ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-10000061-00AP
DATE: 20120719

BETWEEN:

HER MAJESTY THE QUEEN – and – JONATHAN MANDRYK

Heather Davies for the Respondent/Crown
Joseph DiLuca, for the Appellant

HEARD: March 14, 2012

M.A. Code J.

REASONS FOR JUDGMENT

A. OVERVIEW

[ 1 ] The Appellant Jonathan Mandryk (hereinafter, Mandryk) was charged with one count of refusing to comply with a demand made by Constable Thomas Reimer, “to accompany the said Thomas Reimer for the purpose of enabling samples of the breath … to be taken,” contrary to ss. 254(3) and (5) and s. 255 of the Criminal Code . The somewhat unusual particularization of the offence, as quoted above, is important to the issues in this case.

[ 2 ] Mandryk was arrested and charged by Constable Reimer on October 16, 2009. The Crown elected to proceed summarily. On August 3, 2010, the trial commenced before B. Brown J. After hearing evidence and submissions over parts of three days, the trial judge reserved judgment on November 26, 2010 and requested written submissions from the parties. The trial had been conducted as a single blended proceeding of both the merits of the Crown’s case and a s. 10(b) Charter of Rights Motion. On April 18, 2011 the trial judge delivered lengthy and detailed reasons for judgment, convicting Mandryk of the one offence charged. He was sentenced to a fine of $1,200 as well as the mandatory twelve month license suspension.

[ 3 ] Mandryk appeals to this court from his conviction. The real issues, as they crystallized during the course of oral argument on March 14, 2012, were somewhat different from the way that they were set out in the Appellant’s and Respondent’s Facta. As a result, further written submissions were requested. They were filed by the parties on April 5 and 20, 2012.

[ 4 ] In brief summary, the undisputed facts in the case are that two police officers stopped Mandryk’s vehicle, they observed certain indicia of alcohol consumption, and they obtained an admission from Mandryk that he had consumed three glasses of wine. The police made an ASD demand for a roadside breath sample, pursuant to s. 254(2)(b), which Mandryk provided. He failed this roadside screening test. The police then arrested Mandryk for the s. 253(1)(b) offence of driving while “over 80”. He was placed in the back seat of the police cruiser and he was hand-cuffed. As required by s. 10(b) of the Charter of Rights , the police then advised Mandryk of his right to counsel. Mandryk responded by telling the police that he wanted to speak to counsel. The police also advised Mandryk of his right to remain silent and he replied “okay”.

[ 5 ] It is at this stage that the central issue or issues in the case arose. The police made the statutory demand for Intoxilyzer breath samples, pursuant to s. 254(3) , and a discussion ensued between the arresting officer and Mandryk. This “extended discussion”, “lengthy exchange”, or “conversation”, as the trial judge variously described it, went on for four minutes. The statements made by Mandryk during the “conversation” were interpreted by the officers as a refusal “to accompany” them to the station for the purpose of breath testing. As a result, they charged Mandryk with the offence of refusing to comply with a demand “to accompany”, as particularized above at the beginning of these reasons. The officers believed that they had no legal authority to take Mandryk to the station, in the circumstances. They proceeded to release him at the scene of his arrest on a promise to appear. He never was taken to the police station, he never did speak to counsel, and there was no attempt to obtain breath samples at the station.

[ 6 ] The only witnesses who testified at the trial were the two police officers. The Appellant Mandryk did not testify. As a result, there were no issues of credibility. Stated broadly and simply, the issue in the case is whether statements made at the roadside, while under arrest and while seeking to exercise s. 10(b) Charter rights, can properly amount to the criminal offence of refusing to “accompany” a police officer to the station. Stated more narrowly and precisely, the two main grounds of appeal that eventually emerged during argument are:

• first, whether a s. 254(3)(b) statutory demand to “accompany” the police is “necessary” and therefore lawful, when the accused is already under arrest, hand-cuffed in the back seat of a police cruiser, and under the control of the police;

• second, whether operation of the s. 254(3) statutory “demand”, that is initially made at the roadside, is effectively suspended until after an arrested accused, who has invoked s. 10(b) Charter rights, can exercise those rights at the police station.

[ 7 ] There is little authority on these two issues, which tends to suggest that they rarely arise. I reserved judgment at the end of oral argument. These are my reasons for judgment.

B. FACTS

[ 8 ] Constable Reimer had been a police officer for four years by the time of trial. He would have completed approximately three years of police service at the time of the relevant events. It was the only case of refusal to comply with a demand for breath samples that he had ever encountered.

