R. v. Corbin, 2017 ONSC 5274
CITATION: R. v. Corbin, 2017 ONSC 5274
COURT FILE NO.: 15-A13133 (Ottawa)
DATE: 20170919
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Respondent
– and –
David Corbin
Appellant
COUNSEL:
Moiz M. Karimjee, for the Respondent
Michael A. Johnston and Matthew B. Day, for the Appellant
HEARD: August 30, 2017 (Ottawa)
REASONS FOR JUDGMENT
ASTON J.
[1] This summary conviction appeal by Mr. Corbin challenges the determination of three issues:
whether the “immediacy requirement” stemming from the word “forthwith” in s. 254(2)(b) of the Criminal Code was met;
whether the police violated the appellant’s s. 10(b) Charter right to consult counsel at the roadside; and
if there was a breach of s. 254(2)(b) or the Charter rights of the appellant, whether his breath samples should be excluded from evidence under s. 24(2) of the Charter.
[2] Section 254(2) of the Criminal Code reads as follows:
If a peace officer has reasonable grounds to suspect that a person has alcohol…in their body and that the person has, within the preceding three hours, operated a motor vehicle…the peace officer may, by demand, require the person…(b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace office for that purpose.
[3] Section 10(b) of the Charter provides that every person “has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right”.
Standard of Review
[4] The appellant does not take issue with any of the facts as found by the trial judge.
[5] The question of whether the immediacy requirement in s. 254(2)(b) had been satisfied is grounded in the factual findings of the trial judge. The issue of whether those facts satisfy the timeliness test is a question of law. The application of a legal standard to the facts is a question of law. Although the trial judge’s findings of fact are entitled to deference, the trial judge’s ultimate ruling (that the immediacy requirement was met) is subject to review for correctness.
[6] The question of whether Mr. Corbin’s s. 10(b) Charter right was infringed is also reviewable on a correctness standard, dependent on identifying an error of law.
Was the “immediacy requirement” in s. 254(2)(b) of the Criminal Code met?
[7] On the issue of the immediacy requirement in s. 254(2)(b) of the Code, the trial judge correctly articulated the legal test[^1]. However the appellant contends that the trial judge erred in law in her application of that test when she determined that the 12 or 19 minute delay attributable to the involvement of the transit officer constituted “an unusual set of circumstances”, requiring or permitting a more flexible interpretation of the word “forthwith” in s. 254(2)(b).
[8] The one fact that may distinguish this case from the many the others cited is the involvement of the transit officer, a Special Constable. These officers have the power to detain a motorist, but because of protocol, resources and training they do not make the s. 254(2) demand. Instead they call the Ottawa Police Service. It dispatches a regular officer to the scene. Though there is usually a prompt response (in this case 12 minutes) there will always be some delay.
[9] The appellant characterizes this as a systemic breach of Charter rights, rather than merely an infringement by an individual peace officer. The appellant contends that the effect of the decision below is to exempt OC Transpo Special Constables from compliance with sections 8, 9 and 10(b) of the Charter. He submits that any and every detention by transit officers based on a suspicion of impaired driving on transitway property violates the Charter rights of the detainee because those Special Constables never make an ASD demand.
[10] This submission, that there is a systemic denial of Charter rights based on the training and policy constraints of special constables, was not specifically referenced in the written application at trial to exclude the subsequent breathalyzer evidence and was only briefly alluded to in passing in the oral submissions at trial. It is therefore not surprising that the trial judge’s reasons do not explicitly address this aspect of the issue. However, the findings of fact by the trial judge, which are not contentious on this appeal, allow me to consider the point rather than remitting it back to the trial judge.
[11] The characterization or label of “unusual circumstances” is a condition precedent to an expansive or flexible interpretation of the word “forthwith”. A delay may be justified in the circumstances of a particular case. The most common example is that the detaining officer does not have an ASD on hand. There is no requirement that the officer detaining the motorist administer the ASD test. A second officer subsequently attending the scene, who forms the requisite belief that the motorist has alcohol in his or her body may make the demand and administer the test.
[12] The word “unusual” does not mean strange or statistically rare. In the context of the jurisprudence it simply means these are circumstances that can be characterized as exceptional or out of the ordinary. For example, it is probably not uncommon that a detained motorist has consumed alcohol within the last 15 minutes. In R. v. Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 S.C.R. 254, the Supreme Court of Canada held that recent consumption of alcohol justified a 15 minute delay for the ASD sample demand, during which time the detained motorist was not entitled to exercise his s. 10(b) Charter right.
[13] In this case, the transit officer detained Mr Corbin at 9:00 p.m. and immediately advised him he was being detained for investigation of impaired driving. The transit officer read the detention caution from his notebook but did not make a formal demand for an ASD breath sample. He called the Ottawa Police Service. Officer Gunsolus was dispatched at 9:07 and arrived at 9:12. He spoke to both the transit officer and Mr. Corbin. At 9:14 he formed the requisite reasonable suspicion Mr. Corbin had alcohol in his body but continued to ask questions because there were no obvious signs of impairment other than the smell of alcohol. At 9:17 Officer Gunsolus made the formal ASD demand. The test was completed by 9:19.
[14] The trial judge found it was “reasonably necessary” for Ottawa Police Service Constable Gunsolus to conduct his own independent inquiry, which took five minutes, between 9:12 and 9:17. There is no legal error in holding that the second officer on the scene, the one in possession of the ASD, is entitled to conduct an independent assessment of whether an ASD demand is warranted. However, the time in this case surely starts to run from the detention at 9:00. The delay attributable to the involvement of the Special Constable is the additional 12 minutes from 9:00 to 9:12.
