COURT FILE NO.: 21-386-00AP

DATE: 20210421

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN: )

HER MAJESTY THE QUEEN

– and –

ALI TOSUN

Applicant )

Respondent )

P. Quilty, for the Crown

J. Zegers, for the Respondent

) HEARD: April 16, 2021

THE HONOURABLE JUSTICE L. WALTERS

REASONS FOR JUDGMENT

OVERVIEW

[1] The Crown appeals from the verdict of Justice Kerrigan-Brownridge on October 15, 2020, acquitting the respondent of the charge of failing to comply with a lawful demand contrary to s. 320.15(1) of the Criminal Code of Canada.

[2] The appellant alleges that the trial judge erred in finding (a) that the approved screening device (“ASD”) demand was unlawful (b) that the police did not have the requisite reasonable suspicion to make the ASD (c) that the ASD demand was not made immediately (d) that an unlawful ASD demand made the approved instrument demand unlawful and (e) in not undertaking a s. 24(2) analysis of the Charter of Rights and Freedoms to determine if the results of the ASD should be excluded from evidence.

[3] For the reasons which follow, the appeal is allowed. The acquittal is set aside and a new trial is ordered.

FACTS

[4] For the most part, the facts in this matter are not in dispute.

[5] On April 29, 2019 at 11:29 p.m. P.C. Chamberlain was dispatched to a collision on the Queen Elizabeth Way in Grimsby, Ontario.

[6] The officer was advised by dispatch that the witness to the accident was unsure if the driver of the vehicle was intoxicated. The officer was further informed that the pickup truck was speeding and had gone over all three lanes of the Queen Elizabeth Way and into a ditch.

[7] At 11:48 p.m. P.C. Chamberlain arrived at the scene. He observed the respondent in the driver’s seat. The driver explained he had been cut off.

[8] P.C. Chamberlain testified that the respondent was cooperative, he was speaking and moving normally, his eyes seemed fine and he appeared uninjured. There was nothing that raised any suspicion that the respondent was impaired.

[9] The officer did not detect an odour of alcohol and the respondent denied consuming alcohol.

[10] A second officer at the scene, P.C. Fletcher, also spoke with the respondent at 11:52 p.m. He detected a faint odour of alcohol. He asked the respondent if he had consumed any alcohol and the respondent replied that he had one glass of wine three or four hours earlier.

[11] This information was relayed to P.C. Chamberlain.

[12] P.C. Chamberlain then spoke to the respondent a second time. He asked the respondent if he had consumed any alcohol. The respondent told him he had a glass of wine three to four hours ago.

[13] P.C. Chamberlain did not detect an odour of an alcoholic beverage the second time that he spoke to the respondent. He was unable to tell the court what time he spoke with the respondent this second time.

[14] P.C. Chamberlain then asked the respondent to exit the vehicle. When he spoke with the respondent outside of the pickup truck, he could detect the odour of an alcoholic beverage on the respondent’s breath.

[15] P.C. Chamberlain testified that at 11:53 p.m. he formed his reasonable suspicion that the respondent had alcohol in his body. He made notes of the damage to the respondent’s pickup truck. He asked the respondent to come back to his cruiser to administer the ASD. His cruiser was approximately three to four car lengths behind the pickup truck. He had the respondent sit in the back seat of his cruiser because it was raining.

[16] At 11:54 p.m. P.C. Chamberlain read the respondent the ASD demand. He gave the respondent a fresh mouthpiece and explained the process to him. At 11:57 p.m. the ASD was presented to the respondent. After four unsuccessful attempts, the respondent

provided a suitable sample of his breath into the ASD at 11:59 p.m., which resulted in a “fail”.

[17] P.C. Chamberlain arrested the respondent for excess blood alcohol and made an approved instrument demand. At the police station, the respondent provided one suitable sample that was over the legal limit. Despite being given numerous opportunities over a 22-minute period of time, with three different mouthpieces, the respondent did not provide a second suitable sample.

[18] At trial, defence counsel conceded that P.C. Chamberlain had the requisite reasonable suspicion to make an ASD demand. He argued that the ASD demand was unlawful because the wrong demand may have been read, and secondly, the demand was not made immediately. His position was that if the ASD demand was unlawful, then the approved instrument demand was automatically unlawful as it was based on the results of the ASD. He also argued that the approved instrument demand was not made as soon as possible and that the Crown did not prove that the respondent intentionally failed to provide a breath sample.

TRIAL JUDGE’S REASONS

[19] The trial judge found that P.C. Chamberlain did not have a reasonable suspicion that the respondent had alcohol in his body. She also found that P.C. Chamberlain may have formed his suspicion as early as 11:50 p.m., but did not make the demand for the ASD until 11:54 p.m. This three- or four-minute delay did not comply with the immediacy requirements of section 320.27(1) of the Criminal Code. Since the ASD demand was unlawful, the approved instrument demand was also unlawful.

