COURT FILE NO.: CR-21-70000005-00AP
DATE: 20210824
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
CHRISTINA VAYIA HENTY Appellant/Defendant
Counsel: Peter van den Bergh, for the Crown Howard Cohen, for the Appellant/Defendant
HEARD: June 2, 2021 by Zoom
BEFORE: MOLLOY J.
REASONS FOR DECISION
A. INTRODUCTION
[1] Christina Vayia Henty was convicted of operating a motor vehicle while her blood alcohol level was in excess of the legal limit. She was fined $1000 and prohibited from driving for one year. At trial, she argued that the breathalyzer results should not be admitted because her rights under the Charter of Rights and Freedoms had been breached. For reasons dated December 22, 2020, the Honourable Justice F. Bhabha of the Ontario Court of Justice found there had been no breach of Ms. Henty’s Charter rights and convicted her of the offence charged. Ms. Henty appeals from that decision.
[2] For the reasons set out below, I find no error by the trial judge. The appeal is dismissed.
B. FACTUAL CONTEXT
[3] In the early morning hours of August 3, 2019, Det. Jack Caccavale was alone in his police cruiser in the vicinity of Danforth and Coxwell Avenues. As he was driving along, he heard a woman screaming in the parking lot of a nearby McDonald’s. He immediately went to the location and discovered that the woman screaming was in the driver’s seat of a car parked in the drive thru at McDonald’s. This was the appellant, Christina Henty. She was screaming and yelling at a female McDonald’s employee, as opposed to being herself in danger. There were two young men in the car with her, both of whom were openly drinking beer inside the car. There was also open alcohol in the vehicle. The two men were obviously intoxicated, and agreed that they were, but said Ms. Henty was sober and was driving them home. Ms. Henty said she had consumed 1 ½ beers (which turned out to be a lie). There was a large crowd at the McDonald’s and in the parking lot, some of whom were becoming unruly. Det. Caccavale testified at trial that he was concerned for his safety and called for backup. Two officers arrived within two minutes of that call. Det. Caccavale was the acting “road sergeant” that night, subject to being called away to supervise any emergencies that might arise. He turned matters over to the two other officers, Constables Yiannakos and Nunez, and left the scene to deal with other duties.
[4] Constables Yiannakos and Nunez arrived on scene at 2:43 a.m. and were briefed by Det. Caccavale. They started an investigation. They believed they had a reasonable suspicion that Ms. Henty was impaired. They did not have an approved roadside screening device (“ASD”) in their cruiser and called the police station at 2:50 a.m. requesting that an ASD be brought to their location. At 2:54 a.m., Ms. Henty was told that she would be asked to blow into the device. At 2:59 a.m. another officer arrived with the ASD. At 3:03 a.m., Ms. Henty failed the screening test. She was thereupon arrested and taken to the 55 Division police station. A breathalyzer test was administered and Ms. Henty’s results were over the legal limit of 80 mg of alcohol in 100 ml of blood.
[5] At trial, the breathalyzer readings were not challenged, nor did the accused dispute the fact that she was driving a motor vehicle while having a blood alcohol reading that was over the legal limit. The sole issue at trial was whether the breathalyzer results should be excluded from evidence due the delay in getting the ASD to the scene and alleged Charter breaches relating to Ms. Henty’s right to counsel.
C. REASONS OF THE TRIAL JUDGE
[6] The trial proceeded in the Ontario Court of Justice over the course of three days in October, 2020. The trial judge reserved her decision. On December 22, 2020, the trial judge provided detailed oral reasons finding that there had been no breach of the accused’s Charter rights and convicting her of driving with a blood alcohol rate over the legal limit. Subsequently, the trial judge sentenced Ms. Henty to a $1000 fine and one-year license suspension. There is no appeal with respect to sentence. The only issues on appeal relate to the trial judge’s rulings on the ASD delay and the Charter issues.
[7] Section 320.27(1)(b) of the Criminal Code provides that an officer who has “reasonable grounds to suspect” alcohol impairment may require a person to “immediately” provide a breath sample for analysis in an ASD. The trial judge noted that the prior version of this provision in the Criminal Code used the word “forthwith” instead of “immediately,” but found these two words to be synonymous. She considered and applied the case law dealing with the term “forthwith” in cases involving delays in roadside screening as being equally applicable. In particular, she applied the decision of the Ontario Court of Appeal in R. v. Quansah[^1] and considered the five factors referred to therein in assessing the immediacy requirement in the Criminal Code.
