R. v. Christopher Offiaeli, 2025 ONSC 600
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
Respondent
– and –
CHRISTOPHER OFFIAELI
Appellant
Darren Hogan,
Crown counsel for the Respondent
Robert Wulkan, Counsel for the Appellant
HEARD: January 22, 2025
REASONS FOR DECISION - SUMMARY CONVICTION APPEAL
Introduction
1The appellant was convicted by the Honourable Justice Doorly on June 10, 2024, of s.320.15(1), refusing to provide a breath sample. These are the reasons for decision on the summary conviction appeal of that conviction.
2The appellant argues that the trial judge erred in concluding that the police met the “immediacy requirement” for the roadside screening demand. The appellant also argues the trial judge erred in concluding there was no violation of his s.10(b) rights given the delay pre- and post-demand, and in failing to give sufficient reasons to permit appellate review.
3For the reasons set out below, I dismiss the appeal.
Overview of facts found at trial
4The background facts found by the trial judge can be summarized as follows. On April 16, 2023, the appellant was driving his vehicle on the Don Valley Parkway in Toronto. His wife and children were passengers in the car. The police conducted a traffic stop and pulled him over at 12:12 a.m. because the appellant’s rear lights were not on.
5The entire interaction with the appellant was recorded on the officer’s body worn camera. While speaking with the appellant and informing him of the reason for the traffic stop, the officer smelled a strong odour of alcohol coming from his breath. At 12:14 a.m. the officer asked the appellant when he consumed his last drink; the appellant answered that he does not drink alcohol. At 12:15 a.m., the officer formed a reasonable suspicion about the consumption of alcohol and read the appellant a demand to provide a breath sample for the approved screening device. The appellant asked the officer what he meant. The officer repeated the demand in plain language, and then directed the appellant to stand beside the cruiser away from traffic. The appellant began to plead with the officer, explaining his personal circumstances about living in the USA, that he would not be able to visit his family, and so on. At 12:17 a.m. the officer had the ASD in his hand, he tried to explain the ASD, and the appellant became emotional. At 12:18 a.m., the officer demonstrated how to use the ASD, and asked him again when he had his last drink, since he admitted consuming wine. The appellant then started pleading again. At 12:19 a.m., the officer put the ASD close to the appellant, warning him of the consequences of failing to provide a sample. The appellant then asked about the potential consequences, and the officer responded with information about his options and the related consequences.
6At 12:26 a.m., the appellant asked again about the potential consequences. The officer gave him information again about the potential consequences, his options, and his advice or opinions about the options. At 12:28 a.m., the appellant told him he would take his chances of not blowing, and he asked if he could speak with his family. The officer allowed it, telling him to make it quick because the sample needed to be “forthwith”. The appellant’s wife then started crying and pleading. At 12:31 a.m., the officer repeated the ASD demand, and the appellant asked for it to be repeated. They had a further discussion of potential consequences. Then, at 12:39 a.m., the appellant asked if he could have a lawyer if he blew or if he refused. They had further discussion. At 12:42 a.m. the officer asked if he understood, and the appellant asked a further question about the difference between being over the limit and refusing. The officer gave a further explanation. The appellant then responded that he would rather not blow and presented his hands for cuffing.
7The officer then arrested the appellant at 12:44 a.m. for failing to provide a sample and read to him his rights to counsel. The appellant said he understood. The officer forgot to ask him if he wanted to contact a lawyer, and who he wanted to contact. The officer remembered to confirm his lawyer choice a few minutes later at 12:53 a.m., and the appellant said he wanted to speak with duty counsel. The appellant spoke with duty counsel between 12:58 a.m. and 1:14 a.m.
8In deciding there was a valid demand, the trial judge concluded that the demand for the ASD was made “forthwith”, within three minutes of the stop. The trial judge found that it was the appellant who delayed completion of the ASD process, by continuing to ask questions and seek clarifications, speaking to his wife, and pleading with the officer. The trial judge found that the officer had immediately given the demand within three minutes of the stop, and that he was trying to move it along, that he recognized the sample had to be provided forthwith, that the ASD was at hand throughout, that he was responding to the appellant’s questions. She relied on the same factual findings as deciding there was no Charter breach, concluding that there was no obligation to give s.10(b) rights during the demand period because s.10(b) would have been suspended based on the governing case law, and no time to have afforded the right to counsel earlier. After dismissing the other Charter arguments, the trial judge convicted the appellant under s.320.15 of the offence of refusing to comply with a demand.
Elements of the Offence: s.320.15 Refuse to comply with demand
9Section 320.15 reads as follows:
320.15(1) Everyone commits an offence who, knowing that a demand has been made, fails or refuses to comply, without reasonable excuse, with a demand made under section 320.27 or 320.28.
