R. v. Alaga, 2013 ONCJ 365

ONTARIO COURT OF JUSTICE DATE: 06-07-13 COURT FILE No.: 11-30465 Citation: R. v. Alaga , 2013 ONCJ 365 BETWEEN: HER MAJESTY THE QUEEN — AND — OLUWAFEMI ALAGA Before Justice J. David Wake Reasons for Judgment released on June 7, 2013 D. Elhadad ............................................................................................... counsel for the Crown M. Smith ..............................................................................for the defendant Oluwafemi Alaga Wake J.: Introduction [ 1 ] The applicant was charged on August 21, 2011 with impaired operation and “over 80”.

It was acknowledged by the applicant in his Application to exclude the results of the Initoxilyzer that he provided the qualified Intoxilyzer technician, Constable Ferguson, with two samples of his breath measuring 153 milligrams of alcohol per 100 millilitres of blood at 4:23 a.m. and 141 milligrams of alcohol per 100 millilitres of blood at 4:46 a.m. [ 2 ] The applicant alleges that his right to be informed of the reason for his detention pursuant to

Section 10(

a) of the Charter, his rights to counsel under

Section 10(b), his right to be secure against unreasonable search or seizure under

Section 8 of the Charter and his right not to be arbitrarily detained under

Section 9 of the Charter were all violated by the police and that the evidence of the breath test results ought to be excluded pursuant to Section 24(2) of the Charter . [ 3 ] Essentially the applicant alleges that the police lacked the required suspicion to make a demand pursuant to Section 254(2) of the Criminal Code and that the demand for the sample was not made forthwith pursuant to that subsection. It is further alleged that the applicant was not given an opportunity to consult with counsel at the roadside.

Finally it is alleged that the arresting officer did not have reasonable and probable grounds to make a demand for breath samples pursuant to Section 254(3) of the Criminal Code . The Evidence [ 4 ] An unusual feature of this case is the fact that the officer who conducted the traffic stop of the applicant, Sgt. Mallett, and who detained the applicant until an approved screening device (hereinafter referred to as an ASD) could be brought to his location, was not the same officer who made the ASD breath sample demand under Section 254(2) and yet it was Sgt.

Mallett who made the arrest of the applicant after the ASD registered a fail and continued with the investigation. Sgt. Mallett’s Evidence [ 5 ] Sgt. Mallett is a police officer with 24 years experience. He testified that at approximately 2:48 a.m. on August 21, 2011 he observed

a silver BMW drive around two vehicles in its lane which were stopped for a red light. The BMW then turned right at the red light and sped away. When the BMW made this manoeuvre around the vehicles stopped in front of it, it was necessary for it to go into the lane reserved for vehicles travelling in the opposite direction, although Sgt. Mallett confirmed that there was no other traffic at the time. [ 6 ] As the BMW sped off after making the right turn Sgt. Mallett decided to investigate. Although the vehicle appeared to him to be speeding he was unable to estimate the speed.

He put on his cruiser’s flashers and siren. He observed the vehicle make another right turn onto York Street which eventually divides into two lanes separated by parking spaces. The BMW proceeded westbound in the eastbound lane of York Street and pulled into a parking spot halfway down the final block of York Street. Sgt. Mallett placed his cruiser perpendicular to the BMW so that it could not reverse out of the parking space. Sgt. Mallett approximated the time of the stop at 2:49 or one minute after he had first observed the BMW. [ 7 ] The driver of the BMW immediately got out of the vehicle and approached Sgt.

Mallett. His dress shirt was undone. He told the officer that he had just been beaten up in a fight. Sgt. Mallett detected an odour of alcohol coming from his breath. The driver produced his licence at Sgt. Mallett’s request which identified him as the applicant. Sgt. Mallet also noted slurred speech as they conversed in English. [ 8 ] Sgt. Mallett was asked by the applicant if he could observe any injuries and the officer could not. Sgt. Mallett then testified that he asked the applicant if he had consumed alcohol and received an admission that he had.

In cross-examination he maintained that this question and response occurred at the time of the stop at 2:49. [ 9 ] Sgt. Mallett’s evidence then becomes somewhat confusing. He testified that he asked the applicant the time of his last drink and received a response that it was 30 minutes ago. His investigative action report indicated that this exchange took place at 3:05 a.m. which flies in the face of testimony of other witnesses which I will come to later. [ 10 ] Sgt. Mallett called dispatch for an officer to bring an ASD to his location.

