R. v. Menezes, 2019 ONSC 4497

COURT FILE NO.: CR-18-10000074-AP

DATE: 20190726

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

DAVID MENEZES

Appellant

K. Motyl, for the Respondent

C.E. Shortt and A. Khan, for the Appellant

HEARD: June 19, 2019.

REASONS FOR JUDGMENT

On appeal from the conviction entered on August 23, 2018 by the Honourable Justice E. Rondinelli of the Ontario Court of Justice.

SCHRECK J.:

1Until the Criminal Code was recently amended, a police officer who had a reasonable suspicion that a person operating a motor vehicle had alcohol in his body could demand that the person provide a sample of his breath “forthwith” into an approved screening device (“ASD”). While a person to whom such a demand is made is “detained” within the meaning of s. 10 of the Charter, the Supreme Court of Canada has held that a temporary suspension of the right to counsel is justified by s. 1 of the Charter in these circumstances, partly because the demand must be made “forthwith”. As a result, it has long been held that the “forthwith” requirement in s. 254(2)(b) of the Code is met provided, inter alia, that the demand is made and the sample is provided before the person who is detained would have a reasonable opportunity to consult counsel. But who bears the onus of establishing that there was or was not a reasonable opportunity to consult counsel? That is the central issue on this appeal.

2The appellant, David Menezes, was stopped by the police for speeding. The officers who stopped him suspected that he had consumed alcohol and accordingly made an ASD demand. However, the officers did not have an ASD with them and had to wait for one to be brought. The sample was eventually provided approximately 10 minutes after the officer formed his grounds for making the demand.

3At his trial on a charge of driving with excess alcohol contrary to s. 253(1)(b) of the Criminal Code, the appellant alleged that his s. 10(b) Charter rights had been violated because the amount of time that had elapsed before the sample was provided was sufficient for there to have been a reasonable opportunity to consult counsel. The trial judge held that the appellant had failed to meet his onus of establishing that there had been such a reasonable opportunity, dismissed the application and convicted the appellant.

4The appellant appeals his conviction and submits that the trial judge erred in concluding that the onus of establishing a reasonable opportunity to consult counsel rested with the applicant. The following reasons explain why I agree with that submission.¹

I. EVIDENCE

5On March 26, 2017, two police officers, Cst. Haroon and Cst. Proctor, stopped a car for speeding. The interaction between the officer and the car’s driver, the appellant, was recorded on the police cruiser’s in-car camera. No issue appears to be have been taken with the accuracy of the times indicated on the recording.

6The traffic stop occurred at 17:06:59. At 17:07:16, the two officers approached the vehicle and Cst. Haroon spoke to the appellant through the driver’s side front window. Cst. Haroon asked the appellant how much he had had to drink. The appellant responded that he had had one beer. At 17:07:53, Cst. Haroon told Cst. Procter to obtain an ASD. Cst. Procter contacted 11 Division police station and made the request. According to Cst. Haroon, it would take about five minutes to drive from the location of the traffic stop to 11 Division, but it could take as long as 10 minutes if a train came by on tracks that crossed the route. At 17:07:53, Cst. Haroon asked Cst. Procter to again contact 11 Division and “tell them to put a rush on it”. Cst. Procter did so.

7At 17:12:07, Cst. Haroon made a demand of the appellant that he provide a breath sample into an ASD. He acknowledged that at the time he did so, he did not know how long it would take for an ASD to arrive. While the evidence is not entirely clear, it appears that the appellant asked Cst. Haroon if he could “make a call”. Cst. Haroon replied that he could, but that he could not leave.

8At 17:17:08, an ASD arrived on scene. The appellant provided a breath sample into the ASD at 17:18:14. At 17:20:09, the ASD registered a “fail”. The appellant was arrested and advised of his right to counsel. He indicated to the officer that he wished to speak to a lawyer.

9The appellant was taken to the police station, where he spoke to his counsel of choice. He then provided breath samples into an approved instrument, resulting in readings of 180 and 171 mgs of alcohol per 100 ml of blood.

