Superior Court of Justice - Ontario

Court File No.: 141/13
Date: 20141201

RE: Her Majesty the Queen v. Tuan Minh Bui

Before: Trotter J.

Counsel:
Luke Schwalm for the Crown/Respondent

Melina Macchia for the Appellant

Heard: November 21, 2014

Endorsement

[SUMMARY CONVICTION APPEAL]

[1] After a trial before the Honourable Justice Sheila Ray of the Ontario Court of Justice, Mr. Bui was convicted of failing to provide a breath sample.

[2] At about 4:00 a.m. on January 22, 2012, a Toronto Police Service officer came upon a car parked in the shoulder of the Gardiner Expressway in Toronto. Mr. Bui was standing at the front of the car, urinating. The officer believed he had been drinking. He radioed for an Approved Screening Device (ASD) to be brought to the scene. In the meantime, the officer did not tell Mr. Bui why he was detained, nor did he make an ASD demand immediately. By the time the device arrived and the demand was made, just 7 minutes had elapsed.

[3] The learned trial judge concluded that the demand was made “forthwith” within the meaning of s. 254(2) of the Criminal Code and found Mr. Bui guilty. In reaching this conclusion, the trial judge conscientiously applied the principles set out in R. v. Quansah (2012), 2012 ONCA 123, 286 C.C.C. (3d) 307 (Ont. C.A.).

[4] I can detect no error in the trial judge’s analysis. Nor is her ultimate conclusion unreasonable. As Ducharme J. said in R. v. Au-Yeung (2010), 2010 ONSC 2292, 75 C.R. (6th) 78 (Ont. S.C.J.) at p. 90:

Given these constitutional imperatives, it is not too much to require that the purpose of the detainee’s detention be promptly explained to him.

But that does not end the question. Without minimizing the importance of a prompt ASD demand, it would be a mistake to focus solely on any delay in making the ASD demand in a case where the ASD is otherwise administered forthwith.

In that case, the ASD was administered 8 minutes after the accused was pulled over. See also R. v. Latour (1997), 1997 1615 (ON CA), 116 C.C.C. (3d) 279 (S.C.C.).

[5] Lastly, the trial judge’s finding on the “forthwith” issue is not inconsistent with her having found “technical breaches” of ss. 10(a) and (b) of the Charter, neither of which warranted the exclusion of evidence under s. 24(2).

[6] The appeal is dismissed.

TROTTER J.

Date: December 1, 2014