ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 108/14

DATE: 20140914

RE: Her Majesty the Queen v. Tien Duong

BEFORE: K.L. Campbell J.

COUNSEL: Robert Wright, for the Crown, respondent
Gregory Lafontaine, for the accused, appellant

HEARD: June 10, 2015

REASONS FOR DECISION

[Summary Conviction Appeal]

A. Overview

[1] The appellant, Tien Duong, was tried by the Honourable Mr. Justice M. Green of the Ontario Court of Justice on a charge of refusing to comply, without reasonable excuse, with a demand to provide samples of his breath suitable for analysis, contrary to s. 254(5) of the Criminal Code, R.S.C. 1985, c. C-46. The offence was allegedly committed in Toronto on or about May 27, 2012.

[2] There is no dispute between the parties that the appellant repeatedly and unequivocally refused to provide the requested breath samples into an approved instrument. The only issue is whether the appellant had a reasonable excuse for so refusing. At trial, the appellant argued that the demand for these breath samples by the arresting officer was not made “as soon as practicable,” as required by s. 254(3) of the Criminal Code. There was a delay of approximately 11 minutes between the time the appellant was arrested for having an illegal blood-alcohol concentration while operating a motor vehicle, and the time the arresting officer demanded that the appellant provide samples of his breath suitable for analysis in an approved instrument. The trial judge rejected the appellant’s argument, concluding that the demand was made as soon as practicable in the circumstances. Ultimately, the trial judge found the appellant guilty, and sentenced him to a fine of $1,000.00 and a one-year driving prohibition.

[3] This appeal by the appellant challenges the conclusion of the trial judge that the breath sample demand was made as soon as practicable. In my view, the trial judge committed no error in concluding that the demand was made as soon as practicable. Accordingly, for the following reasons the appeal must be dismissed.

B. The Factual Background

[4] In the early morning hours of May 27, 2012, Cst. Turkot of the Toronto Police Service (TPS) was on duty participating in a Reduce Impaired Driving Everywhere (RIDE) program check-point set up on British Columbia Road near Lakeshore Boulevard West in Toronto. As the appellant’s vehicle approached the RIDE program check-point, it suddenly made an abrupt turn down a side street. Believing that the vehicle may have made this turn to avoid the RIDE program check-point, Cst. Turkot pursued and ultimately stopped the appellant’s vehicle in order to investigate whether the appellant was driving while he was under the influence of alcohol. Cst. Turkot stopped the appellant’s vehicle at approximately 3:32 a.m.

[5] When Cst. Turkot approached the appellant’s vehicle and explained why he had stopped him, the officer detected an odour of alcohol coming from the appellant’s mouth and noticed that the appellant had red, bloodshot eyes. When Cst. Turkot asked the appellant if he had consumed any alcoholic beverages that night, the appellant replied that he had not, explaining that he was the “designated driver” for the three other people in the vehicle. When Cst. Turkot told him that he could smell alcohol on his breath, the appellant replied that the odour was coming from the other occupants of his vehicle.

[6] Cst. Turkot then asked the appellant to exit the vehicle. Once he was outside, the officer asked him again whether he had been drinking before driving. This time the appellant admitted that he had consumed a couple of drinks “earlier,” but “not now,” and had come to pick up the passengers in the vehicle. Cst. Turkot continued to smell the odour of alcohol coming from the appellant’s breath and, forming a reasonable suspicion that the appellant had been operating a motor vehicle with alcohol in his body, at 3:34 a.m., the officer demanded that the appellant provide a breath sample into an approved screening device. Cst. Turkot also explained that if the appellant refused to provide the demanded sample of his breath he would be charged with the criminal offence of failing or refusing to provide a breath sample. The appellant expressed his understanding of this situation, and indicated that this would be “no problem.”

[7] Cst. Turkot had an approved screening device, a Drager Alcotest 6810, in his vehicle, which was calibrated to show a “fail” result for any breath sample with a blood-alcohol concentration of 100 mgs. of alcohol per 100 mls. of blood, or more. At approximately 3:40 a.m., the appellant provided a suitable sample of his breath and the approved screening device registered a “fail” result. At that point, Cst. Turkot formed the opinion that the appellant had been operating a motor vehicle with an illegal blood-alcohol concentration, and arrested the appellant for the “over 80” offence. The appellant was searched and placed in the back of the police cruiser. Cst. Turkot then made a request to have another officer handle the appellant’s vehicle, and instructed the passengers of the appellant’s vehicle not to speak to the appellant.

[8] Between approximately 3:47 and 3:50 a.m., Cst. Turkot informed the appellant of his right to counsel as required by s. 10(b) of the Canadian Charter of Rights and Freedoms. At this time, the officer and the appellant also had a conversation about whether or not the appellant had a lawyer and whether he wanted to consult with a lawyer. The appellant indicated that he had his own lawyer, but did not think that he would be able to reach him at that time of night. After further discussion, and an offer by Cst. Turkot to try to contact his lawyer when they got to the police station, the appellant told the officer that he did not want to contact his lawyer.