II. ANALYSIS

A. The Trial Judge’s Reasons

10The trial judge said the following in his reasons with respect to the appellant’s s. 10(b) claim:

Turning next to Mr. Menezes’ Section 10(b) claim. In my view, the record before me falls well short of reliable evidence on which to conclude that in the all the circumstances there had been a realistic opportunity for Mr. Menezes to consult counsel before the approved screening device was administered. The uncontradicted evidence of Officer Haroon was that he told Mr. Menezes at the roadside that he could call whoever he wished. Yet, there is no evidence, either by way of viva voce or affidavit, of Mr. Menezes as to what he heard Officer Haroon say, what he understood the officer to have told him, whether he wished to call his lawyer from the roadside, and whether he actually called anyone while he was in the car. It is well established that a Charter application should not be made in a factual vacuum. See Toure v. Canada (Public Safety & Emergency Preparedness), 2018 ONCA 618, at para. 70. In the absence of such evidence and on the record before me, Mr. Menezes has not overcome his onus to demonstrate a breach of Section 10(b) of the Charter.²

11Later in his reasons, the trial judge considered whether the “forthwith” requirement in s. 254(2) had been met by considering the five factors set out in R. v. Quansah, 2012 ONCA 123, 286 C.C.C. (3d) 307, at paras. 45-49:

I have considered all five factors as they relate to the case before me. Firstly, the analysis of the forthwith or immediacy requirement must always be done contextually.…Second, the demand in this case was made by Officer Haroon promptly once he formed the reasonable suspicion that Mr. Menezes had alcohol in his body. Third, the time from the formation of reasonable suspicion to the making of the demand to Mr. Menezes’s response to the demand by providing a sample was about 14 minutes, which, in the circumstances of the case, was the reasonable time necessary to enable Officer Haroon to discharge his duties contemplated by Section 254(2). These circumstances included the that fact that the ASD was not immediately available but an ASD was requested immediately upon forming grounds, and the ASD arrived shortly thereafter.

Lastly, I have dealt with Mr. Menezes’s Section 10(b) Charter claim already, and on those findings it cannot be said that the forthwith criterion is not met.³

B. Positions of the Parties

12The appellant points out that because an ASD demand is a warrantless search, the Crown bears the onus of establishing that the search is reasonable: R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 15. To do so, the Crown must show that the demand complied with the statutory prerequisites for a lawful demand set out in s. 254(b) of the Criminal Code, including that the demand was made “forthwith”. For a demand to be made “forthwith”, it must be made before there is any realistic opportunity for the detainee to consult counsel. The appellant submits that it follows that the Crown bears the onus of showing that there was no reasonable opportunity to consult counsel and that the trial judge erred in concluding otherwise.

13The respondent submits that the trial judge was correct in holding that the onus of establishing a s. 10(b) breach rested with the appellant. The respondent points out that ASD demands can engage s. 8 and s. 10(b) Charter rights and submits that who bears the onus will depend on which section of the Charter is relied on. Where the accused relies on s. 8, the Crown bears the onus and where, as in this case, the accused relies on s. 10(b), then he bears the onus. In support of this submission, the respondent relies on R. v. Yamka, 2011 ONSC 405, 267 C.C.C. (3d) 81, at para. 46.

14As I will develop in the following reasons, I agree with the appellant, but for slightly different reasons than those he advances in support of his argument.

C. Relevant Statutory Provision

15At the time of the appellant’s arrest, s. 254(2)(b) of the Code⁴ provided as follows:

254.(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:

(a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and

(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 officer for that purpose.

D. The Suspension of the Right to Counsel

16A person to whom a s. 254(2)(b) demand is made is “detained” within the meaning of s. 10 of the Charter. Ordinarily, a person who is detained is entitled to be advised of his or her s. 10(b) right to counsel “without delay”, that is, immediately: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 40-42. However, as the Supreme Court of Canada held in R. v. Thomsen, 1988 73 (SCC), [1988] 1 S.C.R. 640, s. 254(2)(b)⁵ creates an “implicit limitation” on the right to counsel (at p. 653):

That there is to be no opportunity for contact with counsel prior to compliance with a s. 234.1(1) demand is, in my opinion, an implication of the terms of s. 234.1(1) when viewed in the context of the breath testing provisions of the Criminal Code as a whole. A s. 234.1(1) roadside screening device test is to be administered at roadside, at such time and place as the motorist is stopped, and as quickly as possible, having regard to the outside operating limit of two hours for the breathalyzer test which it may be found to be necessary to administer pursuant to s. 235(1) of the Code.

17The Court went on to hold that the limitation on the right to counsel is justified by s. 1 of the Charter, that is, that it is a “reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society” (at p. 655):

The important role played by roadside breath testing is not only to increase the detection of impaired driving, but to increase the perceived risk of its detection, which is essential to its effective deterrence. In my opinion the importance of this role makes the necessary limitation on the right to retain and instruct counsel at the roadside testing stage a reasonable one that is demonstrably justified in a free and democratic society, having regard to the fact that the right to counsel will be available, if necessary, at the more serious breathalyzer stage.

