COURT FILE NO.: SCA 9083 DATE: 2018-10-15

ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HER MAJESTY THE QUEEN M. Michaud, for the Appellant

- and -

JOHN SOULE B. Smart, for the Respondent

Heard: May 17, 2018, followed by written submissions Before: The Honourable Justice C.D. Braid

Reasons on Appeal

On appeal from the decision of May 1, 2017 (supplemented by written reasons of June 12, 2017) by Justice C.A. Parry of the Ontario Court of Justice, 2017 ONCJ 379.

I. Overview

[1] A police officer stopped John Soule and made a roadside breath demand. The officer asked Mr. Soule if he wanted to call a lawyer. The roadside screening device arrived six minutes after the demand, and the officer did not give Mr. Soule an opportunity to call a lawyer. Mr. Soule refused to provide a sample of his breath and was charged with refusing to comply with a demand to provide a sample of his breath into an approved screening device (ASD).

[2] The trial judge held that the officer breached Mr. Soule’s right to retain and instruct counsel by failing to advise him completely of that right and by failing to hold off eliciting further evidence until Mr. Soule was able to exercise that right. Mr. Soule was acquitted. The Crown now appeals.

[3] The correctness of the trial judge’s finding of a Charter breach must be analyzed by considering the following issues:

A. Was the demand made “forthwith”? B. Did the actions of the officer suspend the suspension of 10(b) rights?

[4] For the reasons set out below, I allow the appeal.

II. Facts

[5] The trial judge’s finding of fact are not in dispute.

[6] Shortly after midnight on September 22, 2016, Constable Gill conducted a traffic stop of a vehicle that was being driven by John Soule, the respondent. The officer observed the respondent to have glassy eyes and the odour of alcohol emanating from his breath.

[7] Cst. Gill formed a suspicion that the respondent was driving with alcohol in his body and decided to administer an ASD test. He called over the radio to request an ASD. Cst. McKenna advised that he would be en route to the location with an ASD. Cst. Gill does not recall what Cst. McKenna said about his location or estimated time of arrival. Cst. Gill did not turn his mind to the location of any particular device, nor did he turn his mind to the questions to determine the length of any potential delay.

[8] Cst. Gill read the ASD demand to the respondent. The officer then asked if the respondent wished to speak to a lawyer and if he had a lawyer to speak to. He did not read the full rights to counsel and caution.

[9] The respondent stated that he could contact his parents to get the phone number of a lawyer. He immediately was on his phone and appeared to be looking to obtain the contact information for the lawyer.

[10] The respondent stopped looking at his phone and asked if the officer still needed his insurance slip that had been previously requested. The officer answered in the affirmative, at which point the respondent stopped what he was doing with his phone, went to his vehicle, and located an outdated insurance slip. There was a discussion about the validity of the insurance.

[11] Six minutes after the vehicle stop and during that discussion, Cst. McKenna arrived with the ASD. Cst. Gill explained and demonstrated how the device worked. He spoke to the respondent for approximately three minutes, during which Cst. Gill repeated the same request and discussion of the consequences a number of times. The respondent refused to provide a sample.

III. Reasons of the Trial Judge

[12] The trial judge held:

i. The officer did not know when the device might arrive, while simultaneously asserting he thought the device would arrive relatively promptly, which are contradictory. He asked the respondent if he wanted to speak to a lawyer, which shows that the officer subjectively believed that the delay in the arrival of the device might be sufficient to allow the respondent a reasonable opportunity to speak to his lawyer. This was a reasonable conclusion to reach. [Emphasis added]

ii. Since the officer believed there was a meaningful chance for the respondent to speak to counsel before the arrival of the device, he was obliged to comply with the informational component of section 10(b) and to take steps to facilitate the exercise of that right.

iii. The officer improperly provided the informational component and thus failed to fully inform the respondent of his rights to counsel.

iv. The suspension of the right to counsel by operation of section 254(2) of the Criminal Code was in and of itself suspended by the conduct of the officer. Upon arrest or detention, an accused has a right to counsel. An officer has, when sufficient grounds arise, the discretion to invoke the power granted by section 254(2) to suspend that right for the purpose of complying with the forthwith requirement of the breath demand.

v. When the officer formed a reasonably held belief that the device might not arrive in sufficient time for the statutorily imposed suspension of the right to counsel to remain in effect, he effectively decided to suspend his reliance upon the authority of section 254(2) and the corresponding implicit suspension of the right to counsel.

