ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Appellant
- and -
ANTHONY PAUL BARZAN
Respondent
Counsel: Leonard Kim, Counsel for the Appellant Wayne A. Chorney, Counsel for the Respondent
HEARD: March 31, 2021
JUstice A.S. Rasaiah
reasons on appeal
OVERVIEW
1The respondent Anthony Paul Barzan was charged on September 8, 2019 with offences pursuant to ss. 253(1)(a) and 253(1)(b) of the Criminal Code of Canada R.S.C., 1985, c. C-46 (“Criminal Code”).
2On July 31, 2019, as part of the trial, a voir dire was held on an application alleging multiple breaches of the Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11(“Charter”). The respondent alleged breaches of his 8, 9, 10(a) and 10(b) of the Charter and sought relief pursuant to s. 24(2) of the Charter.
3Two police officers, Cst. Jacob Rouse and Cst. Bradley Nickle testified for the Crown. No exhibits were tendered. The defence called no evidence.
4Submissions were made on October 29, 2019.
5On November 27, 2019, the trial judge released written reasons on the voir dire, in which he found multiple Charter breaches. Pursuant to 24(2), the trial judge excluded the results of the breath tests.
6On December 3, 2019 the respondent was acquitted of the offence of having the care or control of a motor vehicle while “Over 80” contrary to s. 253(1)(b) of the Criminal Code. The s. 253(1)(a) Criminal Code offence was withdrawn.
7The Crown appeals the decision to exclude the evidence, and the resulting acquittal. The Crown requests that the appeal be allowed, and a new trial ordered (on the basis that a new trial is necessary as the evidence introduced before the trial judge was limited to the Charter voir dire).
8The Respondent asks that the appeal be dismissed.
SUMMARY OF THE AGREED UPON FACTS
9On September 8, 2018 at 11:34 p.m., Cst. Jacob Rouse and Cst. Bradley Nickle responded to a report of a motor vehicle collision on Allen Side Road, north of Third Line West. There were multiple reports, and one of the callers advised that people were stopping to help a male out of the vehicle. The officers travelled with their “lights and sirens” to this incident and arrived approximately 1 to 2 minutes before the attending ambulance and EMS paramedics. This incident was treated as an emergency call for assistance by both the responding police and EMS.
10The two officers arrived at 11:39 p.m. at which time Cst. Rouse observed a pickup truck in the ditch. The ditch was approximately 3 feet deep / waist high, and the vehicle was on its side, passenger side down. Cst. Rouse drove past the accident, observed several people congregated nearby on the shoulder of the roadway, did a U-turn and parked his vehicle behind the rolled truck. He then turned off his car’s siren, left his emergency lights on, exited his police car, and approached the group of people on foot. There, he asked who the driver of the rolled truck was, and he was pointed towards the respondent, who was sitting nearby on the shoulder of the road. The respondent stood up and identified himself as the driver of the vehicle and approached Cst. Rouse during which time Cst. Rouse was able to smell the odour of an alcoholic beverage on the respondent’s breath. At approximately 11:40 pm, Cst. Rouse formed the reasonable suspicion that the respondent had alcohol in his body while he had been the operating the motor vehicle which was beside him in the ditch.
11From 11:40 pm to sometime before 11:42 pm, Cst. Rouse waited with the respondent and other witnesses for EMS to arrive. By 11:42 pm, the respondent was inside the ambulance and EMS had commenced their medical assessment of the respondent while Cst. Rouse stood by. During the medical assessment between 11:42 pm and 11: 57 pm, the officer overheard the respondent admit to consuming alcohol as opposed to drugs, which re-affirmed his reasonable suspicion that alcohol was in the person’s body. The respondent also told EMS that he was wearing his seatbelt, the airbag deployed and that he attempted to swerve to avoid hitting a deer.
12After the respondent was assessed for medical injuries by EMS, the paramedics had the respondent sign a waiver indicating that he did not wish to be transported to the hospital for any further medical attention. Immediately following this, Cst. Rouse detained the respondent and read him the ASD demand: the time then was 11:57 p.m.
13At 11:59 pm, the respondent blew into the ASD and produced a fail. He was arrested, provided his rights to counsel, caution, and the breath demand (Intoxilyzer), and transported to the detachment. Immediately upon arriving, the respondent was shown a list of lawyers to select his counsel of choice. He asked to speak to Trevor Simpson, who was called at 12:35 a.m. After a message was left for Mr. Simpson, the respondent asked to speak to Mark Palombi. He spoke to Mr. Palombi, who then referred him to Wayne Chorney, who he also spoke to. After speaking with Mr. Chorney, he was asked by police if he was satisfied with the advice that he received, and he indicated that he was.
SUMMARY OF OTHER EVIDENCE
14There were no officer safety issues being posed by the Respondent or by any other person at the scene of the accident.