He had no note as to when he made this request or when Constable Bell arrived with the ASD, although he agreed with counsel in cross-examination that it was after he asked the applicant about the timing of his last drink which he had noted as being 3:05. Mr. Smith, counsel for the applicant, drew Sgt.

Mallett’s attention to his investigative action report which recorded the sequence as follows: “Sergeant Mallett asked the male when his last drink of alcohol was. ...The driver stated, “30 minutes – 30 minutes ago”. ...The officer could detect the suspect’s speech was slurred. ...The officer asked dispatch for an alcotest.” [ 11 ] After an ASD was requested from dispatch Constable Bell arrived with one. Sgt. Mallett had no note as to when Constable Bell arrived but it was not long after he called because he could see his cruiser at the corner of York and Byward, a block away.

The first time he recorded in his investigative action concerning Constable Bell was 3:06 when he noted that Bell demonstrated the use of the ASD to the applicant. [ 12 ] Sgt. Mallett denied handcuffing the applicant shortly after the traffic stop and placing him in the rear of his cruiser. His recollection was that he and the applicant remained outside the cruiser while they waited for the ASD. He was uncertain as to whether Constable Bell conducted the ASD tests with the applicant in or partially in a cruiser.

His evidence was that the applicant was not handcuffed and placed in the cruiser until after he was arrested. [ 13 ] A series of photos were shown to Sgt. Mallett taken by the applicant’s girlfriend, Lillian Lewis, on her cell phone which were date stamped. One of the photos, number three, was time stamped 2:53 and shows an officer at the back of the cruiser. Mr. Smith suggested to Sgt. Mallett that he was the officer depicted in the photo and that the applicant must have been inside the cruiser. Sgt. Mallett readily disagreed with that suggestion and insisted that the photo was of Constable Bell. [ 14 ] Sgt.

Mallett confirmed that he never read an ASD demand to the applicant and did not perform the test himself.

When asked why he explained as follows: “I was the supervisor for Elgin Street – the division – I was running a staff Sergeant’s desk, I was answering the phone – because we were shorthanded – I took the phone and I put it on forwarding and I went out on the road and to assist me I asked Constable Bell to continue the investigation.” [ 15 ] He did, however, testify that he told the applicant that they were going to have an officer come to their location with an alcotest to verify whether he was under the legal limit and able to drive.

There was, however, no note to that effect. [ 16 ] Upon Constable Bell’s arrival Sgt. Mallett provided him with his grounds for making an ASD demand, being the irregular driving, the odour of alcohol from his breath, slurred speech and an admission as to the consumption of alcohol. [ 17 ] Sgt.

Mallett remained on scene as Constable Bell administered the ASD test and observed that the applicant “was not blowing hard enough or long enough for the machine to register a proper sample” and that he was given several opportunities to do so. [ 18 ] At 3:07 he noted that he cautioned the applicant concerning a charge of refusal to provide a breath sample. Eventually, after a few more unsuccessful attempts, a suitable sample was provided which registered a fail, which meant to him that the applicant had over 100 milligrams of alcohol per 100 millilitres of blood.

Consequently he arrested the applicant for “over 80” at 3:11 a.m., handcuffed him and lodged him in the rear of his cruiser. [ 19 ] Rights to counsel were read for the first time at 3:14 followed by a breathalyser demand at 3:16. He transported the applicant in his cruiser to the police station at 474 Elgin Street, leaving at 3:21 and arriving at 3:31. [ 20 ] The applicant was given an opportunity to call a lawyer at 3:50 when he was placed in a phone booth room. The applicant did not know any lawyers and agreed to allow Sgt. Mallett to pick a lawyer – Ms.

Lafleur, to whom he spoke in privacy for eight minutes from 3:51 until 3:59.

[ 21 ] Sgt. Mallett provided his grounds to a qualified breathalyser technician, Constable Ferguson, following which he turned the applicant over to her for the tests to be performed. Subsequently he received custody of the applicant and served him with a notice of intent to produce a certificate and the qualified breathalyser technician’s certificate of analysis which were introduced into evidence subject to the Charter arguments. Constable Greg Bell [ 22 ] Constable Bell has been a police officer since April 2010. He stated that on August 21, 2011 at 2:51 a.m. he was dispatched to assist Sgt.