vi. The officer used his discretion to advise the respondent of his right to counsel and to provide an opportunity to contact counsel. Once that fatal decision was made, the officer had a duty to hold off from eliciting further evidence and was estopped from re-invoking the suspension of the right to counsel that is otherwise authorized by section 254(2) of the Code.

vii. The time involved in allowing a reasonable opportunity to contact counsel is a necessary investigative function that impacts upon the assessment of whether the police sought compliance with the demand “forthwith”. The time involved in the consultation with counsel in the circumstances of a case like this should not detract from any assertion that the demand was made forthwith. This would be considered a delay that is no more than is reasonably necessary for an officer to discharge his or her duty properly.

viii. There was a breach of the right to counsel, which made the continuing demand for the breath sample following that breach unlawful, which made the refusal to provide a sample not an offence.

ix. If the crown’s argument were to succeed, an officer may be encouraged to breach a right to counsel that they reasonably believe exists (because of the anticipated late arrival of the ASD) in the hopes that, contrary to expectations, the device arrives earlier than anticipated.

x. In retrospect, we know the device arrived in such a short time that it is likely that the respondent could not complete a meaningful consultation with counsel. However, the officer did not know or believe that at the time he brought up the subject of speaking to a lawyer. [Emphasis added].

IV. Analysis

A. Was The Demand Made “Forthwith”?

[13] When a person is detained, section 10(b) of the Charter requires the officer to inform the detainee of his or her rights to retain and instruct counsel without delay, and provide the detainee with an opportunity to exercise those rights. However, the right to counsel is not absolute and is subject to reasonable limits prescribed by law. One of the reasonable limits is a valid ASD demand made pursuant to section 254(2) of the Criminal Code: see R. v. Thomsen, [1988] 1 S.C.R. 640.

[14] Once the officer makes a valid ASD demand, a person’s right to counsel is suspended. Section 254(2) requires that the roadside screening be administered “forthwith”. Although a motorist is detained when a roadside demand is made, there is no right to counsel before giving the breath sample since the section itself requires that the sample be provided forthwith. This legislation is a reasonable limit which is saved under section 1 of the Charter: see R. v. Thomsen.

[15] Section 254(2)(b) is a reasonable limit because of the “forthwith” requirement. This addresses the issues of unreasonable search and seizure, arbitrary detention, and infringement of the right to counsel that arise during the roadside breath screening process. Absent the forthwith requirement, section 254(2)(b) would not be constitutionally valid: see R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205.

[16] In the context of the roadside breath screening process, the boundaries within which Charter rights are justifiably infringed have been described as the “forthwith window”. It is the period in which the detained person can be required to respond to a valid ASD demand by providing a sample, or by failing or refusing to provide a suitable sample. During that window of time, the detainee can incur criminal liability by failing or refusing to provide a sample, unaffected by the Charter: see R. v. Degiorgio, 2011 ONCA 527, 279 O.A.C. 386.

[17] To determine whether the demand occurred within the “forthwith window”, the court must consider all the circumstances and then answer the following question: was there a realistic opportunity for the detainee to contact, seek, and receive legal advice, before being confronted with the ASD? The detainee’s rights will remain suspended if the time between the breath demand and the arrival of the screening device is insufficient to permit a reasonable opportunity to contact and consult with counsel: see R. v. Torsney, 2007 ONCA 67, 221 O.A.C. 191.

[18] The determination of the “forthwith window” does not strictly involve the application of the Charter. However, the interrelationship between ASD demand and the suspension of Charter rights within the “forthwith window” often results in courts addressing the question as a Charter issue. For example, the Supreme Court of Canada held that, if the sample was provided or failure or refusal occurred within the forthwith window while the rights are suspended, there is no Charter analysis because the accused's 10(b) rights are not engaged. If the demand occurred outside the window, there must be a Charter analysis because the rights are not suspended: see R. v. Grant, [1991] 3 S.C.R. 139.

[19] Whether a “realistic opportunity to consult counsel” exists is a question of fact to be determined considering all the circumstances in the case: see R. v. Latour, (1997), 34 O.R. (3d) 150 (C.A.); and R. v. Quansah, 2012 ONCA 123, 287 O.A.C. 383.

[20] In this case, the trial judge found that there would not have been a reasonable opportunity for the respondent to contact and consult with counsel. Had the officer not informed the respondent of the right to counsel, there is little question that this would have been a demand that was made forthwith.

