Court File and Parties
Ontario Court of Justice
Date: 2020-10-29
Court File No.: Ottawa 19-A8598
Between:
Her Majesty the Queen
— and —
Anna Kravacek
Before: Justice P.K. Doody
Heard on: September 14, 15, 2020
Reasons for decision on Charter application released on: October 29, 2020
Counsel:
- Anthony Does, counsel for the Crown
- Rodney Sellar, counsel for the defendant
Decision
DOODY J.:
Introduction
[1] Anna Kravacek is charged with operating a conveyance while her ability to do so was impaired by alcohol and with having 80 mg or more of alcohol in 100 ml of blood within 2 hours of operating a conveyance.
[2] She has applied to have the evidence of the breath tests excluded under s. 24(2) of the Charter. She submits that the police breached her s. 10(b), 8 and 9 rights because the demand that she provide a sample of her breath into an approved screening device was not made immediately; she was not advised of her right to counsel or provided with an opportunity to consult counsel while the implementation of the approved screening device was delayed to ensure an accurate test because she had been chewing gum when stopped; and her subsequent arrest was arbitrary.
[3] With the consent of both counsel, these issues were considered in a voir dire which was, to a limited extent, blended. Crown counsel called the arresting officer first. His evidence covered both the issues on the Charter application and on the trial proper. The defendant then testified on the application voir dire and called one additional witness. Their evidence was heard only on the Charter application.
[4] Defence counsel asked that I deliver a decision on the Charter application before the trial proceeded with further Crown evidence. Consequently, this decision is limited to that application. The Crown has not yet completed its evidence on the trial proper, and the defendant has not yet been put to her election of whether to call evidence.
Overview
[5] I find the following facts to be established by evidence of Cst. Tyler MacDonald, the investigating officer, and the defendant which I accept. There is no significant dispute with respect to these facts.
[6] Cst. MacDonald was in his cruiser driving northbound on Dwyer Hill Road at 6:59 p.m. on March 12, 2019 when he heard dispatch say that an individual had called to report a possible impaired driver leaving the town of Richmond Hill. A vehicle description and plate number was given. He saw the defendant's car, which matched the description and had the right plate, turn onto Dwyer Hill Road from Franktown Road. He activated his lights, signalling the car to pull over. The defendant drove her car 20 to 30 metres and then pulled over onto the shoulder. Cst. Macdonald pulled in behind her. It was 7:05 p.m.
[7] Cst. MacDonald got out of his cruiser and approached the driver's window. The defendant, who was driving, rolled down her window. Cst. MacDonald told her that a member of the public had called 911 about her driving and he wanted to see that everything was okay. He asked her to give him her driver's licence, ownership registration, and insurance.
[8] She gave him her driver's licence. He asked again for her ownership and insurance. She found them and gave them to him.
[9] While they were speaking to each other, Cst. MacDonald smelled alcohol coming from the defendant's breath. During the conversation, he formed a reasonable suspicion that she had alcohol in her body. He read to her the approved screening device demand at 7:08 p.m.
[10] The approved screening device was in Cst. MacDonald's cruiser. He asked the defendant to accompany him to his cruiser. He got the device out of his front passenger seat. He conducted a "self test" by blowing into the device at 7:10 p.m. The result was "zero", indicating no alcohol in his breath. Since he had not been drinking, he had expected that. He concluded, as a result of that and because the device would display a red light and have an audible tone if its calibration was overdue, that the device was in proper working order.
[11] While he was blowing into the device, Cst. MacDonald noticed a bulge in the defendant's cheek. He asked her if she was chewing gum. She said she was. He had her spit out the gum. He had been trained that the approved screening device might give an inaccurate reading if the subject had been eating or drinking anything in the 5 minutes before providing a breath sample. He told her that the test would have to be delayed for 5 minutes to ensure that the result was not a false positive.
[12] They waited at the side of the road for 5 minutes. At 7:15, the defendant was offered the device and asked to provide a sample of her breath. The attempt was unsuccessful because, although the defendant was puffing her cheeks, she was not providing any airflow into the machine. At 7:16, she was again offered the machine and asked to provide a sample of her breath. That attempt was also unsuccessful for the same reason. Cst. MacDonald then had her practice, making like she was blowing up a balloon. The third attempt, at 7:17, was successful. The result was a "fail", indicating that she had more than 100 mg of alcohol in 100 ml of blood.