[20] The trial judge rejected the defence submissions that the wrong demand had been read. She did not consider whether the approved instrument demand was made as soon as practicable or whether the Crown had proven the requisite mens rea.

ISSUES

[21] Did the trial judge err in finding that P.C. Chamberlain did not have a reasonable suspicion that the respondent had alcohol in his body?

[22] Did the trial judge err by finding that P.C. Chamberlain’s ASD demand was not made immediately?

[23] If the ASD demand was unlawful, did the trial judge err in finding that this automatically rendered the approved instrument demand unlawful?

THE LAW

[24] Section 320.27(1) of the Criminal Code of Canada reads as follows:

320.27 (1) 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 conveyance, the peace officer may, by demand, require the person to comply with the requirements of either or both of paragraphs (a) and (b) in the case of alcohol or with the requirements of either or both of paragraphs (a) and (c) in the case of a drug:

● (a) to immediately perform the physical coordination tests prescribed by regulation and to accompany the peace officer for that purpose;

● (b) to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved screening device and to accompany the peace officer for that purpose;

● (c) to immediately provide the samples of a bodily substance that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of approved drug screening equipment and to accompany the peace officer for that purpose.

[25] The Supreme Court of Canada in R. v. Chehil, 2013 SCC 49, [2013] S.C.J. No. 49 reviewed the reasonable suspicion standard. At paras. 26, 27 and 29, Karakatsanis J. stated the following:

[26] Reasonable suspicion derives its rigour from the requirement that it be based on objectively discernible facts, which can then be subjected to independent judicial scrutiny. This scrutiny is exacting, and must account for the totality of the circumstances. In Kang-Brown, Binnie J. provided the following definition of reasonable suspicion, at para. 75:

The “reasonable suspicion” standard is not a new juridical standard called into existence for the purposes of this case. “Suspicion” is an expectation that the targeted individual is possibly engaged in some criminal activity. A “reasonable” suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds.

[27] Thus, while reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded in objective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime. As a result, when applying the reasonable suspicion standard, reviewing judges must be cautious not to conflate it with the more demanding reasonable and probable grounds standard.

[29] Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an

individual is involved in the type of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience: see R. v. Bramley, 2009 SKCA 49, 324 Sask. R. 286, at para. 60. A police officer’s grounds for reasonable suspicion cannot be assessed in isolation: see Monney, at para. 50.

STANDARD OF REVIEW

[26] Although disputed by the respondent, whether the facts as found by the trial judge amount to reasonable suspicion is a question of law (R v. MacKenzie, 2013 SCC 50).

[27] As Moldaver J. stated in MacKenzie at para. 54 “Accordingly, in a case such as this one, an appellate court must always engage in a de novo analysis and thereby substitute its own view of the correct answer for a trial judge’s legal conclusion.”

ANALYSIS

[28] Here, despite the defence counsel’s concession that P.C. Chamberlain had the requisite suspicion to make an ASD demand, the trial judge rejected his concession without any reasons. In fact, she makes no mention of it. Instead she found that P.C. Chamberlain’s subjective suspicion was not objectively reasonable. In making this finding, she stated the following:

In my view, the constellation of facts here include a driver involved in a single-car accident on the QEW on a dark rainy night resulting in minor damage to his vehicle. The only evidence regarding the cause of the accident is that of Mr. Tosun who testified he had been cut off by another driver and that caused him to go into the ditch. A further fact that makes up the constellation was the fact that the driver admitted he had consumed one glass of wine three or four hours previously. However, it is noted that Chamberlain, in his own evidence, acknowledged that he doesn’t always make a demand if the driver admits to having a glass of wine.

The further facts in constellation are that there are two initial interactions with the driver. There was no odour of alcohol detected, and it wasn’t until the third interaction between the officer and driver when the officer said he was not able to explain why on the third occasion he detected an odour of alcohol, and that the driver at that time was exhibiting no behaviour that led the officer to believe the officer was impaired.

Officer Chamberlain’s evidence, in my view, demonstrates significant equivocation. I find in the totality of the circumstances that Officer Chamberlain objectively lacked the requisite suspicion that Mr. Tosun was operating his motor vehicle within the preceding three hours with alcohol in his body.

[29] I find that the trial judge erred in coming to this conclusion. First, she rejected the defence counsel’s concession without explanation. The relevant case law makes it clear

that the odour of alcohol alone is sufficient to ground a reasonable suspicion that an individual had alcohol in his body (R. v. Schouten, 2016 ONCA 872 at para. 17 and 25, R. v. Lindsay, 1999 CanLII 4301 (ON CA), [1999] O.J. No. 870 (ONCA) at para. 2, R. v. Carson, 2009 ONCA 157 at para. 1.)

