COURT FILE NO.: CR-17-1080-00AP
DATE: 20210721
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
EVA KUBACSEK
Appellant
B. Juriansz, for the Respondent (Crown)
A. Little, for the Appellant (Defendant)
HEARD: February 26, 2021
Dawe J.
[1] The appellant Eva Kubacsek was pulled over by the York Regional Police on a Sunday morning in January 2017, shortly after 11:00 a.m. The investigating officer, who had followed Ms. Kubacsek from a liquor store and already suspected she had been drinking that morning, immediately smelled alcohol on her breath. However, he did not make an approved screening device demand until 13 minutes later, after he confirmed that an ASD was available and could be brought to the roadside in the next ten minutes. He then let Ms. Kubacsek try to call duty counsel on her cell phone, but she was unable to speak to counsel before the ASD arrived at the scene. She provided an ASD breath sample and blew a “fail” 22 minutes after the officer had first smelled alcohol on her breath. Ms. Kubacsek was then arrested and taken to the police station, where a breathalyzer test was administered and she blew double the legal limit.
[2] The trial judge found that the police had breached Ms. Kubacsek’s s. 10(b) Charter rights by not advising her of her right to counsel at an earlier point in her detention, but admitted the breath sample evidence under s. 24(2). He proceeded to find her guilty on a single count of “over 80”.
[3] For the reasons I will explain, I am satisfied that the trial judge made analytical errors that require me to reassess his conclusions about when and how Ms. Kubacsek’s Charter rights were infringed. Perhaps most significantly, I find that he erred by treating Ms. Kubacsek’s initial detention as a common law investigative detention that only became an ASD demand detention when the investigating officer read the formal ASD demand to her. This led the trial judge to conclude that the administration of the ASD test 9 minutes after the demand was made satisfied the statutory requirement that the ASD breath sample be provided “forthwith”.
[4] In R. v. Quansah, 2012 ONCA 123 at para. 46, the Ontario Court of Appeal held that under the statutory scheme governing ASD demands “[t]he immediacy requirement … commences at the stage of reasonable suspicion”. On the evidence in this case, there was a 22 minute delay between when the officer first formed a reasonable suspicion that Ms. Kubacsek had alcohol in her body and when the ASD test was administered. As I will explain, I do not think that Ms. Kubacsek can properly be seen in the circumstances here as having provided the ASD sample “forthwith”. Among other things, the evidence shows that it is likely that she would have been able to speak to duty counsel if she had been advised of her s. 10(b) rights earlier in her detention and had been permitted to make a call on her cell phone at that time: Quansah, supra at para. 49.
[5] It follows from my conclusion that the statutory “forthwith” requirement was not met that Ms. Kubacsek’s ss. 8, 9 and 10(b) Charter rights were all infringed. On the evidence in this case I am also satisfied that there was a breach of her s. 10(a) Charter rights. Finally, I am satisfied further that her s. 7 Charter right to disclosure was infringed by the failure of the police to preserve a relevant recording from one of the officer’s in-car camera system, and that the trial judge erroneously reversed the burden of proof on the issue of whether this recording was lost or destroyed due to “unacceptable negligence”.
[6] In my view, when the s. 24(2) Charter factors are reassessed with a full appreciation of the nature and extent of these Charter violations, the balance tips in favour of excluding the breath sample evidence in this case. Since this evidence was critical to the Crown’s case on the over 80 charge, Ms. Kubacsek’s conviction must be set aside and an acquittal entered.
I. The evidence at trial
[7] On the morning of Sunday, January 22, 2017, York Regional Police officer PC Shawn Codlin was on patrol in Markham in a marked police SUV. Shortly before 11:00 a.m. he had stopped in a mall parking lot at Birchmount Road and Highway 7 to type up some notes when he saw a car pull into the lot and park outside a nearby LCBO store. The store opened for business at 11:00 a.m., at which point a woman – later identified as Ms. Kubacsek – got out of the car and went inside. PC Codlin noticed that she had parked straddling two parking spaces, and decided to run her car’s licence plate. This revealed that Ms. Kubacsek, the car’s registered owner, had a prior conviction for impaired driving.
[8] A few minutes later Ms. Kubacsek came out of the store with an LCBO bag and drove away. PC Codlin followed as she left the parking lot and turned south on Birchmount Road before turning right at Verdale Crossing. He noticed that she made both turns improperly into the wrong lane, and also observed that her licence plate sticker had expired. At 11:03 a.m. he decided to make a traffic stop and turned on his car’s emergency lights to signal Ms. Kubacsek to pull over. This would have automatically activated his in-car camera audio and video, but as discussed further below the recording from his camera was not preserved.
[9] When PC Codlin initiated the traffic stop at 11:03 a.m. he also sent a message asking for another officer to attend the scene, explaining at trial that he did so because he expected the traffic stop to turn into an impaired driving investigation. PC Sean Aselton, who attended in response to the message, recalled that PC Codlin had advised in his message that he was “investigating [the driver] for impaired driving”.
[10] After Ms. Kubacsek pulled over, PC Codlin pulled in behind her car and walked to the driver’s window. He explained to Ms. Kubacsek that he had pulled her over because of the improper turns and the expired validation sticker. At this point – it was now around 11:04 a.m. – he also smelled alcohol on her breath, and he acknowledged at trial that this was “really what [he] was looking for out of the plaza” and was why he had asked PC Aselton to come to the scene. PC Codlin told Ms. Kubacsek that he smelled alcohol but “didn’t say anything at that point” to her about the significance of his having made this observation.
[11] PC Codlin testified both in chief and in cross-examination that as soon as he first smelled alcohol at around 11:04 a.m. he formed a reasonable suspicion that Ms. Kubacsek had alcohol in her body, explaining further that the only reason he did not make the ASD demand at this time was because he did not know if a machine would be available, since the devices were calibrated at the station every other Sunday morning, including that morning.
[12] PC Aselton arrived at 11:04 a.m. and pulled in behind PC Codlin’s SUV, turning on his car’s flashing lights as he did so, which activated his in-car audio and video recording system. Shortly before 11:06 a.m. he got out of his vehicle and joined PC Codlin at the driver’s side of Ms. Kubacsek’s car. The recordings from PC Aselton’s vehicle were preserved and provide a partial record of the interaction between the officers and Ms. Kubacsek from the point that PC Asleton went over to her car, although Ms. Kubacsek’s responses to the officers’ questions are often difficult to make out, and at some points in the recording their conversation is drowned out by police radio transmissions.
[13] Ms. Kubacsek produced her driver’s licence at the officers’ request, which confirmed her identity as the car’s registered owner. PC Aselton then directed her to get out of her car “just to talk”, adding that they were “investigating [her] for impaired driving”. He testified that he smelled alcohol on her breath at around 11:07 a.m., and that in his view by 11:08 a.m. “there was basically reasonable ground to believe that the driver was operating the vehicle with alcohol in their body”. He proceeded to question her about her drinking, explaining at trial his questions were directed at “determining when the last consumption was”. In response, Ms. Kubacsek acknowledged having had two glasses of wine.
[14] At 11:08 a.m. PC Codlin returned to his SUV and submitted two requests: the first, at 11:09 a.m., to have an officer attend who was accredited to perform Standardized Field Sobriety Tests, and the second, at 11:10 a.m., to have an ASD brought to the scene. PC Codlin explained at trial that he made both requests because the station’s ASDs were being recalibrated that morning and he did not know when one would become available. After sending these two requests he waited in his SUV for a response.