See also R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3, at paras. 54-60.

E. “Forthwith” and Constitutional Integrity

18Part of the reason why the right to counsel is justifiably suspended at the roadside is that the period during which the individual is detained is short: Thomsen, at p. 653; Orbanski, at para. 57. That brevity is assured by the requirement in s. 254(2)(b) that the demand be made “forthwith”. In R. v. Wood, 2005 SCC 42, [2005] 2 S.C.R. 205, Fish J. explained (at para. 29):

The “forthwith” requirement of s. 254(2) of the Criminal Code is inextricably linked to its constitutional integrity. It addresses the issues of unreasonable search and seizure, arbitrary detention and the infringement of the right to counsel, notwithstanding ss. 8, 9 and 10 of the Charter. In interpreting the “forthwith” requirement, this Court must bear in mind not only Parliament’s choice of language, but also Parliament’s intention to strike a balance in the Criminal Code between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.

19As Fish J. explained, the “forthwith” requirement is what led to the result in Thomsen (at para. 32):

The Court held that the absence of an opportunity to retain counsel violated s. 10(b) of the Charter, but was justified under s. 1 of the Charter as a reasonable limit prescribed by law. The “forthwith” requirement of s. 254(2) is in a sense a corollary of the fact that there is no opportunity for contact with counsel prior to compliance with the ASD demand.

See also R. v. Degiorgio, 2011 ONCA 527, 275 C.C.C. (3d) 1, at para. 37.

F. “Reasonable Opportunity to Consult Counsel”

20As the trial judge recognized, it is now well established that an important factor in determining whether a demand was made “forthwith” is if it was made before there is a realistic opportunity to consult counsel: Quansah, at para. 34; R. v. Torsney, 2007 ONCA 67, 217 C.C.C. (3d) 571, at para. 7; R. v. Danychuk (2004), 2004 12975 (ON CA), 70 O.R. (3d) 215 (C.A.), at para. 15; R. v. George (2004), 2004 6210 (ON CA), 187 C.C.C. (3d) 289, at paras. 32-34; R. v. Côté (1992), 1992 2778 (ON CA), 70 C.C.C. (3d) 280 (Ont. C.A.), at p. 285. The concept of a reasonable opportunity to contact counsel is what created the limitation on the right to counsel in Thomsen that was held to be justified by s. 1 (at p. 653):

These observations emphasize what, as a practical matter, is implied by the words “forthwith” and “roadside” in s. 234.1(1). That there is to be no opportunity for contact with counsel prior to compliance with a s. 234.1(1) demand is, in my opinion, an implication of the terms of s. 234.1(1) when viewed in the context of the breath testing provisions of the Criminal Code as a whole.

21It follows that where there is a realistic opportunity to consult counsel, the justification for the limit on the right to counsel ceases to exist. This was explained in Côté, at p. 285 (cited with approval in Woods, at para. 35):

If the accused must be taken to a detachment, where contact with counsel could more easily be accommodated than at the side of the road, a large component of the rationale in Thomsen disappears. In other words, if the police officer is not in a position to require that a breath sample be provided by the accused before any realistic opportunity to consult counsel, then the officer's demand is not a demand made under s. 238(2).

Similarly, in Danychuk, the Court held (at para. 15):

The authorities have interpreted the requirement in subsection 254(2) that the person “provide forthwith” a breath sample as imposing a duty upon the police to be in a position to administer the test “forthwith”, that is, as soon as reasonably practicable or within a reasonable time having regard to the provision and the circumstances of the case: see R. v. Latour (1997), 1997 1615 (ON CA), 34 O.R. (3d) 150, 116 C.C.C. (3d) 279 (C.A.); R. v. Seo (1986), 1986 109 (ON CA), 54 O.R. (2d) 293, 27 D.L.R. (4th) 496 (C.A.); R. v. Bernshaw, 1995 150 (SCC), [1995] 1 S.C.R. 254, 95 C.C.C. (3d) 193. The rationale for this requirement is that unless the police officer is in a position to require a breath sample to be provided before there is any realistic opportunity for the detained person to consult counsel, that person’s s. 10(b) Canadian Charter of Rights and Freedoms right to counsel may be unjustifiably infringed, and therefore a demand cannot be validly within the scope of subsection 254(2). “Otherwise”, as Charron J.A. stated in Latour, supra, at p. 158 O.R.:

. . . the demand is outside the constitutionally permissible boundaries of the legislation and is invalid. The meaning of the word “forthwith” must therefore be defined in terms consonant with the outside limit on the limitation to the right to counsel.

