Court File and Parties
COURT FILE NO.: CR-21-816 DATE: 20240416 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – JACQUELYN RIDGE Defendant/Appellant
Counsel: Philip Hsiung, for the Crown/Respondent Robert Wulkan, for the Defendant/Appellant
HEARD: February 9, 2024
Reasons for Decision
DE SA J.:
Overview
[1] The Appellant was tried on a single count of “80+” contrary to s. 320.14(1)(b) of the Criminal Code. [1] At trial, the Appellant challenged the validity of the breath demand (s. 8 of the Charter) and alleged that her s. 10(b) Charter rights had been violated. The trial judge dismissed the applications, and the Appellant was convicted.
[2] The Appellant now raises essentially the same issues on appeal. The Appellant takes the position that the trial judge erred in the following respects:
The trial judge erred in concluding the breath samples were valid as they were not taken “as soon as practicable”;
The trial judge erred in finding that the breath demand was valid as the Appellant was in a panicked state when the demand was made;
The trial judge erred in concluding there was no breach of the informational component of s. 10(b) as the Appellant was in a panicked state when the rights were given;
The trial judge erred in finding that there was no breach of the implementational component of s. 10(b), specifically: a. There was a delay in implementation, and no reasons were provided; b. That the Appellant should have been permitted to speak directly to a third party; and c. That the Appellant was “steered” towards duty counsel and that the court failed to address this submission in its reasons.
[3] Having reviewed the trial record and the reasons of the trial judge, I see no basis to interfere with the trial judge’s decision.
[4] The appeal is dismissed. The reasons for my decision are outlined below.
Summary of Facts
Arrest, Rights to Counsel and Initial Breath Demand
[5] On December 5, 2020, police received a complaint regarding a beige Sebring driving erratically. At 11:55 p.m., PC Tapper was dispatched to the scene of Rutherford Road and Ilan Ramon Boulevard to investigate the complaint.
[6] At 12:04 a.m., PC Tapper located the Appellant’s vehicle on the 407 off-ramp at Bathurst Street and stopped it. Upon approaching the driver’s door, PC Tapper noted that the vehicle started to roll backwards and reversed slightly before stopping.
[7] PC Tapper advised the Appellant of the reason for the stop and asked her if she had anything to drink that evening. The Appellant admitted to having 3 beers and stated that her last drink was at 11:00 p.m. At 12:10 a.m., PC Tapper read the approved screening device (“ASD”) demand, and the Appellant provided a sample registering a “FAIL”. At 12:16 a.m., PC Tapper arrested the Appellant for over 80.
[8] Following her arrest, the Appellant was lodged in the back seat of PC Tapper’s cruiser, at which point she began crying, yelling, and hyperventilating. Paramedics were called as the Appellant claimed that she could not breathe.
[9] While awaiting EMS, PC Tapper and PC Gazdic made attempts to calm the Appellant down and read her the rights to counsel, caution, and the breath demand.
[10] At various times, the Appellant interrupted the officers, was abrasive and confrontational, and responded sarcastically when officers tried to ascertain her understanding of what was read. PC Tapper read the rights to counsel to Ms. Ridge twice as he had concerns with her ability to understand them. The entire interaction between the officers and the Appellant was captured on the in-car camera (ICC) recording.
[11] At 12:41 a.m., EMS arrived and transported the Appellant to Mackenzie Health Hospital, arriving at 1:11 a.m.
[12] After attending the hospital, at 1:38 a.m., PC Tapper again canvassed whether the Appellant wished to speak to a lawyer. The Appellant stated that she wanted to call a friend to obtain the number.
[13] Having concerns for officer safety given the Appellant’s prior conduct, PC Tapper indicated that he could call the friend on her behalf to obtain the number. The Appellant declined. PC Tapper then offered to contact duty counsel, which the Appellant also declined.
[14] PC Tapper advised that if the Appellant changed her mind, she could let him know, at which point the Appellant asked to speak with duty counsel.
[15] The Appellant spoke with duty counsel between 1:46 a.m. and 1:56 a.m. The Appellant was also seen by a doctor from 2:50 a.m. to 2:52 a.m. and was medically cleared.
The Second Breath Demand
[16] PC Skanes, the Qualified Technician, arrived at the hospital at 1:29 a.m. After arriving at the hospital, PC Skanes attempted to set up the approved instrument but was unable to power it up. PC Skanes arranged for a colleague from Newmarket to retrieve a spare instrument from headquarters.
