ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: SCA-102-11
DATE: 20120817

BETWEEN:

Her Majesty The Queen Respondent – and – Joseph Rienguette Appellant

Kevin Ludgate, for the Respondent
P. Berk Keaney, for the Appellant

HEARD: August 7, 2012

DECISION ON APPEAL

R. D. gordon J.:

Overview

1On August 8, 2011, Mr. Rienguette was found guilty of operating a motor vehicle while having a blood alcohol level in excess of .08, contrary to section 253 (b) of the Criminal Code of Canada . He has appealed the finding of guilt, raising two issues. The first issue is that the Trial Judge erred in failing to find a breach of his right to counsel; the second is that the Trial Judge erred in finding that the samples of his breath were taken as soon as practicable.

Background Facts

2On December 23, 2010 the Greater Sudbury Police Service set up a “festive RIDE program” in the vicinity of the intersection of Highway 17 and Second Avenue in Coniston. Cst. Balloway was stopping vehicles travelling eastbound on Hwy 17. Other officers were stopping westbound vehicles a short distance away.

3At 10:17 p.m. Cst. Balloway signalled the Appellant to pull over. Mr. Rienguette was the lone occupant of his vehicle. The odour of an alcoholic beverage was noted emanating from him, and he admitted to earlier having consumed alcohol.

4At 10:20 Cst. Balloway went to the trunk of his vehicle to retrieve the Approved Screening Device (ASD) and was surprised to find it was not there. He immediately sent out a call to have one delivered. At 10:23 he issued his demand to the Appellant to provide a sample of his breath. At 10:30 an ASD arrived and at 10:34 the Appellant provided a sample and a fail was recorded.

5Between 10:34 and 10:52, the Appellant was placed under arrest for “over 80”, was given his rights to counsel and caution, and received a demand for breath samples.

6At 10:52, Cst. Balloway left the location of the RIDE program and transported the Appellant to police headquarters, arriving at 11:07 p.m. On arrival, the Appellant was searched and “paraded” and then afforded the opportunity to consult with counsel. He completed speaking with counsel at 11:31 and six minutes later was handed over to a qualified breath technician for testing.

7The breath technician had arrived at headquarters at 10:57. He completed his set up and testing of the machine by 11:29. Cst. Coluzzi explained the process to the Appellant, read him the caution and rights to counsel and made a further breath demand at 11:42. The Appellant requested a further opportunity to consult counsel and duty counsel was contacted for him. He completed his discussions with duty counsel, asked to and attended the washroom and returned to the breath technician at 12:08 a.m. at which time he provided the first sample of his breath and recorded a reading of .139. A second sample was provided at 12:28 and recorded a reading of .139.

The Right to Counsel Issue

Was There a Breach of the Appellant’s Right to Counsel?

8At trial the Appellant argued his right to counsel was breached during the period he was detained while awaiting the arrival of the ASD.

9A driver is detained when held following a roadside breath demand. Although one’s right to counsel would normally arise upon detention, the requirement that the sample be provided forthwith has been held to be a reasonable limit on the right to counsel, prescribed by law and justified under section 1 of the Charter. [See <https://www.minicounsel.ca/scc/1988/73

10If, following a roadside demand, the sample is not provided forthwith because the ASD is not readily available, the demand is not valid and does not justify a failure to provide a person his or her rights under section 10(b). [ <https://www.minicounsel.ca/scc/1991/38

11Subsequent cases have tied the determination of what is “forthwith” to the ability of an accused to consult counsel. When the criminal code requires something to be done “forthwith” the requirement is that it be done before there is any realistic opportunity for an accused to consult counsel. In this case, the question was whether in, all the circumstances, the delay in having the ASD delivered gave rise to a realistic opportunity for the accused to contact, seek and receive advice from counsel. [See <https://www.minicounsel.ca/oca/2004/32107 and <https://www.minicounsel.ca/oca/2007/67 That determination is a finding of fact and as such the decision of the trial judge is to be given deference unless there has been a palpable and overriding error.

12Counsel for the Appellant argued that the Trial Judge erred by equating the length of the Appellant’s consultations with counsel following his arrest with the length of time that would have been required to consult with counsel while awaiting the ASD. It was argued firstly, that such an approach presumes the length of call and type of advice to be provided would be similar and secondly, that the determination of how a police officer should act with respect to a detainee can only be determined on the basis of the information available to the officer at the time of the demand.

13Several cases have held that whether an accused elects to contact counsel when subsequently arrested and the length of time it takes to consult with counsel are factors to consider when determining whether an accused would have had a realistic opportunity to consult with counsel [see, for example, R. v. Devji [2008] O.J. No. 1924 , R. v. Maher [2010 O.J. No. 1301 , and R. v. Yamka [2011] O.J. No. 283 ]. It is not necessarily a determining factor, but it is an appropriate factor for consideration. Although it may be that consultation with counsel at a roadside stop would differ in length from consultation with counsel following arrest and arrival at the detachment, the only evidence lead at trial on the issue was the following exchange between counsel and the Appellant:

CROSS-EXAMINATION BY MR. ZYLBERBERG

Q: Can you think of any reason why it would have taken you less time at the roadside with the cell phone to have a meaningful consultation with the lawyer than it took you at the police station when you spoke to Mr. McMahon or to duty counsel?