[15] Meanwhile, PC Aselton remained at the car with Ms. Kubacsek. He told her that the police “had to make sure that you are under the limit for alcohol” and asked her to “give us a minute and let us do our job”. At 11:09 a.m. he read a caution advising Ms. Kubacsek that she:
… was being investigated for driving impaired. You don’t have to say anything to us, but anything you do say if you are charged can be used in court against you.
PC Aselton explained at trial that he gave this caution because “we were trying to determine whether or not we could get an ASD, so I knew it was going to take a little bit longer than what it normally would.” He then permitted Ms. Kubacsek to get back in her car, but told her: “You can’t drink anything, because you have to do a test”, and had her give him her car keys. Over the next few minutes he told her several times that she was “not free to go” because she was being investigated for impaired driving.
[16] At 11:10 a.m. PC Codlin left his SUV and rejoined PC Aselton at the side of Ms. Kubacsek’s car. PC Aselton asked if the ASDs were calibrated, to which PC Codlin replied: “Let me work on it” and returned to his vehicle. At around 11:13 a.m. Ms. Kubacsek took a sealed bottle out of the LCBO bag and put it in her car’s cup holder, which prompted PC Aselton to tell her that she could not drink. He confiscated the bottle and put it in the trunk of Ms. Kubaseck’s car.
[17] At 11:14 a.m., PC Aselton went to PC Codlin’s vehicle. PC Codlin was on the phone with someone at the station, and during this conversation he learned that an ASD was available and would be brought to the scene in around ten minutes.
[18] Both officers then returned to Ms. Kubacsek’s vehicle just before 11:16 a.m. PC Aselton reminded her that she was being investigated for impaired driving/operation over 80, and added:
We do have an instrument that’s coming, okay, its going to be about ten minutes, okay, so you’re going to have to wait here for ten minutes, you’re not free to go.
He then advised her that during this time she could contact a lawyer if she wished. When Ms. Kubacsek replied that she didn’t have money, PC Aselton told her he could give her a phone number for free legal advice, and she replied that she would like to do this. He then asked if she had a cell phone.
[19] At 11:17 a.m. PC Codlin read Ms. Kubacsek an ASD demand under what was then s. 253(2) of the Criminal Code and then explained to her in plain language what this meant. PC Aselton then suggested that PC Codlin “give her R2C and if she wants to wait in the interim to call a lawyer, she can call a lawyer”. PC Codlin followed this advice, and at 11:19 a.m. he gave Ms. Kubacsek the 1-800 number for duty counsel so she could enter it into her smartphone. She had difficulty dialing so PC Aselton took her phone from her and discovered that she had been using the wrong app to make the call. He proceeded to enter the number for her, and after making sure the call was dialling returned the phone to Ms. Kubacsek at 11:20 a.m., telling her that she could stay in the car to talk to the lawyer in private.
[20] Although the officers believed at the time that Ms. Kubacsek spent the next four minutes on the phone with duty counsel, she later told them that she had actually been put on hold, and the defence adduced uncontradicted evidence at trial showing that the duty counsel office had no record of any advice being provided to Ms. Kubacsek at that time.
[21] At 11:24 a.m. another officer, PC Lewis, arrived at the scene with an ASD, which he gave to PC Codlin. He suggested to PC Codlin that if Ms. Kubacsek was not still on the phone with duty counsel he should conduct the ASD test, and PC Aselton reminded PC Codlin that he had already made the ASD demand. PC Codlin proceeded to administer the ASD test, and at 11:26 a.m. Ms. Kubacsek registered a “fail” on the device.
[22] PC Codlin then arrested Ms. Kubacsek and read her her right to counsel and made a breath demand before driving her to the police station. At the station PC Aselton called duty counsel at 12:13 p.m. and then put Ms. Kubacsek on the phone. She finished the call twelve minutes later, by 12:25 p.m., and was then taken to the breath room, where she provided breath samples. The breath test results put her blood alcohol level at 160 mg/100 ml, twice the legal limit.
II. Analysis
A. Charter breaches at the roadside
[23] Section 9 of the Charter provides that “[e]veryone has the right not to be arbitrarily detained”, while s. 10(b) requires detainees to be advised of their right to counsel “without delay”. However, these rights are both subject to certain implied statutory exceptions that have been upheld as reasonable limits under s. 1. In particular, provincial highway traffic legislation empowers the police to stop motorists at random for various purposes, including to conduct sobriety checks. Such detentions are arbitrary, but the resulting s. 9 infringement has been found to be saved by s. 1: see, e.g., R. v. Ladouceur, 1990 CanLII 108 (SCC), [1990] 1 SCR 1257. Moreover, these police detention powers have been interpreted as implicitly carving out an exception from the usual rule that a detainee must be advised of his or her right to counsel without delay. This violates s. 10(b), but the infringement is saved by s. 1: see R. v. Orbanski, 2005 SCC 37, [2005] 2 SCR 3.
[24] If a police officer conducting a highway traffic stop forms a reasonable suspicion that a motorist has alcohol in his or her system, the officer acquires new detention powers under the Criminal Code. At the time of Ms. Kubacsek’s detention in January 2017, these powers were found in s. 254(2), which authorized an officer who had “reasonable grounds to suspect that a person has alcohol in their body” to make a demand that the person either “perform forthwith physical coordination tests prescribed by regulation” (s. 254(2)(a)) or “provide forthwith a sample of breath … to be made by means of an approved screening device” (s. 254(2)(b)). Like the HTA detention powers, the police powers under s. 254(2) have been interpreted as implicitly exempting the police from their usual obligations under s. 10(b) of the Charter, and this implied exception has been upheld as a reasonable limit under s. 1. However, a critical factor in the s. 1 analysis is the statutory requirement that physical coordination tests under s. 254(2)(a) and ASD testing under s. 254(2)(b) be carried out “forthwith”. As Fish J. explained in R. v. Woods, 2005 SCC 42 at para. 14, “Section 254(2) depends for its constitutional validity on its implicit and explicit requirements of immediacy.”
[25] In this case, it is common ground that Ms. Kubacsek was first detained within the meaning of s. 9 and s. 10(b) when PC Codlin signalled her to pull over her car, and that the legal character of her detention changed when the initial highway traffic stop morphed into the criminal impaired driving investigation that eventually led to her arrest. The main disputes in this case are over exactly when and how the nature of Ms. Kubacsek’s detention evolved, whether it remained lawful, and whether her s. 10(b) rights were infringed at some point prior to her arrest.
1. The trial judge’s reasons
[26] The trial judge concluded that the detention changed from a highway traffic stop to a criminal investigative detention at 11:08 a.m., when he found that “PC Codlin formed the reasonable suspicion required for a s. 254(2) demand for roadside testing”. However, he reasoned that PC Codlin could not have made a demand at that point because he did not yet know whether he would be able to arrange to have either an SFST officer attend or an ASD brought to the scene. The trial judge explained:
To make a s. 254(2) demand an officer needs the required reasonable suspicion but also needs to know if they can administer the test being demanded within the forthwith timeframe set out in the section. In this case the officer formed a reasonable suspicion by 11:08 a.m. but could not have made a demand at that time because he didn’t know whether an SFST officer would attend the scene, or if an ASD could be brought or if neither were available.