[17] While waiting for the second instrument to arrive, PC Skanes returned to 2 District which was close by and conducted the necessary checks to ensure the instrument was functional in case it was required for use by other officers. He then returned to the hospital.
[18] PC Skanes returned to the hospital at 2:26 a.m., and he initialized the second instrument for use. PC Skanes could not specifically recall if the second instrument arrived at the hospital prior to his return or after he returned to the hospital.
[19] Between 2:28 a.m. and 2:54 a.m., he waited for the instrument to warm up and received the requisite grounds for the demand from PC Tapper. At 3:02 a.m., a formal breath demand was read by PC Skanes.
[20] The Appellant provided two suitable samples of breath into the approved instrument, registering readings of 173 mg and 161 mg of alcohol per 100 mL of blood, at 3:04 a.m. and 3:26 a.m., respectively.
[21] It was conceded that but for the need to secure a second instrument, the tests would have been performed much earlier.
The Trial Judge’s Decision
[22] At trial, the Appellant argued that the police failed to take the breath sample “as soon as practicable”. The Appellant also argued that the breath demand and the rights to counsel were not valid as the Appellant was in an agitated state at the roadside when these were given. Counsel also took the position that the Appellant’s s. 10(b) rights were violated as she was not permitted to speak with a third party in order to facilitate contact with counsel of choice.
[23] The trial judge dismissed the various Charter claims made by the Appellant. Having reviewed the ICC recording, the trial judge concluded that the Appellant was adequately informed of the rights to counsel at the roadside and properly understood the breath demand.
[24] With respect to the claim that the police did not allow the Appellant to contact a third party to facilitate contact with counsel, the trial judge concluded that the Appellant was afforded the opportunity to contact a third party, albeit not directly given the officer’s security concerns. The trial judge found that there was a reasonable basis for PC Tapper’s security concerns and that the Appellant made the choice to speak with duty counsel.
[25] After dismissing the various Charter applications advanced, the trial judge convicted the Appellant.
Analysis
1) Does s. 320.28 Require Samples to be Taken “As Soon as Practicable”?
[26] Section 320.28(1) of the Criminal Code provides:
Samples of breath or blood — alcohol
320.28 (1) If a peace officer has reasonable grounds to believe that a person has operated a conveyance while the person’s ability to operate it was impaired to any degree by alcohol or has committed an offence under paragraph 320.14(1)(b), the peace officer may, by demand made as soon as practicable,
(a) require the person to provide, as soon as practicable,
(i) the samples of breath that, in a qualified technician’s opinion, are necessary to enable a proper analysis to be made by means of an approved instrument, or
(ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to take one, the samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, are necessary to enable a proper analysis to be made to determine the person’s blood alcohol concentration; and
(b) require the person to accompany the peace officer for the purpose of taking samples of that person’s breath or blood.
[27] The Appellant takes the position that s. 320.28 requires samples to be taken “as soon as practicable” for the sample to be valid. In this case, PC Skanes initially arrived at the hospital with the first intoxilyzer at 1:29 a.m. and only administered the test at 3:02 a.m. Given the delay, the Appellant argues that the Crown failed to demonstrate that the sample was taken “as soon as practicable”. Accordingly, the taking of the sample was presumptively unreasonable and amounts to a breach of the Appellant’s s. 8 Charter rights.
[28] The Appellant relies on a number of decisions which have interpreted the provision as requiring a “lawful” sample to be taken “as soon as practicable”: see R. v. Koralov, 2022 ONCJ 582; R. v. Najev, 2021 ONCJ 427, 87 M.V.R. (7th) 312; R. v. Tubic, [2021] O.J. No. 4954; R. v. Araya, 2019 ONCJ 970; R. v. Navaratnarajah, [2020] O.J. No. 6075; R. v. Pillar, 2020 ONCJ 394, 68 M.V.R. (7th) 307.
[29] The Appellant also relies on the Supreme Court of Canada’s decision in R. v. Breault, 2023 SCC 9, 481 D.L.R. (4th) 195, where the Court held that for an ASD demand to be valid, the police must have the equipment/device on scene given the statutory requirement that the demand be complied with “forthwith”.
[30] The Crown takes the position that while s. 320.28(1) of the Criminal Code imposes an obligation on the police to make a demand for a breath sample “as soon as practicable”, there is no requirement that the sample be taken “as soon as practicable”. In support of its position, the Crown relies primarily on the recent decision in R. v. Ridley, 2023 ONSC 5967, at paras. 19-20, which addressed this exact issue. The Crown submits that I should defer to Ridley as a matter of judicial comity: R. v. Sullivan, 2022 SCC 19, 472 D.L.R. (4th) 521.