10The demand in issue was made under s.320.27(1)(b). That section authorizes the police to demand that the subject “immediately” blow into an “approved screening device”, where they have “reasonable grounds to suspect” that the person has alcohol in their body.
11Consequently, proof of a charge under s.320.15 for refusing to comply with a breath demand under has four elements: proof that a lawful demand was made, in this case under s.320.27(1)(b); proof of the accused’s knowledge of the demand; proof of the accused’s unequivocal refusal or failure to comply with the demand; and, the absence of a reasonable excuse for the refusal or failure. See R. v. Khandakar, 2024 ONCA 620 at para. 18.
Ground of Appeal #1 – the “immediacy” requirement for a valid breath demand
12The first ground of appeal relates to the first element of the offence, proof of the lawful demand, specifically the “immediacy requirement” for the s.320.27(1)(b) demand. The appellant argues that the trial judge erred in concluding that the police met the “immediacy requirement” for a lawful demand.
13Section 320.27(1)(b) requires the person to “immediately” provide a sample of their breath for the ASD upon demand by the police. The term “immediately” is analogous to the term “forthwith” used in the former version of the offence: R. v. Breault, 2023 SCC 9 at para. 29. “Immediate" means that the person must comply immediately, not when they see fit to do so. The police must conduct themselves in a way to make immediate compliance possible, including having an ASD immediately available when making the demand, and giving the person an immediate opportunity to blow into the ASD, subject to operational requirements for readying the equipment and instructing the subject how to operate the device and about the consequences of refusing, and subject to any delays caused by unusual circumstances: Breault at paras. 32, 61-68.
14What is an “unusual circumstance” is to be identified on a case-by-case basis. The Crown must prove that unusual circumstances existed to justify a delay. Because right to counsel is suspended during the demand period, the interpretation of what is “immediate” must be consistent with the provision’s constitutional integrity. Examples of usual circumstances might include a problem with operation of the device or with the reliability of the result, or related to urgency or public safety, but generally not with respect to the absence of the device, or budgetary constraints or other such practical matters. Breault at paras. 53-60.
15The appellant argues that the trial judge erred in applying the immediacy requirement by focusing too heavily on the fact that the demand was read right away, while failing to consider the delay in ensuring the test was conducted immediately. The appellant relies on the Supreme Court of Canada’s decision in Breault, which endorsed the fifth criteria from the Court of Appeal’s decision in Quansah, 2012 ONCA 123. That criteria says a demand is no longer immediate if the period was so long that the appellant could have realistically consulted with counsel. The appellant argues that the delay was within the police officer’s control, and the officer contributed to the matter being delayed by giving the appellant advice and allowing him to speak to his wife.
16Breault, too, was a case involving a refusal charge. In Breault, the police made the demand right away but did not have the ASD on hand, and there was no evidence justifying the absence of the ASD. Thus, the focus of the appeal was on the delay between demand and completion of the test. In Breault, the Supreme Court broadly agreed with the Court of Appeal, that if the length of time was so long that counsel could have been consulted, it would no longer be immediate, and qualified Quansah by concluding that Court of Appeal’s interpretation of the immediacy requirement was too broad, that “immediate” should not be interpreted to be synonymous with the time reasonably necessary to enable the officer to discharge their duties. The Supreme Court instead accepted the Quebec Court of Appeal’s conception of the immediacy requirement, that the immediate had its ordinary meaning but that the requirement was subject to unusual circumstances. The Supreme Court provided guidance to interpreting the “immediacy requirement”, providing a non-exhaustive list of potential examples that might or might not constitute unusual circumstances, as I set out above.
17The Crown urges an interpretation of the immediacy requirement that requires the police to immediately provide an opportunity for the person to complete the ASD test upon making the ASD demand. Their interpretation centres on police action, because police action is what is reviewable when considering whether their conduct was immediate or not. Centring the focus on police conduct makes sense because test completion or refusal is up to the subject person, in the sense that it requires actions undertaken by the subject. Those actions cannot be physically forced by the police. Thus, the police duty is their responsibility to be diligent in ensuring it is possible for the person to immediately complete the test.
18The Crown’s interpretation is consistent with the Supreme Court’s statement of the central question at issue in Breault at para. 4,“…the time within which a peace officer must enable a driver who is stopped for this purpose to provide the breath sample required for a proper analysis to be made by means of an ASD.” The Court repeated this understanding of the time in question, at para 50, (in restating the Ontario Court of Appeal’s definition of the relevant time period, in R. v. Woods): “Therefore, the relevant time period for the explicit immediacy requirement is the period between the making of the demand and the moment when the breath sample can be provided. (emphasis added) The Supreme Court’s statement of the question at issue bespeaks an understanding that the reviewable conduct is that of the police, which conduct includes making the demand, and “enabling” the driver to give the sample, both matters within police control.
