Ontario Court of Justice

Date: 2020-02-24 Location: Newmarket

Between:

Her Majesty the Queen

— AND —

Sioux Manitowabi

Judgment

Evidence and Submissions Heard: 24 February, 2020. Delivered: 24 February, 2020.

Ms. Shambavi Kumaresan ......................................................... counsel for the Crown

Mr. David Burke ...................................................................... counsel for the defendant

KENKEL J.:

Introduction

[1] Constable Li was dispatched to check on a driver who was stopped on the side of the 400 highway and appeared to be sleeping. He found the vehicle parked with the engine running and interior lights on. The driver Mr. Sioux was the sole occupant. The odour of alcohol on his breath led to an Approved Screening Device (ASD) test at the roadside. The failure of that test led to further testing at the station which resulted in the Over 80 and Impaired care or control charges.

[2] The impaired count has been dismissed. On the remaining count, the defence submits that the ASD demand was not based on a reasonable suspicion. The demand was not made forthwith. The roadside testing breached s 8 of the Charter. The breaches are very serious, such that the approved instrument test results should be excluded under s 24(2). The Crown submits that the odour of alcohol reasonably led to the ASD demand. That test was conducted in a timely way. In the alternative, if the court finds the demand or test could have been conducted some minutes earlier, such a breach would have no impact on the applicant's Charter rights and could not lead to the exclusion of evidence.

Reasonable Suspicion

[3] DC Li first smelled an "overwhelming odour of alcohol" in the vehicle. He spoke with the accused and later smelled an odour of alcohol coming from the accused's mouth. In cross-examination it was suggested to the officer that maybe alcohol could have been spilled in the vehicle, and if that happened that could account for the odour of alcohol. The officer agreed, in what appeared to be an "anything's possible" sense, that there could be other sources for alcohol odours. He also allowed that if that had happened, his observation about smelling alcohol on the accused's breath might not have been correct.

[4] The defence submits that after smelling the odour of alcohol on the accused's breath, the officer never took further steps to ensure that the odour was coming from the person and not some other source. The fact that the officer agreed that some other scenario might ultimately prove him incorrect shows his suspicion was not reasonable.

[5] Reasonable grounds to suspect is based on reasonable possibility, not probability – R v Chehil 2013 SCC 49, at para 27. It was logical for the officer to suspect that the odour of alcoholic beverage in the vehicle was coming from the lone occupant. That inference is plainly reasonable. The officer went further and determined that the odour was coming directly from the driver's breath. The fact that the officer agreed in cross-examination that other explanations might be possible does not detract from his evidence, nor does it render his suspicion and demand unreasonable. A suspicion need not be the only inference that could be drawn to be reasonable, and the officer is certainly not required to imagine other possible explanations and negate every possibility. The Crown has proved that the ASD demand was based on a reasonable suspicion.

ASD Test Forthwith

[6] Detective Constable Li arrived on scene at 6:15 a.m. He made the Approved Screening Device (ASD) demand at 6:20 a.m. The defence submits that the officer's evidence shows that he could have made the ASD demand prior to the time it was made. The officer admitted in cross-examination that he was not aware that the demand itself had to made forthwith. The failure to make the demand immediately upon formation of the required suspicion is a serious breach of s 8 of the Charter that should result in exclusion of the breath test results. The Crown submits that the ASD demand was made in a timely fashion. In the alternative, the Crown submits that any delay was minor and should not result in exclusion of reliable breath test evidence.

[7] 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. – R v Quansah 2012 ONCA 123.

[8] When DC Li arrived he first made observations of the vehicle. He checked the plate to confirm it was the number relayed by the caller. He determined the car interior lights were on and the engine was running. He put his hand on the hood and noted it was warm. He noticed the accused was asleep in the driver's seat. The officer knocked on the car to wake him but there was no response. He knocked on the driver's window directly but there was no response. He then smacked the driver's side window with his palm using force several times while yelling "Hey" but there was still no response. The officer then tried the door handle and found it was not locked.

[9] He was able wake the driver, and he requested that Mr. Manitowabi provide his license, insurance and registration. Mr. Manitowabi looked for those documents in the console, at first handing the officer a USB key, then continuing his search. During that time the officer noted that there was an odour of alcohol coming from the accused's breath. The accused did not produce the requested documents. The officer asked him about drinking and then made an ASD demand.

[10] It's understandable that the officer did not stop to note the time of each step he took after arrival. He noted the time of the ASD demand and his evidence as a whole shows that the demand and the ASD test were made in a timely way. The officer was engaged in several investigative steps including having the driver produce the requested documents. The officer made the demand after that interaction when he smelled the odour of alcohol coming directly from the accused's breath. In the alternative, if it's found that the demand should have been uttered moments earlier when he first smelled the alcohol in the vehicle, such a breach could have no impact on any of the interests protected by s 8 of the Charter. To exclude reliable evidence for such a trivial breach would bring the administration of justice into disrepute.

Conclusion

[11] The Crown has proved that the Approved Screening Device test at the roadside was pursuant to a demand based on a reasonable suspicion and was conducted in a timely way. The Charter application is dismissed. The Crown has otherwise proved beyond a reasonable doubt that the accused was in care or control of a vehicle while his blood alcohol concentration was over 80mgs as alleged.

[12] Count 2 is dismissed. There will be a finding of guilt on count 1.

Delivered: February 24, 2020.

Justice Joseph F. Kenkel