15The scene was calm.
16The Respondent was polite, cooperative and coherent when initially spoken to by Cst. Rouse. The Respondent did not complain of any injuries nor did the officer see any exterior physical injuries.
17There were no concerns about residual mouth alcohol.
18The Approved Roadside Screening Device was on scene in the police cruiser.
19Cst. Rouse had a concern for Mr. Barzan. He articulated that the delay in making the demand was based on his desire to ensure that the respondent had access to medical care prior to making the demand. The reason for the delay was medical based.
20Cst. Rouse’s evidence includes that:
- typically when there is a rollover or a vehicle in a ditch, fire and EMS attend
- this was a fairly serious motor vehicle collision
- multiple reports were made to police regarding the accident
- 5 or 6 other civilians had stopped and were on the scene
- EMS kept the respondent for 15 minutes
- he was not trained to identify injuries of the neck or back or head or anything like that
- while there was nothing obvious (by way of injury) he believed it possible that the respondent could have had something more substantial that what he was seeing
- he knew for sure that EMS was coming; he knew EMS was close; most often EMS gets there before them; unless they are roaming in the city EMS is dispatched very near to the police station; he was expecting them to arrive very quickly.
- the vehicle was in the ditch on its side; the position of the vehicle in a deep ditch on its side is why he had concern, the fact that the respondent had to climb out
- the respondent’s health was a priority for the officer
- he felt that the respondent needed to be checked by EMS
- before the respondent saw EMS he was not aware of whether the respondent had been wearing a seatbelt
- he was concerned that there could be neck or back injuries that he didn’t know about and this was paramount to his investigation
- there could have been injury that the respondent did not know
- he had been to other accidents where people are injured, they don’t feel pain and then minutes or awhile later suddenly they have serious injuries and they are going to the hospital
- to him the delay was worth it to ensure the respondent’s health was good and that he was not going to fall over from some unknown injury; and he disagreed with the suggestion that his basis was unreasonable
- he had experience at other trials with very similar circumstances and that the ruling was that it was the appropriate decision
- his focus was on the respondent’s health; making sure his neck was not broken
- waiting for EMS was for the respondent’s safety
- had the respondent not been in the accident he had been in he would have read the demand right away
- in his mind it was not reasonable to make the demand before having him medically cleared
- he had been an officer with the RCMP for seven years before joining the Sault Ste. Marie Police Service, with whom he had worked for just over three years at the time of the voir dire; all patrol work
- he has stopped and investigated thousands of motorists; been involved with over 100 impaired investigations, and has administered around 250 breath tests
- since 2012, he has been trained and certified in respect of three different intoxilyzer devices and gazetted in 2017 with respect to Intoxilyzer 8000C
21During the 17-minute period that preceded the ASD demand at 11:57 p.m., the respondent was in the care and control of EMS for fifteen or more minutes. The respondent is already in the EMS vehicle at 11:42 p.m. Before that, Cst. Rouse testified they would have arrived on scene, opened their doors, got their bags out, approached the respondent, then got the respondent into their vehicle to start the process.
22Cst. Rouse testified that he did not have control over the time the respondent was with EMS, when they were checking him out and doing their thing. He determined that 11:57 was the first opportunity he had to read the demand.
23Cst. Rouse did not verbalize to the respondent that he was detained. It did not come up. The respondent was with the officer for a very short period before he went with EMS.
24It happened so quickly that EMS arrived. It was part of his duties to make sure that a person in a “fairly serious” accident is not injured. He is not just there for criminal investigations, the other aspect that night was the respondent’s health.
25Cst. Rouse and the Respondent did not leave the scene of the accident until 12:11 a.m. The officer had to wait for the SOCCO officer to arrive to maintain continuity of the scene.
26Cst. Rouse agreed that during the 11-minute period during which he was waiting for the SOCCO officer to arrive on the scene, he could have offered the Respondent a realistic opportunity to consult with counsel.
POSITIONS
27The Crown takes the following positions: namely the trial judge erred,
a. assuming that the respondent was detained at 11:40 pm; failing to consider the nature of the detention from 11:40 pm – 11:57 pm.
b. Finding s. 8 and 10(b) breaches due do the timing of the demand, concluding the demand was not made forthwith as a basis for a s. 8 breach, and concluding that the decision to hold off on the ASD demand in deference to a medical assessment was unreasonable,
c. finding a s. 9 breach concluding there was an arbitrary detention,
d. concluding there was a violation to the rights to be told promptly of the reasons for detention under s. 10(a) and under s. 10(b) concluding there was a breach of rights to counsel by delaying the demand from the incorrect conclusion that the demand was not made forthwith,
e. a bona fide technical breach did exist at roadside while police waited for an identification officer to attend the scene. The fresh start principle as per Manchulenko would render this minor breach to have been cured and strongly mitigate the seriousness of it, and
f. In the second step of the Grant analysis, the trial judge erred by failing to conduct an analysis with reference to the s. 8 breach, which he found to be the foundational section that triggered the other breaches. The impact on the respondent was minor, and the second Grant factor would have strongly favoured admission.