Mallett who had requested a roadside screening device. He arrived on scene at 2:54 a.m. and spoke to Sgt. Mallett who immediately provided him with grounds to administer the alcotest to the person who was currently sitting in the back of Sgt. Mallett’s cruiser.

Constable Bell could not remember if he was handcuffed at that time but did not believe he was when the tests were conducted. [ 23 ] The grounds provided included erratic driving, the admission to the consumption of alcohol and detection of an odour of alcohol on the subject’s breath, although in cross-examination he acknowledged that he had not noted the odour of alcohol. Constable Bell formulated his own opinion that the applicant had alcohol in his body and at 2:57 he turned on the ASD-Drager alcotest 7410GLC which he stated was working properly. He noted that it had been last calibrated on August 14, 2011.

He checked it at the beginning of his shift as well. [ 24 ] Constable Bell then approached the applicant and made an ASD demand for a sample of his breath at 2:59 a.m. [ 25 ] Constable Bell testified that he then explained to the applicant in detail what was required and how to make a proper seal around the mouthpiece and blow continuously until he was directed to stop. [ 26 ] Initially he did not demonstrate how to blow into the device but after the applicant made several unsuccessful attempts to provide a sample beginning at 3:00 a.m. the officer, following the fourth such attempt at 3:06 removed the mouth piece, inserted a new one for himself, and blew into the device which registered 0.00 which meant that there was no alcohol and that the machine was working properly. [ 27 ] Constable Bell stated that as the tests were administered the defendant was seated in the rear of the cruiser with his feet on the pavement and that he did not believe he was handcuffed at that point. [ 28 ] The officer noted that with each unsuitable sample, the device registered “E”.

In cross-examination Mr. Smith suggested that there should have been a number in addition to the “E” to identify the precise reason why the sample was not registering. Constable Bell testified that he did not record a number beside the “E” because his observations led him to conclude that the applicant either failed to provide a seal or he was not providing a continuous breath so that there was insufficient air being provided to the device. [ 29 ] Following the third test taken at 3:03 a.m.

Constable Bell asked the applicant when he had consumed his last alcoholic beverage and received a response “30 minutes ago”. Constable Bell had not noted whether Sgt. Mallett had asked that question so he wanted to have it documented. [ 30 ] Finally, after the 11 th attempt at 3:10 a.m. a suitable sample was obtained which registered an “F” which meant to Constable Bell that the applicant had over 100 milligrams of alcohol per 100 millilitres of blood in his body. He noted that Sgt.

Mallett arrested the applicant at that time and had no further dealings with him. [ 31 ] Constable Bell was asked to identify photo number three with the time stamp of 2:53 and he readily identified himself as the officer in the picture standing outside the cruiser. He believed that Sgt. Mallett was sitting in the front of his cruiser. [ 32 ] Constable Bell confirmed that he never read rights to counsel to the applicant.

Sarah Ferguson [ 33 ] Sarah Ferguson is a qualified breathalyser technician who took two suitable samples of the applicant’s breath directly into an approved instrument which registered 153 milligrams of alcohol per 100 millilitres of blood at 4:23 a.m. and 141 milligrams of alcohol per 100 millilitres of blood at 4:46 a.m. She noted that his walk was sure, that his eyes were slightly red, he spoke with slurred speech and ran his words together. She noted an odour of alcohol on his breath. She also recorded that the grounds received from Sgt.

Mallett were: erratic driving including driving around a vehicle stopped at a red light; a high rate of speed and proceeding the wrong way down York Street; an odour of alcohol on his breath; and an admission of consumption of alcohol. She also noted that the applicant had scrapes on his forehead. Oluwafemi Alaga [ 34 ] The applicant is a student at the University of Toronto who was visiting his girlfriend, Lillian Lewis, who lives and works in Ottawa. They went to a restaurant in the market where they left Ms.

Lewis’s vehicle following dinner and walked to a bar known as the Lobby Bar at Rideau and Dalhousie where they remained from approximately 12:30 to 2:30 a.m. [ 35 ] The couple left the bar and walked back to their vehicle which was located back at the restaurant. Along the way the applicant approached a group of persons and requested a cigarette. An altercation took place which led to the applicant being taken to the ground and struck. He got up and ran to his girlfriend who had preceded him while making a phone call and together they ran to their vehicle. Although it was Ms.

