COURT FILE NO.: 148/18
DATE: 2019 04 24
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL
BETWEEN:
HER MAJESTY THE QUEEN
– and –
BRADLEY WADE
Respondent
Arish Khoorshed, for the Crown
Lauren Wilhelm, for the Respondent
HEARD: April 24, 2019
REASONS FOR JUDGMENT
CONLAN J.
I. Introduction
[1] This is a Summary Conviction Appeal brought by the Crown.
The Proceeding in the Ontario Court of Justice
[2] In the Ontario Court of Justice sitting in Milton, on May 10, 2018, Bradley Wade (“Wade”) was tried on a single charge, namely, that he “did without reasonable excuse fail to comply with the demand made to him by a police officer, under section 254(2) of the Criminal Code, to provide forthwith a sample of his breath…contrary to section 254(5) of the Criminal Code”.
[3] The alleged offence date was December 26, 2016. The alleged offence place was Burlington. The breath sample demand that Wade allegedly failed to comply with was for a roadside test for screening purposes.
[4] At trial, the Defence had brought a Charter Application under sections 8, 9, and 10(b). It was the barest of bones, seeking the exclusion of evidence under section 24(2) due to there being, allegedly, no reasonable suspicion for the police to investigate Wade, and an unlawful breath demand, which unlawful breath demand resulted in an arbitrary detention and a violation of Wade’s right to counsel.
[5] In the lower Court, a blended hearing was conducted, on consent of both sides. The Crown called one witness, Constable Sebastian Delcastillo (“Delcastillo”). The Defence called no evidence.
[6] All on May 10th, after the evidence had concluded and after dismissing a non-suit Application brought by the Defence, the Court heard submissions by both sides on all of the Charter and the trial proper issues. The Court ran out of time that day, and the case was adjourned to September 7, 2018 to complete the submissions by counsel.
[7] That was done, and immediately thereafter an oral judgment was delivered on September 7th. The Reasons for Judgment comprise three pages of transcript, interrupted by a discussion between the Court and Defence counsel.
[8] The learned trial Judge held as follows:
(i) “that does not excuse, when he [Delcastillo] first went up to the car after forming his reasonable suspicion, from making that formal demand. He was required to do that to comply with the section and he did not” (page 33, September 7 transcript);
(ii) “[o]f greater concern is also page 26 in the cross-examination [of Delcastillo], the answer that starts at line 13: The time I arrested him [Wade], then I searched him incident to arrest and then placed him in the back of the vehicle and then I started reading the demand as soon as I got on the driver’s seat of my vehicle” (same reference); and
(iii) “I hear the Crown. They are saying this is superfluous, but in all contexts it is not. He [Delcastillo] is confused about the requirement to read the formal demand right after he has formed his reasonable suspicion and especially since he’s got the ASD [approved screening device] right with him. These sections are very, very technical. And for those reasons there is going to be an acquittal” (same reference).
[9] The above is an exhaustive outline of the trial Court’s pathway to acquittal. It appears that the Charter Application was dismissed but that Wade was found not guilty on the merits of the charge in that the roadside breath demand was not made forthwith.
[10] As one can see, item (ii) above, although I have included that reference for the sake of completeness, cannot be relevant to whether the roadside breath demand was valid. I have reviewed the trial transcript from May 10th. There is no such reference at page 26. I did find the said reference at page 41, however, it clearly refers to something that occurred after the arrest of Wade at 9:36 p.m. It has nothing to do with the roadside breath demand.
[11] I reject the attempt by Ms. Wilhelm to make sense of the learned trial Judge’s reference to item (ii) above at page 33 of the September 7 transcript. It was argued before this Court that the said reference was perhaps a way to illustrate the police officer’s confusion about his duties. I do not see it.
[12] Thus, in my view, the reasons for the acquittal boil down to items (i) and (iii) above.
The Facts
[13] To fully appreciate the case, a few additional facts are necessary. None of these is disputed.
[14] On December 26, 2016, the police were conducting a R.I.D.E. spot check. Wade’s motor vehicle tried to avoid the check point and was stopped. He immediately exited his vehicle and told the police that he was fine.
[15] Delcastillo observed Wade to have red eyes and a faint odour of alcohol on his breath. The learned trial Judge found that the reasonable suspicion test had been met.
