COURT FILE NO.: SCA(P) 1397/21
DATE: 20221201
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HIS MAJESTY THE KING
Mr. P. Quilty, for the Appellant
Appellant
- and -
JAHCARDO PENNEY
Mr. A. Zaitsev, for the Respondent
Respondent
HEARD: August 15, 2022 by Zoom videoconference
REASONS FOR JUDGMENT
[On appeal from the dismissal entered on September 8, 2021, by Justice S. Martins of the Ontario Court of Justice.]
Stribopoulos J.:
INTRODUCTION
[1] At the end of a one-day trial, the Respondent, Mr. Penney, was found not guilty of a charge that he, contrary to section 320.15(1) of the Criminal Code, R.S.C., 1985, c. C-46, failed or refused to comply with a demand to furnish a sample of his breath for analysis by an approved screening device (ASD).
[2] The trial judge dismissed the charge because she had a reasonable doubt concerning whether the breath demand complied with the requirements of section 320.27. In the trial judge's view, the Crown failed to elicit sufficient evidence to justify the delay between the breath demand and the arrival of the ASD to administer the breath test. Given this, the trial judge was not satisfied the delay was reasonable and that the breath demand remained lawful at the time of the refusal. As a result, the trial judge dismissed the charge against Mr. Penney.
[3] The Crown appeals. It alleges that the trial judge committed two legal errors in dismissing the charge that undermined the correctness of her conclusion concerning the legality of the breath demand. Given the uncontested evidence, the Crown argues this court should allow the appeal, substitute a finding of guilt, and remand the case to the trial judge for sentencing.
[4] In contrast, the Respondent disputes that the trial judge's reasons reveal any legal error. Instead, he submits that the trial judge's decision to dismiss the charge against him was correct based on the record at trial and the law. Accordingly, the Respondent submits that this court should dismiss the Crown's appeal.
[5] These reasons begin with a summary of the evidence before providing a more detailed explanation of the trial judge's reasons for dismissing the charge. Once that essential background is in place, these reasons will then address each of the errors the Crown alleges in light of the submissions of the parties, the evidence, and the law.
I. THE EVIDENCE AT TRIAL
[6] On the early morning of December 19, 2019, a vehicle driven by the Respondent struck a left-turning transport truck in an intersection at Derry Road East and Dixie Road in the City of Mississauga. The truck was turning on an advanced green when the Respondent "t-boned" it after failing to stop at a red light. Ultimately, police, firefighters, and ambulance personnel attended the scene.
[7] The Crown called two witnesses at trial: Cst. Bucci, who made the initial ASD demand, and Cst. Al-Jamal, the officer who eventually attended with an ASD and issued a second breath demand. Additionally, on consent, the statements given to police by two other witnesses, one of whom was a paramedic who treated Mr. Penney, were filed as "agreed statements of fact."
The testimony of Constable Bucci
[8] Constable Bucci was the first police officer to attend the scene, which he happened upon while returning to the division near the end of his shift. He arrived there at 2:26 a.m.
[9] After briefly assessing the situation, he began speaking with the Respondent, who the truck driver identified as the driver of the car that struck his vehicle.
[10] When asked if he was injured, Mr. Penney complained to Cst. Bucci about experiencing pain in his arm. The officer noticed that Mr. Penney seemed unsteady on his feet but thought this could be due to him having just been in a collision and still "shaken up." The officer then escorted Mr. Penney out of the intersection. Soon after, Mr. Penney began complaining of pain in his head. While speaking with Mr. Penney, the officer detected an odour of alcohol on his breath.
[11] Constable Bucci then escorted Mr. Penney to his police cruiser and placed him in the backseat to await the arrival of an ambulance. At that point, having smelt the odour of alcohol on his breath, Cst. Bucci advised Mr. Penney that he would have another unit attend with an ASD to check his blood alcohol level, to which Mr. Penney seemingly agreed. During cross-examination, Cst. Bucci conceded that by then, from his standpoint, he had detained Mr. Penney and that he would not let him leave until he took an ASD breath test.
[12] Unfortunately, Cst. Bucci failed to note when he told Mr. Penney about requiring him to take an ASD breath test. As a result, the officer could not estimate when that occurred relative to his arrival at the scene at 2:26 a.m.