[9] At 3:50 a.m., Cst. Turkot read the appellant the standard “caution” about making statements to the police and, at 3:51 a.m., the officer made the formal demand, pursuant to s. 254(3)(a)(i) of the Criminal Code, that the appellant provide samples of his breath into an approved instrument so as to enable a proper analysis to be made to determine the concentration of alcohol in his blood. When asked if he understood this demand, the appellant expressed some confusion. Cst. Turkot then tried to explain the purpose of the approved screening device test that had just been administered. The appellant responded: “You [are] arresting me. I am not going to give you any more samples. You are taking me to jail. What more do you want from me?” The appellant then asked the officer to make sure that his uncle’s vehicle was not damaged.

[10] At approximately 3:55 a.m., Cst. Turkot left the scene with the appellant in his police cruiser, and drove to the closest breath testing facility, the Traffic Services facility, arriving at that location at 3:58 a.m. The appellant was taken into the booking area of the facility at 4:01 a.m.

[11] At 4:04 a.m., the appellant was again asked whether he wanted to contact a lawyer or duty counsel, and the appellant replied that he did not want to speak to a lawyer, but indicated that he wanted to call his wife. At 4:05 a.m., the appellant was asked whether he understood the demand for breath samples that had been made to him, and the appellant replied that he did, but that he would not be providing any further samples as he had already provided a breath sample. The booking process was completed at 4:09 a.m.

[12] The appellant was brought into the breath room and delivered to the qualified technician, Cst. Butt, at 4:37 a.m. The appellant was then warned that he was being recorded. Cst. Turkot then provided Cst. Butt with some explanatory details of his investigation of the appellant.

[13] At 4:39 a.m., Cst. Butt explained the breath sample process to the appellant. Thereafter, the appellant refused to provide any breath samples. In addition, when the qualified breath technician made inquiries about whether the appellant needed to speak to a lawyer, the appellant told her that he did not need to speak to anyone. At 4:45 a.m., Cst. Butt told the appellant that refusing to provide the requested breath samples would result in a charge with the same penalty as an “over 80” charge. When questioned about his understanding, the appellant replied that he had already provided a breath sample that led to his arrest, and he maintained that he would not provide any further samples of his breath. After further discussion, the appellant acknowledged that he understood that if he did not provide the requested breath samples, he would be charged with the criminal offence of failing or refusing to provide such samples. After refusing his last opportunity to provide the requested breath samples, the appellant was taken from the breath room at 4:49 a.m. The appellant was subsequently released on a promise to appear.

C. Analysis

1. The Governing Standard of Appellate Review

[14] The interpretation of the “as soon as practicable” requirement in s. 254(3) of the Criminal Code is a question of law that is subject to appellate review on a correctness standard. However, the application of the legal standard created by the “as soon as practicable” requirement to the facts of any individual case is subject to appellate review on the standard of “palpable and overriding error” as such determinations are largely questions of fact. With respect to such factual issues, it is not the role of an appellate court to simply retry the case or substitute its own opinion for the views expressed by the trial judge. Rather, with respect to such factual issues the role of the appellate court is to determine whether the trial judge committed a “palpable and overriding error.” See R. v. Vanderbruggen (2006), 206 C.C.C. (3d) 489, 208 O.A.C. 379 (C.A.), at paras. 12‑15; R. v. Burbridge; R. v. Torsney; R. v. Taylor; R. v. Thompson; R. v. Cote; R. v. Singh; R. v. Beharry; R. v. Cargill; R. v. Crewson; R. v. Schaump. But see, contra, R. v. Burwell.

2. The Legal Meaning of the Phrase “As Soon as Practicable”

[15] It is well established that the phrase “as soon as practicable” in this particular statutory context does not require that the demand for breath samples be made “as soon as possible,” but only that the demand for breath samples be made “within a reasonably prompt time under the circumstances.” The recognized touchstone for determining whether or not the demand was made as soon as practicable in the circumstances is whether the police acted reasonably having regard to the entire chain of events. See R. v. Vanderbruggen; R. v. Mudry; R. v. Ashby; R. v. Seed; R. v. Letford; R. v. Lemieux; R. v. Schouten; R. v. Furlong.

[16] The phrase “as soon as practical” has the same legal meaning regardless of whether that statutory phrase is construed in determining whether the breath sample demand was made “as soon as practicable” as required by s. 254(3) of the Criminal Code, or whether the breath samples were taken “as soon as practicable” for purposes of the evidentiary assistance provided by s. 258(1)(c)(ii) of the Criminal Code. See R. v. Squires; R. v. Singh.

