ONTARIO COURT OF JUSTICE
DATE: 2021 10 13 COURT FILE No.: Hamilton 18-2832
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
DANIELLE ANDERSON
Before: Justice J.P.P. Fiorucci
Heard on: January 13, 14 and March 5, 2021 Reasons for Judgment released on: October 13, 2021
Counsel: J. Boughs, counsel for the Crown R. Sahota, counsel for the defendant Danielle Anderson
FIORUCCI J.:
Introduction
[1] The accused, Danielle Anderson, is charged with operating or having care or control of a motor vehicle with over 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 253(1)(b) of the Criminal Code (“Over 80”).
[2] P.C. Michael Eves of the Hamilton Police Service conducted a traffic stop of Ms. Anderson’s vehicle on March 8, 2018. The officer developed a reasonable suspicion that Ms. Anderson was operating her motor vehicle with alcohol in her body. P.C. Eves made an Approved Screening Device (ASD) demand. Ms. Anderson complied with the demand and failed the screening test. P.C. Eves arrested Ms. Anderson and claims that he read her the rights to counsel (RTC) at the roadside. Ms. Anderson disputes the officer’s claim. P.C. Eves transported Ms. Anderson to the nearest police station where she provided samples of her breath into an approved instrument (AI). The results of the breath testing revealed that her blood alcohol concentration exceeded the legal limit, resulting in the charge before the Court.
[3] Ms. Anderson does not dispute the accuracy of the AI test results. However, she seeks exclusion of the breath test evidence pursuant to s. 24(2) of the Charter on the grounds that this evidence was obtained after the police violated her Charter rights. Ms. Anderson alleges the following Charter infringements:
(a) P.C. Eves failed to make the ASD demand “forthwith” upon forming the requisite grounds for the demand and also failed to administer the ASD test “forthwith” (ss. 8, 9, and 10(b));
(b) P.C. Eves failed to provide Ms. Anderson with her RTC immediately upon her arrest at the roadside. Ms. Anderson claims that she was first advised of her RTC at the police station (s. 10(b)); and
(c) the police failed to take the AI breath samples “as soon as practicable” (s. 8).
[4] If her Charter application to exclude the breath test results is unsuccessful, Ms. Anderson concedes that a conviction for the offence of Over 80 will follow. Ms. Anderson consented to the filing of the affidavit and report of Betty Chow, a toxicologist with the Centre of Forensic Sciences, which establishes that Ms. Anderson’s blood alcohol concentration exceeded the legal limit at the time she was operating her motor vehicle.
Summary of the Evidence
[5] On March 8, 2018, P.C. Eves was on uniform patrol in his marked police cruiser. Shortly before 5:02 a.m., he was driving eastbound on Barton Street East in the City of Hamilton when he observed a vehicle make a westbound turn onto Barton Street East. It is not in dispute that the accused, Danielle Anderson, was the driver of the vehicle.
[6] P.C. Eves’ attention was drawn to the accused’s vehicle because the passenger side tires appeared to have ridden over a curb or some other object when the accused made the turn onto Barton Street East, causing the vehicle to wobble. As the accused’s vehicle drove toward him, P.C. Eves also observed that the headlights were not on. The officer testified that since it was dark at that time of the morning, headlights were required.
[7] P.C. Eves initiated a traffic stop of Ms. Anderson’s vehicle at approximately 5:02 a.m.. The officer testified that he exited his police cruiser. It was very cold that morning. P.C. Eves approached the driver’s side door of Ms. Anderson’s vehicle. He had a conversation with Ms. Anderson, the driver and lone occupant of the vehicle. P.C. Eves told Ms. Anderson the reason for the traffic stop and recalls that she said something about coming from her boyfriend’s house.
[8] The officer demanded that Ms. Anderson provide documents, including a permit for the vehicle. Ms. Anderson gave P.C. Eves the documents, including an Ontario photo driver’s licence that P.C. Eves used to confirm her identity.