[13] Constable Bucci testified that after telling Mr. Penney he would need to take a breath test, he was busy doing other things at the scene and that the arrival of the ASD was not at the forefront of his mind. Consequently, Cst. Bucci did not appraise Mr. Penney of his right to retain and instruct counsel under section 10(b) of the Charter during the period between the breath demand and the ASD's arrival.
[14] When an ambulance finally arrived, Cst. Bucci and a paramedic escorted Mr. Penney to the ambulance for a medical assessment.
The testimony of Constable Al-Jamal
[15] Constable Al-Jamal was on duty the morning of December 19, 2019, and assigned to the Impaired Driving Enforcement Unit. At some point, she saw a message on the computer screen in her cruiser. Through it, she learned of a request for a unit to attend an accident scene with an ASD. As a result, Cst. Al-Jamal, who had an ASD, began making her way to the location referenced in the message.
[16] Constable Al-Jamal provided somewhat confusing testimony concerning the timing of the message requesting an ASD and when she finally noticed it and began making her way to the location. Initially, she testified to first seeing the message at 2:35 a.m. and referenced 2:26 a.m. as the time of the request. However, at another point, she suggested that 2:35 a.m. was the time of the call for an ASD and said that she could not say when she first noticed it because she had failed to note the time.
[17] In any event, after she saw the message, Cst. Al-Jamal testified that she started to make her way to the intersection from where she was in Brampton. She explained that it took "some time to get from Brampton to that intersection in Mississauga." However, the Crown did not elicit any evidence from Cst. Al-Jamal regarding her route and whether she made any stops along the way. During cross-examination, Cst. Al-Jamal conceded that Mr. Penney was detained "for a long time before her arrival."
[18] Constable Al-Jamal arrived at the scene at 2:51 a.m. Once there, she spoke with Cst. Bucci, who briefed her about the situation. Based on their conversation, she understood that another officer had already issued an ASD breath demand to Mr. Penney. Nevertheless, Cst. Al-Jamal decided to conduct her own investigation to determine if she could form her own independent grounds for making an ASD demand.
[19] Constable Al-Jamal entered the ambulance where Mr. Penney was still located. She had an ASD with her. Constable Al-Jamal testified that Mr. Penney appeared tired; his eyelids were only half open. She began asking him questions but had difficulty hearing his responses. When Cst. Al-Jamal asked Mr. Penney his name, and he finally spoke up, she detected the odour of alcohol on his breath. At that point, Cst. Al-Jamal read him the common law caution. Then, at 2:53 a.m., she read him a formal ASD demand.
[20] After doing so, Cst. Al-Jamal told Mr. Penney she just needed a sample of his breath. He responded, "Yeah, but I can't do that right now. Give me some time." However, in the view of both Cst. Al-Jamal and the paramedic treating him, no apparent medical issues prevented Mr. Penney from providing a breath sample.
[21] At that point, Cst. Al-Jamal demonstrated to Mr. Penney how to provide a breath sample into the ASD to show him how easy it would be to comply. He responded, "Yeah, but I got stabbed in the lung before; I can't do that." As he said that, he pointed to a scar on his chest. The officer told him it looked like a very old scar, and he said, "Yeah, but I still can't do that."
[22] Constable Al-Jamal then proceeded to caution Mr. Penney concerning the consequences of refusing to provide a breath sample. He replied, "I'm not refusing, though. I told you; I've been stabbed in the lung. I can't do that, plus I want to speak with the doctor first."
[23] At that point, Cst. Al-Jamal replaced the mouthpiece on the ASD and extended it to Mr. Penney's mouth for him to blow into the device. In response, he turned his head away from the device and said, "No, I can't do that."
[24] At 3:02 a.m., after having attempted to secure a breath sample from Mr. Penney for nearly ten minutes, Constable Al-Jamal advised him that she was charging him with refusing to provide a breath sample.
II. THE TRIAL JUDGE’S REASONS
[25] At the end of the evidence, the parties proceeded to make submissions. Then, after taking a recess, the trial judge returned to court and delivered oral reasons for judgment.