[15] The trial judge found that a transit officer’s inability to ever administer an ASD test forthwith was, in and of itself, an “unusual circumstance”. Clearly it is.
[16] However, the real issue is whether the inevitable delay occasioned by the involvement of a transit officer can ever be considered “reasonably necessary” for the two officers to discharge their duty under s. 254(2). It is not an error of law to accept that possibility.
[17] The delay to await the arrival of the ASD (12 minutes) was found to be reasonably necessary delay by the trial judge. There is no evidence that the delay would have been any different if the detaining officer had instead been an Ottawa Police Service officer who did not have an ASD device on hand. That conclusion does not mean that the delay resulting from the involvement of a transit office is always permissible. The ultimate question is whether the delay attributable to the availability of the device, and of a person trained to use it, exceeds what is reasonably necessary. The trial judge did not just focus on the 12 minute delay from 9:00 to 9:12. She correctly considered the entire 19 minute delay. The trial judge’s conclusion that the 19 minute delay in this particular case was no more than was reasonably necessary for the two officers to discharge their duty under s. 254(2) is not an error of law.
[18] In coming to that conclusion the trial judge also considered s. 10(b) of the Charter. The trial judge took into account that the particular transit officer was ignorant of the obligation to advise a detained motorist of the right to consult counsel and of the duty to give reasonable assistance in facilitating that consultation. However, she found as a fact that this was of no consequence because Mr. Corbin had no realistic opportunity to exercise his right to consult counsel from the roadside and probably would not have done so even if properly advised of that right. It was open to the trial judge to reach that factual conclusion on the evidence she cited.
[19] In this case, the trial judge remained focused on the essence of the immediacy requirement – whether the delay of 12 to 19 minutes was “reasonably necessary” in the circumstances of the particular case to allow the two officers to properly discharge their duty to the public and to the appellant. Her findings of fact support the ultimate conclusion that it was “reasonably necessary” for the appellant to be detained by the transit officer from 9:00 to 9:12 and that it was also “entirely appropriate and reasonable” for Constable Gunsolus to conduct his own investigation between 9:12 and 9:19 before he made the demand, secured the ASD breath sample and arrested Mr. Corbin.
[20] I reject the submission that the conclusions of the trial judge effectively exempt all OC Transpo Constables from compliance with the Charter rights of those they detain for suspected impaired driving on OC Transpo property. This case does not establish any blanket exemption. On different findings of fact the breath sample evidence might well be excluded.
[21] For example, a factual finding that the detained motorist could have exercised the right to consult counsel at roadside if properly advised of that right by the transit officer would dictate a determination that the immediacy requirement was not met. In R. v. George (2004), 2004 CanLII 6210 (ON CA), 187 C.C.C. (3rd) 289 (C.A.), the Court of Appeal held that where the demand was made but the officer had to wait 16 minutes for the ASD to arrive, the demand was not made “forthwith” because on the facts of that case the detainee was deprived of the opportunity to consult counsel while waiting. The police failed to provide the motorist with a realistic opportunity to consult counsel during the time between the issuance of the demand and the arrival of the device. The officer had to take reasonable steps to facilitate the motorist’s access to counsel having regard to the availability of a cell phone or pay phone in the vicinity. However, in the present case the trial judge found as a fact that not only did Mr. Corbin have insufficient time to consult counsel from the roadside but he would not have chosen to do so in any event.
[22] Similarly, a finding of an inordinate or unnecessary delay in the s. 254(2) demand or a lengthy delay in the availability of the device might mean the immediacy requirement fails. In R. v. Grant it took 30 minutes for the device to arrive and the court concluded that a delay of that magnitude constituted a breach of the motorist’s Charter rights.
Did police violate the appellant’s s. 10(b) Charter right to consult counsel?
[23] R. v. Torsney, 2007 ONCA 67, [2007] O.J. No. 355 (C.A.) confirms that a “realistic opportunity to consult with counsel” is not to be confused with the mere chance to place a call to a lawyer.
[24] In R. v. Thomson, 1988 CanLII 73 (SCC), [1988] 1 S.C.R. 640 the Supreme Court of Canada determined that it is a reasonable limit on the s. 10(b) Charter right to consult counsel for a motorist to be required to supply a breath sample without being afforded that opportunity.
[25] The Special Constable in this case was unaware of the need to advise Mr. Corbin on detention of his right to consult counsel. The officer understood that such advice was only required if an arrest was actually made. His understanding was wrong but the issue is whether his resulting failure to give that advice breached Mr. Corbin’s s. 8 or s. 10(b) Charter right.
[26] I do not accept the appellant’s submission that the trial judge’s findings are speculative. The trial judge cited the evidence she relied on to conclude as a question of fact that Mr. Corbin did not have a realistic opportunity to consult counsel in the time he was detained at roadside. There was also evidence to support her conclusion he would not have availed himself of that opportunity even if it had been accorded to him.
[27] On the facts as found police did not breach Mr. Corbin’s s. 10(b) Charter right.
Disposition
[28] The trial judge did not err in concluding that the “immediacy requirement” in s. 254(2)(b) of the Criminal Code was met and that police did not breach the appellant’s s. 10(b) Charter right to consult counsel from the roadside. It is not necessary to consider s. 24(2) of the Charter.
[29] The appeal is dismissed.
“Justice D.R. Aston”
Justice D. R. Aston
Released: September 19, 2017
CITATION: Her Majesty the Queen v. Corbin, 2017 ONSC 5274
COURT FILE NO.: 15-A13133 (Ottawa)
DATE: 20170919
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Respondent
– and –
David Corbin
Appellant
REASONS FOR JUDGMENT
Aston J.
Released: September 19, 2017
[^1]: Page 15 line 19 to page 19 line 4 of the transcript of her oral Reasons for Judgment.