[8] The trial judge recognized the requirement in Quansah that she take a contextual approach. She found the following timeline (which is not challenged): Detective Caccavale heard Ms. Henty screaming at 2:41 a.m.; the backup officers arrived on scene at 2:43 a.m.; the request for the ASD was made at 2:50 a.m.; the demand was made on Ms. Henty at 2:54 a.m.; the ASD was on scene by 2:59 a.m., and Ms. Henty had registered a fail on the device at 3:04 a.m.
[9] The trial judge accepted the direction in Quansah that the demand for a breath sample must be made by the police officer promptly upon forming a “reasonable suspicion.” She accepted that it was reasonable for Det. Caccavale, for reasons of officer safety, to call for backup before taking any steps to deal with the driver. She held this was part of the overall context to be taken into account and that a short delay for this purpose (in this case, less than two minutes) was not problematic.
[10] The trial judge also held that it was reasonable for Det. Caccavale to turn matters over to the two officers arrived due to the detective’s other responsibilities and further that it took a few minutes for the officers to investigate, speak to the driver and passengers, and ensure they had a reasonable suspicion so as to justify the use of the ASD. She considered the seven minutes that elapsed a reasonable period of time for that purpose (that being from arrival on scene at 2:43 a.m. to the point where the officers requested at 2:50 a.m. that an ASD is requested to be brought from the police station).
[11] The trial judge held that the delay from 2:50 (when the officers had a reasonable suspicion) to 2:54 (when the demand was made on Ms. Henty) was because Ms. Henty was very upset, crying, and wanting to talk to her mother on the phone. The trial judge held that in these circumstances “Constable Nunez could not be faulted for delaying the demand for a few minutes while waiting for Ms. Henty to calm down,” noting as well that the officer had an obligation to ensure that Ms. Henty understood what was happening and could make a rational choice.
[12] The trial judge rejected the defence submission that all Toronto Police Service vehicles should be equipped with an ASD in case one is needed. The trial judge found this might be the gold standard, but that in reality “considerations related primarily to the cost, maintenance, and calibration of such devices” made it not mandatory for every car to have an ASD, provided one could be brought to the scene quickly. She found that the eight or nine minutes it took for the ASD to arrive was reasonable and that there was no delay in carrying out the test was the device was there.
[13] Under the fifth Quansah factor, the trial judge considered whether the police officers at the scene could have implemented the detainee’s rights to counsel while waiting for the ASD to arrive. She found that this could not reasonably be done. There was only five minutes between when the demand was made and when the ASD was available. It was 3:00 a.m. on an August Saturday night/Sunday morning. Ms. Henty did not have a phone number for a lawyer. She planned to get that from her mother. She had a cellphone, but she had given that to her friends. They reported that they had been trying to call Ms. Henty’s mother, but she was not answering. Later, officers at the police station had the same experience – they called Ms. Henty’s mother, but her mother did not answer. Ms. Henty was then successful in contacting her father who provided her with the office phone number for her counsel of choice. Unsurprisingly, he was not in his office at that hour. Ms. Henty then elected to speak to duty counsel and a call was placed, but it was not returned for another 24 minutes. Taking all of these circumstances into account, and including the inability of the officers to give Ms. Henty any privacy at the scene, the trial judge held that the officers could not realistically have fulfilled the obligation of permitting Ms. Henty to speak to counsel before taking the ASD test.
[14] The trial judge held that the roadside test was validly administered in accordance with the requirements of the Criminal Code.
[15] The trial judge further found that the officers did not breach Ms. Henty’s right to speak to counsel of her choice when they placed the call to duty counsel. The officers placed five calls on Ms. Henty’s behalf: to her mother; to her father; and to her counsel of choice at the only number provided for him and where there was no reason to believe he would be present at that time. They spent an hour and a half facilitating her right to counsel. The trial judge found they did more than was required of them and that there was no breach of Ms. Henty’s s. 10(b) Charter rights.
[16] Finally, in the alternative, the trial judge undertook a s. 24(2) Charter analysis to determine whether the evidence should be admitted even if there had been a Charter breach. The trial judge applied the three factors identified by the Supreme Court of Canada in R. v. Grant[^2] and found that she would have admitted the evidence. On the first factor, she found the state infringing conduct to not be serious, pointing to the fairness of the officers in their interactions with Ms. Henty, their kindness to her at the roadside in trying to calm her (including wiping away her tears), the inquiries they made to see if her friends had been able to reach her mother, and the extensive efforts they made to facilitate her access to counsel. With respect to the second factor, the trial judge found minimal impact of Ms. Henty’s Charter rights, noting that Constable Nunez had advised her at the roadside of the importance of speaking to a lawyer, and that she did have access to duty counsel before providing samples of her breath at the police station. The breath samples were obtained in a minimally intrusive manner. Finally, in her analysis of the third factor, the trial judge pointed to the public interest in prosecuting impaired driving and related offences and found that excluding reliable, impartial and minimally intrusive evidence such as the breathalyzer results in this case would more likely bring the administration of justice into disrepute than would admitting the evidence.