[26] Quite appropriately, the focus of the trial judge's reasons was on the only live issue at trial, given the parties' positions and the evidence. The trial judge framed the decisive issue as follows: "Whether the demand that Mr. Penney provide a sample of his breath [into] an approved screening device was a valid demand."
[27] In her reasons, the trial judge addressed whether Cst. Bucci had issued a demand to Mr. Penney to provide a sample of his breath for analysis by an ASD. In deciding that question, she quoted the Court of Appeal for Ontario’s decision in R. v. Torsney, 2007 ONCA 67, 217 C.C.C. (3d) 571, and its explanation, at para. 6, that: "The demand need not be in any particular form, provided it is made clear to the driver that he or she is required to give a sample of his or her breath forthwith."
[28] After quoting that passage from Torsney, the trial judge reviewed all the circumstances to decide whether Cst. Bucci had issued an ASD breath demand to Mr. Penney under section 320.27(1) of the Criminal Code. In that regard, the trial judge referred to what Cst. Bucci told Mr. Penney about summoning another unit with an ASD to check his blood alcohol level. She noted that after doing that, Cst. Bucci confined Mr. Penney in the rear of his police cruiser. And finally, the trial judge emphasized that Cst. Bucci acknowledged detaining Mr. Penney and conceded that he would not have permitted him to leave until he furnished a breath sample. Given all of that, the trial judge concluded that Cst. Bucci had issued an ASD breath demand to Mr. Penney.
[29] The trial judge also considered whether Cst. Bucci's ASD breath demand continued to be valid (lawful) when Mr. Penney refused to provide a breath sample. In deciding that question, the trial judge took direction from the Court of Appeal for Ontario’s decision in R. v. Quansah, 2012 ONCA 123, 286 C.C.C. (3d) 307.
[30] The trial judge recognized that Quansah dealt with what was then section 254(2)(b), the predecessor provision to what is now section 320.27(1)(b). And further that the former imposed an obligation to provide a breath sample "forthwith," while the latter instead uses the term "immediately." However, after recognizing that "forthwith" under the predecessor provision had been interpreted as the equivalent of "immediately" (see R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205, at para. 13), the trial judge concluded that the requirement had not changed under the new provision and that Quansah remained controlling.
[31] The trial judge then quoted from LaForme J.A.'s reasons in Quansah and his explanation of the boundaries of the immediacy requirement. First, she quoted paragraph 52 of the decision, wherein LaForme J.A. wrote:
In my respectful opinion, articulation of the precise linguistic equivalent for "forthwith" is less important than a careful consideration of all the circumstances of the particular case. The legal context for this consideration is the objective that "forthwith" sets out, namely a prompt demand and an immediate response, ultimately taking no more than the time reasonably necessary for the prompt performance of the steps contemplated by s. 254(2).
[32] Additionally, the trial judge quoted paragraph 48 from Quansah, where LaForme J.A. observed:
…[T]he 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.
[33] The trial judge then assessed the evidence concerning the delay between Cst Bucci's demand and when Cst. Al-Jamal arrived at the scene of the collision with the ASD. The trial judge recognized the lack of temporal precision in the testimony of the Crown's witnesses. At a minimum, she explained, there was at least a delay of 16 minutes between when Cst. Al-Jamal saw the request for an ASD (2:35 a.m.) and her arrival at the scene at 2:51 a.m. (If Cst. Bucci made his request earlier, which seems probable on the evidence, and had the trial judge considered when Cst. Al-Jamal finally presented the ASD to Mr. Penney at 2:53 a.m., the delay was likely closer to 20 minutes.)
[34] In the trial judge's view, the Crown had failed to adduce adequate evidence to explain the delay between Cst. Bucci's breath demand and production of the ASD for Mr. Penney to furnish a breath sample. Including, for example, evidence that Cst. Al-Jamal was the officer with an ASD who was closest to the scene, "or any further evidence to assess the issue."
[35] In the trial judge's opinion, the absence of evidence demonstrating that the delay was reasonably necessary called into question the continued validity of Cst. Bucci's ASD breath demand. Given that there is no obligation to comply with an unlawful breath demand, the trial judge dismissed the charge against Mr. Penney.