[Emphasis added].

It follows from this that “[t]he ‘forthwith’ period is the time in which Charter rights are justifiably infringed”: Degiorgio, at para. 46; Quansah, at para. 23.

G. Reframing the Issue

22When one considers the constitutional implications of the “forthwith” requirement, it becomes clear that the issue in cases such as the case at bar is not whether there has been a violation of s. 10(b) but, rather, whether the violation is justified. Support for this can be found in George, at paras. 27-28:

To begin, it is accepted that where a roadside breath demand is made, the driver is detained and his or her s. 10 rights under the Charter are prima facie triggered. However, if the demand is validly made pursuant to s. 254(2) of the Criminal Code in that it is made “forthwith”, the police officer need not advise the detainee of his or her s. 10(b) rights because, although s. 254(2) violates s. 10(b), it is a reasonable limit prescribed by law and justified under section 1 of the Charter. See R. v. Thomsen (1988), 1988 73 (SCC), 40 C.C.C. (3d) 411 (S.C.C.).

It is also accepted that if a roadside demand is made and a sample is not provided “forthwith” because the approved screening device is not readily available, the demand is not valid and does not justify a failure to provide s. 10(b) rights. See R. v. Grant (1991), 1991 38 (SCC), 67 C.C.C. (3d) 268 (S.C.C.).

Thus, in most cases there will be no issue that the individual was detained and not immediately advised of his right to counsel, which is prima facie a breach of s. 10(b). The real issue will be whether the violation of s. 10(b) was justified and, as the cases outlined earlier make clear, that will depend on whether the demand was made “forthwith”.

H. The Onus

23In all cases where the Crown seeks to rely on s. 1 of the Charter, including Thomsen, it bears the onus of justifying the limit on a constitutional right: R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103, at pp. 136-137. The Crown successfully did so in Thomsen, in part by relying on the “forthwith” requirement. In my view, there is no principled reason why the Crown should not continue to bear the onus of demonstrating that the suspension of a Charter right is justified. In cases such as this, it can do so easily enough by establishing that the demand was made “forthwith”, including that it was made in circumstances where there was no reasonable opportunity to consult counsel.

24Looked at in this way, placing the onus of establishing that there was no reasonable opportunity to consult counsel does not alter the ordinary rule that it is the applicant who must establish a Charter breach. As noted earlier, in most cases of this nature, there will no issue that there was a Charter breach. The issue will be whether the breach was justified.

25An analogy can be drawn to cases involving warrantless searches. Although the applicant bears the onus of establishing a Charter breach, it is well established that a warrantless search is presumptively unreasonable and the burden of justifying it falls on the Crown: Shepherd, at para. 15; Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, at p. 161; R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265, at pp. 277-278; R. v. Haas (2005), 2005 26440 (ON CA), 76 O.R. (3d) 737 (C.A.), at paras. 23-38. In other words, once an applicant demonstrates that there was a warrantless search, he or she has established a prima facie Charter violation and the onus shifts to the Crown to show that it was justified. The situation with an ASD demand is similar. Once the applicant has established that he or she was detained and not advised of the right to counsel, he or she has established a prima facie Charter violation and the onus shifts to the Crown to show that it was justified.

26The approach I am suggesting adds consistency to this area of the law because the onus of proving that a demand was made “forthwith” rests on the Crown in the other contexts. As counsel for the respondent acknowledges, if the appellant had brought a s. 8 Charter application, the Crown would bear the onus of establishing that the demand was made “forthwith”: Haas, at paras. 23-28. Similarly, where an accused is charged with failing or refusing to comply with a s. 234(2)(b) demand, the Crown must prove that the demand was made within the boundaries of the section, including that it was made “forthwith”: R. v. Gill, 2011 ONSC 4728, 276 C.C.C. (3d) 556, at paras. 37-39.