Lewis who had not had anything to drink and was the designated driver and who owned the vehicle, the applicant decided to drive because of the incident which had just taken place and because he felt it was his role as a man to drive in that situation. [ 36 ] The applicant drove to the corner of Clarence and Dalhousie. He did not remember any vehicles in front of him although he testified that at that point he was focused on getting away from the scene. He recalled first seeing the police car while he was on York

Street just before it splits into eastbound and westbound lanes. He knew he was being pulled over but was unfamiliar with the street and just pulled ahead into a parking spot. [ 37 ] The applicant confirmed Sgt. Mallett’s evidence that he, the applicant, got out of the vehicle and approached Sgt. Mallet. He tried to relate the incident concerning his beating but the officer was not interested and asked him whether he had been drinking. He responded that he had consumed three drinks and the last one was 30 minutes earlier. He then claims that he was handcuffed and placed in the rear of Sgt.

Mallett’s cruiser where he waited for 10 to 15 minutes until Constable Bell arrived. [ 38 ] He confirmed that he did not ask to speak to a lawyer while waiting at the scene and nor was he told by Sgt. Mallett why he was being detained. Lillian Marengo-Lewis [ 39 ] Ms. Lewis is a public servant who has been the applicant’s girlfriend for the past five years. She testified that she and the applicant went out for dinner on august 20, 2011. She is the owner of the silver BMW and was to be the designated driver. She parked her vehicle at the restaurant lot located at Clarence and Parent.

They ate at the restaurant from 9 p.m. and when finished walked to the Lobby Bar on Rideau Street and Dalhousie where they met friends. She testified that they left the Lobby Bar around 2:15 a.m., parted company with their friends and began walking back to her vehicle, which, according to the Google map filed of the market area, was five city blocks away. [ 40 ] As they made their way along Dalhousie towards Clarence she made a phone call and the applicant approached a group of people.

When her attention returned to the applicant she noted that he was being struck by members of the group and that he then began running towards her. They then ran together to her vehicle on Clarence Street. [ 41 ] The applicant wanted to drive so she got into the passenger seat. She did not see him drive around two stationary vehicles and she thought he was driving at a regular speed. [ 42 ] She saw the applicant exit his vehicle to talk to an officer while she remained in the vehicle. She then observed the officer handcuff the applicant and place him in the rear of his cruiser.

Another officer arrived about 10 minutes later. She took several photos on her cell phone. The one taken at 2:53 a.m. she claimed was of the first officer who would have been Sgt. Mallett. Analysis [ 43 ] Since many of the applicant’s Charter breach allegations are premised on certain findings of fact e.g. the length of detention before the demand was made, I propose to deal with the conflicts between the testimony of the various witnesses, make findings of fact and then deal with the Charter arguments on the basis of those findings.

A Chronology of Events [ 44 ] An accurate chronology of events was rendered problematic by the evidence of Sgt. Mallett who made sparse notes of what occurred that evening. He had no note as to when he called dispatch for an ASD or when Constable Bell arrived with it.

Although he may have asked the applicant the time of his last drink during the time immediately after the traffic stop, in fact the applicant testified that he did ask that question, he did not record it in his notes as having occurred until 3:05 which gave rise to a suggestion from applicant’s counsel that the ASD was not called for until after 3:05. A notation for this particular question is very close in time to the same question posed by Constable Bell to the applicant after the third failed ASD test at 3:03 according to Constable Bell’s watch.

Given that I am prepared to find, for reasons to follow, that Constable Bell was on scene at least at 2:54, the only logical explanation for Sgt. Mallett’s evidence on this point is that he attributed Constable Bell’s question, being the same one he had asked the accused earlier in the evening, to himself rather than to Constable Bell when he made his investigative action report more than 24 hours after the events in question. [ 45 ] One time that has not been challenged is the time of the stop which Sgt. Mallett recorded as one minute after he first observed the applicant’s vehicle driving at 2:48.

The applicant did not recall there being two vehicles in front of him or that he drove around them in order to make a right turn but he admitted that at that particular time he was interested in getting away from the people who had attacked him. Something must have attracted Sgt. Mallett’s attention to his vehicle and I accept Sgt. Mallett’s evidence on this point and that the vehicle was in fact speeding. The time of 2:48 fits well with the evidence of the applicant and his girlfriend. She testified that they left the bar at roughly 2:15 and parted company with their friends.