19According to the above interpretation of the jurisprudential framework, the trial judge did not err in concluding that the immediacy requirement was met and that the demand was valid. The trial judge reasonably concluded that the officer made the demand right away, that he had it with him throughout the detention, that the delay in administering the ASD was caused by the appellant, that he prolonged the period at the roadside by continually asking questions of clarification and about the implications of refusing or complying, and by pleading with the officer. The trial judge found that the officer, on the other hand, made the demand right away, he repeated the demand, had the ASD in his hands in front of the appellant and was urging the appellant to be quick. The appellant’s argument that the police officer was responsible to ensure that the test was done immediately is met by the trial judge’s findings that the officer discharged that responsibility by acting to move the matter along, having the device in hand the whole time, and requesting completion.
20The trial judge’s finding that the appellant delayed completion is not like a “legal conclusion” reviewable on a standard of correctness, as urged by the appellant. The trial judge’s finding about the delay was based on the other facts she had found, and her finding that he was delaying the test was an inescapable conclusion from those facts. The trial judge’s conclusion about the appellant’s conduct is similar to other findings that would be considered “factual” conclusions; for example, that a person was intoxicated, or that they were angry, or being slow. The trial judge’s factual conclusions that the appellant was taking actions causing delay, and that the police officer was acting to try to have the test completed, were reasonable factual findings on the evidence and are entitled to deference.
21The trial judge’s legal conclusion, that the demand was lawful and that it required compliance, was a correct conclusion based on her reasonable factual conclusions. The legal framework adopted by the Supreme Court in Breault allows for the kind of analysis done by the trial judge, which analysis involved an examination of the reasons for the delay in the situation. Had the delay been caused by the officer, the trial judge on these facts would not have been justified in concluding that the demand was valid, as the demand would not have required immediate compliance. But, because the judge concluded that the appellant was responsible for not complying immediately, according to the trial judge’s other findings, the officer remained in the position of having made the demand and having an available device “in hand” and ready to be administered, because he was stymied only by the appellant’s continued questioning and pleading. The legislation should not be interpreted to allow detainee-caused delay to derail an otherwise lawful demand, otherwise roadside detainees could game the system to drag their feet in completing the demanded test and avoid legal consequences. In these circumstances, the demand was valid according to the legislation and the governing jurisprudence.
22Alternatively, if the trial judge’s approach to interpreting the validity of the demand does not conform to the above interpretation of police duties under s.320.27, then the trial judge’s findings are otherwise consistent with the Supreme Court’s interpretation of the immediacy requirement based on the presence of “unusual circumstances”. The trial judge’s factual findings that the appellant was conducting himself in a manner that prevented the completion of the test would constitute unusual circumstances related to the operation of the machine. The appellant’s lack of comprehension of the requirements, his continual questioning about his options, and pleas for clemency over an extended period while the officer had the ASD in his hand ready for completion of the test, would constitute an unusual set of circumstances justifying a flexible interpretation of the immediacy requirement. If the appellant’s actions co-existed with unavailability or unreadiness of the device, a conclusion of unusual circumstances might not be supportable. Here, the ASD was at the ready and operationalized. While it would have been preferable for the trial judge to clearly state the applicable test, because of those factual findings about the circumstances at hand, the trial judge had no other legal conclusion available, other than that the police complied with the demand requirements.
23On a functional review of the reasons for decision, the trial judge’s conclusion that the demand was lawfully made was either legally correct, or else does not merit intervention on appeal because there was no error meriting legal intervention to correct a miscarriage of justice or substantial wrong.
Ground of Appeal #2 – s.10(b)
24The appellant argues that the trial judge erred in concluding that s.10(b) was not violated because the right to counsel was suspended during the demand period. The appellant argues that because there was no demand for immediate compliance that the appellant’s s.10(b) rights were no longer suspended, that constitutional compliance requires a valid demand, and that a demand beyond the constitutional limits no longer justifies the suspension of s.10(b).
25The trial judge’s conclusion on s.10(b) flowed from her determination that the demand was valid. On the facts found by the trial judge, the officer was repeatedly trying to have the appellant complete the ASD, with the appellant delaying the administration of the test. Such circumstances dictate the continued suspension of s.10(b), since the police were trying to have the appellant immediately comply. Further to the conclusion on ground one, there was no s.10(b) error in the trial judge concluding that s.10(b) remained suspended.
26Even if there was an error in the trial judge’s reasons about s.10(b), this court would not conclude there were any errors warranting intervention. The appellant spoke with counsel almost immediately after he finally refused. Even if there was a s.10(b) violation, these are not circumstances where the Grant test would result in exclusion of evidence. The factual conclusions support a finding of good faith actions, and a relatively non-serious violation. The third ground would not merit exclusion. There would be no substantial wrong or miscarriage of justice on this factual record warranting appellate intervention.
