COURT FILE NO.: 17-A11844

DATE: 2020-09-25

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Appellant

– and –

SYDNEY WARD Respondent

Lindsay Little, for the Crown

Eric Granger, for the Respondent

HEARD: September 23, 2020

Appeal of the decision by Justice David Berg Reasons for Judgment released on July 10, 2019

summary conviction appeal reasons for decision

Roger J.

[1] This is a summary conviction appeal brought by the Crown of the trial judge’s decision of July 10, 2019, in which he concluded that the accused’s Charter rights under the Canadian Charter of Rights and Fredoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [the Charter] to consult with counsel without delay had been breached, excluded the breath readings, and dismissed the allegations that the accused was operating a motor vehicle with a blood/alcohol concentration exceeding 80 milligrams.

Background Facts

[2] The trial judge found the following:

• 22:20 the officer observed the accused driving erratically;
• 22:23 the officer stopped the accused and detected an odour of alcohol on his breath;
• 22:25 the officer made an Approved Screening Device (“ASD”) demand of the accused;
• the accused was detained from this point on;
• the officer did not have an ASD with him and radioed for one;
• the officer did not know how long it would take the ASD to arrive, but from experience expected it within 5 to 10 minutes;
• the officer said that he conducted investigative steps in the interim, but was unable to specify what he did during the time between of making of the ASD demand and its arrival on site;
• the accused did not pose a risk, was not handcuffed, was outside his vehicle, and the arrest occurred near the accused’s home;
• during this time, the accused was not advised of his rights to counsel;
• if the accused had been advised of his rights to counsel, he would have exercised them because that is what he did at the police station when they were later offered, calling a specific lawyer;
• 22:31 best estimate of when the ASD arrived, although its exact arrival time was unknown;
• 22:32 the accused is arrested for failing the roadside test;
• the officer gives a soft version of the rights to counsel;
• 22:34 the officer reads the official version of the rights to counsel;
• 22:41 the officer informs the accused spouse of the arrest, at their nearby residence;
• 22:52 – 23:02 the accused is transported to the police station;
• the accused is processed;
• 23:17 the accused is placed in a private room to exercise his rights to counsel;
• the accused experiences a technical issue and is assisted with reconnecting the call to his lawyer;
• 23:26 to 23:31 the accused continues to exercise his rights to counsel;
• 23:42 the officer provides information to the breath technician;
• 23:53 the accused is transferred to the breath technician;
• 23:59 first breath sample with a reading of 154 mg of alcohol in 100 ml of blood;
• 00:22 second breath sample with a reading of 140.

[3] The trial judge found that the officer had breached the accused Charter rights because the officer did not facilitate the accused’s rights to counsel between the time of detention and the time of the ASD arrival. The trial judge held that this constituted a serious breach because of the seeming ignorance of the requirement to provide rights to counsel without delay when the officer is unable to take the roadside breath sample immediately and indicated that this was aggravated by the fact that the officer initially only provided a soft caution.

[4] At para. 40 of his decision, the trial judge correctly states the law, quoting from R. v. George, (2004), 2004 6210 (ON CA), 187 C.C.C. (3d) 289 (C.A.), at paras. 27 and 28, that:

40 The law is well established that where an officer makes a demand for a roadside breath sample:

27 … 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.).

28 …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.

[5] At para.41, the trial judge indicates, amongst others:

Thus, where an officer must await the arrival of an ASD, the section 1 Charter justification for suspending the rights to counsel is no longer operant and rights to counsel must be given without any further delay.

[6] At para. 42 of his decision, the trial judge indicates amongst others:

I will not engage in any further analysis of what could have occurred if Mr. Ward had been advised of his section 10(b) rights prior to the arrival of the ASD on scene. In other words, I am not deciding this matter on the basis of whether Mr. Ward would have had a realistic opportunity to consult with counsel.