III. THE GROUNDS OF APPEAL
[36] The Crown raises two grounds of appeal, either of which, it submits, justifies appellate intervention by this court. I shall address each in turn.
First Ground - Did the trial judge err by focusing her analysis on the wrong breath demand?
[37] The Crown submits that the trial judge erred by focusing her analysis on the ASD breath demand initially made by Cst. Bucci, rather than the one subsequently issued by Cst. Al-Jamal.
[38] The Crown notes that once she formed the requisite grounds, Cst. Al-Jamal immediately read an ASD breath demand to Mr. Penney and produced the device for him to furnish a breath sample. Consequently, the Crown maintains that Cst. Al-Jamal's ASD breath demand complied with the immediacy requirement and constituted a lawful demand under section 320.27(1) of the Criminal Code. And the Crown argues that when Mr. Penney refused to furnish a breath sample in response to that demand, he committed the offence charged.
[39] In support of this argument, the Crown relies on the Court of Appeal for Ontario's decision in R. v. Guenter, 2016 ONCA 572, 340 C.C.C. (3d) 351. The Crown acknowledges that Guenter did not involve an ASD breath demand under section 254(2) (now 320.27(1)). Instead, it dealt with approved instrument breath demand under section 254(3) (now section 320.28(1)). Nevertheless, the Crown submits that Guenter is instructive concerning the correct interpretation of section 320.27(1).
[40] In Guenter, the accused was involved in a motor vehicle collision. At the scene, the arresting officer soon formed reasonable grounds to believe that Mr. Guenter's ability to operate a motor vehicle was impaired by alcohol and arrested him for that offence. The arresting officer then apprised him of his rights to counsel and read him the primary common law caution. However, given the somewhat chaotic circumstances at a "horrific" accident scene, the arresting officer testified that she forgot to read Mr. Guenter an approved instrument breath demand under section 254(3).
[41] That provision required that a police officer make a breath demand "as soon as practicable" after forming reasonable grounds to believe a motorist was committing or, within the preceding three hours, had committed an alcohol-related driving offence under section 253 of the Criminal Code: see R. v. Squires (2002), 2002 CanLII 44982 (ON CA), 59 O.R. (3d) 765, at para. 24.
[42] The arresting officer then transported Mr. Guenter to the police station. Once there, she spoke with a qualified breath technician, who asked her if she had read Mr. Guenter a breath demand under section 254(3). When she told the qualified technician that she had not, he advised her to do so before Mr. Guenter called a lawyer, which she did approximately one hour after placing him under arrest.
[43] The arresting officer then apprised the breath technician of her grounds for arresting Mr. Guenter for impaired driving. The qualified technician accepted that the arresting officer's grounds were sufficient for him to proceed with collecting breath samples from Mr. Guenter, thereby adopting the arresting officer's grounds as his own.
[44] Once the qualified technician assumed custody of Mr. Guenter, he informed him of his rights to counsel, read him the primary and secondary common law cautions, and, finally, an approved instrument breath demand under section 254(3). Mr. Guenter then furnished two breath samples that registered over the legal limit.
[45] One of the issues the Court of Appeal had to address in Guenter was whether the police had lawfully seized the breath samples. The appellant challenged the legality of the breath demand because the arresting officer failed to make it "as soon as practicable" once she formed the required grounds. In Guenter, after canvassing conflicting decisions from this court and referencing the Supreme Court of Canada's interpretation of section 254(3) in R. v. Deruelle, 1992 CanLII 73 (SCC), [1992] 2 S.C.R. 663, Brown J.A. observed, at paras. 89-90:
[89] Given the close inter-relationship between the operation of s. 254(3) and the need for officers to ensure that a detained person can exercise his s. 10(b) rights in a meaningful way, linking the making of the demand to the timing of the detention has a certain practical attractiveness. But that is not how s. 254(3) reads. As this court held in R. v. Wylie, 2013 ONCA 673, 51 M.V.R. (6th) 1 (Ont. C.A.), at para. 10: "All that s. 254(3) requires is that a valid breath demand is made by a peace officer with reasonable grounds to do so and that the demand is made as soon as practicable. There is nothing in the Criminal Code or in the jurisprudence that supports the proposition that the Crown must prove the 'who, what, where and when' of the demand." Moreover, the larger objective of the Criminal Code's breathalyzer scheme of forcing prompt police investigation was held to be promoted by the three hour limit in s. 254(3): Deruelle, at p. 672.