[31] In R. v. Sullivan, the Supreme Court of Canada made clear that decisions of the same court should be followed as a matter of judicial comity as well as for the reasons supporting stare decisis generally. A court should only depart from a decision of the same court if one or more of the exceptions in Hansard Spruce Mills Limited (Re), [1954] 4 D.L.R. 590, at p. 592 (B.C.S.C.) apply, namely:
(a) Subsequent decisions have affected the validity of the impugned judgment;
(b) it is demonstrated that some binding authority in case law, or some relevant statute was not considered;
(c) the judgment was unconsidered, a nisi prius judgment given in circumstances familiar to all trial Judges, where the exigencies of the trial require an immediate decision without opportunity to fully consult authority.
[32] In this case, I have no reason to depart from the decision in Ridley. The same arguments were advanced before Akhtar J. in that case. Subsequent decisions have not affected the decision’s validity in my view. The provincial court decisions relied upon by the Appellant, for the most part, were decided prior to Ridley. Moreover, I agree with the reasoning in the Ridley decision.
[33] The clear wording of s. 320.28 requires that the demand be made “as soon as practicable” and the person who is the subject of the demand to provide the sample “as soon as practicable”. Unlike s. 258(1) of the previous legislation (presumption of identity), there is no explicit requirement that the sample itself be “taken” as soon as practicable. If Parliament intended this to be a requirement, they would have been explicit in this regard.
[34] The reason a person is required to provide the sample to police “as soon as practicable” is evident. The objective of the provision is to ensure the police have the reading proximate in time to when the person is impaired and to ensure that the person understands that the obligation requires compliance with the demand in a timely manner.
[35] While I agree that the provision contemplates that the sample will be taken in a timely manner, I do not agree that a failure to take the sample “as soon as practicable” renders the breath sample invalid (s. 8 breach).
[36] Under the previous legislation, the related provision which contained similar wording did not require that samples be taken “as soon as practicable” for them to be admissible. [2]
[37] While s. 258(1)(c) of the previous legislation did require a sample to be taken “as soon as practicable” in order for the Crown to rely on the presumption of identity, and was explicit in this regard, the jurisprudence was clear that this provision did not speak to the police authority to take the sample or its admissibility at trial. [3]
[38] In 2018, s. 258(1)(c) was repealed and replaced by a new presumption in s. 320.31(1) of the Criminal Code. Notably, Parliament removed the requirement that the first sample be taken as soon as practicable and the 2-hour time limit imposed by the previous presumption.
[39] It would be illogical to interpret s. 320.28 in the manner suggested by the Appellant when Parliament has clearly made specific efforts under the new provisions to simplify the process for admitting this relevant and material evidence. As Akhtar J. explained in Ridley, at para. 35:
I fail to see how the removal of a requirement in one section of the Criminal Code silently imbues another section with a completely different meaning. Nor do I understand why Parliament, in enacting amendments designed to simplify the proof of cases alleging an excess of blood alcohol would make it harder to do so. Accordingly, I find Koralov and similar cases to be wrongly decided. There is no requirement that the breath samples be taken as soon as practicable under s. 320.28 of the Criminal Code.
[40] Having regard to clear wording of the provision, the previous jurisprudence and Parliament’s clear intention to simplify the admission of this evidence, I view the reasoning in Ridley to be correct.
[41] In my view, the decision in Breault is also clearly distinguishable. While the decision in Breault required the ASD to be on scene for the demand to be valid, this interpretation was necessary because of the suspension of the driver’s s. 10(b) rights at the roadside in the course of the demand.
[42] The limit on s. 10(b) is only justified under s. 1 of the Charter because the detention is of very brief duration (the immediacy requirement). As Côté J. explained at para. 6 of the decision:
Stops to provide breath samples are meant to be brief. Drivers stopped for this purpose are then being detained. This Court’s jurisprudence allows a limit on the right to counsel guaranteed by s. 10(b) of the Canadian Charter of Rights and Freedoms during such detention. This limit is justified under s. 1 of the Charter, because s. 254(2)(b) Cr. C. reflects the balance struck by Parliament between the safeguarding of drivers’ constitutional rights and the public interest in eradicating impaired driving (Woods, at para. 29). It is essential to this balance that the word “forthwith” be interpreted in a manner generally consistent with its usual or ordinary meaning.