[9] While conversing with Ms. Anderson through the driver’s side window, P.C. Eves detected an odour of an alcoholic beverage emanating from Ms. Anderson’s breath. He asked her whether she had consumed alcohol, which she denied. P.C. Eves testified that he formed the reasonable suspicion necessary to make the ASD demand at 5:06 a.m. and that he read Ms. Anderson the ASD demand at that time. P.C. Eves asked Ms. Anderson if she understood the ASD demand, to which she replied, “No”. The officer explained to Ms. Anderson what the demand meant. He also explained to her the consequences of not providing a sample. P.C. Eves had the ASD in his cruiser. He retrieved it and Ms. Anderson provided a suitable sample of breath into the ASD at 5:09 a.m., at which time P.C. Eves arrested her for Over 80.
[10] According to P.C. Eves, at 5:12 a.m., he read Ms. Anderson the RTC from a card in his notebook while standing outside her vehicle. He recalled that he was shaking holding his notepad while reading the RTC because it was very cold. P.C. Eves testified that Ms. Anderson asked to speak with duty counsel. During his testimony, P.C. Eves confirmed that he made a note in his notebook that 5:12 a.m. was the time at which he read the RTC to Ms. Anderson and received her response that she wished to speak with duty counsel. P.C. Eves then read the caution to Ms. Anderson. Ms. Anderson’s reply to the caution was: “Can I please go home?”.
[11] Ms. Anderson testified on the voir dire. The following exchange occurred between Defence counsel and Ms. Anderson in her examination-in-chief:
Q. Okay. At any point when you were arrested at the side of the road were you told that you have the right to call a lawyer? A. He said duty counsel, that I could call duty counsel. Q. Okay, who said that? A. The – I forget his name – the officer, Mr. Eves, I believe. Q. Okay, and that would have been the officer that arrested you? A. Yeah. Q. Okay, and where did he say that? A. I remember him saying it in – when we were inside the station. Q. Okay. Did he say that to you at any point prior to that? A. I don’t believe so, no. Q. Okay. Did any other officer talk to you about speaking to a lawyer? A. Not that I can remember.
[12] In cross-examination, Ms. Anderson reiterated that she did not recall P.C. Eves reading her the RTC and caution at the roadside. She also acknowledged that it was a very traumatic day for her.
[13] P.C. Eves testified that he read the AI breath demand to Ms. Anderson at 5:13 a.m., and that Ms. Anderson understood this second breath demand. P.C. Eves left the scene with Ms. Anderson at 5:24 a.m.. Before leaving the scene, P.C. Eves made some notes. He also advised Ms. Anderson that her vehicle would be towed and asked her if she wanted some items from her car. Ms. Anderson told the officer that she would like him to retrieve her phone, purse and jacket. P.C. Eves retrieved these items from Ms. Anderson’s car before leaving the scene. In cross-examination, P.C. Eves acknowledged that a second officer, P.C. William Mantel, was likely on scene at the time he retrieved Ms. Anderson’s belongings from her car. P.C. Eves agreed with Defence counsel’s suggestion that P.C. Mantel could have retrieved the items from Ms. Anderson’s car.
[14] Ms. Anderson testified that she felt like she was in the back of the cruiser for about 15 minutes before leaving the scene. She could see P.C. Eves speaking with the other officer during that period of time.
[15] At 5:28 a.m., four minutes after they departed the scene, P.C. Eves and Ms. Anderson arrived at Central police station, the closest station to the scene of the traffic stop. P.C. Eves testified that he took the most direct route to the station and made no stops along the way, other than for stoplights and stop signs.
[16] P.C. Eves brought Ms. Anderson into the custody area for booking at 5:36 a.m.. Before he did so, the custody sergeant came out to the police cruiser to have a discussion with Ms. Anderson. In cross-examination, P.C. Eves expanded on the nature of that discussion; the custody sergeant advises the detainee that the station is audio and video recorded, ensures that the detainee understands the reason they are at the station and asks the detainee if they have any complaints about the arresting officer.