[7] The trial judge then found a breach of s. 10 (b) of the Charter, holding that the accused should have been advised of his rights to counsel “at or close to 22:25 hrs”.

[8] The trial judge then conducted a s. 24 (2) analysis.

[9] At para. 45 of his decision, he cites the proper test, indicating:

The Supreme Court of Canada has provided guidance to trial judges when faced with this type of analysis. In R. v. Grant, 2009 SCC 32, it held that three factors are to be examined. First of all, the trial judge must determine the level of seriousness of the Charter—infringing state conduct. Secondly, the impact on the Charter-protected interests of the accused must be taken into account. Thirdly, there must be a determination of the level of society’s interest in the adjudication of the matter on its merits. The process is then completed by a weighing of these three factors.

[10] The trial judge found the breach to have been a serious violation, indicating at paras. 46 and 48 of his decision:

46 The Level of Seriousness of the Breaches: The failure to provide Mr. Ward with his section 10(b) Charter rights during the six-minute period from the making of the breath demand until the arrival of the ASD on scene, while not insignificant, cannot be characterized as a serious breach in and of itself in the context of this case. However, the general lack of adherence to constitutional standards displayed by the officer as evidenced by his seeming ignorance of the requirement to provide the rights to counsel without delay when he is unable to take the roadside breath sample immediately, his use of an inadequate “soft version” of those rights, as well as his failure to record that exchange with Mr. Ward, is significantly aggravating.

48 The Charter is not new law and the duties inherent in section 10(b) have been incumbent upon police officers for a long time now. Indifference or ignorance of the Charter amongst members of the law enforcement community is to be discouraged. I find that this was a serious violation of Mr. Ward’s rights.

[11] With regards to the impact on the Charter-protected interests on the accused, he indicated at para. 49 that:

The failure by the police to comply with section 10(b) Charter is more than a mere technical breach of Mr. Ward’s rights. In the context of this case, Mr. Ward should have been provided with his rights to counsel at or very soon after 22:25 hrs. That he was not certainly renders his continued detention and what flows from that detention suspect.

[12] Finally, with regards to the level of society’s interest in the adjudication of the matter on its merits, he indicated at para. 50 the following:

Society has an interest in the adjudication on the merits of most of the cases that come before the courts. That cases where it is alleged that the driver of a motor vehicle was under the influence of alcohol are of interest to Canadian society cannot be doubted. However, in the case of Mr. Ward, I note that there was no accident nor was he even charged with impaired driving.

[13] Weighing all three factors, the trial judge found that the admission of the evidence obtained by means of this Charter breach would bring the administration of justice into disrepute because he found the seriousness of the breach to be of such weight that by itself, it requires that the Court dissociate itself from the actions of the police. He therefore excluded the breath readings.

Arguments Raised by the Parties

[14] The Crown argues that the trial judge erred in holding that the officer’s failure to provide the accused his right to counsel immediately upon detention, while waiting for the arrival of the ASD on scene, breached the accused’s rights to counsel. The Crown argues that the trial judge erred in law by failing to apply the proper legal test, which it states is whether the accused could have reasonably obtained the advice of counsel in the interim.

[15] The Crown also argues that the trial judge erred in law in two ways when conducting the Grant three-pronged analysis: (i) by determining that the “soft caution” given by the officer was relevant to whether the accused’s Charter rights were breached; and (ii) by conflating the seriousness of the breach with the impact on the Charter-protected interests of the accused.

[16] The Crown argues that if the evidence of the breath results is included, it has satisfied the substantially higher standard that the evidence against the accused is “so overwhelming that a conviction is inevitable” and it relies in that regards on R. v. Trochym 2007 SCC 6, 1 S.C.R. 239, at para. 82.