[27] Having concluded that PC Codlin could not have made a s. 254(2) demand until he received confirmation at around 11:16 a.m. that an ASD was available and would be brought to the scene in about ten minutes, the trial judge appears to have treated Ms. Kubacsek’s detention between 11:08 a.m. and 11:16 a.m. as a common law investigative detention that did not suspend her rights to counsel. He explained:
From 11:08 to 11:16 the officers weren’t sure that a roadside test could be administered in a timely way. They were entitled to make the inquiries they did, but they did not have a reason to suspend right to counsel advice during that period when it was not plain if any roadside test could be administered. There is a s. 10(b) breach during that period.
[28] The trial judge appears to have concluded further that Ms. Kubacsek’s detention then changed into a detention under s. 254(2) when PC Codlin read the ASD demand to her at 11:17 a.m., with the result that her s. 10(b) rights once again became suspended. Although the officers had also decided at 11:16 a.m. that they would let Ms. Kubacsek try to contact duty counsel on her cell phone while they waited for the ASD to arrive, the trial judge found that once PC Lewis arrived at the scene with the device they were not obliged to let her actually speak to counsel before administering the ASD test. As he explained:
Where the breath test can be administered before the accused speaks with counsel it is within the “forthwith window”. The officer was right not to delay the test despite the fact that the accused had been offered an opportunity to speak with counsel and wasn’t able to reach a lawyer.
[29] The trial judge concluded that the delay between PC Codlin reading the ASD demand at 11:17 a.m. and his administering the ASD test at 11:26 a.m. was sufficiently short to comply with the statutory requirement that the test be administered “forthwith”. He accordingly found no breaches of Ms. Kubacsek’s ss. 8 or 9 Charter rights.
2. Applicable legal principles
[30] The statutory requirement in s. 254(2)(b) that an ASD sample be provided “forthwith” is an essential aspect of the s. 1 justification that makes the section constitutional. As Fish J. explained in R. v. Woods, 2005 SCC 42 at paras. 14-15:
Section 254(2) depends for its constitutional validity on its implicit and explicit requirements of immediacy. This immediacy requirement is implicit as regards the police demand for a breath sample, and explicit as to the mandatory response: the driver must provide a breath sample “forthwith”.
Section 254(2) authorizes roadside testing for alcohol consumption, under pain of criminal prosecution, in violation of ss. 8, 9 and 10 of the Canadian Charter of Rights and Freedoms. But for its requirement of immediacy, s. 254(2) would not pass constitutional muster.
[31] In R. v. Quansah, supra, at para. 26, Laforme J.A. explained that for this reason:
The term “forthwith” in s. 254(2) … means “immediately” or “without delay” and indicates a prompt demand by the peace officer and an immediate response by the person to whom that demand is addressed: see Woods, supra at paras. 13-14 and 44. However, in unusual circumstances “forthwith” may be given a more flexible interpretation than its ordinary meaning strictly suggests: see Woods, at para. 43.
He noted further at para. 47:
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).
It is the Crown’s burden to justify any delay, and “[a]ny delay not so justified exceeds the immediacy requirement”: Quansah, supra at para. 48. Delay will only be justified if, in the circumstances, it is “reasonably necessary to accomplish the objectives of s. 254(2)”: at para. 41.
3. The trial judge’s analytic errors
[32] In my view, the trial judge’s reasons reveal that he made three related errors that in combination led him to incorrectly analyse the issue of whether the ASD sample in this case was obtained from Ms. Kubacsek “forthwith”, as was statutorily and constitutionally required.
a) The forthwith window started when PC Codlin first formed grounds to make an ASD demand
[33] The trial judge’s first error, which I think was also the most significant, was to treat the “forthwith window” as only commencing when PC Codlin first read Ms. Kubacsek the formal ASD demand. This led the trial judge to treat her detention until 11:16 a.m. as an investigative detention during which her s. 10(b) Charter rights were infringed, rather than as part of the detention under s. 254(2), during which time her s. 10(b) rights were statutorily suspended in a manner that was justified under s. 1 for as long as the detention remained lawful. Most importantly, however, it led him to approach the question of whether the “forthwith” requirement had been met by treating the relevant period of delay as only 9 minutes: that is, as the time that passed between when PC Codlin made the ASD demand at 11:17 a.m. and when Ms. Kubacsek provided her ASD breath sample at 11:26 a.m.
[34] In my view, the approach the trial judge took is at odds with Laforme J.A.’s holding in Quansah, supra that “[t]he immediacy requirement … commences at the stage of reasonable suspicion” (at para. 46), rather than at the point that the ASD demand is actually made. This point is well-illustrated by the facts of Quansah itself, where the officer did not make the ASD demand until some 11 minutes after he first formed the necessary grounds to do so. Laforme J.A. found that in the particular circumstances of the case the officer’s delay in making the demand was justified, and concluded that the overall delay in Quansah complied with the forthwith requirement because it was “reasonably necessary for the officer to properly perform his task” (at para. 54). For present purposes, however, the critical point is that Laforme J.A. treated the relevant period of delay as the entire 17 minutes that passed between when the officer first formed his grounds and when the ASD breath sample was obtained, not the shorter period that started when the officer made the ASD demand, which was 11 minutes after he first formed his grounds to do so.
[35] For the Crown, Mr. Juriansz fairly concedes that the approach the trial judge took was wrong, acknowledging that Quansah “forthwith bookends are … from the formation of suspicion until the test”. He nevertheless defends the trial judge’s ultimate conclusion, arguing that even on a proper analysis in which the clock starts when PC Codlin first formed his reasonable suspicion that Ms. Kubacsek had alcohol in her body, the overall delay in this case should still be found to satisfy the “forthwith” requirement. I will return to this question later.
b) PC Codlin had grounds to make an ASD demand as soon as he smelled alcohol on Ms. Kubacsek’s breath.
[36] The trial judge’s second analytic error was to conclude that even after PC Codlin formed a reasonable suspicion that Ms. Kubacsek had alcohol in her body, he could not have properly made an ASD demand until he had confirmed that a device would actually be available, so that he could “administer the test being demanded within the forthwith timeframe set out in the section.” Although it is not entirely clear from the trial judge’s reasons, this may have been what led him to erroneously conclude that the forthwith window did not start until PC Codlin actually made the ASD demand at 11:17 a.m., shortly after he received confirmation from the station that an ASD was available and could be brought to the scene within 10 minutes.
[37] As Ms. Kubacsek’s counsel Mr. Little points out, the Ontario Court of Appeal has specifically rejected the proposition that s. 254(2) requires police officers to reasonably believe that they can “‘make the demand good’ at the time it is made”: see R. v. Latour, 1997 CanLII 1615 at paras. 30-33; R. v. Degiorgio, 2011 ONCA 527 at para. 54. Although these cases both addressed an earlier version of s. 254(2), in my view this holding still applies to the amended version of the section that was in effect in January 2017.[^1]
[38] Under the version of s. 254(2) that was in force in January 2017, a police officer who formed a reasonable suspicion that a person had alcohol in his or her body and had within the last three hours been operating one of the types of transport machinery listed in the subsection became entitled to make an ASD demand at the time that this suspicion crystallized, even if the officer was not sure that he or she would actually be able to obtain the ASD breath sample “forthwith”. An officer who made a demand without having an ASD on hand certainly ran the risk that the device might arrive too late to permit a breath sample to be lawfully seized from the detainee “forthwith”, and might for this reason have been well advised to take other investigative steps to try to form grounds for arrest that did not depend on the ASD result. However, when risk of excessive delay materialized, this did not retroactively make the initial demand unlawful at the time it was made, even though it made any subsequent seizure of an ASD breath sample outside the “forthwith” window unlawful.
c) PC Codlin formed his reasonable suspicion at 11:04 a.m., not at 11:08 a.m.