[17] At 5:42 a.m., the accused asked for a drink of water. P.C. Eves called duty counsel for the accused at 5:46 a.m. and left a message. Duty counsel called back at 6:02 a.m.. Ms. Anderson began speaking with duty counsel in private at 6:04 a.m.. At 6:08 a.m., duty counsel called back and advised that the call had been disconnected, so Ms. Anderson was put back in contact with the duty counsel. Ms. Anderson’s call with duty counsel ended at 6:13 a.m.. At 6:14 a.m., Ms. Anderson asked to use the washroom and P.C. Eves took her back to her cell to use the washroom.
[18] At 6:17 a.m., P.C. Eves transferred custody of Ms. Anderson to the Qualified Breath Technician (QBT), P.C. Steven Cruickshanks. P.C. Cruickshanks gave evidence about his interactions with Ms. Anderson in the breath room. While he did not note any overt signs of impairment, he noted a very strong odour of an alcoholic beverage coming from Ms. Anderson’s breath when she came into the breath room. At 6:20 a.m., P.C. Cruickshanks made a breath demand of his own to Ms. Anderson. He also confirmed that Ms. Anderson spoke with duty counsel and provided her with a secondary caution that if she had spoken to any police officer, or to anyone in authority, it was not to influence her in making any statements.
[19] Before Ms. Anderson provided her first breath sample, the AI went through a series of tests (air blank, diagnostic, simulator temperature and calibration) to be ready for use. P.C. Cruickshanks provided Ms. Anderson with a mouthpiece and had her test it for obstructions. He explained to Ms. Anderson how to provide a sample. Ms. Anderson provided her first sample of breath at 6:29 a.m… The result was 193 mg of alcohol in 100 mL of blood.
[20] At 6:48 a.m., the AI displayed an Ambient Fail message. P.C. Cruickshanks explained that an Ambient Fail message means that the instrument is taking in too much alcohol from the air. When the AI displayed the Ambient Fail message at 6:48 a.m., P.C. Cruickshanks turned on a second fan in the breath room. The officer testified that after the Ambient Fail, the AI “just starts the process again and just does its internal checks”.
[21] Ms. Anderson provided her second breath sample at 6:55 a.m., which resulted in a reading of 155 mg of alcohol in 100 mL of blood and a message display: “No 020 Agreement”. As the results of the first and second samples were greater than 20 mg of alcohol in 100 mL of blood apart (“not in agreement”), a third test was required. That third test was taken at 7:17 a.m. and produced a result of 160 mg of alcohol in 100 mL of blood.
[22] The second (6:55 a.m.) and third (7:17 a.m.) breath test results were “in agreement”. When truncated, Ms. Anderson’s breath readings were 150 mg of alcohol in 100 mL of blood and 160 mg of alcohol in 100 mL of blood respectively.
Analysis and Issues
a) Was the ASD demand made “forthwith” and was the test administered “forthwith”?
[23] In R. v. Quansah, 2012 ONCA 123, [2012] O.J. No. 779 (Ont. C.A.), at para. 26, the Ontario Court of Appeal held that the constitutional validity of section 254(2) of the Criminal Code depends on "its implicit and explicit requirements of immediacy". It is implicit that the ASD demand must be made by the police officer as soon as he or she forms the reasonable suspicion that the driver has alcohol in his or her body. Ibid, at para. 25. The ASD test must be administered forthwith as well. Compliance with the “forthwith” requirement “justifies what would otherwise be sustained as violations of ss. 8, 9, and 10(b) of the Charter”. Ibid, at para. 21.
[24] As the Ontario Court of Appeal noted in Quansah:
So long as the demand is validly made pursuant to s. 254(2) - that is, so long as it is made 'forthwith"- for Charter purposes there is no unjustified seizure or arbitrary detention or breach of the requirement to advise the detainee of his or her right to counsel. This is because this statutory detection and enforcement procedure constitutes a reasonable limit on Charter rights, given the extreme danger represented by unlicensed or impaired drivers on the roads. Ibid, at para. 22.
