COURT FILE NO.: CR-21-70000005-00AP
DATE: 20210603
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. CHRISTINA-VAYIA HENTY
BEFORE: MOLLOY J.
COUNSEL: Howard Cohen, for the Appellant Henty Peter van den Bergh, Counsel, for the Respondent Crown
HEARD: June 3, 2021
ENDORSEMENT
[1] Christina-Vayia Henty appeals from the decision of the Honourable Justice F. Bhabha of the Ontario Court of Justice dated December 22, 2020, finding her guilty of impaired driving contrary to section 320.14(1)(b) of the Criminal Code. Ms. Henty does not dispute the finding that she was operating a car while her blood alcohol exceeded the legal limit of 80mg of alcohol per 100 ml of blood, nor did she challenge that evidence at trial. Rather, at trial, Ms. Hendy sought to have the breathalyzer results excluded from evidence as having been obtained in violation of her Charter rights.
[2] Before the trial judge, the defence argued that the officers at the scene breached Ms. Henty’s rights by: (1) failing to “immediately” secure an Approved Screening Device (“ASD”) and obtain a breath sample test as required under the Criminal Code; and (2) failing to provide Ms. Henty with the opportunity to contact counsel by cellphone at the roadside. The trial judge rejected both arguments and found no Charter violation. Further, she held that even if there had been a violation, she would not have excluded the evidence pursuant to s. 24(2) of the Charter and the principles established by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32.
[3] On this appeal, counsel for the appellant submitted that the trial judge:
(1) erred in law in her interpretation of the word “immediately” in s. 320.27(1) of the Criminal Code, and in particular to equating that word with “forthwith” which was the language used in the previous version of this section;
(2) erred in finding there was no unreasonable delay in the administration of the ASD; and,
(3) erred in finding it was unrealistic for Ms. Henty to be given the opportunity to contact counsel from the roadside at the time of her initial detention.
[4] The appeal is dismissed.
[5] The trial judge provided detailed oral reasons for all of the findings she made. I will not repeat them here. Suffice to say, they are in my view unassailable.
[6] The trial judge correctly found that there is no difference between “immediately” in the current version of the provision and “forthwith” in its previous iteration. The appellant relied on the decision of a Saskatchewan Provincial Court judge in R. v. Morrison, 2020 SKPC 28 for the proposition that the amendment to the legislation carried with it a requirement of greater urgency than applied to the word “forthwith” and that the previous case law dealing with the old wording had limited application. I disagree. The purpose of that aspect of the amendment was to make the language clearer and more coherent, replacing an archaic legalistic word (“forthwith”) with one that is more understandable in everyday usage (“immediately”). As pointed out by the trial judge in this case, “forthwith” means “immediately.” She committed no error in this regard. Morrison was decided in a very different context dealing with the constitutionality of provisions permitting police officers to administer the roadside test with an ASD even where there were no reasonable grounds to believe the driver was impaired. It was in this context that the judge in Morrison determined that there was an “increased sense of urgency.” That is not the case here.
[7] The trial judge correctly stated and correctly applied the law in determining that the period of time at the roadside before the ASD was obtained and employed was appropriate in all of the surrounding circumstances. I see no basis to interfere.
[8] I also agree with the trial judge’s analysis as to the officers acting properly in not attempting to have Ms. Henty contact her lawyer using her cellphone in the back of the police cruiser. Again, the factual context was critical to this determination. There was no error of law, and the factual findings were reasonable on the evidence. I have no reason to interfere with the findings made.
[9] Finally, as I noted above, the trial judge ruled in the alternative that even if she had found a violation of ss. 8 or 10 of the Charter, she would still have admitted the breathalyzer results. The appellant took no issue with the s. 24(2) finding by the trial judge in either the notice of appeal or factum. I raised this with counsel during argument. The Crown took no issue with the appellant counsel making oral submissions on this point, notwithstanding it not having been raised.
[10] I agree entirely with the trial judge’s analysis under s. 24(2) of the Charter. Again, she correctly identified the legal test and correctly applied the law. I find no basis to disturb her ruling in this regard. Indeed, I would have come to the same conclusion myself.
Date: June 3, 2021