[17] The accused argues that the trial judge made no error in law. Alternatively, he argues that if the trial judge made an error in law, there is no reasonable prospect of the outcome having been any different, so the acquittal should be upheld. In the further alternative, the accused argues that if the Crown establishes a reversible error in the Charter analysis, the acquittal should be sustained on the basis that the trial judge erred in his analysis of the “as soon as practicable” issue, and that there is no reasonable basis to conclude that the breath samples were obtained “as soon as practicable”. The accused also argues, in the further alternative, that if the trial judge made an error, and the acquittal is unsustainable, the appropriate remedy is to order a new trial because the trial judge did not make all necessary findings to support a conviction.

Analysis

[18] Section 686(4) of the Criminal Code, R.S.C., 1985, c. C-46 provides that a court of appeal may dismiss or allow an appeal against an acquittal if there was a wrong decision on a question of law. If the appeal is allowed, the acquittal may be set aside and a new trial ordered or, when appropriate, the court of appeal may enter a verdict of guilty and pass sentence or remit the matter to the trial court to impose a sentence.

[19] A question of law involves whether the judge directed himself properly on the law relating to an element of a legal construct. A question of law may also involve considering an irrelevant factor, applying the wrong legal test, or the judge failing to direct herself properly on the legal effect of findings of facts on the legal construct (See R. v. Singer, 1932 CarswellOnt 59 at para. 39 (SCC)).

[20] The standard of review on an appeal based on a question of law is correctness. Indeed, the accused accepts that if the trial judge applied incorrect legal principles in making his finding that there was a Charter breach, this would amount to an error in law reviewable on a standard of correctness.

Did the trial judge err in law in finding a breach of the accused’s rights to counsel?

[21] As Justice Durno explains in R. v. Gill, 2011 ONSC 4728, 276 C.C.C. (3d) 556, the authority to make an ASD demand is found in s. 254(2)(b) of the Criminal Code. That section provides that if a peace officer has reasonable grounds, such an officer may demand a person to provide “forthwith” a breath sample by means of an approved screening device (an ASD). When an officer makes an ASD demand the motorist is detained. Once a person is detained, s. 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 to provide the detained person 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. What has been found to make s. 254(2)(b) a reasonable limit is the “forthwith” requirement.

[22] As Justice Durno explains further, the boundaries within which Charter rights are justifiably infringed have been described in this context by the Court of Appeal as the “forthwith window.” That is the period during which a detained person can be required to respond to a valid ASD demand. During that window, the detainee can incur criminal liability by failing or refusing to provide a sample unaffected by the Charter. Justice Durno explains that when the “forthwith window” opens and closes is determined with respect to the right to counsel. As he puts it, the critical question is whether there was a realistic opportunity for the detainee to consult counsel before being confronted with the ASD and required to provide a suitable sample. This is not simply an opportunity to contact counsel; there must be a realistic opportunity to contact, seek and receive advice before being confronted with the ASD. Whether that “realistic opportunity to consult counsel” exists is a question of fact to be determined considering all the circumstances of the case, including: the time the officer believed the ASD would arrive, the time between the demand and the ASD’s arrival, the day of the week and/or time at which the detainee would have been attempting to contact counsel, whether the detainee had a cell phone (although he notes that this factor in itself is not determinative), the actual time it took for the ASD to arrive, whether there was an explanation for the delay, and whether the detainee contacted counsel at the station after being arrested.

[23] Counsel for the accused concedes that the trial judge did not decide whether the accused rights to counsel were breached by considering whether or not the accused had a reasonable opportunity to consult counsel. Indeed, the trial judge specifically said that he was “not deciding this matter on the basis of whether Mr. Ward would have had a realistic opportunity to consult with counsel”. Rather, the accused argues, relying on R. v. Quansah, 2012 ONCA 123, 286 C.C.C. (3d) 307 at paras. 33-35, that this is not the only way to resolve that issue and that the trial judge was correct in his analysis.

[24] While I agree with the accused that the Court of Appeal in Quansah specifically rejected the Crown’s argument that the only circumstance in which the “forthwith” requirement may be exceeded is where there is a delay such that a realistic opportunity to consult counsel was available but not provided, I disagree that the trial judge was correct in his analysis.