They had to walk five city blocks back to where her vehicle was parked and along the way the applicant became involved in an altercation, which I am prepared to accept as having occurred. [ 46 ] Ms. Lewis’s testimony that the applicant was driving normally is suspect given his own acknowledgement that he was trying to get away from the persons who had just attacked him. His vehicle’s speed alone was sufficient to attract Sgt.

Mallett’s attention. [ 47 ] Although there may have been excuses for his driving, including his lack of familiarity with Ottawa streets, I do find that he drove down the wrong lane of York Street which would only have added to Sgt. Mallett’s suspicions. [ 48 ] I find that Sgt. Mallett engaged the applicant in conversation after the stop for a brief period but sufficient to observe the odour of alcohol on his breath, slurred speech, and to receive an admission that the applicant had recently consumed alcohol. I find that in combination with the applicant’s erratic driving, which I have noted above, that Sgt.

Mallett had reasonable grounds to suspect the presence of alcohol in the applicant’s body shortly after the vehicle was stopped at 2:49. [ 49 ] It is clear from the evidence that Sgt. Mallett subjectively had a reasonable suspicion that the applicant had alcohol in his body and for that reason he requested the ASD be brought to him. [ 50 ] I am prepared to accept Constable Bell’s evidence that he was dispatched to provide the ASD at 2:51 a.m. since it fits naturally in the chronology of events to that point.

[ 51 ] I am also prepared to accept Constable Bell’s evidence that he arrived at the scene at 2:54 a.m. since he was a short distance away when he received the dispatch call. I also find that the photo taken by Ms. Lewis with the time stamp of 2:53 was of Constable Bell and not of Sgt. Mallett as suggested by Ms. Lewis. Both Sgt. Mallett and Constable Bell readily identified the officer depicted as Constable Bell. Their evidence is consistent with my own observation of the two men, one of whom is much older than the other.

The slight difference between the 2:53 time stamp and Constable Bell’s evidence that he arrived at 2:54 can be accounted for by the differences in the cell phone’s time piece and Constable Bell’s watch. [ 52 ] As a consequence with this finding it falls that I am not prepared to accept the applicant’s evidence that he had to wait 10 to 15 minutes from being placed in the cruiser until Constable Bell arrived. Ms. Lewis put the wait at 10 minutes.

In fact I find that it was no more than three minutes. [ 53 ] I am prepared to accept the balance of chronology as presented by Constable Bell which involved receiving grounds from Sgt. Mallett between 2:54 and 2:57, securing the ASD from the cruiser, turning it on, reading the ASD demand to the applicant at 2:59 and beginning the first test at 3:00 o’clock Reading to the final test which resulted at 3:10 in a fail and the applicant’s arrest by Sgt. Mallett as a result at 3:11. [ 54 ] There is one slight discrepancy between Sgt. Mallett’s notes of the testing period and the evidence of Constable Bell. Sgt.

Mallett, as indicated above, had the question as to when the applicant’s last drink took place as having been posed at 3:05 whereas Constable Bell noted the question was posed at 3:03. It must be remembered that the question was not posed until after the 3:03 test, i.e. probably closer to 3:04 and both officers were recording times from their respective watches which may not have been synchronized. The fact that they both recorded the same time of arrest as 3:11 does not, in my view, undermine the evidence of Constable Bell as to the chronology of events at the roadside.

Location of the Applicant upon detention and handcuffs [ 55 ] Sgt. Mallett conceded that after he formed his grounds to have the applicant submit to an ASD test the applicant was detained although he maintained that he did not place the applicant in his cruiser while they waited for the ASD to arrive. He also maintained that the applicant was never handcuffed until after the arrest at 3:11. [ 56 ] Sgt. Mallett’s evidence on both of these points is at odds with that of the applicant and Ms. Lewis and with that of Constable Bell as to whether the applicant was in the cruiser or outside.

Constable Bell testified that when he arrived the applicant was in the rear of Sgt. Mallett’s cruiser and that Sgt. Mallett was seated in the driver’s seat. In fact, in the 2:53 photo referred to above we can see the officer.

I have found to be Constable Bell, standing outside a cruiser seemingly speaking to someone inside. [ 57 ] Constable Bell did not notice whether the applicant was in handcuffs when he first saw him but during the testing procedure done while the applicant was seated in the cruiser with his feet on the pavement, Constable Bell did not believe the applicant was handcuffed. [ 58 ] Given that Sgt.