[13] Cst. MacDonald formed a reasonable belief that the defendant had been operating a motor vehicle with more than 80 mg of alcohol in 100 ml of blood. Immediately after the fail was registered at 7:17 p.m., he arrested her, telling her she was under arrest for having a blood alcohol level over the legal limit. He placed handcuffs on her wrists behind her back. He put her in his cruiser.
[14] He told her that she had the right to retain and instruct counsel at 7:23 p.m. The caution ended with the questions "do you understand?" and "do you want to call a lawyer?" She initially told him that she did not understand, asking more than once what the charge was. Once that had been explained to her, she said in response to the second question "Of course I do". At 7:27 p.m. he read her the breath demand. She said she understood.
[15] He then drove to the central station at 474 Elgin Street, arriving at 8:03 p.m. She was taken before the sergeant and searched. The search was complete at 8:15 p.m. She asked to go to the washroom and did so. She left the washroom at 8:18 p.m. Cst. MacDonald took her to the area used for calling lawyers.
[16] Ms. Kravacek had a discussion with Cst. MacDonald about the lawyer she should call. She initially wanted to call Ms. Vicki Hentz, who had acted for her in the past. At 8:26 it was determined, with assistance from a special constable who googled Ms. Hentz, that Ms. Hentz was no longer in private practice. She then identified Mr. Sellar from the list of local criminal defence lawyers kept at the station, and Cst. MacDonald called him. He spoke to Mr. Sellar for 1 to 2 minutes and then handed the phone to the defendant at 8:31 p.m. Cst. MacDonald went to speak to the breath technician. He returned at 8:38 p.m. and saw that she was still on the phone with Mr. Sellar. At 8:40 p.m., Cst. MacDonald asked the defendant if she was satisfied with the advice she had received from Mr. Sellar. She said she was.
[17] Cst. MacDonald transferred Ms. Kravacek to the breath technician at 8:42 p.m.
[18] She provided two samples: one at 8:48 p.m. of 296 mg of alcohol per 100 ml of blood, truncated to 290; and one at 9:13 p.m. of 308 mg of alcohol per 100 ml of blood, truncated to 300.
[19] Mr. Sellar submits on behalf of Ms. Kravacek that the approved screening device demand was not made immediately because Cst. MacDonald continued to ask some questions after he had formed a reasonable suspicion that she had alcohol in her body, and that he should have advised her of her right to counsel and given her an opportunity to speak with counsel once he realized that he would have to wait 5 minutes after the demand to administer the approved screening device. He submits that had he done so, the defendant would have called a friend, Ms. Amber Majaury, to get the name and number of a lawyer and that had she done so, Ms. Majaury would have provided Mr. Sellar's name and number, allowing Ms. Kravacek to consult him before she was required to provide a breath sample into the approved screening device.
Analysis
(a) The approved screening device demand was made immediately
[20] Sub-section 320.27(1) provides that if a peace officer has reasonable grounds to suspect that a person has alcohol in their body and has, within the preceding 3 hours, operated a conveyance, they may demand that they "immediately" provide suitable samples of breath necessary to enable a proper analysis to be made by an approved screening device. Sub-section 320.27(2) provides that if a peace officer has in his or her possession an approved screening device, they may by demand require the person who is operating a motor vehicle to "immediately" provide such a breath sample.
[21] The provisions of s. 320.27(1) are essentially the same (but for the replacement of the word "forthwith" with the word "immediately") as in the prior s. 254(2)(b), which was repealed and replaced with s. 320.27(1). "Forthwith", however, meant "immediately", so the change is immaterial. (R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205)
[22] As the Court held in Woods, however, in the context of s. 254(2), the word may, in unusual circumstances be given a more flexible interpretation than its ordinary meaning strictly suggests. For example, a brief and unavoidable delay of 15 minutes can thus be justified when this is in accordance with the exigencies of the use of the equipment – see Bernshaw, [1995] 1 S.C.R. 254.