Grounds of appeal #3 and #4:
Insufficiency of Reasons re Post-arrest Right to counsel; Breach of s.10(b) right to counsel
27The appellant argues that the trial judge’s reasons about s.10(b) were insufficient because the trial judge did not reference the appellant’s arguments alleging a breach of the right to counsel in the period post-refusal. The appellant says that defence counsel raised the issue in submissions, and in cross-examination of the police officer, and that the issue should have been referenced in the reasons. The failure to reference the issue is said to preclude appellate review and constitutes an error of law. The appellant argues that the trial judge should have found a s.10(b) violation based on the post-refusal right to counsel delay.
28The Crown concedes that the trial judge did not refer to this issue in the reasons. However, the Crown argues that it was not clear that the post-refusal delay was a live issue at trial, because the submissions were ambiguous, and the written materials did not refer to the issue and so it should not be seen as a legal error. In any event, the Crown says that this basis would not have resulted in a s.10(b) breach finding because of the trial judge’s factual findings and based on the officer’s quick resolution of the delay in accessing counsel.
29It is true that the trial judge omitted specific reference to the post-refusal delay in her legal conclusions on s.10(b). Whether this constitutes a legal error, however, must be considered in light of the whole decision, in the context of the evidence heard and the submissions of the parties. R. v. R.D.S. 1997 CanLII 324 (SCC), [1997] 3 SCR 484; R. v. REM 2008 SCC 51, [2008] 3 SCR 3; R. v. HSB, 2008 SCC 52, [2008] 3 SCR 32
30The trial record explains why the trial judge did not perceive post-refusal delay as a live issue.
31First, at trial, the appellant’s defence counsel filed a written application at trial for his various Charter arguments related to the roadside stop. Those materials did not make clear they were raising any argument about delay in the specific 8-minute window after the appellant gave his final refusal, after the right to counsel was read. The appellant’s s.10(b) written argument was stated in relation to the overall period of delay, without precision. See Tab 7, Form 1 Charter application paragraphs 12-21.
32Second, the oral submissions did not adequately clarify that post-refusal delay was a focus. It is true that the witness evidence in a sense referenced the issue, because the officer was questioned about the timeline for providing counsel and about the 8-minute delay in contacting counsel. The defence counsel, in closing submissions, also mentioned the issue of post-refusal delay in his opening of the argument as related to s.10(b) and the trial judge acknowledged the reference. However, apart from that general opening statement, the defence never clearly re-visited this issue in the main submissions on s.10(b) or explained why it constituted a breach. The defence only referred to the issue again in discussing s.24(2), with an ambiguous reference at p.24 of the transcript, about whether evidence was obtained in a manner violating the Charter. To compound matters, the Crown never referred to the issue of post-refusal delay in their submissions.
33It is apparent, based on counsel’s Charter materials and their submissions, and the whole of the trial record, that the trial judge did not perceive the delay post-refusal as a live issue for s.10(b) that required a specific legal conclusion.
34In any event, appellate review of this issue is possible on the record from trial. The trial judge’s factual findings show that she did not conclude there was a s.10(b) breach on any independent basis for the post-refusal delay. The delay in question was 8 minutes long and related only to the implementational portion of s.10(b). The trial judge’s factual findings about s.10(b) post-refusal demonstrate that she did not view this as a problematic part of the timeframe. The trial judge found that the officer made a simple error in that 8-minute delay, that he quickly corrected once he realized that he had not clarified the appellant’s choice of counsel. In the whole context, the implementation portion of the delay was not a live issue that supported a s.10(b) violation, based on the factual conclusions.
35Thus, the trial judge either omitted the post-refusal delay issue in the reasons either because it was not a live issue at trial, or because she viewed it as not meeting the standard necessary to establish a violation of the police duty to have implemented the appellant’s s.10(b) rights to the requisite constitutional standard. Her factual findings pre-determined her dismissal of the s.10(b) arguments, since she concluded the delay window was very short, mere minutes long, and the officer worked to immediately correct it once he realized it needed to be addressed.
36If there was an error of law in not referring to this issue, it is not an error requiring appellate intervention. The short delay at the roadside either could not have constituted a breach of the implementation duties and could not be viewed as sufficiently serious to justify exclusion of evidence since the appellant was also successful in speaking to a lawyer within minutes of his refusal, and before he was even transported to the station. In other words, there was no substantial wrong or miscarriage of justice justifying appellate intervention.
37This ground of appeal is dismissed.
Overall Conclusion
38The appeal is dismissed for all the reasons stated above.
Justice S. Boucher
Released: February 3, 2025
COURT FILE NO.: CR 24-10000047-00AP
DATE: 20250203
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
CHRISTOPHER OFFIAELI
reasons for decision SUMMARY CONVICTION APPEAL
Boucher J.
Released: February 3, 2025