Mallett’s evidence was clearly wrong on the location of the applicant while he awaited the arrival of the ASD it is tempting to conclude that he was similarly wrong about whether he handcuffed the applicant before the arrival of Constable Bell. However, I am not prepared to go that far. It would have been unusual and extraordinary for a police officer to handcuff a citizen prior to arrest while awaiting an ASD. There was nothing in the evidence to indicate that the applicant was unruly or anything other than polite and cooperative.

One would have expected Constable Bell, whose evidence generally I am prepared to accept, to have noticed whether the applicant was handcuffed during the testing, which took several minutes, but he did not and testified that he did not believe the applicant was handcuffed at that time. I have already found that the applicant and Ms. Lewis were mistaken about parts of their evidence including the applicant’s driving, the length of time it took for the second officer to arrive and the identity of the officer in photo number three.

The applicant had been drinking and may not have been an accurate historian of the evening’s events. Ms. Lewis was in her vehicle and would not have had the best vantage point to observe whether the applicant was handcuffed when he went into the rear of Sgt. Mallett’s cruiser. Accordingly, I find that it is more likely than not that the applicant was not handcuffed until after the test procedure was completed and the arrest made. Was the applicant told the reason for his detention? [ 59 ] Sgt.

Mallett testified that he told the applicant that they were going to have an officer come with an alcotest to verify if he was under the legal limit and able to drive. The applicant denied that he was ever told this. Unfortunately for Sgt. Mallett he never made any note to this effect and it only emerged from his testimony in cross-examination when he was challenged about never telling the applicant how long he was going to be detained. Given the failings in Sgt.

Mallett’s recollection concerning the location of the applicant in the cruiser while they waited for the ASD and the misidentification of himself as asking the applicant at 3:05 as to when the last drink took place, I am not prepared to find that this purported recollection over a year later and unsupported by any note, actually took place. It should have taken place, and perhaps it did, but I am unable to make such a finding. [ 60 ] Given these findings of fact I am now prepared to deal with the submissions of counsel on the various Charter breach allegations.

Section 8 [ 61 ] There is a presumption of unreasonableness where a search takes place without a warrant. The Crown must show that the ASD demand and the breath demand were lawful on the balance of probabilities. [1] [ 62 ] The applicant seeks to have the breath sample evidence excluded on the basis that the demand for them was unlawful in three ways. First it was alleged that there was insufficient time from the traffic stop until Sgt. Mallett requested an ASD for Sgt. Mallett to form the necessary reasonable suspicion required under Section 254(2).

I have already dealt with this argument above and found that Sgt. Mallett had reasonable grounds to suspect the presence of alcohol in the applicant’s body. The Ontario Court of Appeal in R. v. Bush [2] dealt with a similar “rush to justice” argument on the higher threshold of reasonable and probable grounds and stated that there is no

minimum time period nor mandatory questioning that must occur before an officer can objectively have reasonable and probable grounds or, in a case of an ASD, a reasonable suspicion. This argument must fail. [ 63 ] Second, the Section 254(2) demand by Constable Bell was not valid because it should have been made by Sgt. Mallett as soon as he obtained his “reasonable suspicion”. That would have occurred no later than 2:51 a.m. when I found that he called for an ASD.

The demand was not provided until Constable Bell attended the scene and after forming his independent grounds and made the demand at 2:59 a.m., some eight minutes later. Recently in R. v. Quansah [3] the Ontario Court of Appeal reviewed the meaning to be given to Section 254(2) and concluded at paragraph 46 that: “ the demand must be made by the police officer promptly once he or she forms a reasonable suspicion that the driver has alcohol in his or her body.

The immediacy requirement, therefore, commences at the stage of reasonable suspicion”. [ 64 ] The question then arises as to whose reasonable suspicion is relevant in this case where Sgt. Mallett formed his at 2:51 and Constable Bell, who made the demand, formed his at 2:57. In my view the test of immediacy must begin with the first officer who forms a reasonable suspicion given the interaction between Section 254(2) and

Section 10(

b) of the Charter, even though in Quansah at paragraph 35 , the Court recognized that “the opportunity to consult counsel is not the only criterion for assessing whether the ‘forthwith’ requirement has been observed”. Nevertheless the Court included this criterion as one of the five things to be considered in analyzing the immediacy requirement in Section 254(2) in each case. [ 65 ] In this case I am not satisfied that, in all the circumstances, there was a realistic opportunity for the applicant in the space of three minutes while waiting for the ASD to arrive or even within the nine minute period from Sgt.

