ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 720
DATE: 2012-04-16

B E T W E E N:

HER MAJESTY THE QUEEN

Brian D. White, for the Respondent

Respondent

• and -

PAUL PIROCCHI

Jill R. Presser, for the Appellant

Appellant

Heard: December 19, 2011

ON APPEAL FROM THE CONVICTION AND SENTENCE OF THE HONOURABLE MR. JUSTICE.G.A. POCKELE ON MAY 6 AND AUGUST 31, 2010.

JUSTICE K.A. GORMAN

[ 1 ] The Appellant appeals from his conviction for one count of ‘over 80’ care and control of a motor vehicle, and his sentence of six months’ imprisonment and four years’ driving prohibition made by His Honour Justice G.A. Pockele of the Ontario Court of Justice at London, Ontario on May 6, and August 31, 2010.

[ 2 ] The Appellant submits that the learned trial judge erred in holding that the demand for a sample of his breath was made “forthwith” and that the demand was consequently valid. In the alternative, the Appellant appeals against his sentence.

OVERVIEW OF THE FACTS

[ 3 ] On March 30, 2009 the Appellant was involved in a motor vehicle accident [1] at the intersection of Highbury and Dundas Streets in London, Ontario. At 11:44 p.m. P.C. Trevor MacDonald was dispatched to the scene. He arrived at 11:47 p.m., and spoke with the Appellant.

[ 4 ] P.C. MacDonald smelled alcohol on the Appellant’s breath, and consequently formed the suspicion that he had alcohol in his body. The officer called for an approved screening device (“ASD”) at 11:53 p.m.. At 12:02 a.m. P.C. Holland arrived on scene with the ASD. At 12:05 a.m. P.C. MacDonald requested the Appellant attend his cruiser. At that time the Appellant was read the roadside screening demand. At 12:06 a.m. P.C. MacDonald tested the ASD. At 12:07 a.m. the Appellant provided a suitable sample, which registered an “F”, indicating failure. At that point the officer formed the grounds to arrest the Appellant.

[ 5 ] The following sequence of events occurred:

(a) 12:11 a.m. the Appellant was read the Breath Demand, and indicated that he understood;

(b) 12:16 a.m. the Appellant was provided the police caution, and indicated that he understood;

(c) 12:26 a.m. P.C. MacDonald transported the Appellant to London Police Headquarters.

(d) 12:41 a.m. the Appellant was booked into the cells, and asked if he wished to speak to counsel;

(e) 12:45 a.m. the Appellant declined the opportunity to speak to counsel;

(f) 12:57 a.m. the Appellant was taken to the breath room and met with the Qualified Breath Technician, P.C. Holland. The Appellant was again informed of his rights to counsel and indicated that he did not wish to speak with counsel;

(g) 1:04 a.m. the Appellant advised he wished to speak to duty counsel;

(h) 1:26 a.m. the Appellant spoke to duty counsel;

(i) 1:29 a.m. the Appellant returned to the breath room;

(j) 1:34 a.m. the Appellant provide a breath sample registering 139 mgs. of alcohol in 100 mls of blood.

(k) 1:54 a.m. the Appellant provided a second suitable breath sample registering 131 mgs. of alcohol in 100 mls. of blood.

ISSUES AND THE LAW

Conviction Appeal

[ 6 ] The Appellant submits that given the delay in the breath sample demand, the demand was not made “forthwith”, thereby violating s. 254(2) of the Criminal Code of Canada . Further, the Appellant submits that he was not immediately informed of the reason for his detention or of his right to speak with counsel. Accordingly, he submits, his rights under ss. 8, 9 and 10(a) and (b) of the Charter were violated.

[ 7 ] The Appellant submits that in order to satisfy the requirement that the ASD sample be provided forthwith, the officer should have made the demand at 11:49 p.m., or 11:53 p.m., at the latest: R. v. Torsney , 2007 ONCA 67 , [2007]O.J. No. 355(C.A.); R. v. George , 2004 6210 (ON CA) , [2004]O.J. No. 3287 (C.A.); R. v. Singh , [2000]O.J. No. 4992(S.C.J.) .

[ 8 ] The meaning of "forthwith" has been subject to much analysis. Hill, J. in R. v. Singh [ [2000] O.J. No. 4992 (SCJ) ] adopted the reasoning of the Supreme Court of Canada in R. v. Bernshaw [ (1995), 1995 150 (SCC) , 95 C.C.C. (3d) 193 (S.C.C.) ]:

"forthwith" does not mean "immediately" but is to be afforded a practical interpretation with sufficient flexibility to permit the roadside testing scheme to operate in fulfillment of Parliament's objectives".

In determining the applicability of the "forthwith" requirement, the Courts are required to balance individual rights of motorists with the broader societal concern dealing with the carnage caused by those who commit offences involving drinking and driving: [ R. v. Orbanski , 2005 SCC 37 , [2005] SCJ No. 37 ].