28The Respondent takes the following positions:
a. The s. 8 Charter right was infringed because Cst. Rouse did not adhere to the "forthwith" requirement set out in s. 254(2) of the Criminal Code; the demand for a roadside sample was delayed by 17 minutes after Cst. Rouse established his reasonable suspicion of alcohol in the body of the now Respondent without legal justification; his explanation for the delay was not reasonable in all the circumstances and was based upon misunderstanding of the law - he was ignorant of Charter standards.
b. The s. 9 Charter right was infringed because the Respondent was arbitrarily detained without the roadside sample demand not having been made forthwith; he was detained at the time that Cst. Rouse established reasonable suspicion of alcohol in his body; the "forthwith" requirement is inextricably intertwined with the detention; non-adherence to the "forthwith" statutory and constitutional requirement led to arbitrary unlawful detention; and that he was also detained at law considering the factual circumstances surrounding him and the applicable law.
c. The s. 10(a) Charter right was infringed because during the first 17 minutes of the Respondent's detention, he was not informed promptly of the reason therefor.
d. The s. 10(b) Charter right was infringed because during the first 17 minutes of the Respondent's arbitrary detention he was also not offered the right to retain and instruct counsel without delay nor was he even informed of the right to be able to do so. There was no informational component provided at all until 11:59 p.m. and no implementational components until after having returned to the Sault Ste. Marie Police Service from the scene of the single vehicle accident. The Respondent was given the opportunity to call his lawyer of choice at 12:35 a.m.
e. The trial judge correctly granted a remedy based upon the multiple Charter breaches arising from the ignorance of the Charter standards. The primary investigating officer lacked an understanding of the fundamental and very important "forthwith" requirement. He also did not understand the law surrounding what can amount to a detention in all the circumstances. It was these initial misunderstandings and ignorance of the law which caused “the Charter violation domino effect”. The cumulative effect of the multiple Charter right breaches must be given weight under the Grant analysis.
ANALYSIS
29All circumstances must be taken into consideration from the time the reasonable suspicion is formed to the making of the demand to the detainee’s response to the demand. There must be no delay more than is reasonably necessary to enable the officer to discharge his or her s. 254(2) duties. In unusual circumstances a more flexible interpretation may be given.
30The record reflects that this was not a random stop. The police were called out to an accident scene. The vehicle was in the ditch on its side. The respondent had to climb out. The officer was not medically trained. The officer had experienced accident scenes on which an involved party appeared to be medically sound only to take a turn. EMS was on scene in less than 2 minutes after the officer developed his suspicion.
31In his analysis of the above, it is reasonable to infer/conclude from paragraphs 29, 58 and 60 of the Reasons, that the trial judge considered that the respondent was detained at the very moment that the officer formed his grounds to make an ASD demand, namely at 11:40 pm. and that the demand ought to have been made at that very moment.
32I agree with the appellant that on the record before the court, the trial judge erred in holding that the respondent was detained without thoroughly considering this issue, the layer of whether or not the respondent was actually detained, in his approach to determining the validity of the demand, R. v. MacMillan, 2013 ONCA 109 at paras. 23, 24, 25 and 37.
33This was a contextual element that should have formed part of the analysis. Where a person is not yet detained, greater flexibility in the forthwith interpretation can be tolerated between the time the officer forms the grounds and when the officer makes the demand as the primary factor driving the need for immediate action is the avoidance of a lengthy detention while a detainee is deprived of the right to consult counsel, MacMillan, para. 35.
34Per MacMillan, it is arguable that when an officer has formulated the requisite grounds to make an ASD demand, this does not equate to a person being detained at that very moment. There are circumstances where a person may not yet be detained when reasonable suspicion is formed. Accordingly, if a person is not yet detained, ss. 9, 10(a) and (b) may not be immediately triggered and accordingly not breached, MacMillan, paras. 36 and 38.
35In a decision of the Court of Appeal for Alberta in R. v. Rowson, 2015 ABCA 354, 332 C.C.C. (3d) 165., which was affirmed by a single-paragraph decision of the Supreme Court, 2016 SCC 40, [2016] 2 S.C.R. 158 the court held that the statutory duty to remain at the scene of an accident, render assistance, and provide information to police was not detention for the purposes of a Charter claim. Rather, it is a statutory duty which is owed to other drivers and to the registrar of motor vehicles.