[39] I am also satisfied that the trial judge made a third error when he concluded that PC Codlin did not form grounds to make an ASD demand until 11:08 a.m., even though he had smelled alcohol on Ms. Kubacsek’s breath four minutes earlier. The trial judge appears to have misapprehended the police testimony on this point, and then rationalized this misapprehension by making a further error of law. In the result, I am satisfied that the trial judge’s finding of fact on this point was tainted by a “palpable and overriding error” that justifies appellate intervention: Housen v. Nikolaisen, 2002 SCC 33 at paras. 1-23.
[40] In his initial summary of the evidence, the trial judge correctly noted that PC Codlin testified that he had first smelled alcohol on Ms. Kubacsek’s breath at 11:04 a.m. He then noted:
11:08 Officer forms reasonable suspicion after detecting odour and questions about timing of drinking form grounds for s. 254(2) demand.
This accurately summarizes PC Aselton’s testimony about when he first smelled alcohol on Ms. Kubacsek’s breath and formed his own reasonable suspicion that she had alcohol in her body. However, PC Codlin’s evidence was that he had already formed this reasonable suspicion earlier, at 11:04 a.m., which was before PC Aselton had joined him at the side of Ms. Kubacsek’s car.
[41] Since it is undisputed that PC Codlin was in charge of this investigation and was the officer who ultimately made the ASD demand, the Quansah “forthwith window” began when his reasonable suspicion first crystallized, not four minutes later when PC Aselton also smelled alcohol on Ms. Kubacsek’s breath and independently formed his own reasonable suspicion that she had been drinking.
[42] Later in his reasons, the trial judge stated that “[a]t 11:08 a.m. PC Codlin formed the reasonable suspicion required for a s. 254(2) demand for roadside testing”. In my view, it is apparent from the trial record that he simply confused PC Aselton and PC Codlin’s evidence about when each of their independent reasonable suspicions crystallized.
[43] The trial judge then went on to explain why he thought it made sense that PC Codlin would have only formed a reasonable suspicion that Ms. Kubacsek had alcohol in her body four minutes after he had smelled alcohol on her breath, stating:
PC Codlin could have formed a reasonable suspicion earlier when he first smelled alcohol, but officers are entitled to investigate whether a s. 254(2) demand is required before deciding whether to make such a demand. In some cases their observations will lead to a conclusion of impairment leading to arrest and without the need for roadside testing. In other cases like this one where those signs were not observed the officers ask about alcohol consumption and timing to try to figure out whether there are grounds for a demand or reasons not to administer a test. The investigation from 11:04 a.m. to 11:08 a.m. was reasonable as it was properly focused on this issue.
[44] As I read this passage, the trial judge seems to have erroneously conflated the question of when PC Codlin first acquired grounds to make an ASD demand with the separate question of whether he was then justified in delaying making the demand. As I will discuss further below, I agree that s. 254(2) did not necessarily require PC Codlin to make his ASD demand immediately. However, this has no bearing on the issue of when the officer first formed his grounds. PC Codlin’s evidence on this latter point was clear and unambiguous: he testified that he believed he had sufficient grounds to make the ASD demand as soon as he smelled alcohol on Ms. Kubacsek’s breath at 11:04 a.m., not four minutes later. Moreover, as I have already explained, the relevant time period for the “forthwith” inquiry “commence[d] at the stage of reasonable suspicion”: Quansah, supra at para. 46.
4. Was the ASD breath sample obtained “forthwith”?
[45] In view of these analytic errors by the trial judge, at least one of which the Crown acknowledges, his conclusion that the “forthwith” requirement was satisfied cannot stand. I must accordingly reassess whether, on the largely undisputed facts in this case, the 22-minute delay between 11:04 a.m., when PC Codlin formed his reasonable suspicion, and 11:26 a.m., when Ms. Kubacsek eventually provided an ASD breath sample, complied with the constitutionally mandated statutory requirement that her breath sample be provided “forthwith”.
[46] As Laforme J.A. explained in Quansah, supra at paras. 45-49:
[T]he 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.
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.
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).
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.
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.
[47] Before considering the facts of this case through the lens of the five Quansah factors, I will make two preliminary observations. First, while the “forthwith” requirement must be assessed contextually and applied with some flexibility, it is not infinitely expandable. Detentions under s. 254(2) substantially interfere with motorists’ liberty because they require only a reasonable suspicion of wrongdoing. In R. v. Barclay, 2018 ONCA 114 at paras. 28-30, Hoy A.C.J.O. (as she then was) explained:
[A]ll investigative detentions must be “brief” because the state interference with the individual’s liberty rests on a reasonable suspicion of criminal activity, a much lower standard than the reasonable and probable grounds needed for an arrest. The relatively low “reasonable suspicion” standard cannot constitutionally sustain a detention that is not “brief”.
The purpose of the brief detention contemplated under the investigative detention power is to allow the police to take investigative steps that are readily at hand to confirm their suspicion and arrest the suspect or, if the suspicion is not confirmed, release the suspect.
The word “brief” is descriptive and not quantitative. It describes a range of time and not a precise time limit. The range, however, has temporal limits and cannot expand indefinitely to accommodate any length of time required by the police to reasonably and expeditiously carry out a police investigation.
[48] Although Hoy A.C.J.O. was addressing the common law investigative detention power, similar temporal limits apply to detentions under s. 254(2). Indeed, the constitutional stakes are heightened in this context because persons detained under s. 254(2) can also be denied their s. 10(b) Charter rights, albeit in a manner that is justified under s. 1. Put simply, the officers in this case were not entitled to detain Ms. Kubacsek for however long it took to have an ASD brought to the scene.
[49] Second, is clear from the case law that the 22-minute delay in this case at the very least approached the outer limits of the “forthwith” requirement. In R. v. Grant, 1991 CanLII 38, [1991] 3 S.C.R. 139 at p. 150 S.C.R., Lamer C.J.C. noted:
Without delving into an analysis of the exact number of minutes which may pass before the demand for a breath sample falls outside of the term “forthwith”, I would simply observe that where, as here, the demand is made by a police officer who is without an A.L.E.R.T. unit and the unit does not, in fact, arrive for a half hour, the provisions of s. 238(2) [now s. 254(2)] will not be satisfied.
Shorter periods of delay have also been found to be statutorily and constitutionally non-compliant. For instance, in R. v. George, 2004 CanLII 6210 (Ont. C.A.) and R. v. Cote, 1992 CanLII 2778 (Ont. C.A.), the Ontario Court of Appeal found in the circumstances of those cases that delays of 18 and 14 minutes exceeded the bounds of the forthwith requirement. Likewise, in R. v. MacMillan, 2019 ONSC 3560 Harris J. concluded that an effective 21-minute delay[^2] in bringing an ASD to the scene from the police station resulted in the breath sample not being obtained “forthwith”.
[50] The Crown contends that the 22-minute delay here was nevertheless reasonably justified because of the unusual situation the police found themselves in: namely, that it was a Sunday morning when the station’s ASDs were being calibrated, so they did not have an ASD with them and did not know how long it would take to have one brought to the roadside. Mr. Juriansz argues further that the trial judge’s characterization of these circumstances as “unusual” is a finding of fact that is entitled to deference on appeal.