[25] In Quansah, the Court of Appeal listed five things that courts must consider when assessing whether there has been compliance with the “forthwith” requirement in section 254(2). Ibid, at paras. 45 to 49.
[26] First, courts must be mindful of “Parliament’s intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights”. Ibid, at para. 45. Courts must perform the analysis of the forthwith or immediacy requirement contextually.
[27] Second, the immediacy requirement commences at the point when the officer forms his or her reasonable suspicion. This factor requires that the demand “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”. Ibid, at para. 46.
[28] The third factor in Quansah addresses the time between the formation of the officer’s reasonable suspicion through to the detainee’s response to the officer’s demand by refusing or providing a sample. The Court of Appeal stated that forthwith “connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible interpretation may be given”. Ibid, at para. 47. The Court of Appeal went on to state:
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). Ibid, at para. 47.
[29] The fourth criterion in Quansah requires courts to take into account all of the circumstances, which may include a reasonably necessary delay where the breath test cannot immediately be performed.
[30] The final factor that Quansah requires courts to consider “is whether the police could realistically have fulfilled their obligation to implement the detainee’s section 10(b) rights before requiring the sample”. Ibid, at paras. 49. This factor is most applicable to cases where the officer making the ASD demand is not in a position to require immediate compliance with the demand, for instance, because an ASD is not immediately available.
[31] Ms. Anderson claims that P.C. Eves failed to comply with the “forthwith” requirement because there was a four minute delay between the traffic stop at approximately 5:02 a.m. and the ASD demand at 5:06 a.m., and a further delay of three minutes between the making of the demand and the time at which Ms. Anderson failed the ASD test at 5:09 a.m..
[32] Defence counsel submitted that upon stopping Ms. Anderson’s vehicle at 5:02 a.m., P.C. Eves indicated that he smelled alcohol on Ms. Anderson’s breath so he should have made an ASD demand “at that exact point”, yet for some reason the officer waited another four minutes to make the demand. Furthermore, Defence counsel says that there is no explanation for why it took Ms. Anderson a further three minutes to provide the ASD sample after the demand was made.
[33] With respect, Defence counsel’s characterization of the evidence is inaccurate. P.C. Eves did not testify that he smelled alcohol at 5:02 a.m. or that he had developed his reasonable suspicion at 5:02 a.m.. I accept P.C. Eves’ testimony that the traffic stop occurred at approximately 5:02 a.m. and that he developed his reasonable suspicion at 5:06 a.m. whereupon he immediately made the ASD demand.
[34] I find that in the time period between 5:02 a.m. and 5:06 a.m., P.C. Eves was acting reasonably in the execution of his duties, including engaging Ms. Anderson in conversation and making observations to determine whether he had grounds to make the ASD demand. R. v. Smith, (1996), 28 O.R. (3d) 75, [1996] O.J. No. 372 (Ont. C.A.). In this period of time: a) he exited his cruiser; b) he approached the driver’s side door of the accused’s vehicle; c) he told the accused the reason for the traffic stop and had a conversation with her about where she was coming from; d) he demanded that she provide documents; e) he received those documents and confirmed the accused’s identity with an Ontario photo driver’s licence; f) he asked the accused if she had consumed alcohol and received a response, a denial; and g) in the course of his conversations with the accused, he detected the odour of an alcoholic beverage on her breath which provided him with the reasonable suspicion necessary to make the ASD demand.
[35] Similarly, the time between the formation of the reasonable suspicion and making of the ASD demand (5:06 a.m.) and Ms. Anderson providing the ASD sample (5:09 a.m.) was no more than was reasonably necessary to enable the officer to discharge his duty as contemplated by s. 254(2). In this time period, P.C. Eves: a) read the ASD demand to the accused; b) when he asked Ms. Anderson whether she understood the ASD demand, she said that she did not. Therefore, the officer explained the demand to her and also explained the consequences of not providing the sample; and c) he retrieved the ASD from his police cruiser and Ms. Anderson provided a suitable sample at 5:09 a.m..