Mallett’s formation of a reasonable suspicion to the first failed test, for the applicant to contact, seek and receive advice from counsel which is the test set out in R. v. Torsney [4] . [ 66 ] In coming to this conclusion I have considered that the applicant did not know any lawyer as evidenced by his acceptance of counsel selected from the list of lawyers at the station by Sgt. Mallett on his behalf.

Further, when he did speak to counsel it took eight minutes for the telephone conversation to take place. [ 67 ] The Court adopted a test of reasonable necessity in Quansah to the forthwith requirement at paragraph 47: “third, forthwith connotes a prompt demand and immediate response, although in unusual circumstances a more flexible

interpretation may be given. In the end, the time from the formation of reasonable suspicion to the making of the demand to the detainee’s response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by Section 254(2).” [ 68 ] Another consideration among the five set out in Quansah which has some relevance to this case is the fourth one set out in paragraph 48 which states: “fourth, the immediacy requirement must take into account all the circumstances.

These may include a reasonably necessary delay where the breath tests cannot immediately be performed because an ASD is not immediately available...” [ 69 ] The Court’s position in Quansah is consistent with that set out in an earlier decision of the Ontario Court of Appeal in R. v. Misasi [5] . In that case the accused’s motor vehicle was stopped and the officer formed his suspicion that he had been drinking. The officer did not have an ASD with him so he radioed to the police station for one to be brought to his location.

It was not until after the ASD was brought that the officer made the Section 254(2) demand. Approximately four minutes elapsed from the initial stop until the demand which the Court held was “well within acceptable limits”. The Court further noted that although the accused was detained within the meaning of Sections 9 and 10 of the Charter until the ASD arrived “such detentions were justified under

Section 1 of the Charter ”. [ 70 ] Similarly I am prepared to find that the immediacy requirement was met in this case and there was no violation of Sections 8, 9 and 10(

b) of the Charter as a result of the slight delay in this case in making the demand while the ASD was being brought to the scene. Sgt. Mallet explained that he was doing double duty that night as both the staff sergeant at the station as well as being on the road. He had his phone from the station on call forward and this presumably motivated him to have Constable Bell assist with the investigation in the event he was called away or back to the station. This should not have prevented him from making the demand himself at 2:51 but it is at least some explanation as to why he did not. [ 71 ] The third ground advanced under

Section 8, which was not pressed too strenuously in submissions although explored extensively in cross-examination centred on whether the ASD was in proper working order because the numerals following the “E” recording after each failed test were not recorded by Constable Bell. I am satisfied with Constable Bell’s response that he simply did not record them because his own observations informed him that the applicant was not blowing long enough or hard enough to register a reading.

The fact that the device produced a reading 0.00 when he provided a sample of his own breath was enough to satisfy him that the device was in proper working order along with his checks at the beginning of his shift. As stated by the Ontario Court of Appeal in R. v. Topaltsis [6] at paragraphs 8-9 as quoted in Kenkel: Impaired Driving in Canada, 2009 Edition: “The Crown is not required to prove that the approved screening device was in good working order when the test was administered and resulted in a ‘fail’.

The Crown need only prove that the officer had objectively reasonable grounds for believing the device was in working order and accordingly formed reasonable grounds to arrest based on the ‘fail’.” [ 72 ] For these reasons I find that the three arguments advanced by the applicant for a finding of a

Section 8 breach must fail. Sections 9 and 10(b) [ 73 ] Similarly for the reasons stated above I find no violation of

Section 9 or 10(

b) of the Charter .