[ 9 ] In R. v. Fildan , [2009]O.J.No. 3604(S.C.J.) Hill, J. discussed the “forthwith” requirement and justified delay:

Accordingly, the constitutional expectation is that the s. 254(2) demand will, in the ordinary course, be made immediately of a detained driver once the investigating officer (1) has determined that he or she has the requisite reasonable suspicion and (2) has determined that it is appropriate to administer an ASD test. There may be a reasonably necessary temporal gap between these two determinations, or only the first determination may be formed, for example:

(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), 1996 1074 (ON CA) , 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.

Where both determinations are made however, and the ASD demand is communicated, the administration of the test may yet be delayed without invalidating the demand, for example in the following circumstances:

It is true, as I mentioned earlier, that "forthwith", in the context of s. 254(2) of the Criminal Code , 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 .

[ 10 ] On February 23, 2012, the Court of Appeal released its decision in R. v. Peter Quansah 2012 ONCA 123 . The Court held that:

In sum, I conclude that the immediacy requirement 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 state 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).

Forth, 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. [2]

Application to this Case

[ 11 ] In my view, the learned trial judge was correct in law in holding that the demand for a sample of breath was made “forthwith”, and that the demand was therefore valid and within the constitutionally permissible limits.

[ 12 ] Whether the demand was made by the officer within 14 minutes or 18 minutes after the officer had formed the necessary suspicion, he acted appropriately, and quickly sent for the ASD. Further, the learned trial judge found that when P.C. MacDonald arrived at the scene of the accident, it was reasonable for the officer to take the necessary steps to ensure public safety at the busy intersection.

[ 13 ] Applying the considerations as outline in R. v. Quansah (supra) I am satisfied that the learned trial judge was correct in finding that the breath demand and sample provided was made forthwith.

Sentence Appeal

[ 14 ] The Appellant submits that the sentence was harsh and excessive, and accordingly unfit in the circumstances.

[ 15 ] The Supreme Court of Canada has repeatedly stated that the sentencing judge’s discretion to determine an appropriate sentence is to be afforded considerable deference by reviewing courts: R. v. C.A.M. , 1996 230 (SCC) , [1996] S.C.J. No. 28; R. v. McDonnell , 1997 389 (SCC) , [1997] S.C.J. No.42.

[ 16 ] In this case, the Crown filed a Notice of Increased penalty pursuant to s. 727 of the Criminal Code . The decision to do so was based on a number of factors including the fact that (a) and accident occurred; (b) the Appellant appeared to have been speeding; and (c) the Appellant had a prior record for similar offences.

[ 17 ] The Appellant takes issue with the fact that the learned trial judge attributed the cause of the accident to him, on an improper standard of proof.

[ 18 ] Aggravating factors that are disputed by the defence must be proven by the Crown beyond a reasonable doubt : s. 724(3) (e) Criminal Code of Canada ; R. v. Gardiner , 1982 30 (SCC) , [1982] S.C.J. No. 71, affirming [1979] O.J. No. 1117 (C.A.) at para. 3 .

[ 19 ] In considering the accident, the learned trial judge held that “certainly on a balance of probabilities, and maybe at a greater standard also, [Mr. Pirocchi] was the author of a rather serious motor vehicle accident at a very busy intersection.” [3]

[ 20 ] This clearly is an incorrect standard of proof upon which to conclude a serious, aggravating factor on sentencing. The learned trial judge repeated the standard numerous times, and obviously focused on the accident and its “causation” in sentencing the Appellant.

[ 21 ] The learned trial judge sentenced the Appellant to a period of six months in custody, and a driving prohibition for a period of four years. Given the trial judge’s misapplication of the “balance of probabilities standard” in re: the accident, I am of the view that a reduction in sentence is warranted.

[ 22 ] Before determining an appropriate sentence, it is important to note that the Appellant had two prior convictions within five years of this offence. This is clearly an aggravating factor on sentence.

[ 23 ] In all of the circumstances, the conviction appeal is dismissed. The sentence appeal is allowed. The sentence shall be varied to 120 days in custody. There will be a two year driving prohibition. The victim fine surcharge remains unchanged at $50.00, with one year to pay.

[ 24 ] Counsel for the Appellant shall make arrangements with the Crown for the Appellant’s surrender, within 10 days.

“ Justice K. A. Gorman”

Justice K.A. Gorman

Released: April 16, 2012

[1] Evidence of Ms. Stephanie Davis, Preliminary Hearing Transcript pp 3-7; Evidence of Mr. Larry Miller, Preliminary Hearing Transcript pp 44 – 46.

[2] Paragraphs 45 – 49 (inclusive).

[3] Reasons for Sentence, Transcript, p. 153, lines 7 – 20; p. 154, lines 7 -154; p. 156, lines 7 -24; p. 158, lines 11 – 18; p. 166, lines 9 - 22