[23] In R. v. Quansah, 2012 ONCA 123 at paras. 45-49 and 52, LaForme J.A., writing for the court, held that the immediacy requirement contained 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. Courts 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 stage 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.
In my respectful opinion, articulation of the precise linguistic equivalent for "forthwith" is less important than a careful consideration of all the circumstances of the particular case. The legal context for this consideration is the objective that "forthwith" sets out, namely a prompt demand and an immediate response, ultimately taking no more than the time necessary for the prompt performance of the steps contemplated by s. 254(2).
[24] In Quansah, the Court of Appeal held that the "forthwith" requirement was met where, after the officer formed a reasonable suspicion that the detainee had alcohol in his body because he smelled alcohol on his breath, saw that his eyes were red, unfocused and glossy, and was unsteady on his feet, he waited 11 minutes before making the demand and a further 6 minutes before performing the test. During this time, the officer conducted a limited search of his car for weapons, had a short conversation with him about his alcohol consumption, and checked out the assertion that there was another person in the car with him. LaForme J.A. concluded that the delay was reasonably necessary for the officer to properly perform his task.
[25] As I have said, Cst. MacDonald stopped Ms. Kravacek at 7:05 p.m. He read her the approved screening device demand at 7:08 p.m. There is an issue about when he formed a reasonable suspicion that she had alcohol in her body, and how long after that he made the demand.
[26] When Cst. MacDonald approached Ms. Kravacek as she sat in her car, she rolled down her window. He told her why he had stopped her and asked her to produce her driver's licence, ownership, and insurance documents. She gave him her driver's licence, and he had to ask again for her ownership and insurance. He testified that at 7:07 p.m., as she was acknowledging his second request, he detected a faint odour of alcohol on her breath. He had not noticed that before; when the window was first rolled down he had detected a different odour of air freshener or perfume.
[27] He said that he then asked her when she had last had a drink and she told him two hours before. He saw a water bottle in the console. He asked if there was any alcohol in it. He examined it and smelled it. He determined that its viscosity was similar to water and concluded that it was water. He said that he then reached for a preprinted card which contained the approved screening device demand, which he kept in his notebook in his pocket. As he did so, he asked her where she was coming from and how much she had had to drink. She replied that she was coming from work in the By Ward Market area and had stopped at a bar, where she had 3 "cups". She told him that the cups were of wine.
[28] Cst. MacDonald testified that he formed a reasonable suspicion that Ms. Kravacek had alcohol in her body after he had asked her the questions up to the last two, which he testified were "conversation while awkwardly fiddling with the demand card". He testified that this conversation took just over a minute, and he formed his suspicion at 7:08 p.m., following which he immediately made the demand.
[29] In cross-examination, Cst. MacDonald admitted that once he had smelled alcohol on Ms. Kravacek's breath he had the grounds to make a roadside demand. He testified that because the odour was faint he asked a couple of follow up questions. He also testified he asked the question about when she had last had a drink in order to determine if she had recently consumed alcohol and examined the water bottle for the same reason.
[30] I find that Cst. MacDonald formed a reasonable suspicion that Ms. Kravacek had alcohol in her body shortly after he smelled alcohol on her breath. I accept his evidence that he did not fully form the suspicion until after he had asked her when she had last had a drink and examined the water bottle. He did form his reasonable suspicion before he asked her where she was coming from and how much she had had to drink. The delay before he made the demand was a matter of seconds, and certainly less than a minute.
[31] In Qansah, the Court of Appeal determined that an 11 or 17 minute delay was justified during which the officer was, among other things, speaking to the defendant about his alcohol consumption.
[32] In R. v. Gowan, 2019 ONSC 3791, Kurke J. was sitting as a Summary Conviction Appeal Court judge. He held that the trial judge had not erred when she held that a demand made four minutes after smelling alcohol on the defendant's breath was made "forthwith". He wrote at paras. 19-22:
Cst. Boucher carried out many discrete actions between 2:22 a.m. and 2:26 a.m. The odour of alcohol from the appellant's breath was an essential observation at 2:22 a.m., but not the only information required for an ASD demand. Questions and answers followed to determine potential quantity of alcohol in the appellant's body, to ensure that there was no residual alcohol or "after-the-fact" drinking, and importantly, to provide grounds that the appellant was the driver. The officer then told the appellant that a demand would be made at the cruiser, and the two walked from the off-ramp to the police vehicle. Cst. Boucher retrieved the ASD from the back of the cruiser, and then jotted a few notes to capture for future recollection the grounds for the ASD demand.