[30] In this case, we have the additional factor that Mr. Tosun admitted to having a glass of wine within three or four hours of the accident. Although the trial judge noted some equivocation on the part of P.C. Chamberlain because he did not notice the odour of alcohol until his third conversation with the respondent, she makes no mention of the fact that P.C. Fletcher detected an odour of alcohol on his first encounter with the respondent

[31] The trial judge also seems to have ignored the dispatch information that the respondent had driven his pickup truck across three lanes of the Queen Elizabeth Way and that he was speeding.

[32] All of this information supported P.C. Chamberlain’s suspicion that there was a possibility the respondent had alcohol in his body.

[33] The next issue for the court to determine is whether or not the trial judge erred by finding that the ASD demand was not made immediately.

[34] Section 320.27(1) does not explicitly create a time limit within which an ASD demand must be made.

[35] In R. v. Quansah, 2012 ONCA 123 at para. 45 to 47, the court summarized the immediacy requirements of s. 254(2) (relevant section prior to 2019 amendments to the Code).

[45] In sum, I conclude that the immediacy requirement in s. 254(2) necessitates the courts to consider five things. First, the analysis of the forthwith or immediacy requirement must always be done contextually. Courts must bear in mind Parliament’s intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.

[46] Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body. The immediacy requirement, therefore, commences at the stage of reasonable suspicion.

[47] Third, “forthwith” connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible interpretation may be given. In the end, 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).

[48] Fourth, the immediacy requirement must take into account all the circumstances. These 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. These are examples of delay that is no more than is reasonably necessary to enable

the officer to properly discharge his or her duty. Any delay not so justified exceeds the immediacy requirement.

[49] Fifth, 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.

[36] In this case the ASD demand was made at 11:54 p.m. P.C. Chamberlain testified that he formed his reasonable suspicion at 11:53 p.m. However, the officer was unable to specifically confirm this time. He did not note the time in his book. He did note that he arrived at the scene at 11:48 and he estimated that he must have formed his suspicion within five minutes of that time.

[37] In her reasons, the trial judge stated the following:

On assessing the evidence of Officer Chamberlain, it is clear that he just doesn’t know what time he formed his suspicion. It could’ve been 11:52 or 11:51, perhaps it was 11:50. He did not write it down. After forming his suspicion, he did not immediately make the ASD demand. He first walked around Mr. Tosun’s motor vehicle to assess the damage and then had Mr. Tosun walk with him to the cruiser. He then made the ASD demand at 11:54, three or perhaps four minutes after the forming of his suspicion. Having regard to Quansah wherein it is set out that the immediacy requirement commences at the point the officer forms his or her reasonable suspicion and requires that the officer make his or her demand promptly, the period of three

or perhaps four minutes, in my view, does not meet the immediacy requirement of the statute.

[38] In my view, the trial judge erred in making this finding. I agree with the submissions of the Crown that in essence the trial judge improperly interpreted “immediately” to mean “instantaneously”. Common sense must dictate. The officer was not required to blurt out the demand the very instant he first smelled alcohol.

[39] In R. v. Fisk, 2020 ONCJ 88 which dealt with the police’s obligation to read rights to counsel immediately upon arrest, the court indicated “they are not required to handcuff the accused with one hand and with the other hand read the right to counsel from their notebooks.”

[40] In R. v. Misasi, 1993 CanLII 8577 (ON CA), [1993] O.J. No. 150 at para. 15, the court found that a lapse of less than four minutes was well within acceptable limits.

[41] In my opinion, a careful consideration of all the circumstances of this case, confirms that no more than the time reasonably necessary to enable the office to do his duty elapsed between the forming of his reasonable suspicion and the demand.

[42] The actual time between when the officer formed his suspicion and the making of the demand was, on the basis of the evidence, significantly less than the four minutes found by the trial judge. Firstly, in determining the time, it appears that the trial judge ignored the evidence

of P.C. Fletcher who in his notes indicated he first smelled alcohol on the respondent’s breath at 11:52 p.m. The uncontroverted evidence is that the officer formed his suspicion after P.C. Fletcher spoke with the respondent. At best, the time between 11:52 p.m. and when the demand was made at 11:54 p.m. is only two minutes. During this time, it was reasonable and relevant to review the damage to the vehicle and escort Mr. Tosun to the officer’s vehicle to administer the test out of the rain.

[43] I find that the ASD demand was made immediately in accordance with the provisions of the Code and that the ASD demand by P.C. Chamberlain was lawful.

[44] Having made this determination, it is clear that the acquittal must be set aside and a new trial ordered.

[45] In the circumstances, it is not necessary for the court to go on to consider whether the result of an unlawful ASD would automatically result in an unlawful instrument demand.

[46] Accordingly, the acquittal is set aside and a new trial ordered.

Walters J.

Released: April 21, 2021

COURT FILE NO.: 21-386-00AP

DATE: 20210421

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

Applicant

– and –

ALI TOSUN

Respondent

REASONS FOR JUDGMENT

Walters J.

Released: April 21, 2021