[25] The Court of Appeal in Quansah stated that a realistic opportunity to consult counsel is an example of such an instance but not the only possible example, and it gave a number of other examples, including a delay necessary to obtain a proper sample. At para. 41, the Court of Appeal stated that these were all examples of instances where the assessment of the “forthwith” requirement is based on whether a short delay is reasonably necessary to accomplish the objectives of s. 254(2), and concluded that the immediacy requirement in s. 254(2) necessitates the courts to consider five things:

1. That the analysis of the forthwith or immediacy requirement must always be done contextually.

2. That the demand must be made promptly once the officer forms the reasonable suspicion that the driver has alcohol in his or her body.

3. That “forthwith” connotes a prompt demand and an immediate response, but that in unusual circumstances a more flexible interpretation may be given considering that the time from the formation of reasonable suspicion to the making of the demand to the detainee’s response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2).

4. The immediacy requirement must take into account all the circumstances, which may include a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed to ensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns – delays that are no more than what is reasonably necessary to enable the officer to properly discharge his or her duty – that any delay not so justified exceeds the immediacy requirement.

5. That one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee’s s. 10(b) rights before requiring the sample - if so, the “forthwith” criterion is not met.

[26] However, the trial judge did not apply any of the above in concluding that the accused’s rights to counsel had been breached. A review of his analysis, particularly at paras. 40 to 43, reveals that he did not apply the proper legal test, and, as such, that he erred at law when he concluded that the accused’s Charter rights had been breached.

[27] The trial judge failed to consider whether the accused would have had a realistic opportunity to consult with counsel, writing “in other words, I am not deciding this matter on the basis of whether Mr. Ward would have had a realistic opportunity to consult with counsel”. Moreover, he failed to state or to consider any of the five points outlined by the Court of Appeal in Quansah. This conclusion is illustrated by the trial judge’s comments later in his decision that the accused “in the context of this case, … should have been provided with his rights to counsel at or very soon after 22:25 hrs.” This statement makes it seem as if it would have been legally impossible, in any circumstance, for the officer to wait for a reasonably necessary amount of time for the ASD without giving the accused his rights to counsel.

[28] In conclusion, the trial judge erred in law by declining to assess whether the accused would have had a realistic opportunity to consult with counsel at the roadside in the interim between when the officer formed the reasonable suspicion that the accused had alcohol in his body and the arrival of the ASD and by failing to assess any of the factors outlined by the Court of Appeal in Quansah, including whether the delay in this case was no more than what was reasonably necessary to enable the officer to properly discharge his duty.

Did the trial judge err in his 24(2) analysis?

[29] I agree with the Crown that the trial judge erred in the first prong of the s 24(2) analysis by placing emphasis on the “soft version” of rights to counsel by holding that this had an impact on the adequacy of the formal version of the rights to counsel. His reflections on this amounted to an error in principle and an unreasonable assessment of the evidence. Indeed, this was an irrelevant factor at the first prong of the Grant test (the “seriousness of the breach”). Specifically, the trial judge emphasized the inappropriateness of the officer’s soft caution when the officer was not required to give a soft caution and did in fact give a full caution within two minutes.

[30] The trial judge also erred by failing to conduct any analysis of the impact of the breach on Mr. Ward’s Charter-protected interests. There is no exploration by the trial judge about the effect of the detention on the accused or on the accused’s Charter rights. He does not explain why the accused’s continued detention in the context of this roadside investigation is suspect or whether there was in fact any impact on the accused as a result of the wait for the ASD and the lack of provision of rights to counsel.

[31] The above errors in conducting the s 24(2) analysis are errors of law, reviewable on a standard of correctness. This is so where a trial judge excludes evidence as a result of an error in principle, misapprehend material evidence, or arrives at an unreasonable assessment of the evidence. I disagree with the accused’s arguments that, in these circumstances, deference is owed or that this constitutes a disguised re-trial of these issues.