[90] As applied to the present case, the interpretation of s. 254(3) in Deruelle would permit the trial judge to find that a demand by the breathalyzer technician, Cst. Casey, would satisfy the requirements of s. 254(3) provided he had formed reasonable grounds within the three-hour time limit and made a demand "as soon as practicable" thereafter.
[46] The trial judge in Guenter had concluded that the qualified technician had formed reasonable grounds within the required three-hour window based on what the arresting officer had reported to him. He further reasoned that "as soon as practicable" after that, the qualified technician made an approved instrument breath demand. As a result, the qualified technician's breath demand was lawful. The Court of Appeal found the trial judge's reasoning sound: Guenter, at paras. 93-94.
[47] The Crown submits that because of the similarities between the text of the provisions, the Court of Appeal's approach to interpreting section 254(3) in Guenter should equally govern when it comes to ASD breath demands under section 320.27(1). To be sure, there are strong parallels between some aspects of the text of both sections, which is readily apparent when one reads them side-by-side.
Section 254(3)(a)(i)
If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable, samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood … [Emphasis added]
Section 320.27(1)(b)
If a peace officer has reasonable grounds to suspect that a person has alcohol … in their body and that the person has, within the preceding three hours, operated a conveyance, the peace officer may, by demand, require the person … to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved screening device …. [Emphasis added]
[48] If the Crown is correct, any delay between an initial ASD breath demand at the roadside and the eventual arrival of the device would be of no consequence in many cases. For example, whenever a second police officer attends with an ASD and forms grounds for making an ASD breath demand, any delay would be irrelevant if the second officer makes a demand of their own and then immediately attempts to collect a breath sample. The second officer, presumably, could form the required reasonable suspicion that the motorist has alcohol in their body by either speaking with the officer who issued the initial ASD breath demand or through an investigation of their own, as happened here. Any delay in such cases between the initial ASD breath demand and the eventual arrival of the device would have no impact on the validity of the subsequent breath demand, which would stand in its own right.
[49] With respect, I am less than persuaded that the Crown's proposed interpretation of section 320.27(1) is correct and that it would be appropriate to transfer the holding from Guenter concerning approved instrument breath demands under section 254(3) (now section 320.28(1)) to ASD breath demands under section 320.27(1).
[50] Although there are some similarities between the sections, there are also some crucial differences. To be sure, the text of a legislative enactment is a critical interpretative consideration. However, on its own, it is far from decisive. Under the modern approach to statutory interpretation, the words of an Act are to be read in their entire context, in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament: see Re Rizzo & Rizzo Shoes Ltd., 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26. Additionally, it is a well-established principle of statutory interpretation that, when reasonably available, courts should prefer an interpretation of a legislative enactment that is consistent with the Charter: see Ruth Sullivan, The Construction of Statutes, 7th ed. (Toronto: LexisNexis, 2022), at §16.04.
[51] Sections 320.27(1) and 320.28(1) of the Criminal Code serve related but different purposes. Although in their current iteration, these provisions are a relatively recent addition to the Criminal Code,[^1] analogous sections, most recently sections 254(2) and 254(3), have long been with us. In Woods, the Supreme Court authoritatively explained the purpose of these provisions and how they should be understood together.
[52] Parliament has changed the numbering and some of the wording of these sections since Woods. Nevertheless, that decision is still instructive concerning the purpose and meaning of the successor provisions, especially the constitutional considerations that led the Supreme Court in Woods to refuse to read the "forthwith" or "immediacy" requirement under section 254(2) (now 320.27(1)) too expansively. In that regard, it is instructive to quote, at some length, from Woods. Justice Fish, for a unanimous Court, wrote at paras. 29-36:
29 The "forthwith" requirement of s. 254(2) of the Criminal Code is inextricably linked to its constitutional integrity. It addresses the issues of unreasonable search and seizure, arbitrary detention and the infringement of the right to counsel, notwithstanding ss. 8, 9 and 10 of the Charter. In interpreting the "forthwith" requirement, this Court must bear in mind not only Parliament's choice of language, but also Parliament's intention to strike a balance in the Criminal Code between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.