[ 9 ] At 4:47 p.m. on October 16, 2009, Constable Reimer stopped the Appellant Mandryk’s pick-up truck after it pulled out of the parking lot of a bar in Toronto. After Constable Reimer signalled for the vehicle to stop, Mandryk pulled his truck into a shopping plaza parking lot. He had only been driving for a few seconds at the time of the stop. Constable Reimer approached the vehicle. He smelled alcohol coming from the truck and noted that Mandryk had glossy eyes, a red nose, and red cheeks. The only purpose of the stop was to check for sobriety and so Constable Reimer asked whether Mandryk had been drinking. Mandryk acknowledged that he had consumed three glasses of wine and that his last drink was about twenty minutes ago.

[ 10 ] Given the above grounds for reasonable suspicion, Constable Reimer made an ASD demand at 4:50 p.m. Mandryk asked, “What if I don’t give the test?” Constable Reimer replied that he would be charged and his license would be suspended. Mandryk then agreed to provide a roadside sample. Constable Reimer asked Mandryk to come to the police cruiser. Mandryk was “very cooperative”. Constable Reimer’s partner, Constable Nassis, conducted the roadside screening test at 4:51 p.m., while Mandryk was standing at the police car. The result was a “fail”.

[ 11 ] At this point, Constable Reimer believed that he had sufficient grounds to arrest Mandryk for the offence of driving “over 80”, although he acknowledged not having to use arrest powers in all such cases. He advised Mandryk of the failed test result and arrested him at 4:53 p.m. Constable Reimer handcuffed Mandryk’s hands behind his back, did a pat search, and placed him in the back seat of the police cruiser. Constable Reimer obtained Mandryk’s identification and read him the standard s. 10(a) and s. 10(b) Charter caution, advising Mandryk that he was under arrest “for driving over 80” and that he had the right “to retain and instruct counsel without delay”. Mandryk responded that he understood the caution and that he did wish “to call a lawyer”. It was 4:55 p.m. Constable Reimer then concluded the formal cautions by advising Mandryk that he would not question him further, that Mandryk did “not have to say anything”, and that whatever he did say “can be given in evidence”. Mandryk replied “okay”.

[ 12 ] At 4:56 p.m., Constable Reimer read the formal Intoxilyzer demand from his memo book, as follows:

I demand that you provide suitable samples of your breath directly into an approved instrument to enable an analysis to be made to determine the concentration, if any, of alcohol in your blood. That you accompany me for the purpose of enabling samples to be taken. Do you understand?

[ 13 ] A four minute discussion then ensued, between 4:56 p.m. and 5:00 p.m. Constable Reimer did not record all of the discussion and what he did record is not verbatim. However, his best recollection was that Mandryk’s initial response to the demand was “basically, he said … I don’t think I want to”. Constable Reimer asked him “why not” and Mandryk replied, “I didn’t do very well with this [roadside screening] test and, like I said, I had three drinks so I probably won’t do very well with the test at the station”. Constable Reimer testified that this was the only note he made of what Mandryk actually said during the entire four minute conversation. It was all that he could remember when he made up his notes shortly afterwards. Constable Reimer’s ultimate conclusion or opinion, that Mandryk was unwilling to accompany him, was based on what Mandryk had said to him. According to Constable Reimer, at the early stages of their conversation, Mandryk was “still trying to make up his mind” as to whether to accompany the officers to the station.

[ 14 ] Constable Reimer proceeded to explain the consequences of a refusal, that is, that Mandryk would be charged, there would be a ninety day license suspension, and the same penalties would apply as on a charge of “over 80”. He did not recall ever telling Mandryk that he might actually blow “under 80”at the station. This is not something he would normally say. Constable Reimer believed that Mandryk was “over 80” but “I didn’t think he was that bad” and no impaired driving charge was laid. Mandryk was “very polite” according to Constable Reimer. At the end of the conversation, Mandryk said words to the effect, “I don’t want to do it”. Constable Reimer had no note of what was actually said and could not remember the actual words that Mandryk spoke. He simply made a note, “refused again”. Constable Reimer had presented it as an “option” or “choice” to Mandryk, that is, “to come back with me or not”.

[ 15 ] At 5:00 p.m., Constable Reimer removed the handcuffs and released Mandryk from police custody upon his entering into a promise to appear. Constable Reimer issued a ninety day license suspension and Mandryk called a friend, on his cell phone, to come and pick him up. The two officers sat in their cruiser in the parking lot and watched Mandryk while they completed their notes. Mandryk’s friend arrived and picked him up, leaving Mandryk’s pick-up truck parked in the shopping plaza lot. At 6:09 p.m., the two officers left the scene and drove back to the station.