[51] In my view, there is nothing “unusual” about the basic scenario of an officer without an ASD making a demand under s. 254(2)(b), knowing that it will take some time to have an ASD brought to the scene. This is essentially the same fact pattern that was presented in cases such as R. v. Grant, supra, R. v. George, supra, and R. v. MacMillan, supra, to give just a few examples. The specific reason for the delay in those cases may have been different, but I do not think this has much significance when assessing whether the ASD sample was obtained “forthwith”. Rather, it seems to me that the most salient fact for the analysis here is that PC Codlin and PC Aselton both knew from the start that it would probably to take longer than usual to have an ASD brought to the scene, and quite possibly a very long time. Their decisions, actions and inaction must be viewed with this knowledge in mind.
[52] I also do not agree that the trial judge’s description of the reason for the delay here as “unusual” is a finding of fact that commands appellate deference. The particular reasons why it took as long as it did in this case for an ASD to be brought to the scene were essentially undisputed. Whether or not these reasons are characterized as “unusual” is not in itself a matter of any real consequence. Rather, the important question is whether, having regard to the Quansah factors, the delay in this case can be characterized as “reasonably necessary” in the circumstances. Answering this question involves applying a legal standard to the undisputed facts of this case, making it essentially a question of law: Housen v. Nikolaisen, at para. 26.
[53] As I have already explained, I am satisfied that the “forthwith window” in this case started at 11:04 a.m., when PC Codlin first smelled alcohol on Ms. Kubacsek’s breath and formed both subjective and objective grounds to make an ASD demand. Mr. Little argues that the officer’s failure to make the demand immediately at this point triggered instantaneous breaches of Ms. Kubacsek’s ss. 9 and 10(b) rights. As he puts it in his factum:
Once Codlin formed grounds to make the ASD demand, the Appellant’s detention was converted into a detention pursuant to s. 254(2), which then became unlawful as it was not “authorized by law” and arbitrary in breach of s. 9 because the demand was not made “forthwith”.
He also argues that once Ms. Kubacsek’s detention became unlawful the police and Crown could no longer shelter under the s. 1 justification for suspending her s. 10(b) Charter rights, and that her right to counsel was also infringed: see R. v. Steele, 2014 ONCJ 583 at para. 11.
[54] In the circumstances of this case, I do not agree that these Charter breaches crystallized instantaneously as soon as PC Codlin smelled alcohol and failed to immediately make an ASD demand. The officer was obliged to make the demand “promptly” after forming his grounds (see Quansah, supra at para. 46), but “promptly” does not necessarily mean “immediately”. As Quansah itself illustrates, in some situations a delay in making the demand may be justified.
[55] In this case, where PC Codlin knew that there was a real possibility that he would be unable to obtain access to either an ASD or a trained SFST officer within the “forthwith” window, I think he was entitled to take some time to consider his options and make necessary inquiries. As I have already explained, the Quansah “forthwith” clock started running as soon as PC Codlin formed a reasonable suspicion that Ms. Kubacsek had alcohol in her body, and I think it would have been reasonable for him to have made it his first order of business to request that an ASD be brought to the scene as quickly as possible. Indeed, as Mr. Juriansz points out, the police are not “required to make an ASD demand even where grounds exist to do so”. If PC Codlin had quickly learned that neither an ASD nor a trained SFST officer would be available within any reasonable time frame, I think it would have been appropriate for him to have chosen not to have made any demand under s. 254(2), rather than proceed to make a demand he knew he would not be able to make good. It was open to him to try instead to take other investigative steps to investigate Ms. Kubacsek’s sobriety that could potentially have given him reasonable grounds to believe that she was impaired even without an ASD fail. If events had actually played out that way and PC Codlin had never made any s. 254(2) demand, I think it would be highly artificial to treat Ms. Kubacsek’s detention as nevertheless being “converted into a detention pursuant to s. 254(2)” once the officer could have first lawfully made a demand under that subsection.
[56] In this case, however, PC Codlin did eventually decide to make an ASD demand, and I agree that under Quansah this had the effect of converting Ms. Kubacsek’s detention into a detention under s. 254(2) from the point that his grounds first crystallized. Moreover, even though I think that PC Codlin could have postponed making the demand for some reasonable time period without undermining the lawfulness of the detention, I also think that his 13 minute delay in this case exceeded what was reasonably justified in the circumstances. PC Codlin displayed no particular urgency when it came to making his initial request to the station for an SFST officer and/or an ASD, waiting some five minutes after he first smelled alcohol on Ms. Kubacsek’s breath at 11:04 a.m. and formed his grounds. Unlike the situation in Quansah, this initial delay was not justified any pressing safety or other concerns, since PC Aselton had arrived at 11:04 a.m. and taken charge of ensuring that Ms. Kubacsek did not drive away or continue drinking. Moreover, after PC Codlin made his requests at 11:09 and 11:10 a.m., I see no good reason why he could not then have made an ASD and/or an SFST demand immediately, rather than waiting a further seven minutes to get confirmation that an ASD would be brought to the scene before making the ASD demand.
[57] In these circumstances, I am not satisfied that the Crown has met its burden of justifying the 13 minute delay between when PC Codlin formed his grounds and when he made the ASD demand as “reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2)”. On the facts here, I think PC Codlin failed to carry out his obligation to make the demand “promptly”.
[58] I also agree with Mr. Little that the officers’ failure to immediately inform Ms. Kubacsek of her right to counsel was risky and ill-advised. Even though her s. 10(b) rights became temporarily suspended once her detention changed into a detention under s. 254(2), both officers knew from the start that they might very well not be able to arrange to have either a trained SFST officer attend or an ASD brought to the scene within the “forthwith” window. Faced with this uncertainty, I agree with Mr. Little that the prudent course would have been for the officers to have immediately advised Ms. Kubacsek of her right to counsel and let her try to call counsel on her cell phone. This would have guarded against the risk that a breach of her s. 10(b) rights would later crystallize if the “forthwith” window expired before an ASD or an SFTS officer arrived.
[59] In any event, whether or not PC Codlin’s initial delay in making the ASD demand made Ms. Kubacsek’s detention unlawful, I am satisfied that the overall 22 minute delay between PC Codlin’s formation of his grounds and the obtaining of the ASD sample exceeded the limits of the “forthwith” requirement.
[60] It is at least reasonably possible that an ASD could have been brought to the scene more quickly if PC Codlin had requested one immediately, rather than waiting more than five minutes to do so. Moreover, the evidence in this case strongly suggests that if Ms. Kubacsek had been told earlier of her right to counsel and permitted to use her cell phone to call counsel, she would have been able to speak with duty counsel and obtain legal advice well before PC Lewis arrived with the ASD. Once Ms. Kubacsek was arrested and taken to the station, it only took 12 minutes in total for PC Aselton to arrange a call with duty counsel and for Ms. Kubacsek to complete her consultation. In these circumstances, I think that the police “could realistically have fulfilled their obligation to implement the detainee’s s. 10(b) rights before requiring the sample”, from which it follows that “the ‘forthwith’ criterion is not met”: Quansah, supra at para. 49. While I agree with my colleague Schreck J.’s conclusion in R. v. Menezes, 2019 ONSC 4497 at paras. 23-36 that the Crown bears the burden of persuasion on this issue, I think that the evidence in this case is sufficiently clear that the burden would be met even if it were borne by the defence.