30 As earlier explained, Parliament enacted a two-step legislative scheme in s. 254(2) and (3) of the Criminal Code to combat the menace of impaired driving. At the first stage, s. 254(2) authorizes peace officers, on reasonable suspicion of alcohol consumption, to require drivers to provide breath samples for testing on an approved screening device. These screening tests, at or near the roadside, determine whether more conclusive testing is warranted. They necessarily interfere with rights and freedoms guaranteed by the Charter, but only in a manner that is reasonably necessary to protect the public's interest in keeping impaired drivers off the road.
31 At that second stage of the statutory scheme, where the Charter requirements must be respected and enforced, s. 254(3) allows peace officers who have the requisite reasonable and probable grounds to demand breath samples for a more conclusive breathalyzer analysis. Breathalyzers determine precisely the alcohol concentration in a person's blood and thus permit peace officers to ascertain whether the alcohol level of the detained driver exceeds the limit prescribed by law.
32 Thomsen was one of the early cases that dealt with constitutional concerns regarding roadside detention of motorists. The Court held that the absence of an opportunity to retain counsel violated s. 10(b) of the Charter, but was justified under s. 1 of the Charter as a reasonable limit prescribed by law. The "forthwith" requirement of s. 254(2) is in a sense a corollary of the fact that there is no opportunity for contact with counsel prior to compliance with the ASD demand.
33 In Grant, the officer who had stopped the accused did not have a screening device in his car. He therefore asked another officer to deliver one to him. The device did not arrive until 30 minutes later. During that time, the accused remained in the police car. Speaking for the Court, Lamer C.J. stated:
The context of s. 238(2) [now, with changes immaterial here, s. 254(2)] indicates no basis for departing from the ordinary, dictionary meaning of the word "forthwith" which suggests that the breath sample is to be provided immediately. 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) will not be satisfied. [Emphasis added; p. 150.]
34 In R. v. Cote (1992), 1992 CanLII 2778 (ON CA), 70 C.C.C. (3d) 280 (Ont. C.A.), the police officer likewise had no screening device in his car. He drove the accused to a police station nine minutes away and was not ready until five minutes later to take a breath sample. The accused refused to comply with the officer's demand and was charged pursuant to s. 238(5) [now s. 254 (5)] of the Criminal Code. The Ontario Court of Appeal set aside his conviction and entered an acquittal instead.
35 Speaking for a unanimous court, Arbour J.A. (as she then was) cited the passage I have reproduced from Grant, and explained:
If the accused must be taken to a detachment, where contact with counsel could more easily be accommodated than at the side of the road, a large component of the rationale in Thomsen disappears. In other words, if the police officer is not in a position to require that a breath sample be provided by the accused before any realistic opportunity to consult counsel, then the officer's demand is not a demand made under s. 238(2). The issue is thus not strictly one of computing the number of minutes that fall within or without the scope of the word "forthwith". Here, the officer was ready to collect the breath sample in less than half the time it took in Grant. However, in view of the circumstances, particularly the wait at the police detachment, I conclude that the demand was not made within s. 238(2). As the demand did not comply with s. 238(2), the appellant was not required to comply with the demand and his refusal to do so did not constitute an offence. [Emphasis added; p. 285.]
36 It is for these reasons that we are prohibited on constitutional grounds from expanding the meaning of "forthwith" in s. 254(2) to cover the delays that occurred in this case.
[53] The very same constitutional considerations that informed the Supreme Court of Canada’s interpretation in Woods of the “forthwith” requirement contained in section 254(2) of the Criminal Code must undoubtedly be kept in mind when considering the meaning of the analogous immediacy requirement found in section 320.27(1).
[54] First, when interpreting section 320.27(1), it is critical to remember that a motorist subject to an ASD breath demand is "detained" from a Charter standpoint: see R. v. Thomsen, 1988 CanLII 73 (SCC), [1988] 1 S.C.R. 640, at para. 13. That is because once a police officer issues such a breath demand, a motorist is not free to leave until they comply. Moreover, such detentions and the resulting warrantless seizure of breath samples they occasion do not require either reasonable grounds or even reasonable suspicion that the person has committed a criminal offence. Instead, section 320.27(1) only requires that a police officer have reasonable grounds to suspect the person has alcohol in their body and was operating a "conveyance" within the preceding three hours.