[21] The trial judge found that the officer subjectively believed that the delay in the arrival of the device might be sufficient to allow the respondent a reasonable opportunity to speak to his lawyer. He held that, if an officer subjectively believes that the delay will be sufficient to require consultation with counsel while one awaits the arrival of an ASD device, provided that belief is objectively reasonable, then the officer has a stated belief that triggers a requirement for that officer to begin compliance with section 10(b) of the Charter. In my view, the trial judge incorrectly equated the mere chance to place a call to a lawyer with the concept of a “realistic opportunity to consult with counsel.”

[22] I find that the trial judge placed undue emphasis on the officer’s subjective state of mind. In doing so, he failed to properly consider all the relevant circumstances when determining whether the roadside breath test had been administered forthwith. Examination of all the circumstances is not limited to what the officer knew at the time of the demand.

[23] Parliament does not require the officer have a reasonable basis to believe that he is in a position to require that the sample be provided during the requisite time period. The failure of an officer to know the precise arrival time of an ASD does not invalidate the demand or trigger 10(b) rights where none existed. Whether or not the officer knew when the device would arrive is of no consequence if the device arrived within the forthwith window: see R. v. Latour; and R. v. Montenegro [2018] O.J. No. 4043 (S.C.).

[24] The trial judge relied on the Ontario Court of Appeal decision in R. v. George (2004), 189 O.A.C. 161 (C.A.), for the proposition that the officer’s subjective belief should be considered as part of all the circumstances. He found that, since the officer believed there was a meaningful chance for the respondent to speak to counsel before the arrival of the device, he was obliged to comply with the informational and implementational components of section 10(b).

[25] In George, the court considered both the officer’s subjective belief regarding when the device would arrive and the actual time that expired before it arrived. The officer was aware that there would likely be a delay of 15 to 20 minutes before the screening device arrived, and there was an actual delay of 16 minutes after the demand. The court found that, in the face of the actual knowledge of the amount of time it would take, the officer should have taken reasonable steps to facilitate the detainee’s right to consult counsel.

[26] The reasons in George recognize that the officer’s subjective belief can be part of the totality of the circumstances. They do not stand for the proposition that the officer’s subjective belief is the deciding factor in determining whether the demand is made within the forthwith window.

[27] The trial judge also relied on the decision in R. v. Belecque, [1989] O.J. No. 3073 (Dist. Ct.) for the proposition that, once the officer asked the respondent about counsel, he was required to take additional steps to protect his rights to counsel. In Belecque, the Ontario District Court held that once an officer informed the accused of his option to consult counsel, the accused had the right to be given a reasonable opportunity to consult with counsel before submitting to the roadside screening demand. The court in Belecque found that there was no obligation to provide rights to counsel, but there was a right to refuse the breath demand once the offer was extended. In my view, the reasoning in Belecque has been overturned by the Ontario Court of Appeal in Latour and Torsney.

[28] I agree with and adopt the reasoning in the recent summary conviction appeal decision of Montenegro. In that case, the court found that, since there was no realistic opportunity to consult counsel, there was no legal requirement on the officer to provide rights to counsel. The court confirmed that the totality of the circumstances must be considered. However, since there was no realistic opportunity to consult with counsel before administering the ASD, the steps or lack of steps taken by the officer to facilitate that consultation are of no consequence. In addition, the officer was not required to “hold off” administering the ASD to facilitate consultation with counsel.

[29] In this case, the trial judge suggested that ignoring the officer’s subjective belief would encourage an officer to breach a right to counsel that he reasonably believes exists, in the hopes that the device will arrive within a shorter period of time. However, the Ontario Court of Appeal in Latour specifically rejected this line of reasoning.

[30] If an officer is in a position to require the detainee to provide the sample before there is a realistic opportunity to consult counsel, then the statutory requirements are met. Even if an officer expects a lengthy delay before the screening device arrives, there is no Charter violation when the officer fails to accommodate the right to roadside consultation if the device happens to show up promptly. There can be no breach of 10(b) unless the failure by the police to take reasonable steps to facilitate the right to counsel in fact deprives the accused of a realistic opportunity to consult counsel. The fact that the officer did not accurately predict the arrival of the unit cannot change that: see Latour.

[31] Section 254(2)(b) simply requires that, before making the demand, the officer must reasonably suspect that a person who is operating a motor vehicle has alcohol in his body. If the officer forms that suspicion, he may make a demand that the person provide “forthwith” a sample of breath for analysis in an ASD. The officer who makes such a demand is under a duty to act upon it within the statutory limits. If, as the events actually unfold, the officer is in a position to require the person to provide the sample before there is any realistic opportunity to consult counsel, the statutory requirements are met. The detained person has no cause for complaint as the events will have unfolded in accordance with the legislative scheme and within its constitutional boundaries. There is no sound policy reason for requiring that the statutory requirements be met by design rather than by chance: see Latour.