36The officer’s subjective view which was not communicated to the respondent or accompanied by conduct is not determinative of the issue. The trial judge’s analysis and considerations are not superseded or displaced on this issue.
37In the record before me, and whether the respondent was physically restrained or being issued a restrictive demand, or direction that he felt he had not choice but to comply with, there was for consideration, evidence that, while the officer testified that he wished for the respondent to be examined by EMS, there is no evidence that he controlled or forced the respondent to avail himself of a medical examination by EMS or even communicated with the respondent about it. The respondent was already in the EMS unit at 11:42 p.m. The circumstances as to what was said to whom by whom and how the respondent ended up in the EMS unit are absent from the record. On the issue of psychological detention, for consideration is the evidence of police on scene, and if the maintenance of active cruiser lights in a dark area of an accident is enough. The evidence included that where the accident occurred, there was not enough illumination from the intersection to shed light on the collision sight. It was dark. In addition, for 15 or maybe more of the 17 minutes, the evidence indicates that the respondent was in the control of EMS. On the record before me, as of 11:42 pm the respondent is in the EMS unit. Sometime before 11:42 p.m. it is inferable that EMS would have also taken some of that time to unload and communicate with the respondent before he actually was placed in the ambulance, which does not seem to have been considered by the trial judge.
38In my view, the failure to consider the layer of detention described above for Charter purposes constitutes a fatal error in the legal analysis and findings in the contextual circumstances of this case.
39It is clear that delay in making the demand (essentially equating it to the entire first 17 minutes and accordingly amounting to requiring it to be instantaneous) was considered by the trial judge as the basis for and/or same directly influenced the ss. 8, 9, 10(a) and part of the 10(b) Charter infringement findings; that they were triggered by delay in making the demand (meaning the entire first 17 minutes).
40Despite the deference an appeal judge is required to afford a trial judge’s decision under s. 24(2) as a matter of general principle, I am satisfied that the trial judge’s determination is infected by this error.
41In my view, an analysis of whether the respondent was in fact detained in the first 17 minutes before the ASD demand, and/or if so, for how long and for what purposes, were relevant in determining the “forthwith” requirement, and accordingly ss. 9, 10(a) and 10(b) for that period, the effect of the “fresh start” compliance and whether the results of the tests were “obtained in a manner” that infringed or denied the respondent’s Charter rights, and thus whether s. 24(2) could be summoned as a basis to exclude the evidence.
42The opening of the analysis indicates that the entire analysis was based on multiple breaches. The analysis concerning the seriousness of the Charter violations was based on multiple Charter violations.
43Related to and in addition to the above issue of concern, s. 24(2) requires a nuanced, case-specific examination of all the circumstances under the lines of inquiry mandated by Grant to determine admissibility. The trial judge failed to do this.
44In the analysis concerning the seriousness of the Charter violations, the trial judge found no bad faith on the part of Cst. Rouse. The analysis reviews the s. 8 Charter violation but makes no specific findings regarding the seriousness of the ss. 9, 10(a) and 10(b) Charter violations he found in respect of the ASD demand, other than to say that the breaches were “significant” breaches. Further, in analyzing the officer’s decision to wait to make the ASD demand, the trial judge had found that the officer was familiar with the immediacy requirement and elected to delay until after the applicant had seen medical personnel. The evidence suggested that the decision to wait was discriminately related to the accident made in very likely less than 2 minutes, based on the time the record reflects that the respondent was in the ambulance.
45With respect to the impact of the breaches, the trial judge found the factor to be “relatively neutral” due the fact that the respondent for part of the delay would have remained on site due to EMS personnel and to provide information regarding the accident to police, and the respondent ultimately received legal advice from two counsel within a relatively short period of time. While it appears in part that the trial judge recognized that there existed at the very least a parallel and ongoing motor vehicle collision investigation, and that it could not be said that the delay in ASD demand and testing prolonged the time the respondent would in any event have been in attendance at the roadside, again, he did not reflect considerations on whether or not he was actually detained and for how long and on what basis on this particular thought in relation to Charter purposes. The trial judge further did not seem to reflect these impacts in terms of the seriousness of the breaches he found and attenuation, if any, they would draw.
46As a result of my findings above, in my view, it is not necessary to go through the other grounds of the appeal as I find the above error to have tainted the entire analysis to the point that the appeal ought to be allowed.
CONCLUSION
47There is a reasonable degree of certainty that the acquittal at trial was materially affected by the error outlined above.
48The appeal is allowed. The acquittal is set aside. A new trial is hereby ordered.
49This matter is hereby returned to the Ontario Court of Justice on August 9, 2021 at 9:00 am, courtroom #8 for purposes of setting a new trial.
Rasaiah J.
Released: July 26, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ANTHONY PAUL BARZAN
REASONS ON APPEAL
Justice A.S. Rasaiah
Released: July 26, 2021