[16] Now back inside his vehicle, Wade was asked to step out and come to the police car as Delcastillo stated to Wade that an approved screening device test would be administered. The equipment for that test was inside Delcastillo’s police vehicle.
[17] After some delay, a maximum of eight minutes, further explained below, at 9:33 p.m., with Wade inside the police car, Delcastillo read to him the formal breath demand for the roadside test. Wade outright refused to provide a sample and was arrested for that refusal.
The Appeal
[18] The Crown advances two grounds of appeal.
[19] First, that the learned trial Judge erred in finding that Delcastillo did not make a roadside breath demand forthwith. As explained further below, there is a difficulty with that argument, but the difficulty actually runs in favour of Wade. The Crown appears to be conceding that the roadside breath demand must be made forthwith; that, however, is not the law.
[20] Second, that the learned trial Judge erred in finding that any delay in making the said demand rendered it invalid.
[21] The primary remedy sought by the Crown is the registration of a conviction and for the sentencing of Wade to occur in the Superior Court of Justice. Alternatively, a new trial is requested.
Wade’s Response
[22] Counsel for Wade asserts that this is nothing but the Crown’s attempt to re-litigate matters of fact that were decided by the lower Court and which are entitled to deference.
[23] Specifically, there is no reason to disturb the learned trial Judge’s finding of fact that the roadside screening device breath demand was made by Delcastillo at 9:33 p.m. on the date in question. Further, there is equally no reason to disturb the learned trial Judge’s finding of fact that Delcastillo formed his reasonable suspicion that Wade had alcohol in his body within one or two minutes past 9:25 p.m., or at the latest at about 9:29 p.m.
[24] If those factual findings remain undisturbed, the Defence argues that the learned trial Judge was correct in holding that the demand was not made forthwith and was, thus, invalid. It followed that Wade was rightfully acquitted of the charge.
[25] Again, the Defence mischaracterizes the law regarding the timing of the roadside breath demand. More is said about that below.
The Standard of Review and the Basic Legal Principles
[26] Under section 686(1)(a) of the Criminal Code, there are three discrete bases for this Appeal to be allowed: (i) the verdict is unreasonable or cannot be supported by the evidence, (ii) there was a wrong decision made on a question of law, and/or (iii) there was a miscarriage of justice.
[27] The burden is on the Appellant, the Crown.
[28] Factual findings made by the learned trial Judge are entitled to deference, absent palpable and overriding error. It is not the role of this Court to substitute its own views of the evidence. R. v. Sheahan, 2017 ONCA 159, at paragraph 12. After all, an appeal is not a retrial. R. v. Doyle, [2006] O.J. No. 315 (C.A.), at paragraph 6.
II. Analysis
[29] For the reasons that follow, the Crown’s Appeal must be allowed.
[30] There is a common misconception about to what the word “forthwith” refers in subsection 254(2)(b) of the Criminal Code. The word “forthwith” refers not to (i) the timing of the demand made by the police officer to the suspect but rather to (ii) the roadside sample of breath given by the suspect after the demand is made by the police officer.
[31] There is a difference between those two things. The obligation on the part of the police officer is to make the demand promptly after forming his or her reasonable suspicion. The obligation on the part of the suspect is to then provide an immediate response. R. v. Woods, 2005 SCC 42, [2005] S.C.J. No. 42, at paragraph 44.
[32] Ms. Wilhelm, in able submissions, took this Court to paragraphs 25 and 26 of the decision of the Court of Appeal for Ontario in R. v. Quansah, 2012 ONCA 123, [2012] O.J. No. 779.
[33] With respect, there is nothing in that decision which departs from Woods, supra. Although it is true that there is an implied requirement that the police officer make the roadside breath demand as soon as he or she forms the reasonable suspicion that the driver has alcohol in his or her body, the law is that the demand shall be a prompt one while the response from the suspect shall be immediate or forthwith (paragraph 26 of Quansah, supra, with reference to Woods, supra).
[34] This makes common sense. It is not simply a matter of semantics. The reason why the demand must be made promptly, rather than immediately, is that the totality of the circumstances at the roadside must be taken into account. The same consideration does not apply to the timing of the suspect’s response.