For the trial judge, the "forthwith" requirement was met in the circumstances of this case. The trial judge found no "unreasonable delay" in making the formal demand nor in making brief notes before the demand. The change of location of the officer and the appellant to the cruiser satisfied a safety concern, among other things. The trial judge found that the note making by the officer was "momentary", as she was entitled to find.
The point that must not be lost in all of this – the "primary factor" – is that the goal of the "forthwith" requirement is "the avoidance of a lengthy detention while a detainee is deprived of the right to consult counsel"; R. v. Macmillan, [2013 ONCA 109], at para. 35.
In the circumstances of so many small discrete tasks that either had to be done, or, in the case of the note taking, created only momentary delay, the formal breath demand cannot be said to have fallen afoul of the need for immediacy. From the point at which Cst. Boucher detected the odour of alcohol to the point at which he read the breath demand was a matter of four minutes, during which Cst. Boucher never cavalierly disregarded his duty to focus on the task at hand. The principle behind the "forthwith" requirement was upheld in this case, as properly found by the trial judge.
[33] I conclude that the demand was made immediately. Considering all of the circumstances of this case, it was a prompt demand taking no more time than was necessary, as the Court of Appeal held in Quansah was required.
(b) The officer was not required to advise the defendant of her right to counsel and give her an opportunity to consult counsel in the time between the demand and the implementation of the test
[34] The governing principles to apply to this issue are set out in R. v. George, R. v. Steele, 2014 ONCJ 583, and R. v. Ruck, 2013 ONCJ 527. In George, the Court of Appeal made clear that, as that court repeated 8 years later in Qansah, where the officer is not in a position to require the accused to provide a breath sample before there was a realistic opportunity to consult counsel, the demand is not one authorized by s. 238(2) (or, now, by s. 320.27(1)). Without a lawful demand, the s. 10(b) right to counsel is not suspended, and the officer is under an obligation to advise the detainee of the right to counsel and facilitate his contact with counsel without delay if requested.
[35] In George, the officer did not have an approved screening device with him. He had to call for one, and he knew that there would be a 15 to 20 minute delay. The defendant had a cell phone with him, and could have called a lawyer within that time. The defendant was acquitted. His acquittal was upheld by the Court of Appeal, which held that once the officer was aware that there would be a likely delay of 15 to 20 minutes, he should have taken reasonable steps to facilitate the detainee's right to consult counsel, including asking him whether he had a cell phone.
[36] In Ruck and Steele, Paciocco J., sitting in this court, held that the question of whether there was a "realistic opportunity to consult counsel" should be resolved by determining two issues: first, whether the facilities required to consult counsel are available; and second, whether the period of delay is long enough in the particular circumstances to enable the right to counsel to be accommodated.
[37] Crown counsel appropriately concedes that there were facilities required to consult counsel. Ms. Kravacek had a cell phone. She could have called a lawyer, and could have called with sufficient privacy by stepping away from Cst. MacDonald. She presented no safety or flight risk.
[38] Paciocco J. held that the second question – whether the delay was long enough to consult counsel – must be answered by considering both the objective circumstances and the reasonable perspective of the officer. He wrote at para. 29 of Steele:
In R. v. Ruck I concluded that determining whether there has been a meaningful opportunity to consult counsel must be seen not solely as a purely objective fact, but also through the reasonable perspective of the officer at the time. This is because the essence of the Charter complaint is that the officer failed to act reasonably in facilitating the right to counsel when contact would have been possible. "The only way to judge sensibly whether an officer has taken reasonable steps is to evaluate the officer's conduct objectively, given what the officer knew or should reasonably have known. Simply put, it is reasonable for an officer to take steps to facilitate a detainee's right to counsel when it is apparent that there will be time to do so. It is not reasonable to expect an officer to do so where, objectively viewed, it appears as though the right to counsel cannot possibly be accommodated in the time available. The officer's reasonable belief about the expected delay is therefore, in my view, a central factor": R. v. Ruck at para 41. If this was not so every case will be resolved only with the benefit of hindsight based on the proved time of delay, regardless of how reasonably the officer acted in not facilitating the right to counsel. The net effect of such a doctrine would be that officers who do not possess an ASD device would feel obliged to facilitate access to counsel in every case, which, of course, the law does not require.