[36] Therefore, a review of the evidentiary record in this case and an application of the Quansah factors leads me to find that P.C. Eves made the s. 254(2) ASD demand forthwith once he formed his reasonable suspicion at 5:06 a.m. Furthermore, the time between the demand and the administration of the test was no more than was reasonably necessary to enable the officer to properly discharge his duties, and there was no realistic opportunity for the police to fulfil their obligation to implement Ms. Anderson’s s. 10(b) rights before requiring her to provide the sample.
[37] Accordingly, there were no violations of Ms. Anderson’s section 8, 9 and 10(b) Charter rights arising from the making of the ASD demand and the administration of the ASD test.
b) Did the police fail to provide the accused with her RTC immediately upon her arrest in violation of s. 10(b) of the Charter?
[38] When an individual is arrested, s. 10(b) of the Charter is engaged and guarantees that individual the right to retain and instruct counsel without delay, and to be informed of that right. R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460 (S.C.C.), at para. 37.
[39] In Suberu, the Supreme Court of Canada held that, “[s]ubject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention”. Ibid, at para. 42. The Court noted that, “[i]n order to protect against the risk of self-incrimination that results from the individuals being deprived of their liberty by the state, and in order to assist them in regaining their liberty, it is only logical that the phrase "without delay" must be interpreted as "immediately"”. Ibid, at para. 41.
[40] Ms. Anderson alleges that P.C. Eves did not read her the RTC at 5:12 a.m. as he claimed. She asserts that she was first advised of her RTC at the police station. Defence counsel submitted that P.C. Eves was an unreliable witness who had to rely heavily on his notes to give his evidence about an arrest that happened almost three years before the trial.
[41] Having observed P.C. Eves testify and having reviewed the substance of his evidence, I find that he was a credible and reliable witness who gave his evidence in a forthright and balanced way. The officer made appropriate concessions when necessary.
[42] P.C. Eves also had an independent recollection of the investigation. For instance, he was able to recall that when he read the RTC from the card in his notebook, it was very cold, he was shaking, and his pen was not working well. He testified that the difficulties he had writing his notes that day because of the cold were reflected in the quality of his handwriting in his notes. P.C. Eves made detailed notes of the times at which he performed the important duties that are part of an impaired driving investigation and he noted the responses he received from Ms. Anderson when he explained things to her like the ASD demand, the RTC and the caution.
[43] I accept P.C. Eves’ evidence that he read Ms. Anderson her RTC promptly upon her arrest from the card in his notebook. P.C. Eves is not to be faulted for relying on his detailed notes to refresh his memory, but rather commended for complying with his duty to prepare accurate, detailed and comprehensive notes. Wood v. Schaeffer, [2013] 3 S.C.R. 1053, 2013 SCC 71, at para. 67. The officer was granted permission to refer to his notes during the trial to refresh his memory and he did so appropriately. I have no difficulty accepting his evidence regarding the RTC.
[44] Ms. Anderson testified that P.C. Eves did not read anything from a card after he arrested her. When Defence counsel asked her whether the officer spoke with her about her right to call duty counsel prior to the police station, Ms. Anderson replied, “I don’t believe so, no”. Ms. Anderson could not recall P.C. Eves reading her the RTC and caution at the roadside on what was a very traumatic day for her. Again, I accept P.C. Eves’ testimony that he did so.
[45] There was no violation of Ms. Anderson’s s. 10(b) Charter rights.
c) Did the police violate the accused’s s. 8 Charter rights by failing to take the AI breath samples “as soon as practicable”?