[55] Second, in Woods the Supreme Court was mindful of all this when it refused to give the "forthwith" or "immediacy" requirement an interpretation that would permit the resulting detention to become unduly prolonged. To have concluded otherwise would undoubtedly have taken the intrusion on a motorist's Charter rights under sections 8 and 9 well beyond the bounds of any override of those constitutional rights that the Crown could conceivably justify as a reasonable limit under section 1 of the Charter.
[56] Yet, acceding to the argument advanced by the Crown would do precisely that. It would empower the police to detain motorists at the roadside for prolonged periods waiting for the arrival of an ASD based merely on reasonable suspicion that they have some alcohol in their body. An admission by a driver that they had a single glass of wine at dinner a short time earlier would suffice. If the officer making the demand does not have an ASD with them, under the Crown's proposed interpretation of section 320.27(1), any incentive for the police to ensure the prompt delivery of one would entirely disappear. After all, any delay would no longer matter, provided the police officer who arrives with an ASD acquires the required reasonable suspicion either by speaking with the officer who made the initial demand or through an investigation of their own.
[57] Third, as the Supreme Court also noted in Woods, it has upheld as a reasonable limit under section 1 of the Charter the implicit override of the right to counsel under section 10(b) occasioned by ASD breath demands at the roadside: see Thomsen, at paras. 29-30. It has done the same as it concerns roadside questioning of motorists by police about their consumption of alcohol or requesting that they perform other types of sobriety tests: see R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3.
[58] One of the principal justifications for tolerating the override of section 10(b) rights is that such roadside detentions are supposed to be brief: see Thomsen, at para. 19; Orbanski & Elias, at paras. 45-47. Implementing the right to counsel at the roadside would usually undermine the brevity essential to justifying the limited override of constitutional rights that ASD breath demands necessarily entail.
[59] And as part of the constitutional balance struck between the state's interest in eradicating impaired driving and the Charter rights of those affected, information obtained by police using roadside screening measures can only furnish the police with the grounds for an approved instrument breath demand under section 320.28(1) and to arrest the motorist. However, given that an override of Charter rights facilitates such measures, a motorist's statements, the results of an ASD breath test, or other roadside sobriety tests, are not substantively admissible as evidence at trial: see Orbanski & Elias, at paras. 58-59.
[60] Finally, it deserves mentioning that even the override of the right to retain and instruct counsel occasioned by an ASD demand at the roadside is not without its limits. For example, when the officer who makes a roadside ASD demand under section 320.27(1) does not have the device with them and knows it will take some time for one to arrive, they must take reasonable steps to facilitate the motorist's right to consult counsel. Their failure to do so when it turns out there would have been a realistic opportunity for the motorist to consult a lawyer before being required to furnish an ASD breath sample occasions a violation of the detained motorist's section 10(b) Charter right: see R. v. George (2004), 2004 CanLII 6210 (ON CA), 187 C.C.C. (3d) 289 (Ont. C.A.).
[61] In contrast, approved instrument breath demands under section 254(3) (now 320.28(1)), which the Court of Appeal was concerned with in Guenter, take place in a very different context and do not raise the same constitutional concerns.
[62] The intrusion on an individual's liberty and privacy interests occasioned by such demands are prefaced upon reasonable grounds to believe that a motorist has committed an alcohol-related criminal driving offence. When a police officer has such grounds, an individual will be subject to an approved instrument breath demand and most likely also placed under arrest. As a result, a more prolonged interference with their liberty is somewhat unavoidable and constitutionally justifiable. By that point, the rationale for overriding the right to counsel no longer holds, and the police must fully comply with their obligations under section 10(b) of the Charter: see Orbanski & Elias, at para. 57; R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613; Woods, at paras. 35-36.
[63] The Crown submits that if the potential delay between an initial ASD demand and one made later by a second police officer becomes unduly prolonged, the affected individual would be entitled to their right to counsel under section 10(b) of the Charter. And that if the police fail to respect that right, the detained motorists could seek constitutional redress for the resulting constitutional violation. I do not doubt that all of that is correct.