[39] In my view, the answer to the second question is that the period of delay was not long enough to enable the right to counsel to be accommodated, whether considered objectively or through the reasonable perspective of Cst. MacDonald.
[40] What is required is enough time to not only contact counsel, but have a meaningful consultation with him or her. In R. v. Torsney, 2007 ONCA 67, the Court of Appeal held that a delay of 6 or 7 minutes between the demand and the arrival of the ASD ready to use was not long enough to provide a realistic opportunity to consult counsel. The officer in that case was not under an obligation to advise the detainee of his s. 10(b) rights or facilitate access to counsel, even though the defendant had a cell phone.
[41] Cst. MacDonald knew that he was only going to wait 5 minutes before he could administer the test. It was not a situation where he was waiting for an ASD to be brought to him, as is often the case. In order for Ms. Kravacek to have an adequate opportunity to consult counsel, he knew that he would have to provide her with the standard verbal notice about the right to counsel, determine that she understood it, find the name of a lawyer to whom she could speak, call that lawyer, explain to him or her Ms. Kravacek's circumstances, and give her an opportunity to seek and obtain legal advice. All within 5 minutes, because he was required to administer the test immediately – as soon as it could be accurately done. Based on what Cst. MacDonald knew at the time, it was not reasonable to expect that that could be done.
[42] Defence counsel submits that Cst. MacDonald did not act reasonably because he was under the mistaken impression, based on his training, that detainees whose ASD test was delayed were only entitled to be given rights to counsel where the delay was caused by the police (such as the ASD not being readily available) and the delay was long enough that she could consult counsel before the test could be administered. Cst. MacDonald said that his understanding was that if the delay was 15 minutes and caused by the detainee, she would have had request access to counsel. If a 15 minute delay was caused by the police, however, he understood that he would have had to offer access to counsel. He testified that in this case, he did not consider advising her of her right to counsel or facilitating access to counsel.
[43] I accept this evidence. Cst. MacDonald's understanding of his obligation was clearly incorrect. All detainees have a right to be advised of their right to retain and instruct counsel without delay, and to have that right facilitated. That right is suspended when a valid demand has been made. Where the sample cannot be provided before the detainee would have a reasonable opportunity to consult counsel, however, the demand is not valid and s. 10(b) is not suspended. Those rights are not dependent on the behaviour of the detainee.
[44] However, Cst. MacDonald's assumption that he would be in a position to administer the test in 5 minutes was effectively a certainty. He had been trained to wait that long if the test subject had consumed food or non-alcoholic beverage. He knew he would wait no longer. This was not a situation like that before Paciocco J. in Steele where the ASD had to be sent for. The officer in that case believed that the delay would be short. Paciocco J. held that that belief was not reasonable; he noted, however, that "if the delay was going to be short, she could have delayed giving the right to counsel …." Given the near-certainty of the delay, and its brevity, Cst. MacDonald was not acting unreasonably by failing to consider the feasibility of Ms. Kravacek consulting counsel.
[45] The same result is arrived at when considering the question on a purely objective basis. The delay was almost certain to be 5 minutes. Defence counsel submits it could have been 6 minutes, because there was no second hand on Cst. MacDonald's wristwatch and the timing could therefore have begun at the first second of the first minute and ended at the fifty-ninth second of the fifth minute as shown on the watch. I conclude that even if it was 6 minutes, that was inadequate.
[46] As the Court of Appeal held in Torsney, it is appropriate to consider how long it took to consult counsel at the station when determining whether there was adequate time to consult counsel during a delay at the roadside. Twenty-two minutes elapsed between 8:18 p.m., when Ms. Kravacek entered the area of the lawyer call booths at the station to choose a lawyer, and 8:40 p.m., when she told Cst. MacDonald she was satisfied with the legal advice she received.