[17] Relying upon the decision of the British Columbia Supreme Court in R. v. Memisevic, defence counsel argued that, in determining whether the breath samples demand by Cst. Turkot was made “as soon as practicable,” the question should not be resolved by simply determining whether the officer was “engaged in the execution of general duties” during the time period in question, but “whether it was necessary to perform those duties before making that demand.”

[18] This same argument was considered and rejected by André J. in his summary conviction appeal decision in R. v. Vyas, where he rejected the approach taken in Memisevic, concluding that the Memisevic decision appeared to create “a much narrower test than that enunciated” by the Ontario Court of Appeal “in Vanderbruggen and Singh.” André J. noted that, in contrast to test articulated in Memisevic, the Ontario Court of Appeal decisions “do not state that the officer had to engage only in necessary duties before making his demand.” As such, André J. concluded that the responsibility of a trial judge in assessing the “as soon as practicable” requirement is to “look at the whole chain of events” and determine whether the arresting officer acted “reasonably” in that he or she “did not give unreasonable priority” to any other task. I respectfully agree with the decision of André J. in R. v. Vyas. Moreover, the Memisevic approach to the “as soon as practicable” requirement has been rejected by the British Columbia by the Court of Appeal in favour of the Vanderbruggen approach. See R. v. Naidu; R. v. Beckler.

3. Analysis of the Present Case

[19] In concluding that the approved instrument breath samples demand by Cst. Turkot was made “as soon as practicable” the trial judge clearly applied the correct legal standard. More particularly, in his ruling on this issue, Green J. expressly stated that he was applying the “language of the Ontario Court of Appeal in the case of R. v. Vanderbruggen,” which he noted was “equally applicable” to both of the “as soon as practicable” requirements in ss. 254(3) and 258(1)(c)(ii) of the Criminal Code.

[20] There is no real factual dispute as to precisely what took place during the impugned 11 minute time period between the appellant’s arrest and the officer’s approved instrument demand for breath samples. This time period was entirely captured in an audio/video recording, and Cst. Turkot accepted that this recording accurately reflected his actions during this time period, and his interactions with the appellant. This recording revealed the following:

• At 3:40 a.m., Cst. Turkot showed the appellant the “fail” result of his approved screening device breath sample and explained to him that this result meant that he had at least 100 mgs. of alchol per 100 mls. of blood, and that he would be arrested. The appellant asked what was going to happen to his vehicle. Cst. Turkot then placed the appellant under arrest for the offence of operating a motor vehicle while having “over 80” mgs. of alcohol in 100 mls. of blood. Cst. Turkot then placed the appellant in handcuffs.

• At 3:41 a.m., Cst. Turkot asked the appellant if he was in possession of any weapons. As the appellant was answering “no,” Cst. Turkot called out to the passengers in the appellant’s stopped vehicle, telling them to get back in the vehicle. At the same time, the appellant told the passengers that he was being arrested and not to worry about the vehicle. Cst. Turkot then used his police radio to provide notification of the appellant’s arrest.

• Starting at approximately 3:42 a.m., Cst. Turkot questioned the appellant on a number of topics while conducting a pat-down search incident to the appellant’s arrest. More specifically, Cst. Turkot made inquiries of the appellant about his possession of any weapons, his driver’s licence, his name and the whereabouts of the appellant’s uncle, who owned the vehicle that the appellant had been driving. When Cst. Turkot was unable to get the appellant’s cell phone out of its clip, he sought to enlist the assistance of the appellant. While the appellant was unable to physically help the officer, due to the handcuffs, he instructed the officer on how to get it out of its clip. Cst. Turkot then removed the cell phone and placed it on the hood of the police vehicle.

• At 3:43 a.m., Cst. Turkot was still engaged in the search incident to the appellant’s arrest. Cst. Turkot also spoke to the appellant about contacting his uncle, the registered owner of the vehicle. Cst. Turkot was, at this time, placing some of the appellant’s other belongings, including his identification, on the hood of the police car and accounting for the $40 in cash found on the appellant’s person. The officer then escorted the appellant to the rear of the police cruiser.

• At approximately 3:44 a.m., Cst. Turkot asked an assisting police officer to take care of the appellant’s vehicle, and the two officers engaged in a discussion about the vehicle and how to contact the registered owner of the vehicle.

• At 3:45 a.m., Cst. Turkot collected the appellant’s belongings from the hood of the police car and put them in a plastic bag. A passenger from the appellant’s vehicle then approached the police car, and Cst. Turkot told him to leave as he could not speak to the appellant while under arrest. Cst. Turkot and the passenger then engaged in relatively brief discussion on this issue.