D. ISSUES RAISED ON APPEAL
[17] The following issues are raised on appeal:
(i) that the trial judge erred in conflating the meaning of “forthwith” with the meaning of “immediately” under s. 320.27(1) of the Criminal Code;
(ii) the trial judge erred in finding there was not unreasonable delay in the administration of the roadside breath sample, particularly because Det. Caccavale should have called for the ASD instead of calling for backup and leaving it to those officers to form their own reasonable suspicion;
(iii) the trial judge’s assessment as to whether Ms. Henty would realistically have contacted counsel was flawed because she wrongly concluded there was no way to give Ms. Henty privacy for the call and because she had the benefit of hindsight when looking at how long it took for Ms. Henty to be in touch with counsel at the police station, which the officers could not have none at the roadside.
[18] The appellant submits that her rights were breached under ss. 8 and 10(b) of the Charter and the trial judge erred in not excluding the evidence as a result.
E. ANALYSIS and CONCLUSION
Forthwith and Immediately are Synonymous
[19] Forthwith and immediately mean the same thing. As noted by the trial judge, changing the word “forthwith” to “immediately” did nothing other than change archaic legal language to a word in common usage and understood by everybody. In Quansah, the words are used interchangeably and the Court often refers to the use of the word “forthwith” as being an “immediacy requirement.” Indeed, LaForme J.A. specifically defined “forthwith” in this manner, stating, “The term ‘forthwith’ in s. 245(2) therefore, 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.”[^3] In making that finding, the Court of Appeal in Quansah followed clear direction to that same effect from the Supreme Court of Canada in R. v. Woods, in which the Court cited the Canadian Oxford Dictionary for the definition of “forthwith” as meaning “immediately” or “without delay.”[^4]
[20] Thus, whether used as a legal term, or based on ordinary usage, “forthwith” means “immediately” and is defined that way in every dictionary I could find, and I consulted many.
[21] Counsel for the appellant submitted that “immediately” must be interpreted in accordance with the intention of Parliament when it made the amendment, citing sections from Hansard when the Bill was introduced. Leaving aside whether it is appropriate to consult such sources for language that is clear and unambiguous, Hansard provides no assistance on why the word “forthwith” was changed to “immediately.”
[22] The appellant relies on the Saskatchewan Provincial Court decision in R. v. Morrison[^5] as authority for the proposition that the change in wording from “forthwith” to “immediately” in s. 320.27 of the Criminal Code brings with it “an increased sense of urgency.” First of all, I am not bound by decisions of the Saskatchewan Provincial Court, but I am bound by decisions of the Ontario Court of Appeal and the Supreme Court of Canada. Therefore, if there was a conflict between those levels of courts, I would not follow dicta from the Saskatchewan Provincial Court. Secondly, the Morrison decision does not stand for the proposition for which it was cited. The reference to “increased sense of urgency” is from para. 148 of Morrison, which states:
Secondly, s. 320.27(2) requires that an ASD be in the possession of the officer(s) at the time they make the demand. This does represent a change in that it means that police can no longer detain a person until an ASD becomes available or is brought from another location. There is an increased sense of urgency as it relates to timing.
[23] The provision at issue in Morrison is 320.27(2), whereas the case before me involves s. 320.27(1)(b). The crucial difference between the two is that s. 320.27(2) relates to a situation in which the officer already has an ASD in his or her possession. That is what the trial judge in Morrison referred to as creating an “increased sense of urgency,” not the substitution of the word “immediate” for “forthwith.” In the case before me, the relevant provision deals with a situation where an officer has “reasonable grounds to suspect” that a person has consumed alcohol and operated a motor vehicle within the preceding three hours, not the random stop situation involved in Morrison. Interestingly, the trial judge in Morrison accepted that “forthwith” meant “immediately” and was skeptical about whether Parliament’s attempt to use plain language would provide any clarity, stating:
Courts generally interpreted “forthwith” to mean “immediately or without delay”. Whether Parliament’s attempt to provide clarity on this point is successful remains to be seen, as the word “immediately” may be scrutinized as much as “forthwith” was.[^6]
[24] There is no merit whatsoever to the appellant’s argument that the use of the word “immediately” brings with it any change to the law that developed under the previous legislation’s use of the word “forthwith.”