[35] Here, at its very highest, the delay between the forming of the reasonable suspicion (no earlier than 9:25 p.m.) and the making of the breath demand (no later than 9:33 p.m.) was eight (8) minutes.
[36] There is no dispute that, during those eight minutes, if it really was as long as eight minutes, Wade was belligerent. He declined to exit his vehicle at the request of Delcastillo. He rolled up his window and looked like he was trying to make a telephone call. He was angry. He was aggressive. In fact, the learned trial Judge berated him for his rude and difficult behavior at the roadside (pages 33-34 of the September 7 transcript).
[37] There is no dispute that, during those eight minutes, if it really was as long as eight minutes, Delcastillo was awaiting the arrival of a back-up officer given the concerning presentation of Wade on scene.
[38] In my view, the learned trial Judge erred in law in holding that Delcastillo was required to make the demand “when he first went up to the car after forming his reasonable suspicion”, as that suggests that the officer had a duty in law to make the demand immediately (or “forthwith”). With respect, that is not the law today, nor was it the law then.
[39] That error in law infused the learned trial Judge’s finding that the breath demand was invalid, which in turn led directly to the acquittal.
[40] Even if the learned trial Judge was correct in holding that Delcastillo ought to have demanded the breath sample immediately, surely the overall context justified a maximum eight-minute delay in reading to Wade the formal demand. To the extent that the learned trial Judge found otherwise, that was an error.
[41] Ms. Wilhelm encouraged this Court to see the oral reasons for judgment as standing for the proposition that the difficult behavior of Wade at the scene was not the cause (or even a cause) of the delay in the provision of the formal breath demand at 9:33 a.m. That is a good submission but fails in light of what the learned trial Judge said explicitly at the top of page 32 of the September 7 transcript – “[w]e have actions of the accused that caused delay in the formal demand not being read until 9:33”.
[42] There is no need to deal with the other arguments raised by counsel on both sides, such as whether the initial comment by Delcastillo to Wade that an approved screening device test would be administered constituted a breath demand.
[43] On the best-case scenario for the Defence, that is an eight-minute delay in reading the formal roadside breath demand, in the context of what was happening on scene, I fail to appreciate how there was anything unlawful about the demand.
[44] It was made promptly, especially in light of what was happening at the scene. It had to be complied with. Wade had no reasonable excuse for not doing so.
[45] These are questions of law, not an attempt to overturn findings of fact as suggested on behalf of Wade.
III. Conclusion
[46] Respectfully, there were two errors in law made by the learned trial Judge.
[47] First, the incorrect assumption that the police officer had a duty to make the roadside breath demand immediately upon forming his reasonable suspicion. He had a duty to make a prompt demand, within the meaning of what was discussed in Woods, supra, and even acknowledging the case law that has read-in to the legislation an implied requirement to make the demand as soon as the reasonable suspicion is formed, context is important.
[48] Second, the determination that the breath demand made at 9:33 p.m. was invalid (too delayed) despite the factual finding that the behavior of Wade himself caused the delay.
[49] For the foregoing reasons, as there was a wrong decision on a question of law, the Appeal is allowed. The acquittal is reversed, and a conviction is registered.
[50] Contrary to the submission of Ms. Wilhelm, I find that this is not an appropriate case for another trial to take place. Clearly, but for the errors in law, Wade would have been found guilty of the offence. I am satisfied that the learned trial Judge’s findings of fact, viewed in light of the applicable law, support a conviction beyond a reasonable doubt. R. v. McRae, 2013 SCC 68, 2013 S.C.C. 68.
[51] The Crown asked that sentencing take place in the Superior Court of Justice. Although authorized in law, that is not the usual procedure, and I decline to grant that request. Sentencing shall be remitted to the learned trial Judge, who is better positioned than I to impose an appropriate penalty.
[52] Wade is hereby ordered to attend at the Milton Ontario Court of Justice, Courtroom 9, at 9:00 a.m. on Wednesday, May 1, 2019, to set a date for sentencing. Failure of Wade to attend as directed will result in a warrant for his arrest.
Conlan J.
Released: April 24, 2019
COURT FILE NO.: 148/18
DATE: 2019 04 24
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL
HER MAJESTY THE QUEEN
– and –
BRADLEY WADE
REASONS FOR JUDGMENT
Conlan J.
Released: April 24, 2019