Section 10(a)

[74] A breach of

Section 10(

a) was not pleaded in the case before me, however, it appeared to me from the evidence that therewas a prima facie case of a breach of this

section of the Charter. In those circumstances I believe I have a duty to raise the issue andinvite submissions from counsel which has occurred in this case. See R v. Travers (2001), 2001 NSCA 71 , 154 C.C.C. (3d)426 (NSCA) at paragraph 40. [75] Although I have found that the immediacy test was met in relation to the Section 254(2) demand so that there was noinfringement of Sections 8, 9 or 10(

b) of the Charter, the same cannot be said about Sgt. Mallett’s obligation to inform the applicantpromptly of the reasons for his detention. That was not done in this case. I have found that the applicant was detained from 2:51 a.m. The

Section 10(

a) requirement could have been satisfied if the ASD demand had been made at that time, but it was not. In R. v.Wackernagel, [2004] O.J. No. 5543 (S.C.J.) paragraphs 15 – 20, Justice Hill noted what he referred to as “The seemingly perpetual problem in cases of this type is that a number of themes become conflated – timing of the ASD demand andadministration of the ASD test, and as well, timing of the ASD demand and its relation to police compliance with

Section 10(

a) of theCharter.” [76] Justice Hill went on to state that the appellate case law permitting the police to forego providing a motorist the

Section 10(b)right to counsel where the ASD is administered forthwith “does not sanction suspension of a driver’s

Section 10(

a) Charter right to be‘informed promptly of the reasons’ for detention”. [77] In the circumstances of this case I find that there has been a breach of

Section 10(

a) of the Charter. Section 24(2) [78] The well-known test for exclusion was set out in R. v. Grant, 2009 SCC 32 , [2009] S.C.J. No. 32. The Court isrequired to inquire into the seriousness of the Charter - infringing state conduct, the impact on the Charter protected interests of theaccused, and society’s interest in adjudication on the merits.

After making these inquiries I must then determine whether, on balance,the admission of the evidence obtained by the Charter breach would bring the administration of justice into disrepute. [79] With respect to the first branch of the test I find that the failure of the officer to advise the applicant as to why he wasdetained, which could have been accomplished by the ASD demand, was not that serious. Sgt. Mallett was potentially on call for otherduties back in the station so he was anxious for another officer perform the test and take over the investigation, if necessary.

He also hadevery expectation that the ASD would arrive quickly given that Constable Bell’s cruiser could be seen shortly after he made the requestfrom dispatch for the ASD. This does not justify his failure to advise but it places that failure in some context and attenuates anysuggestion that this was an abusive exercise of police powers.

The seriousness of the breach is on the low end and while this branch ofthe Grant test favours exclusion, it does so only slightly. [80] With respect to the second branch the Court in Grant identifies at paragraph 111, that breath samples fall under the relativelynon-intrusive end of the spectrum. The real impact of the failure to advise the applicant promptly of the reason for his detention wasthat he was left in the dark for several minutes as to what was taking place until the demand was read to him by Constable Bell. I findthat this impact was relatively transient and fleeting.

It was lessened by the fact that the applicant must have had a reasonably good ideaas to why he was being detained as a result of the conversation he just had with Sgt. Mallett who demonstrated little interest in his claimto have been beaten up and directed his questions to the applicant on whether he had been drinking and when his last drink had occurred.

I find that the impact of the breach on the applicant’s Charter interest understood in this light was minimal. [81] The third line of the inquiry, society’s interest in the adjudication on the merits, requires me to consider that the breathsamples in this case were reliable and their exclusion would substantially undermine the Crown’s case. I also note that “numerous caseshave commented on the death and destruction caused by drinking and driving and the public’s interest in curbing such criminalconduct”. See R. v. Du (ON SC), [2009] O.J. 3194 (S.C.J.) par. 24.

This inquiry strongly favours admission of thebreath samples. [82] When I balance the three lines of inquiry I find that the first two favour exclusion but only slightly while the third stronglyfavours admission. [83] As stated at paragraph 111 of Grant: “Where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidenceobtained from the accused’s body may be admitted.

For example, this will often be the case with breath sample evidence, whose methodof collection is relatively non-intrusive.” [84] On balance I find the circumstances favour admissibility of the evidence. [85] The applicant also sought a stay pursuant to section 24(1) but given my findings in this case that remedy would be entirelyinappropriate. Disposition [86] I find the applicant guilty of the charge of “over 80”.

Given the observations of all three officers including the somewhaterratic driving, the odour of alcohol on the breath, slurred speech and readings approaching double the legal limit I am satisfied beyond areasonable doubt that the applicant was operating a motor vehicle while impaired by alcohol. He will be found guilty of that count aswell but it will be conditionally stayed pursuant to the principle in R.v. Kienapple, (SCC), [1975] 1 S.C.R. 729. Released: June 7, 2013

_______________________________ The Honourable Justice J. David Wake