• At 3:46 a.m., the appellant inquired of Cst. Turkot of the whereabouts of his camera. When the officer responded that he did not have the appellant’s camera, the appellant replied that it must still be in his vehicle. The appellant then asked if his vehicle would be towed and impounded. When the officer replied affirmatively, the appellant said that was “fine.”

• At approximately 3:47 a.m. (after the audio/video recording camera switched to the rear seat of the police cruiser), and after Cst. Turkot had engaged in a further discussion on his police radio, the appellant asked Cst. Turkot where he was from. The officer did not answer that question, but told the appellant that there were some things that he wanted to read to him, and asked the appellant to pay attention. The appellant told Cst. Turkot to read whatever he wanted. Cst. Turkot then told the appellant that he was being arrested for operating a motor vehicle with “over 80” mgs. of alcohol. Cst. Turkot then began reading the appellant the informational component of his right to counsel guaranteed by s. 10(b) of the Charter of Rights. During this process, the officer made a number of efforts to ensure that the appellant was listening and paying attention to this recitation of his rights, and that he understood them. The appellant expressed his understanding of his legal rights. They also discussed the possibility of contacting counsel once they arrived at the police station, and whether the appellant wished to contact counsel and needed any assistance in so doing. This exchange between Cst. Turkot and the appellant continued until approximately 3:50 a.m.

• At 3:50 a.m., Cst. Turkot reminded the appellant of the charge he was facing, and read the appellant the standard “caution” about providing statements to a police officer. The officer explained the meaning of this caution, and the appellant indicated that he did not wish to say anything to the officer.

• At 3:51 a.m., Cst. Turkot made the formal demand that the appellant provide breath samples suitable for analysis into an approved instrument. The officer then explained to the appellant what was going to happen as a result of his arrest and that breath sample demand.

[21] After hearing all of the evidence, viewing this audio/video recording and hearing the submissions of counsel, the trial judge concluded that the approved instrument breath samples demand was made “as soon as practicable.” In his ruling, Green J. suggested that the real question was whether the delay was “explained and reasonable in all of the circumstances,” and he concluded that the delay was “both.” The trial judge stated that the events between the approved screening device “fail” and the approved instrument breath samples demand were “continuous” and included “a number of efforts to ensure” that the appellant “was advised of certain constitutional and statutory rights.” The trial judge also referred to Cst. Turkot’s effort to “brief” a “second attending officer” about ensuring that the appellant’s vehicle was towed – the vehicle and its integrity being a matter of “considerable concern” to the appellant. The trial judge also noted that during this period of “delay,” Cst. Turkot endeavoured to prevent a number of other individuals “from intruding upon or interfering with the police investigation.” Ultimately, Green J. concluded that, while Cst. Turkot could have acted with “greater dispatch” in making the breath sample demand, or could have made this demand “first on his legal check-off list,” in all of the circumstances of this case, bearing in mind the interruptions and questions by the appellant himself and the officer’s efforts to answer the appellant’s inquiries and explain “what was going on,” the delay was “not such as to offend the statutory requirement that the approved instrument demand be made as soon as practicable.”

[22] I can discern no proper basis upon which to interfere with the decision of the trial judge on this issue. Indeed, I agree with his conclusion. The trial judge articulated the correct legal standard reflected by the phrase “as soon as practicable.” The trial judge carefully examined and considered the critical evidence as to the events which took place during the 11 minute period of “delay.” There was no serious dispute between the parties (nor could there have been given the audio/video recording) as to what took place during this time period. Finally, the trial judge concluded, quite correctly in my view, that the approved instrument breath samples demand was made by Cst. Turkot “as soon as practicable” in all of the circumstances of this case. Considering the entire chain of events, Cst. Turkot acted reasonably in the circumstances, in that he made the demand within a reasonably prompt time period. See R. v. Vanderbruggen, at paras. 12‑13.

[23] I note that the trial judge’s conclusion is in accordance with prior judicial authorities on this topic. See, for example, R. v. Vyas, at paras. 13‑18 (12 minute delay in demand was considered as soon as practicable); R. v. Jaspal (22 minute delay in demand was considered as soon as practicable); R. v. Squires (59 minute delay in demand was considered as soon as practicable); R. v. Reid (80 minute delay in demand was considered as soon as practicable).

[24] Finally, I note in passing that the precise nature of the governing standard of review concerning the application of the “as soon as practicable” requirement is really of no practical consequence in the present case, because I agree entirely with the conclusion of the trial judge on this issue. In other words, even if I were to apply a pure correctness standard on review, I would still dismiss the appeal as I have concluded that the trial judge reached the correct conclusion in finding that Cst. Turkot made the approved instrument breath samples demand “as soon as practicable” in all of the circumstances of this case.

D. Conclusion

[25] In the result, the appeal must be dismissed. An order shall issue accordingly.

Kenneth L. Campbell J.

Released: September 14, 2015