[43] The same constitutional concerns are not engaged in the context of s. 320.28 as the subject would have already been afforded access to counsel.
[44] Regardless, even if I am incorrect on the interpretation issue, the trial judge here was satisfied on the evidence before her that the sample was taken “as soon as practicable”. She explained:
…I am satisfied that the breath samples were taken as soon as practicable. In Regina and Vanderbruggen, the Ontario Court of Appeal held that the phrase means nothing more than the tests were taken within a reasonably prompt time under the circumstances. There is no requirement that the tests be taken as soon as possible. The test is whether or not the police acted reasonably, and in making that determination the trial judge should examine the whole chain of events.
Having examined the whole chain of events involved in securing an intoxilyzer that would function in the hospital, I am satisfied that if section 8 compliance requires the Crown to establish that the testing was done as soon as practicable, the Crown has met that burden. [Emphasis added.]
[45] Whether the samples were taken as soon as practicable is an issue of fact for the trial judge. The applicable standard of review for findings of fact is that of “palpable and overriding error”: R. v. Lightfoot (1980), 4 M.V.R. 238 (Ont. C.A.) and R. v. Renda, [2005] O.J. No. 1453 (C.A.). Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 10, 24 and 26-36.
[46] The trial judge’s factual determination is supported by the trial record. I see no basis to interfere with her decision.
2) Were the Breath Demands Valid and the Rights to Counsel (Informational Component) Properly Given?
[47] As noted above, police officers derive their authority to demand that breath samples be provided into an approved instrument (in the absence of a warrant) from s. 320.28 of the Criminal Code.
[48] In order for a peace officer to comply with this section, the peace officer must make their demand “as soon as practicable” from the point at which their grounds are formed.
[49] The Appellant argues that both breath demands in this case were invalid. With respect to the first demand made by PC Tapper, the Appellant argues that the court’s finding that the Appellant both heard and understood the demand made at the roadside is unreasonable given that she was having a panic attack and was incapable of grasping what was being read to her at that point in time. PC Tapper himself testified that he did not believe she heard or grasped any part of it.
[50] The Appellant argues that the second demand made by PC Skanes was also invalid due to not having been made “as soon as practicable.” The evidence provided by PC Skanes was that he received the grounds between 2:28 a.m. and 2:54 a.m. while waiting for the second instrument to warm up. The demand was only made at 3:00 a.m. Given the delay, the Appellant argues that the demand was not “as soon as practicable”.
[51] In this case, the trial judge found that the Appellant heard the formal breath demand by PC Tapper. The trial judge considered the interaction that occurred immediately prior to the breath demand, where it was explained in plain language what was to happen next. Having reviewed the ICC recording herself, the trial judge explained:
…I find that PC Tapper made a valid demand at the roadside. I do not accept the defence submission that Ms. Ridge did not hear the demand and therefore it was not a valid one.
…I find that Ms. Ridge claimed she did not understand, or hear it for that matter, because she was being confrontational and angry, rather than truthful with the officer. [Emphasis added.]
[52] The trial judge was not required to accept PC Tapper’s impression of the Appellant’s understanding. It was open to the trial judge to make her own factual findings based on the video evidence. Again, the trial judge’s conclusion in this regard is entitled to deference: Housen v. Nikolaisen, supra.
[53] While it is not necessary to address the validity of the second demand, I also agree with the trial judge that the second demand was made “as soon as practicable”.
[54] In this case, the minor delay in making the demand was reasonable, having regard to the fact that PC Skanes only received the grounds while he was setting up and waiting for the second approved instrument to warm up.
[55] I see no basis to interfere with the trial judge’s conclusion that the second demand was also valid.
Section 10(b) - Informational Component
[56] The Appellant similarly argues that the trial judge erred in concluding there was no breach of the informational component of s. 10(b) given the Appellant’s panicked state when the rights were given.
[57] With respect to the informational component of the rights to counsel, the trial judge considered that there were times when the Appellant was very agitated and upset. However, when considering the exchange in its entirety, the trial judge was satisfied that the Appellant clearly understood the right to counsel. The trial judge explained:
As a result of the officer’s efforts, I’m satisfied that Ms. Ridge heard and understood the right to counsel. To be clear, I reject the defence submission that Ms. Ridge was having a panic attack that prevented her from hearing and understanding her rights.
I find that from the moment she was stopped by the police, Ms. Ridge was angry and petulant. As soon as she was placed under arrest she began to sob dramatically, which escalated to wailing. At other times, she was confrontational and expressing outrage that she was being handcuffed and placed in a police car.