[ 16 ] Constable Reimer explained his actions on the basis that Mandryk had refused “the demand to accompany me back to the station”, he knew Mandryk’s identity, he had no concerns about a continuing offence, and “I’m not concerned about securing any more evidence”. In these circumstances, he felt that he had no grounds to keep Mandryk under arrest. He reasoned as follows:

“He doesn’t want to come back to the station, he doesn’t have to, so I released him.”

[ 17 ] Constable Reimer agreed that persons under arrest are given the opportunity to speak to counsel at the station and that “if he wants to come back to the station to call a lawyer that would be fine with us, however, he didn’t ask for that to happen … I can’t force anyone to come back to the station just for the purpose of calling a lawyer. If they want to come back to the station they’re given that opportunity [to speak to counsel] … before any breath tests.” Constable Reimer would not have allowed a cell phone call to counsel at the roadside because Mandryk was under arrest and in handcuffs, for officer safety reasons, and Constable Reimer would not remove the handcuffs to allow a call. There would also be no way to verify who Mandryk was calling and there would be difficulty in providing privacy in the police car.

[ 18 ] Constable Reimer agreed that he had physical control of Mandryk’s movements, while Mandryk was under arrest, and that he had the option of taking Mandryk to the police station. However, he believed that there are some circumstances where it is not legal to take an arrested person to the station and where that person must be released. He agreed that normally, in “over 80” cases, the arrested person is taken to the police station, allowed to speak to counsel, and then given the opportunity to provide a breath sample. However, Constable Reimer also believed that he lacked “the authority” to take an arrested person to the police station in an “over 80” case if the person has said “they do not wish to comply” with a breath sample demand, since this is “the only reason” for taking them to the station. In these circumstances, Constable Reimer had “no reason to believe [he] was going to secure any further evidence from the driver” at the police station.

[ 19 ] Finally, Constable Reimer agreed that Mandryk had “made it clear that he wants to speak to his lawyer to get legal advice” as soon as possible. There was no suggestion that Mandryk ever waived his right to consult with counsel, according to Constable Reimer. It did cross Constable Reimer’s mind to tell Mandryk that he should speak to a lawyer, before he made a final or definitive response to the breath sample demand. However, Constable Reimer had “reasons why I didn’t allow it [a call to counsel] to happen”.

[ 20 ] Constable Reimer’s partner, Constable Nassis, had training as a breath technician. She had been a police officer for about nine years at the time of trial. She did not approach Mandryk at the driver’s side of his truck. She only carried out the roadside ASD test at the police car and, at that time, she noticed similar indicia of alcohol consumption to what Constable Reimer had noticed when he first approached Mandryk.

[ 21 ] Constable Nassis agreed that Constable Reimer arrested Mandryk, after he failed the roadside test, and that Constable Reimer then began a conversation with Mandryk. At this point, Constable Nassis went and sat in the front seat of the police cruiser, ran computer checks on Mandryk, called for a breath technician, and listened to the police radio. She did not really pay attention to the conversation between Mandryk and Constable Reimer. She did hear the Intoxilyzer demand and she did hear Mandryk say something to the effect that “he didn’t want to come with us to the station”. She went and stood near the back door of the police car and heard Constable Reimer ask “a few more times to accompany us … to comply with a demand”. She did not hear exactly what Mandryk said but “he didn’t want to come with us”.

[ 22 ] At this point, Constable Reimer went to the front seat of the police cruiser to prepare the promise to appear paperwork in order to release Mandryk at the scene. It was Constable Reimer who made this decision. At this point, Constable Nassis spoke to Mandryk and explained the Intoxilyzer procedure to him. She could not remember exactly what he said and she had no note of it but it was something to the effect, “well, I already failed the one, I am probably going to fail the other one”. She agreed that Mandryk was very cooperative and polite.

[ 23 ] Constable Nassis agreed that the police have authority and control over the movements of an arrested person. However, she was of the view that a person under arrest for “over 80” has “the option” or “choice” to refuse to accompany the police to the station and to be “released right on the spot”. However, it is not presented to the arrested person as an option. It is presented as a demand.

(Decision continues with sections C. LAW and D. CONCLUSION exactly as in the source.)

COURT FILE NO.: 11-10000061-00AP
DATE: 20120719

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – JONATHAN MANDRYK

REASONS FOR JUDGMENT M.A. Code J.

Released: July 19, 2012