[61] Police failures to comply with the forthwith requirement in s. 254(2) typically trigger a cascading series of Charter breaches: see MacMillan, supra at paras. 41-43. This case is no exception. As I have explained, I think Ms. Kubacsek’s detention became unlawful, and thus arbitrary and in breach of s. 9,[^3] when PC Codlin failed to make the ASD demand with reasonable promptness after he first formed the necessary grounds. In any event, in view of my conclusion that the “forthwith” window had expired by the time the ASD arrived at the scene, 22 minutes after PC Codlin formed his grounds to make the ASD demand, I am satisfied that her detention was unlawful and arbitrary at the point that she was compelled to provide a breath sample. The seizure of the ASD breath sample accordingly also infringed her s. 8 Charter rights. Since the ASD “fail” result formed the grounds for her subsequent arrest and the breathalyser demand, these were also unlawful and resulted in further infringements of her ss. 8 and 9 Charter rights: see, e.g., R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223 at pp. 251-52.
[62] I am also satisfied that Ms. Kubacsek’s s. 10(a) and (b) Charter rights were infringed. Section 10(a) gives detainees “the right … to be informed promptly of the reasons” for the detention. In this case, I recognize that PC Aselton did tell Ms. Kubacsek quite early on that she was being investigated for impaired driving, and that he later informed her approximately five minutes into her detention that she would “have to do a test”. However, she was not specifically told that she would be required to provide an ASD breath sample until around 11:16 a.m., at which point she had already been detained for some 13 minutes. As the Ontario Court of Appeal observed in R. v. Nguyen, 2008 ONCA 49 at para. 20:
[W]hile the main purpose of s. 10(a) is to inform an individual of why he or she is being detained, it also has an important secondary aspect as an adjunct to the right to counsel conferred by s. 10(b). Specifically, the purpose of s. 10(a) is also to inform an individual of the extent of his or her jeopardy such that he or she can exercise the right to counsel conferred by s. 10(b) in a meaningful way.
[63] In this case, Ms. Kubacsek could not have obtained meaningful advice from counsel unless she knew specifically that the police meant to compel her to provide an ASD breath sample. As Hill J. observed in R. v. Wackernagel, 2004 CanLII 51751 at para. 34 (Ont. S.C.J.), “to fulfil the s.10(a) Charter right, the detainee should be advised of the reason for continued detention generally by communication of the s. 254(2) demand or its substantial equivalent.” Ms. Kubacsek did not receive this information until 11:16 a.m., when PC Aselton told her that the police “ha[d] an instrument that’s coming”, and when PC Codlin made the formal ASD demand a minute later. This was some 12 or 13 minutes after PC Codlin first formed his grounds to make the demand. In these circumstances, I am satisfied that Ms. Kubacsek’s s. 10(a) right to receive this information “promptly” was infringed.
[64] I am also satisfied that Ms. Kubacsek’s s. 10(b) rights were infringed. The officers were not obliged to advise her of her right to counsel when she was first detained, since her detention began as an HTA traffic stop and quickly changed into a detention under s. 254(2), such that her s. 10(b) rights were initially suspended in a manner that was justified under s. 1: see, e.g., R. v. Harris, 2007 ONCA 574 at paras. 47-48; R. v. George, supra at paras. 27-28. However, as I have already explained, I think that Ms. Kubacsek’s detention ceased to be a lawful detention under s. 254(2) once PC Codlin failed to make his ASD demand “promptly”, and that the failure to advise her of her right to counsel at that point triggered a breach of the informational component of the s. 10(b) right: see R. v. Grant (1991), supra; R. v. Steele, supra at para. 11.
[65] Ms. Kubacsek was then advised of her right to counsel between 11:16 a.m. and 11:19 a.m., and proceeded to make an unsuccessful attempt to call duty counsel. As I have already discussed, I have found that by the time the ASD arrived at the scene and Ms. Kubacsek provided a breath sample at 11:26 a.m. the statutory “forthwith” window had already expired. Even if I am wrong in my conclusion that Ms. Kubacsek’s detention had already ceased to be a lawful detention under s. 254(2) once PC Codlin failed to make the ASD demand promptly, it stopped being a lawful detention under this subsection once the police were unable to obtain a breath sample from her “forthwith”. Accordingly, by 11:26 a.m., when the officers purported to compel Ms. Kubacsek to blow into the ASD, their s. 10(b) duty to “hold off” taking any investigative steps that required her active participation until she had spoken to counsel, which had been suspended while she was being lawfully detained under s. 254(2), was back in full effect. It follows that her s. 10(b) Charter rights were infringed at this point, even if they had not been violated earlier.
[66] As I will discuss further below, the fact that Ms. Kubacsek provided the ASD breath sample without the benefit of legal advice is especially significant in this case, since counsel might well very have advised her that the 22 minute delay in bringing an ASD to the scene was too long and that she was not legally obliged to comply with what had at that point become an unlawful demand.
B. The police failure to preserve PC Codlin’s in-car audio and video recording
[67] At trial, the defence unsuccessfully requested a stay of proceedings on the basis that the police failure to preserve PC Codlin’s in-car camera recording violated Ms. Kubacsek’s s. 7 Charter right to disclosure. On appeal, Mr. Little fairly acknowledges that the loss of this evidence was not of sufficient gravity to justify a stay of proceedings. However, he argues that the trial judge erroneously failed to find a s. 7 Charter breach because he incorrectly reversed the burden of proof on this issue, and that adding a s. 7 breach to the ss. 8, 9 and 10 breaches discussed above has potential implications for the s. 24(2) Charter analysis.
[68] By way of background, it was undisputed at trial that PC Codlin’s in-car camera recordings were not preserved. PC Codlin explained that the recording would have started automatically once he switched on his flashing roof lights to signal Ms. Kubacsek to stop, and that he knew a recording was in fact created because he “was able to review it after the incident”. He explained further that the recording should have been automatically uploaded and preserved once he returned to the station. For some reason it was not retained, and while PC Codlin speculated that he “ha[d] a feeling there’s a possibility that [he] didn’t classify it properly” to ensure that it was not routinely erased, he acknowledged that he was “guessing” about this and had “no idea” if this was what had actually happened.
[69] The trial judge held that on the evidence before him it was “not plain whether PC Codlin’s video was lost due to negligence or for some technical reason”, and that as a result “[t]he defence has not proved a s. 7 breach”. Mr. Little argues that this reversed the burden of proof, and that once the defence had proved that the recording was not preserved or disclosed to the defence, the burden shifted to the Crown to show that the records had not been lost through “unacceptable negligence”.
[70] I agree with Mr. Little. In R. v. La, 1997 CanLII 309 (SCC), [1997] 2 S.C.R. 680 at paras. 18-21, Sopinka J. held that once the defence shows that relevant evidence that ought to have been preserved by the police or the Crown has been lost or destroyed, the burden to explain the loss or destruction shifts to the Crown. He explained (at para. 20):
This obligation to explain arises out of the duty of the Crown and the police to preserve the fruits of the investigation. The right of disclosure would be a hollow one if the Crown were not required to preserve evidence that is known to be relevant. Yet despite the best efforts of the Crown to preserve evidence, owing to the frailties of human nature, evidence will occasionally be lost. The principle in Stinchcombe (No. 2), [R. v. Stinchcombe, 1995 CanLII 130 (SCC), [1995] 1 S.C.R. 754, aff’g (1994), 1994 ABCA 113, 88 C.C.C. (3d) 557 (Alta. C.A.)] recognizes this unfortunate fact. Where the Crown’s explanation satisfies the trial judge that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached. Where the Crown is unable to satisfy the judge in this regard, it has failed to meet its disclosure obligations, and there has accordingly been a breach of s. 7 of the Charter. [Emphasis added]
See also R. v. Bero, 2000 CanLII 16956 at paras. 30-32; R. v. Hersi, 2019 ONCA 94 at paras. 26-34.