Should the acquittal be set aside?

[32] Acquittals are not set aside lightly. Even if an error is identified, the Crown must satisfy the court that there is a realistic prospect that the result would be different in the concrete reality of the case had the error not been committed. (see R. v. Graveline, 2006 SCC 16, 1 S.C.R. 609 at paras. 14-16).

[33] The accused correctly conceded that this test is met if the Crown makes out that the trial judge applied the wrong test on the issue of the Charter breach. Considering the evidence, there is indeed such a realistic prospect had the error on the breach of s. 10(b) of the Charter not been committed.

[34] As a result, the acquittal is set aside.

What is the appropriate remedy – a new trial or a guilty verdict?

[35] The Crown argues that there was no realistic opportunity to consult counsel, that a finding of guilt is inevitable considering the tests results, and that a guilty verdict should be entered. The respondent argues that a new trial is required for factual findings to be made.

[36] In R. v. Cassidy 1989 25 (SCC), [1989] 2 S.C.R. 345, the Supreme Court of Canada found that an appellate court may allow a Crown appeal from an acquittal and substitute a conviction where;

1. the Crown establishes that an error of law was committed at trial;
2. satisfies the appellate court that had the law been properly applied, the verdict would not have been the same; and
3. further demonstrates the accused should have been found guilty ‘but for’ the error of law.

[37] Here, I am not satisfied that the Crown has convinced me of the above.

[38] I agree with the accused that the Crown’s principal complaint and parts of my findings are that the trial judge failed to make a determination of whether there was a reasonable opportunity to consult with counsel. Given my finding that the trial judge made no determination of that issue, or of the other factors identified in Quansah, he failed to weigh the evidence on these issues, or to make all factual findings necessary to the resolution of these issues.

[39] Each case turns on its facts. Aside from the absolute amount of time available, the evidence on this issue was not unfavourable to the accused. He was out of handcuffs, out of the car, not a safety concern, and adjacent to his home. There were no other tasks the officer needed to attend to, nor any competing priorities. The officer acknowledged that if he had not chosen to continue with his investigation, nothing else stopped him from advising the accused of his rights and offering him that opportunity. At the station, the accused did exercise his rights to counsel relatively quickly.

[40] In R. v. Najm, the Court of Appeal upheld a trial decision finding a reasonable opportunity to consult with counsel in a comparable short delay, illustrating the importance of the trial judge’s weighing of this evidence on the disposition of this issue (see R. v. Najm, 2006 19483 (ON CA), [2006] O.J. No. 2348 at paras. 1-3 (C.A.); and R. v. Najm, [2005] O.J. No. 6095 (C.J.)).

[41] Consequently, a new trial is required.

Additional Issues Raised by the Accused

[42] Considering my findings, the accused argues that the findings of the trial judge that the samples were taken as soon as practicable was unreasonable.

[43] The accused acknowledges that, on this point, a deferential standard of review is applicable, and that this court is only justified to intervene if it is satisfied that this conclusion was not open to the trial judge on the evidence he heard. The accused embarks on a minute by minute review and dissection of the evidence.

[44] The trial judge’s analysis and findings on this point are found at paras. 21 to 29 of his reasons. The trial judge correctly cited the law and applied it to the entire time period. He sufficiently explained the timeline, his findings on this point are supported by the evidence and are not unreasonable.

Conclusion

[45] The appeal is allowed, the acquittal is set aside, and a new trial is ordered.

Mr. Justice Pierre E. Roger

Released: September 25, 2020

COURT FILE NO.: 17-A11844

DATE: 2020-09-25

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Appellant

– and –

SYDNEY WARD Respondent

Summary conviction appeal REASONS FOR decision

Roger J.

Released: September 25, 2020