[64] However, the Crown's proposed interpretation of section 320.27(1) fails to account for the motorist's section 9 Charter right not to be subject to arbitrary detention. When one remembers the comparatively low standard for police to detain motorists by making ASD breath demands, it is hard to imagine that the override of that right would remain reasonably justified in cases where the resulting detention lasts longer than is reasonably necessary.
[65] To interpret section 320.27(1) in the same way that the Court of Appeal interpreted section 254(3) in Guenter ignores critical differences between the two provisions and the purposes they each serve in the scheme Parliament has enacted. With respect, acceding to the interpretation of section 320.27(1) of the Criminal Code that the Crown urges on this appeal would entirely upend the delicate balance that Parliament has struck between the public interest in eradicating impaired driving and the need to safeguard Charter rights.
[66] Accordingly, I reject the submission that the trial judge erred in focusing her analysis of the immediacy requirement on the ASD breath demand made by Cst. Bucci. Given that that was the breath demand that occasioned Mr. Penney's detention, the trial judge was correct to make it the focus of her analysis when assessing whether the breath demand remained valid when he refused to furnish a breath sample.
Second Ground - Did the trial judge err in her assessment of the immediacy requirement in the circumstances of this case?
[67] The Crown submits that the trial judge erred by applying too rigid an approach to the immediacy requirement in the circumstances of this case. Given that this case involved an ASD breath demand issued at the scene of an accident, the Crown submits that the trial judge should have taken a more flexible approach in deciding whether the delay in producing the ASD was reasonably necessary.
[68] In effect, the Crown argues that the trial judge erred by failing to consider all the circumstances, which necessarily included that this was not an ASD demand issued to a motorist during a roadside stop; rather, it was an ASD demand made by Cst. Bucci amidst the challenges of dealing with the aftermath of an accident at an intersection. By not giving the context adequate consideration, the Crown submits that the trial judge failed to recognize that the delay was reasonably necessary in the particular circumstances of this case.
[69] Ultimately, I disagree that the trial judge failed to consider all the circumstances when assessing the immediacy requirement. Despite the absence of temporal precision in Cst. Bucci's evidence, in her analysis, the trial judge assumed the officer made his ASD demand at 2:35 a.m. (Based on the record, she could have fairly decided that he made the demand even earlier than that.) She referenced Cst. Bucci dealing with the accident scene at the intersection as her reason for concluding that was the latest when he would have issued the demand. In other words, the trial judge's analysis reveals that she was very much alive to the fact that this was an ASD demand issued at the scene of a collision.
[70] The trial judge understandably had difficulty with the adequacy of the evidence adduced by the Crown to explain the reasons for the delay. Importantly, Cst. Al-Jamal played no role in dealing with the aftermath of the accident. Nevertheless, her evidence concerning when she first saw the request for an ASD was less than precise. Nor was there any evidence explaining why she responded to the call for an ASD rather than some other police officer who was potentially closer. Finally, the Crown failed to elicit evidence that Cst. Al-Jamal travelled directly to the scene and did not attend to other matters along the way.
[71] Based on this record, the trial judge's conclusion that the Crown had failed to prove that the delay was reasonably necessary is rather understandable. The dismissal of the charge was not the result of the trial judge's failure to account for the fact that Cst. Bucci made this ASD breath demand in the aftermath of an accident. Instead, it stemmed directly from the Crown's failure to elicit sufficient evidence to prove that the delay was reasonably necessary in the actual circumstances of this case.
[72] Accordingly, I am not satisfied that the trial judge committed any legal error in her analysis of the immediacy requirement.
CONCLUSION
[73] For all these reasons, the court dismisses the Crown’s appeal.
Signed: Justice J. Stribopoulos
Released: December 1, 2022
COURT FILE NO.: SCA(P) 1397/21
DATE: 20221201
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HIS MAJESTY THE KING
Appellant
- and -
JAHCARDO PENNEY
Respondent
REASONS FOR JUDGMENT
Stribopoulos J.
Released: December 1, 2022
[^1]: See An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, S.C. 2018, c. 21, s. 15.