all of the evidence that Mr. Bamusamba knew the reasons for his detention from the first interactions with Constable Mathieu. There is no breach of s. 10(a) of the Charter.

[41] With respect to s. 10(b), I accept Constable Mathieu's testimony that following the failure on the ASD, she placed Mr. Bamusamba under arrest, Constable Menendez conducted the search, and she then read him his rights to counsel. There is no breach of the right to counsel in these circumstances. Having also concluded that there was no breach under ss. 8 or 9, the analysis of s. 10(b) is limited to this period of interaction between police and Mr. Bamusamba. It is entirely appropriate that police officers ensure their safety and the safety of the person now under arrest before anything else, and a preliminary search of the person taking a few minutes is entirely justified.

[42] I would also like to address this question in the context of the first and second demand while they waited for a second ASD to be brought to them.

[43] The right to counsel is suspended in the circumstances of a roadside investigation under s. 254(2) of the CC because this limitation on the constitutional right is justified under s. 1 (see R. v. Elias; R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3). This suspension is confined to the context of the investigation and obtaining samples quickly, even immediately. Since this concept is not inflexible, there are certain delays that are nonetheless permitted within this window. One indicator for determining whether the right to counsel should have been provided to a person detained in these circumstances is whether he would have had a realistic opportunity to contact and consult a lawyer within the time allotted.

[44] Our Court of Appeal precisely addressed this question in R. v. Torsney, at paragraph 7:

In this case, the demand was made clear and the appellant understood. He knew that he was to provide a sample as soon as the machine arrived and he responded accordingly. Put differently, the appellant understood that the only event between the demand and his giving of the breath sample was the arrival of the ASD. That being so, the only issue of substance is whether the police officer was in a position to require that the appellant provide a breath sample forthwith, i.e. before there was any realistic opportunity for him to consult counsel. See R. v. Woods, supra, at 362; R. v. Cote (1992), 70 C.C.C. (3d) 280 (Ont. C.A.), at 285 and R. v. Latour (1997), 116 C.C.C. (3d) 279 (Ont. C.A.), at 287.

R. v. Torsney, 2007 ONCA 67

[45] This is precisely the situation that arises here. And as in the situation in that case, the short delay of only a few minutes while waiting for a second ASD to be brought placed Constable Mathieu in a position to require that Mr. Bamusamba provide a breath sample before a realistic opportunity to contact and consult a lawyer presented itself. (see paragraph 12, Torsney, idem). Here, we are talking about a delay of approximately five minutes, namely between 1:56 a.m. and 2:01 a.m. (see also R. v. Singh, [2005] O.J. No. 4787 (Ont. C.A.)).

[46] This conclusion is all the more clear when one considers Mr. Bamusamba's evidence that his priority at that precise moment was not to contact a lawyer and his evidence regarding the state of his cell phone at that time.

[47] In conclusion, none of Mr. Bamusamba's rights, as guaranteed by the Charter, were violated by the work of police officers in this matter and I reject his application.

Merits of the Case

[48] Now addressing the evidence on the merits of the case.

[49] I reject Mr. Bamusamba's testimony that he had not consumed any alcohol during that evening. Constables Mathieu, Menendez, and Bean all smelled alcohol on his breath; the ASD analyzed a level of alcohol sufficient to register a fail and the approved Intoxilyzer device even detected alcohol in the ambient air after Mr. Bamusamba spent time in that room at the police station.

[50] Mr. Bamusamba is not a good historian of the evening, but resists the suggestion that he does not have a perfect memory of the evening. There are inconsistencies in his testimony that are fatal to him, for example, his cell phone could not withstand the cold, yet he indicates he was in the car waiting for his friends. It was -40 degrees Celsius that night. He certainly did not wait in the car from approximately 10 p.m. to 1:30 a.m. at -40 degrees without heat! He says he was cold when he was outside his car for a few minutes and would have himself suggested going into the patrol car for warmth. He felt pressure in his lungs due to the cold, earlier in the evening, once at the police station in the sample analysis room, with Constable Bean. None of this makes sense.

[51] Moreover, just as his testimony that he made the necessary efforts to provide a breath sample in the approved device once at the police station, but that his childhood asthma or the cold suffered earlier in the evening prevented him from doing so. The viewing of the recording of the transaction at the station demonstrates very clearly that he is capable of blowing into the mouthpiece, but the moment the qualified technician connects the piece to the device, suddenly, Mr. Bamusamba is no longer able to provide the required sample.

[52] His testimony raises no reasonable doubt. His testimony presents no reasonable excuse. The evidence of Constable Bean and the recording of his interaction with Mr. Bamusamba is overwhelming.

[53] As specified by our Court of Appeal and supported by the SCC (appeal dismissed R. v. Stellato, [1994] 2 S.C.R. 478):

In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.

R. v. Stellato, 1993 ONCA 3375, paragraph 14.

[54] The evidence of the smell of alcohol on his breath, bloodshot eyes, his lack of balance when exiting his car, his lack of dexterity in dropping the mouthpiece; and finally, his failure to comply with the order to provide a breath sample in the approved device, as proposed by the Crown, under s. 258(3), satisfies me that he operated his vehicle while his ability to operate it was impaired by the consumption of alcohol. I draw an adverse conclusion against Mr. Bamusamba regarding his failure to comply with the order given to him under s. 254 of the CC.

[55] When I consider all of the evidence presented by the Crown, I conclude that it has discharged its burden of proof, beyond a reasonable doubt, on both counts. Mr. Glody Bamusamba, I therefore find you guilty on both counts against you.

Reasons delivered: October 7, 2019

Signed: Judge Julie I. Bourgeois