[71] In this case, the trial judge’s reasons show that he incorrectly put the burden on the defence to affirmatively show that PC Codlin’s in-car recording had been lost or destroyed through unacceptable negligence. Under La, once the trial judge concluded that the failure to preserve the recording had not been adequately explained by the Crown, he should have found a breach of Ms. Kubacsek’s s. 7 Charter right to disclosure.
[72] That said, I also agree with Mr. Little that this breach did not justify entering a stay of proceedings, and that the trial judge accordingly did not err by refusing this remedy. Importantly, PC Aselton’s in-car camera footage was properly preserved and disclosed. The video from PC Codlin’s in-car camera probably would have provided a somewhat better view of the officers’ interactions with Ms. Kubacsek at her car, and the audio portion presumably would have captured PC Codlin’s initial conversation with her before PC Aselton joined him at the side of her vehicle. However, while the lost recording would plainly have been relevant and disclosable, I am satisfied that the police failure to preserve it did not cause any substantial prejudice to Ms. Kubacsek’s fair trial rights, and that this was not one of the “clearest of cases” where a judicial stay of proceedings would have been warranted. Nevertheless, the presence of an additional Charter breach is a relevant consideration in the s. 24(2) analysis.
C. Section 24(2)
[73] The trial judge, having found a breach of Ms. Kubacsek’s s. 10(b) rights but no other Charter violations, ruled that the breath sample evidence should be admitted under s. 24(2). He reasoned that the breach he had found was not serious because it “arose out of an unusual situation” and the officers eventually let Ms. Kubacsek try to call duty counsel on her cell phone, “showing [that they] were mindful of the accused’s s. 10(b) rights.” He also found that the breach had only a “minimal impact” on Ms. Kubacsek, and that the reliability of the breath sample evidence weighed in favour of admission.
[74] A trial judge’s s. 24(2) analyses is ordinarily entitled to appellate deference, but “[n]o deference is due … where an appellate court reaches a different decision on the breach itself”. R. v. Manchulenko, 2013 ONCA 543 at para. 94; see also R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at para. 129. In this case, I have found additional breaches of Ms. Kubacsek’s ss. 7, 8, 9 and 10(a) Charter rights, and the s. 10(b) breach that emerges from my analysis is substantially different from the breach that the trial judge identified. Accordingly, I must conduct my own independent assessment of the Grant s. 24(2) factors.
1. Seriousness of the
[75] The first Grant line of inquiry requires me to consider “the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter”: Grant, supra at para. 73. There is a spectrum of seriousness, with “inadvertent or minor violations of the Charter” lying at the low end, and “wilful or reckless disregard of Charter rights” at the high end.
[76] In this case, I am satisfied that the officers did not deliberately set out to violate Ms. Kubacsek’s Charter rights. To the contrary, the in-car recording tends to suggest that they found themselves in a situation that they were not entirely certain how to handle. Although PC Codlin was nominally in charge of the investigation, he seems to have been especially unsure of himself and often waited for prompting from PC Aselton or PC Lewis before taking any action.
[77] That said, I do not agree with the trial judge that the situation the officers were confronting was particularly “unusual”. As I have already discussed, the basic scenario here – officers who do not have an ASD making an ASD demand in the face of uncertainty about how long it will take for a device to be brought to them – is commonplace. While I appreciate that the law in this area is not simple or straightforward, the governing legal principles are well-established. The Supreme Court of Canada’s decision in Grant (1991), supra, which in many respects remains the key foundational case, was decided more than 25 years before Ms. Kubacsek’s detention and arrest. The Ontario Court of Appeal’s decisions in George, supra and Quansah, which expanded on and clarified a number of important points, were decided in 2004 and 2012, respectively. In these circumstances, I think it is reasonable to expect patrol officers in 2017 to have had a much better grasp of their Charter obligations in this type of situation than the officers in this case demonstrated.
[78] I think it should have been obvious to PC Codlin from the outset that the “forthwith” clock was ticking, and that if he planned to subject Ms. Kubacsek to an ASD test he needed to take immediate action to try to have a device brought to the scene as quickly as possible. His delay in making this request for more than five minutes is puzzling, particularly since PC Asleton was dealing with any potential safety concerns and had them well in hand. I also think it is not unreasonable at this stage of the development of the law to expect patrol officers to understand that they are legally and constitutionally obliged to make ASD demands “promptly” once they have formed the requisite grounds, whether or not they are sure that the device will arrive on time.
[79] I find the officers’ treatment of Ms. Kubacsek’s right to counsel especially concerning. PC Codlin and PC Aselton both knew from the start that there was considerable doubt about whether they would be able to arrange for either an SFST officer to attend or an ASD to be brought within a reasonable time frame. While Ms. Kubacsek’s s. 10(b) rights were suspended during the initial HTA stop and would remain suspended for the duration of any lawful s. 254(2) detention, the officers appear to have been unsure for the first few minutes of the detention whether they would actually make any form of s. 254(2) demand, and even once they decided to go this route it remained an open question for at least the first twelve minutes whether they would be able to have an ASD brought to the scene at all, let alone in a timely manner. In short, this is not a case like MacMillan where the officers started out believing that they would be able to conduct the ASD test “forthwith”, only to have their plan derailed by an “unexpected traffic jam” that delayed the arrival of the ASD: MacMillan, supra at para. 49. Rather, the officers here started out being completely unsure about whether they would be able to get an ASD to the scene at all, let alone in time to satisfy the “forthwith” requirement.
[80] In MacMillan, Harris J. held (at para. 3) that once the likelihood of delay in that case materialized:
The officers in this case, seeing that the delay was becoming excessive, should have reverted to the George alternative. Advising the appellant of his right when it became apparent the test could not be administered promptly should have been followed by an invitation to use his cell phone to contact counsel.
On the different facts of this case, I think the strong possibility that there would be an excessive delay in having an ASD brought to the scene should have been obvious to the officers from the outset, and that they ought accordingly have immediately “reverted to the George alternative” of advising Ms. Kubacsek of her right to counsel and allowing her to make a call on her cell phone. If the ASD had then unexpectedly arrived within the “forthwith” window before Ms. Kubacsek could complete the call to counsel, they would not have been obliged to hold off administering the screening test: see, e.g., R. v. Soule, 2018 ONSC 5809 at paras. 40-41. On the other hand, if Ms. Kubacsek had been able to complete her call to counsel before the device arrived, this would have strongly indicated that the “forthwith” window had expired, alerting the officers that they would now be acting unlawfully and in breach of Ms. Kubacsek’s ss. 8 and 9 Charter rights if they purported to compel her to provide an ASD breath sample and continued to detain her for that purpose: see Quansah, supra at para. 49.