[32] In this case, the trial judge erred in placing too much weight on the officer’s subjective belief. The trial judge’s finding that there was no realistic opportunity to consult counsel was determinative of the forthwith issue. The demand was made forthwith.

B. Did the Actions of the Officer Suspend the Suspension of 10(b) Rights?

[33] The trial judge held that the officer’s conduct in and of itself suspended the suspension of the right to counsel by the operation of section 254(2). Once the officer told the respondent that he could call counsel, he was duty-bound to provide the full informational requirements, facilitate contact with counsel, and hold off eliciting evidence. The trial found that the failure to do so amounted to a breach of the respondent’s rights.

[34] In my view, the conduct of the officer cannot create a right that does not otherwise exist. Since the demand was made within the forthwith window, the steps or lack of steps taken by the officer to facilitate that consultation are of no consequence to this appeal. Nor was the officer required to “hold off” administering the screening device to allow for consultation with counsel.

[35] Where the breath test can be performed forthwith, the accused does not have a right to delay the test to consult a lawyer. The only issue of substance is whether the officer was in a position to require the respondent provide a breath sample forthwith, i.e., before there was any realistic opportunity for him to consult counsel: see Torsney; and Latour.

[36] Cst. Gill advised the respondent of his right to counsel when the officer was not required to do so, and at a time when the respondent had no right to counsel. There cannot be a breach of an alleged right which did not exist in the first place. The gratuitous and unnecessary giving of rights to counsel cannot give rise to a Charter right which does not otherwise exist: see R. v. Hanley, 2012 ONCJ 667; aff’d R. v. Hanley, [2013] O.J. No. 6693 (S.C.).

[37] Police officers do not confer rights. Rights arise from the operation of the Charter. Charter rights are not grounded in an officer's subjective belief, but are triggered by the specific circumstances in any given case: see Montenegro; and Hanley.

[38] The trial judge recognized that his reasoning conflicted with higher court decisions, including Hanley. He attempted to distinguish those decisions by stating they were “over 80 cases” not “refusal cases”. However, I fail to see the distinction when addressing whether there was a section 10(b) breach. The right to counsel and the suspension of those rights by virtue of section 254(2) is the same no matter what type of charge is subsequently laid.

[39] I agree with and adopt the reasoning of Hearn J. in Hanley. In cases where there is a refusal, the inquiry is no different than in an over 80 case. If an accused refuses to comply with the demand while the “forthwith window” is operative (that is, there is no realistic opportunity to consult with counsel), the offence is complete, and the accused can be convicted. However, if the refusal occurs after the “forthwith window” has passed (in other words, there was a realistic opportunity for consultation with counsel), an accused is entitled to refuse the demand, at least where the accused has not been advised of his or her rights to counsel or given a reasonable opportunity to exercise them.

[40] It is settled law that a police officer must administer the ASD test once he is in a position to do so, subject to very narrow exceptions. Waiting to contact counsel is not a lawful reason to delay administering the device when an officer is in a position to administer the test. Had the officer held off to permit consultation with counsel, the respondent would have been within his rights to refuse to provide the sample as it would no longer be “forthwith”.

[41] The trial judge found that the time involved in allowing a reasonable opportunity to contact counsel is a necessary investigative function that impacts upon the assessment of whether the police sought compliance with the demand “forthwith”. This statement runs contrary to settled law. While “forthwith” may be interpreted with some flexibility, this should only be done in unusual circumstances such as those involving the “exigencies of the use of the equipment”: see Woods; and Quansah.

[42] The trial judge erred when he concluded that the suspension of the right to counsel by operation of section 254(2) was in and of itself suspended by the officer’s conduct. The respondent’s right to counsel was suspended and could not be breached. The trial judge’s finding of a Charter breach amounts to an error in law.

[43] Therefore, the acquittal must be set aside. This matter must be remitted back to the Ontario Court of Justice for trial, as the Charter issue does not resolve the matter.

V. Conclusion

[44] For these reasons, the appeal is allowed and a new trial is ordered.

[45] This matter shall be remitted back to the Ontario Court of Justice for trial on the single count of refusing to provide a sample into an approved screening device, contrary to section 254(5) of the Criminal Code of Canada. The respondent is required to appear in the Ontario Court of Justice on Friday, November 2, 2018, at 9am at the Waterloo Region Courthouse, Courtroom 106, to set a new trial date.

Braid, J. Released: October 15, 2018