The Quansah Factors
[25] The trial judge correctly identified the legal test to be applied and correctly applied that test to the facts as she found them, providing detailed reasons for doing so. There is no challenge to any of the findings of fact. I see no basis for disturbing any of the trial judge’s findings, in fact or in law.
[26] I do not propose to simply repeat the reasons given by the trial judge. I agree with those reasons in their entirety. However, I will deal briefly with some of the issues more particularly emphasized on the appeal.
[27] I do not agree with the appellant’s submission that Det. Caccavale was required to send for an ASD and make a breath demand prior to, or at the same time as, calling for backup. That decision must be assessed in light of all of the surrounding circumstances he was facing. Given the situation he was in, it was entirely reasonable for him to prioritize safety. I also agree with the trial judge that, given Det. Caccavale’s role and responsibilities that night, it was reasonable for him to turn the investigation over to Constables Yiannakos and Nunez.
[28] I also reject the submission that the trial judge erred in her finding that there was no realistic opportunity for Ms. Henty to consult with counsel during the time it took to get the ASD brought to the scene. On appeal, the appellant relied on the Ontario Court of Appeal decision in R. v. George,[^7] holding that s. 10(b) of the Charter was violated in circumstances where there was an 18-minute wait for the ASD to arrive, the accused had a cellphone in his car, and the officer failed to advise him of his rights to counsel. I would distinguish the facts in that case from this situation here. In George, the officer at the scene had been told there would be a delay of 15-20 minutes to get an ASD to the scene. He gave no information to Mr. George about his rights to counsel and did not inquire about whether he had a cellphone or wished to call counsel. In the case now before the court, the officers knew that the ASD requested at 2:50 a.m. was on its way to the scene. Because of Ms. Henty’s distraught state, the demand was not made on her until 2:54 a.m., which was completely reasonable in the circumstances. The ASD arrived five minutes later. Ms. Henty was advised of her right to counsel and said she wanted to consult a lawyer. However, she did not know a lawyer, nor did she have a number for a lawyer. She wanted to call her mother in order to get her lawyer’s contact information. The officers here made inquiries about the cellphone and were told by Ms. Henty’s friends that they were trying to contact her mother on her cellphone without success. Further, subsequent information showed that efforts to contact and speak to counsel simply could not have been done within the five minutes from when the demand was made and when the ASD arrived. The trial judge did not hold that privacy for a call to counsel could never be afforded at the roadside. She held that the officers in this case reasonably took into account the absence of privacy in the circumstances they were facing. Those circumstances included: the only person Ms. Henty wanted to talk to was her mother and her friends were attempting to contact her; there were many people in the area; and, Ms. Henty had objected to being inside the police car, claiming to be claustrophobic. In my view, the decision in George does not undermine any of the reasons given by the trial judge in this case.
[29] For the reasons given by the trial judge, I find that the roadside sobriety test was validly administered and there was no breach of Ms. Henty’s Charter rights at the scene.
[30] In oral submissions, the appellant did not press the argument raised in her factum that her s. 10(b) rights were further violated at the police station when she was not able to speak to counsel of her choice. That is understandable given the complete lack of merit in that ground of appeal.
[31] Finally, I note that the trial judge’s reasons with respect to the admissibility of the evidence under s. 24(2) of the Charter was not challenged in either the Notice of Appeal, factum, or oral argument. Those reasons are, in my view, unassailable and would have been a complete answer to all of the Charter grounds of appeal in any event.
[32] This appeal is dismissed in its entirety.
MOLLOY J.
Released: August 24, 2021
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
CHRISTINA VAYIA HENTY Appellant/Defendant
REASONS FOR JUDGMENT
Molloy J.
Released: August 24, 2021
[^1]: R. v. Quansah, 2012 ONCA 123, 92 C.R. (6th) 1. [^2]: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. [^3]: Quansah, at para. 26. [^4]: R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205, at para. 13, citing Katherine Barber, ed, Canadian Oxford Dictionary, 2nd ed (Toronto: Oxford University Press, 2004), at p. 585. [^5]: R. v. Morrison, 2020 SKPC 28. [^6]: Morrison, at para. 147. [^7]: R. v. George (2004), 2004 CanLII 6210 (ON CA), 187 C.C.C. (3d) 289 (C.A.).