[47] It took 8 minutes for Cst. MacDonald, with the assistance of a special constable conducting google searches, to determine that Ms. Hentz was no longer in private practice. Ms. Kravacek then reviewed the lawyer list twice, and recognized Mr. Sellar's name. Ms. Kravacek was not finished speaking with Mr. Sellar until between 12 and 14 minutes after it was determined that Ms. Hentz was not available.
[48] Defence counsel submits that if Cst. MacDonald had advised Ms. Kravacek at the roadside of her right to counsel, she would have thought of phoning her friend, Ms. Majaury, who would have quickly provided Ms. Kravacek with Mr. Sellar's name and phone number. Mr. Sellar was available to take a call at that time.
[49] I accept that if Ms. Kravacek had called Ms. Majaury, she would have provided her with Mr. Sellar's name and number. I do not accept, however, that if Cst. MacDonald had advised Ms. Kravacek of her s. 10(b) rights at the roadside before the ASD test, she would have called Ms. Majaury to get a lawyer's name and number, despite Ms. Kravacek's evidence that she would have done so.
[50] Ms. Kravacek did not mention Ms. Majaury, or calling her, at any time on the night she was arrested. She did not ask if she could call a friend. Instead, she first asked unsuccessfully to contact her previous counsel and then reviewed the list of lawyers, which refreshed her memory about Mr. Sellar. I cannot conclude that she would have acted differently had she been advised of her rights sooner.
[51] Ms. Kravacek testified that if she had known she could have called a friend to get the name of a lawyer at the roadside, she would have called Ms. Majaury. But a police officer is not obliged to advise a detainee that they could call a friend to get the name of a lawyer. The police are required to facilitate access to counsel if requested, but they are not required to facilitate access to third parties unless the detainee specifically asks to speak to the third party and tells the police that they wish to do so to contact a lawyer. (R. v. Mumtatz, 2019 ONSC 468, per Woollcombe J. at paras. 37 to 39)
[52] Even if Ms. Kravacek had been provided access to Ms. Majaury to get the name and number of a lawyer, I conclude that she would not have had adequate time to consult him in five minutes. She spoke with Mr. Sellar for 7 to 9 minutes after Cst. MacDonald spoke to him for a minute or two, after they had located his number on the list. I conclude that she would not have been able to complete a consultation with him in about half that time at the roadside.
[53] Defence counsel submits that it is inappropriate to determine how long it would have taken for Ms. Kravacek to consult counsel at the roadside by including the time taken to attempt to locate Ms. Hentz. He submits that the police pressured his client into choosing Ms. Hentz. I do not accept that submission. When asked in examination in chief why she felt pressured, she responded "they wanted me to pick a lawyer and I was very stressed and I don't do well under stress." Ms. Kravacek was asked in cross-examination what police conduct amounted to pressure to call Ms. Hentz. She replied "just that I did not know I could retrieve the information I did not know I had the right to speak to someone to get the information I wanted." She testified that she never expressed any desire to speak to any lawyer other than Ms. Hentz until she learned she was not available. She admitted that the police did not tell her to pick Ms. Henz. I find that there was no pressure on Ms. Kravacek to choose Ms. Hentz.
[54] In any event, as I have said, even if the officers had not taken the time to attempt to locate Ms. Hentz, it would have taken 12 to 14 minutes to find Mr. Sellar's name, have Cst. MacDonald call him and speak to him, and allow Ms. Kravacek to have a meaningful consultation. I find that the time at the roadside would have been at least as long.
[55] The facts before me are not the same as those before Paciocco J. in Steele, where the defendant had 7 to 8 minutes at the roadside to call a lawyer, had the lawyer's phone number on speed dial on his cell phone, and took 6 minutes or less to call the lawyer from the station.
[56] The delay between the demand and the implementation of the test was not long enough to consult counsel.
[57] The defendant has not satisfied me on the balance of probabilities that her s. 10(b) rights were infringed. The application is dismissed. The Intoxlyzer evidence is admissible.
Released: October 29, 2020
Signed: Justice P.K. Doody