Ms. Ridge’s roadside behaviour was childish and obnoxious. The officers were patient, polite, and responsive to her complaints. If anything, they were too indulgent. I am satisfied that Ms. Ridge both heard and understood her right to counsel at the end of PC Tapper’s patient explanation.
[58] Again, the trial judge was entitled to arrive at her own factual determinations and conclusions based on her review of the ICC recording.
[59] Having reviewed the ICC recording, I see no basis to interfere with the trial judge’s conclusion.
3) Delay in Implementation/Speaking Directly to a Third Party/Steering to Duty Counsel
[60] The Appellant argues that there was an unreasonable delay in the implementation of the rights to counsel.
[61] The Appellant also submits that the trial judge’s acceptance of PC Tapper’s safety concerns in not allowing her to use her cellphone directly to communicate with her friend was unreasonable and unsupported by the evidence.
[62] Finally, the Appellant argues that the trial judge failed to properly consider counsel’s submission that the Appellant was indirectly “steered” towards duty counsel by refusing to permit the Appellant to communicate directly with her friend.
[63] Given the situation at the roadside and at the hospital, any delay in the implementation of the rights to counsel here is understandable: See R. v. O’Shea, 2019 ONSC 1514. I see no merit to this ground of appeal.
[64] In my view, it was also open to the trial judge to conclude that PC Tapper was justified in having officer safety concerns by permitting the Appellant to contact her friend directly. The trial judge’s findings in this regard are entitled to deference. The trial judge explained:
The police obligation to facilitate the exercise of the right to counsel includes permitting the detainee to contact a third party to obtain information for counsel of choice – Regina and Kumarasamy. This is not a case of an outright denial of the opportunity to contact a third party for information about counsel of choice…
…I accept that he held a genuine belief that turning the phone over to Ms. Ridge to make the call herself was not safe. I also find that his assessment was a reasonable one. I have no doubt that the hospital was busy and crowded, an environment that would be difficult to control. Although Ms. Ridge had calmed down considerably at the hospital, she had been belligerent and angry at the roadside. Ms. Ridge was offered a safe means to contact her friend for information about counsel of choice and she declined it. She was obliged to be diligent in her pursuit of counsel of choice – see Regina and Tremblay.
She did not explain to the officer why she declined his offer to make the contact, and she did not testify on the voir dire. Ultimately, she spoke with duty counsel and expressed no dissatisfaction. There is no breach of the implementational obligation in section 10(b) of the Charter. [Emphasis added.]
[65] I also disagree with the Appellant that the trial judge failed to consider or comment upon the “steering” argument. It is evident from the trial record and her reasons above that the trial judge rejected any suggestion that the Appellant was steered toward duty counsel. The trial judge concluded, based on the evidence before her, that the Appellant chose to speak to duty counsel.
[66] As Woollcombe J. explained in R. v. Rizvi, 2023 ONSC 1443, 524 C.R.R. (2d) 360, at para. 48, there are no further informational duties on the police when a detainee forgoes speaking with counsel of choice and elects to speak with duty counsel:
These cases demonstrate an obvious point: that when a detainee asserts a desire to speak to a specific counsel, the detainee must be afforded a reasonable opportunity to do so. But, they also highlight that if counsel of choice is unavailable, there is nothing preventing police from offering the option of speaking with duty counsel. If a detainee decides to forego speaking with counsel of choice in favour of speaking with duty counsel, that person’s s. 10(b) rights have not been violated. In such a situation, the Court declined to impose on police any requirement to explain to the detainee the consequences of choosing to speak to duty counsel, rather than continuing to wait for counsel of choice to call back. That is because choosing to speak to duty counsel is not a waiver of the right to counsel, it is a decision to exercise the right to counsel by speaking to duty counsel. [Emphasis added.]
[67] The appeal is dismissed.
Justice C.F. de Sa
Released: April 16, 2024
Footnotes
[2] Criminal Code, s. 254(3).
[3] See R. v. Mawad, 2016 ONSC 7589; R. v. Green, 2017 ONSC 119; R. v. Carmola-Chambers, 2020 ONCJ 493, 70 M.V.R. (7th) 313, at paras. 18-31; R. v. Agnihotri, 2019 ONCJ 551, at paras. 15-20; R. v. Virk, [2020] O.J. No. 3655, at paras. 40-42, aff’d on other grounds 2021 ONSC 3750.