[46] Ms. Anderson submits that the police failed to take the AI breath samples “as soon as practicable” which amounts to a violation of her s. 8 Charter rights. Her chief complaints are that: a) there was an inordinate delay at the roadside from the time of her arrest to the time P.C. Eves departed the scene with her; and b) the QBT, P.C. Cruickshanks, acted unreasonably by not turning on both fans in the breath room which caused an Ambient Fail and delayed the breath testing.
[47] Ms. Anderson was charged on March 8, 2018, prior to the repeal of s. 253 on December 18, 2018. Section 253 was replaced with the new s. 320.14(1)(b) offence of “80 or over within two hours of operation”. Crown and Defence counsel made submissions on the issue of whether the failure of the police to take the breath samples “as soon as practicable” amounts to a s. 8 Charter breach and referred to the cases of R. v. Pillar, 2020 ONCJ 394, R. v. Carmola-Chambers, 2020 ONCJ 493 and my decision in R. v. Fancey, 2018 ONCJ 657.
[48] In Fancey, I reviewed a number of Ontario trial decisions that held that the failure of the police to take the breath samples “as soon as practicable” constituted an unreasonable search and seizure thereby violating s. 8 of the Charter. Ibid, at paras. 28-38. These cases found that the requirement to take breath samples “as soon as practicable” was a statutory obligation contained in s. 254(3), quite apart from whether the Crown intended to rely on the presumption of identity that existed in s. 258(1)(c) of the Criminal Code.
[49] In Fancey, I also reviewed the conflicting line of authorities in Ontario, including the Summary Conviction Appeal decision of R. v. Mawad, that held that s. 8 of the Charter is not engaged when the police fail to obtain the breath samples “as soon as practicable”. Ibid, at paras. 47-51.
[50] In Mawad, 2016 ONSC 7589, [2016] O.J. No. 6810 (Ont. S.C.J.), at para. 26, Andre J. stated, “I fail to see how a statutory short cut given to the Crown to prove a charge of “Over 80” against an accused can be elevated to a violation of his or her constitutional rights”. Andre J. held that the failure to take the breath samples “as soon as practicable” did not amount to an unreasonable search and seizure because the arresting officer and breathalyzer technician had the requisite grounds to make the breathalyzer demand to Mr. Mawad, but went on to say that “[t]he situation may have been different had they lacked the grounds to make the demand”. Ibid, at para. 27.
[51] As I observed in Fancey, it is clear that Andre J. viewed the requirement in s. 254(3) that the subject provide the breath samples “as soon as practicable” as a means of assisting the Crown in availing itself of the s. 258(1)(c) presumption of identity, and not as a separate statutory obligation on the police which could attract constitutional scrutiny. In Fancey, I found that since there was no decision from the Ontario Court of Appeal on the subject, Mawad appeared to be binding authority for trial courts. Other courts agreed that Mawad was binding and that, therefore, s. 254(3) of the Criminal Code did not require the police to administer the breath tests as soon as practicable and the failure to do so was not a s. 8 Charter breach. R. v. Bhimal, 2021 ONCJ 203; R. v. Li, 2018 ONCJ 308; R. v. Persaud, 2017 ONCJ 799; R. v. Carmola-Chambers, supra, at para. 27.
[52] Recently, in R. v. Najev, 2021 ONCJ 427, I found that Andre J.’s decision in Mawad is not binding on the Ontario Court of Justice in an “80 and Over” prosecution involving the new provisions of the Criminal Code which no longer contain the presumption of identity, and that the failure of the police to take the AI breath samples “as soon as practicable” results in a violation of s. 8 of the Charter.
[53] However, as Ms. Anderson was charged under the prior statutory regime, I find that Mawad remains binding authority in relation to a prosecution involving the old provisions. Accordingly, Ms. Anderson is barred from seeking exclusion of the breath test results based on a s. 8 Charter violation arising from the failure of the police to take her breath samples “as soon as practicable”.