[81] Although PC Codlin and PC Aselton were not strictly obliged to afford Ms. Kubacsek her s. 10(b) rights from the outset, in the sense that no breach of her Charter rights would have materialized if an ASD had then arrived at the scene within the “forthwith window”, I think their failure to turn their minds to this issue until some fifteen minutes into her detention reveals, at the very least, a degree of “ignorance of Charter standards” that “must not be rewarded or encouraged”: Grant, supra at para. 75. While the seriousness of the violation would have been even worse if it had never occurred to the officers to let Ms. Kubacsek try to call counsel on her cell phone, I think that their belated realization that this was something they ought to do came too late to significantly mitigate the seriousness of the breach.
[82] The subsequent breach of Ms. Kubacsek’s s. 7 right to disclosure arising from the failure to preserve PC Codlin’s in-car camera recording in my view tends to aggravate the seriousness of the state misconduct in this case to at least some extent. While it is not clear on the evidence whether PC Codlin was personally to blame for the loss of this evidence, the Crown failed to meet its burden of showing that the recording was not lost or destroyed through “unacceptable negligence” by the police. This lends some support to the argument that exclusion of the evidence is required to distance the court from the failure of the state authorities in this case to take their constitutional obligations seriously.
[83] On balance, I think that the first set of Grant factors weigh in favour of exclusion, although less strongly than they would have done if the evidence had showed that the police had acted with deliberate and conscious disregard for Ms. Kubacsek’s Charter rights rather than out of ignorance or carelessness.
2. Impact of the breaches on Ms. Kubacsek’s Charter-protected interests
[84] The second branch of the Grant inquiry:
…focusses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed.
See Grant, supra at para. 76.
[85] In this case, Ms. Kubacsek’s liberty interests were interfered with when she was detained at the roadside for 22 minutes. Her detention was initially lawful but became unlawful and in violation of s. 9 of the Charter at some point before PC Codlin made the ASD demand at 11:17 a.m., and certainly by the time she was made to provide an ASD breath sample at 11:26 a.m. The compelled production of the ASD breath sample outside the “forthwith” window was also unlawful and compromised her s. 8 Charter right to be secure against unreasonable searches and seizures. Once she blew a “fail” on the ASD this triggered a further and more prolonged detention, as well as additional compelled seizures of her breath at the police station. In view of my conclusion that the ASD sample was obtained outside the forthwith window, her subsequent detention and the subsequent seizures of her breath were also unlawful and resulted in further intrusions on her protected ss. 8 and 9 interests.
[86] It is true that the conditions of Ms. Kubacsek’s unlawful detention at the roadside were not particularly onerous, since she was not handcuffed and was permitted to remain seated in her own car, although she was not allowed to leave, as she evidently wanted to do. The breath test procedures at the roadside and at the station can both also fairly be characterized as “minimally intrusive”: see Grant, supra at para. 111; R. v. Jennings, 2018 ONCA 260 at paras. 29-31.
[87] However, I do not think that the breaches of Ms. Kubacsek’s s. 10 Charter rights can be so easily minimized. If she had been given an opportunity to properly exercise her right to counsel before being subjected to what I have found was an unlawful ASD demand, she might very well have obtained legal advice that would have led her to decline to provide the ASD breath sample. While this would very likely have still resulted in her being arrested and charged with a refusal, she would have had a valid defence to the refusal charge, and on this scenario would have avoided provided the state with self-incriminatory evidence to use against her. As Harris J. explained in MacMillan, supra at para. 74:
From a functional perspective, legal advice would have informed the appellant that because of the delay, the ASD demand was invalid and compliance was not legally required. … The absence of this advice had a crucial impact on the appellant. There was a cause and effect relationship between the breach of the right to counsel and the obtaining of the evidence used to convict the appellant. This substantially increases the impact of the breach: R. v. Grant (2009) at paras. 122, 137.
[88] The gravity of the s. 10(a) breach in this case was attenuated to some degree by the fact that Ms. Kubacsek was told repeatedly that she was being investigated for impaired driving, even though she was not told in a timely way that she was being detained specifically so that the police could compel her to submit to an ASD test. However, as I noted earlier, one purpose of s. 10(a) is to permit detainees to “exercise the right to counsel conferred by s. 10(b) in a meaningful way”. If Ms. Kubacsek had been given the opportunity to speak to counsel earlier in her detention, as I think she should have been, she could not have meaningfully exercised this right unless she knew that the police intended to compel her to provide an ASD sample. To this extent, at least, the s. 10(a) breach compounds the gravity of the s. 10(b) violation in this case.
[89] In my view, the combined effect of the Charter breaches in this case significantly compromised Ms. Kubacsek’s protected Charter interests. Not only was she detained and subjected to an unlawful, albeit minimally physically intrusive, search, but she was unlawfully compelled to provide self-incriminatory evidence that she might not have provided if her right to counsel had been respected. In these circumstances I think the second set of Grant factors weigh heavily in favour of exclusion.
3. Society's interest in the admission of the evidence and an adjudication on the merits
[90] The third Grant line of inquiry requires me to consider the impact of excluding the evidence on society’s interest in having the case against Ms. Kubacsek adjudicated on its merits.
[91] This inquiry favours admission here, as it usually does in drinking and driving cases. The breath sample evidence is reliable evidence of Ms. Kubacsek’s guilt and is essential to the Crown’s case. Drinking and driving is a serious social problem and there is a strong societal interest in having “over 80” charges tried on their merits. Ms. Kubacsek’s conduct in drinking and driving at 11:00 a.m. on a Sunday morning with a very high blood alcohol level put the public safety at risk, and the prospect of her avoiding conviction despite her established factual guilt is distasteful.
[92] However, as Doherty J.A. explained in R. v. McGuffie, 2016 ONCA 365 at para. 63, (citations omitted):
In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence … If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility:
[93] In this case, the second Grant inquiry strongly favours exclusion. The first Grant inquiry also favours exclusion, albeit less strongly. On balance, I find that even though the third Grant factor favours inclusion, the weight of the other two factors tips the scale in favour of exclusion in order to safeguard the long-term repute of the administration of justice.
III. Disposition
[94] In the result, the appeal is allowed, Ms. Kubacsek’s conviction on the “over 80” charge is set aside, and the breath sample evidence is excluded under s. 24(2) of the Charter. Since this evidence was essential to the Crown’s case, it is appropriate to enter an acquittal on this charge rather than ordering a new trial.
The Honourable J. Dawe
Released: July 21, 2021
R. v. Kubacsek, 2021 ONSC 5081
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
EVA KUBACSEK
REASONS FOR JUDGMENT
Dawe J.
Released: July 21, 2021
[^1]: As Schreck J. discusses in R. v. Stennett, 2016 ONCJ 77 at paras. 14-17, before s. 254(2) was amended in 2008, police officers did not have to have a reasonable suspicion that the person subjected to a demand was driving, but the demand was only valid if the Crown could prove at trial that the person actually was driving: R. v. McPherson, 2000 CanLII 17026 (Ont. C.A.) at para. 6. Under the amended version the police must now have a reasonable suspicion both that the person was in care or control of a vehicle within the last three hours and that he or she has alcohol in his or her body, but the Crown does not have to prove the truth of these things at trial to establish the validity of the demand.
[^2]: The actual delay in MacMillan was 31 minutes, but the trial judge and the summary conviction appeal judge both subtracted 10 minutes to account for the time the police had to wait for the accused’s mouth alcohol to dissipate, pursuant to R. v. Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 SCR 254, after he told the police he had used Listerine mouthwash five minutes before he was pulled over.
[^3]: See R. v. Grant, 2009 SCC 32 at paras. 54-56.