I. R. v. Yamka

27As noted earlier, the respondent relies on the summary conviction appeal decision by Durno J. in Yamka, an ASD demand case where the issue was whether there had been a reasonable opportunity to consult counsel. The accused in Yamka had filed written notice of an intention to bring a s. 8 Charter application but had then raised a related s. 10(b) issue in oral argument. The trial judge addressed the s. 10(b) argument in his reasons but failed to address s. 8, which Durno J. found to be an error. Durno J. also stated (at para. 26):

Before leaving this ground, it should be made clear that nothing in these reasons should be viewed as endorsing the practice of giving notice of a breach of one Charter section and arguing others. Indeed, the practice should be discouraged. Trial judges having the discretion to only permit argument on the issue(s) raised. A notice should alert the trial judge and opposing counsel of all the sections to be argued with enough specificity to identify the issues and permit adequate preparation. By providing specifics, it will also be clear to the trial judge and opposing counsel where the onus lies on the application. Here, the appellant chose to specify a s. 8 application in relation to a warrantless search for which the Crown bore the onus in relation to the breach instead to referring to the s. 10(b) argument for which she bore the onus. [Emphasis added].

28Later in his reasons, when considering whether there had been a s. 10(b) breach, Durno J. stated (at para. 46):

Having regard to all the circumstances and the cases referred to earlier, while I regard this as a very, very close call, the onus is on the appellant in regards to s. 10(b) violation and I am not persuaded that the officer was required to give her her rights to counsel before the ASD arrived. [Emphasis added].

29I recognize that Yamka was authored by a very learned and experienced criminal jurist. However, I disagree with the respondent that it is dispositive of the issue in this case. The appropriate placement of the onus was not an issue in Yamka. Having had no argument on the issue, it is hardly surprising that Durno J. simply assumed that since the onus of establishing that breach rested with the applicant, that it was for her to establish that there had been a reasonable opportunity to consult counsel. However, for the reasons outlined earlier, it is my view that the onus on that issue rests with the Crown.

J. The Trial Judge’s Reasons

30Except for a brief assertion during a surreply by defence counsel to the effect that it was the Crown’s burden to establish that the demand was made “forthwith”, the trial judge heard no argument on the proper placement of the onus. Furthermore, the defence expressly relied on Yamka. In these circumstances, the trial judge can hardly be faulted for assuming that the burden of establishing that there was a reasonable opportunity to consult counsel rested with the appellant. Nonetheless, for the reasons I have explained, in my view his conclusion on this issue was in error.

31As the respondent correctly points out, the trial judge also considered whether the “forthwith” requirement in s. 254(2)(b) had been met by applying the five factors set out in Quansah and concluded that it had. However, the fifth factor in Quansah is “whether the police could realistically have fulfilled their obligation to implement the detainee’s s. 10(b) rights before requiring the sample”: Quansah, at para. 49. With respect to this factor, the trial judge effectively imported his conclusion from his earlier s. 10(b) analysis where he had placed the onus on the appellant. For the reasons I have explained, in my view this approach was wrong.

32While there was certainly evidence to support the trial judge’s conclusion that there was no reasonable opportunity to consult counsel, I cannot conclude that any reasonable trier of fact would inevitably have come to the same conclusion. While rare, there have been cases where delays similar to that in this case or less have resulted in a finding that there was a reasonable opportunity to consult counsel: R. v. Najm, [2005] O.J. No. 6095 (C.J.), aff’d (2006), 32 M.V.R. (5th) 204 (Ont. C.A.) (rev’g summary conviction appeal court decision at (2005), 26 M.V.R. (5th) 159 (Ont. S.C.J.)). As noted in Yamka, at para. 40, “whether there was a reasonable opportunity to consult counsel requires a fact-specific analysis of all the circumstances”. It is not my role to conduct that fact-specific analysis. There must be a new trial.

III. DISPOSITION

33The appeal is allowed, the conviction is set aside and a new trial is ordered.

Footnotes

1. 1The appellant also submitted that the trial judge had erred by refusing to grant him leave to bring a s. 11(b) Charter application on late notice. I did not call on the Crown with respect to this ground of appeal.
2. 2Transcript, pp. 290-291.
3. 3Transcript, p. 292.
4. 4Section 254 has since been repealed and replaced by s. 320.27. Section 320.27(1) provides that the demand can be made if the officer has a reasonable suspicion that the person who is detained has alcohol in his body, but s. 320.27(2) provides that if the officer is in possession of an ASD, no grounds are required for the demand to be made. In either case, the sample must be provided “immediately”.
5. 5The Criminal Code section at issue in Thomsen was s. 234.1(1), which was later replaced by s. 254(2)(b). While there are differences in the two sections, the differences are not relevant to this issue.