[54] If I am in error that Mawad is binding authority, I nonetheless find that the police obtained Ms. Anderson’s breath samples “within a reasonably prompt time under the circumstances”. R. v. Vanderbruggen, [2006] O.J. No. 1138 (Ont. C.A.), at para. 12. In Vanderbruggen, the Ontario Court of Appeal held:
There is no requirement that the tests be taken as soon as possible. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably. Ibid, at para. 12.
[55] The Court of Appeal also noted that “[i]n deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test”. Ibid, at para. 13. The Crown is not required to “provide a detailed explanation of what occurred during every minute that the accused is in custody”. Ibid, at para. 13. However, lengthy periods of delay require an explanation. R. v. Letford, [2000] O.J. No. 4841 (Ont. C.A.), at para. 18; R. v. Bugler, [1997] O.J. No. 2283 (Ont. C.A.); R. v. Blacklock, [2008] O.J. No. 1472 (Ont. S.C.J.), at paras. 26 and 30; R. v. Chung, [2009] O.J. No. 1546 (Ont. S.C.J.); R. v. Williams, [2000] O.J. No. 4740 (Ont. S.C.J.).
[56] Ms. Anderson was arrested at 5:09 a.m. By 6:17 a.m., P.C. Eves transferred custody of Ms. Anderson to the QBT for the breath testing procedure, after she had an opportunity to exercise her right to speak with duty counsel.
[57] I made a finding that P.C. Eves read Ms. Anderson her RTC and caution promptly upon her arrest. He read the AI breath demand to her at 5:13 a.m. and confirmed that she understood the demand. The accused complains of an eleven minute delay between the reading of the AI breath demand and the departure from the scene of the traffic stop at 5:24 a.m.. Defence counsel characterized this as the police “simply standing around and waiting for no reason”. Again, with respect, I disagree with Defence counsel’s characterization of the evidence.
[58] First, I find that this eleven-minute period is not a significant delay when looking at the whole chain of events. The reading of the demand at 5:13 a.m. and ensuring that Ms. Anderson understood the demand would have taken time to complete. P.C. Eves indicated that he also completed some notes pertaining to the investigation in that brief period and retrieved personal belongings of the accused from her vehicle at her request so that they would not be towed with the vehicle. It was reasonable for him to do so since he was the officer who was maintaining custody of Ms. Anderson and transporting her to the police station.
[59] In short, P.C. Eves was engaged in tasks related to the investigation during this eleven-minute period, and I find that he adequately explained what was taking place. In the context of the whole chain of events, I find that P.C. Eves provided a sufficient explanation for what occurred in this brief period and the law does not require the officer to provide a detailed explanation of what occurred during every minute.
[60] I also find that P.C. Eves and P.C. Cruickshanks provided adequate explanations for what occurred at the police station once Ms. Anderson arrived there at 5:28 a.m.. Ms. Anderson’s complaint that the QBT somehow acted unreasonably by not turning on both fans in the breath room is simply without merit. First, there is no evidence upon which I can find that P.C. Cruickshanks’ failure to have both fans on from the outset caused the Ambient Fail at 6:48 a.m.. Second, there is no evidence that P.C. Cruickshanks failed to comply with any manufacturer’s recommendations or policies by not having both fans on when Ms. Anderson first entered the breath room. Next, the Ambient Fail message did not unduly delay the breath testing procedure since the AI received a suitable sample of breath from Ms. Anderson at 6:55 a.m.. P.C. Cruickshanks complied with his duty to take a third test when the first two tests were not “in agreement”. P.C. Cruickshanks acted reasonably at every juncture in the breath testing procedure. The evidentiary record contains an adequate explanation for each of the time periods in the process.
[61] I find that there is no s. 8 Charter violation for a failure to take the AI breath samples “as soon as practicable”.
Conclusion
[62] Ms. Anderson’s Charter application to exclude evidence of the breath test results is dismissed. I find her guilty of the Over 80 charge.
Released: October 13, 2021 Signed: Justice J.P.P. Fiorucci