A: It may not have taken me less time, but I didn’t know how long it was going to actually take me to get my understanding of what I should be doing from my lawyer. But if I had the opportunity I would have definitely tried to contact him at the roadside. I didn’t know how long at that point in time, I didn’t know how long it was actually going to take me to have a full understanding of what I should be doing or not.

Q: But you know that when you’re at the police station you didn’t waste time when you were talking to Mr. McMahon. That’s how long it took you to fully understand your situation?

A: Yes.

RE-EXAMINATION BY MR. KEANEY:

Q: Just one question. Mr. Rienguette, could you differentiate for the Court the type of legal advice that a lawyer might give you when you’re at the roadside and a demand’s made to you at the roadside versus the type of advice a lawyer may give you when you’re at the police station and being asked to provide samples of your breath? Do you know what a lawyer might do in those situations?

A: Not 100 percent.

14In his reasons, the Trial Judge determined that it took Mr. Rienguette 16 minutes to consult with counsel at the detachment. Given that the delay was 10 minutes, and there was no evidence to suggest that it would have taken him less time to consult with counsel at the roadside, it was not unreasonable for the trial judge to infer that the Appellant would not have been able to meaningfully consult with counsel at the roadside. It was an inference available to be drawn from the evidence. Certainly, it does not amount to palpable and overriding error.

15With regard to the second prong of the Appellant’s argument, although it has been held that the officer’s knowledge of when the ASD might arrive is a factor for consideration in determining the ultimate issue, it is not a determinative consideration. [See <https://www.minicounsel.ca/oca/2007/67 The Trial Judge in the case before me made a specific finding that Cst. Balloway did not know when the ASD was going to arrive. Clearly, he considered that factor and gave it the weight he deemed appropriate. It does not lie with me to weigh that evidence anew.

16The Appellant’s factum also speaks the availability of a phone as a factor to be considered in determining whether there is any realistic opportunity to consult with counsel. I agree that it is a factor for consideration. Although the Trial Judge did not specifically find that the Appellant had a cell phone which he could use to call counsel at the roadside, a fair reading of the decision indicates the trial judge presumed this to be the case.

17In all, the Trial Judge identified the appropriate test, examined the evidence and made a finding of fact that was available to him on that evidence. I see no palpable and overriding error.

Should the Evidence be excluded Under Section 24(2) of the Charter?

18As I have determined there was no breach of Mr. Rienguette’s right to counsel, it follows that there is no basis for a remedy under section 24(2) of the Charter.

Were the Breath Samples Taken as Soon as Practicable?

19Although neither the Notice of Appeal nor the Appellant’s factum raised the deficiency of the reasons of the Trial Judge as a ground of appeal, counsel for the Appellant made that argument at the hearing of the appeal without objection by the Crown. In dealing with the timing of the breath samples, the Trial Judge made the following finding:

With respect to the rest of the case, Mr. Keaney made an argument that the police actions weren’t taken as soon as practicable. In my view, while there may have been a few moments that were unexplained, by and large I would be at a loss to say that it was not as soon as practicable and accordingly I’m going to find him guilty.

20The Crown conceded that these brief reasons do not allow for meaningful appellate review of the Trial Judge’s decision, but pointed out the evidence upon which his decision could reasonably have been based.

21The governing law on the issue of the timing of the breath tests is <https://www.minicounsel.ca/oca/2006/9039 , which provides as follows:

In 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. The “as soon as practicable” requirement must be applied with reason. In particular, while the Crown is obligated to demonstrate that – in all the circumstances – the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody.

22Defence counsel pointed to two periods of delay in support of its position that the tests were not taken as soon as practicable. The first was the eighteen minute delay between when Mr. Rienguette failed the ASD and when they departed the roadside for the detachment. On the evidence, the only things that took place during this period of time were the arrest of the accused, the administration of the caution and right to counsel, and the demand for breath samples into an approved instrument. The second period of delay was between when they arrived at the detachment and when, 14 minutes later, police contacted counsel on Mr. Rienguette’s behalf. The only explanations advanced for that delay was the search of the accused and his “parade”. No time frames were given for these activities.

23Although it was certainly open to the trial judge to conclude the samples were taken within a reasonably prompt time that conclusion is not inescapable on the evidence, and the reasons are insufficient to determine the basis upon which the conclusion was reached. It is not possible to determine what facts he found to support his conclusion, and it is not possible to determine what test he applied. In the circumstances, this amounts to an error of law and a new trial is required.

Conclusion

24Mr. Rienguette’s appeal is granted. The matter is remitted to the Ontario Court of Justice for a new trial.