R. v. Jacyniak, 2011 ONCJ 32

Citation: R. v. Jacyniak , 2011 ONCJ 32 ONTARIO COURT OF JUSTICE Central West Region Brampton Ontario B E T W E E N : HER MAJESTY THE QUEEN -and- PIOTR JACYNIAK REASONS FOR JUDGMENT Duncan J. 1 . The defendant is charged with exceed 80, offence date May 2 2008. He defends the case solely on Charter grounds. Specifically he submits that he was not given the ASD demand immediately and as a result one or more of his Charter rights were infringed, necessitating exclusion of breath test results. 2 . The facts can be briefly summarized: Acting police Sergeant Eimann was stopped in a marked police car at a red light.

The defendant pulled up beside him and stopped. But after 5 to 8 seconds he proceeded through the intersection against the red light. The officer gave brief pursuit and pulled him over into a parking lot. The officer approached and told the defendant that he had stopped him for going through a red light. The officer asked for driving documents. He noticed a smell of alcohol on the defendant who admitted having been drinking at a nearby bar.

The officer returned to his police car to check documents on CPIC and to inquire about the availability of an ASD because he felt that it would be prudent, given the odor and the defendant’s admission, to determine whether the defendant was within legal limits. He learned that an ASD could be brought there shortly. He returned to the defendant who was sitting in his car smoking a cigarette. The Sergeant told him that he was going to test his breath and that a machine was on its way. He was going to make a formal demand but just then the ASD arrived. 3 .

PC Silverberg, a rookie officer still in training, arrived together with another officer and the ASD. The investigation was handed over to him since the Sergeant had supervisory duties to fulfill. Silverberg spoke briefly with the Sergeant and then with the defendant. He smelled alcohol on him and questioned him as to his drinking. He formed the requisite suspicion. He made a formal demand and then searched and placed the defendant in the rear of the police car. He then conducted the test which yielded a Fail result. The defendant was arrested and taken for testing which revealed BAC of 130. 4 .

The time line is as follows: ▪ 11:48 – red light incident – defendant pulled over by Sgt Eimann

▪ 11:50 – Sgt back in cruiser checks for availability of ASD and determines that it can be on scene shortly ▪ 11:50 – 11:52 – Sgt returns to defendant and tells him that he is going to test his breath ▪ 11:52 – PC Silverberg at 12 Division tests ASD and heads for scene ▪ 11:56 – ASD arrives – Silverberg speaks to Sgt – speaks to defendant ▪ 12:06 – Silverberg makes ASD demand ▪ 12:09 – Silverberg conducts test resulting in fail – arrest ▪ 1:01 – First test – reading 140 ▪ 1:21 - Second test – reading 130 The argument: 5 .

While framed more broadly in the written material, the defendant’s argument, as I understand it, became focused specifically on the delay in reading the ASD demand to the defendant. It is argued that the demand was not made “forthwith” (defined as “immediately”) as required by law, thereby resulting in breaches of the Charter. In turn, it is argued, such breaches require that the eventual Intoxilizer results be excluded. 6 . I do not accept this argument. In my view it should be rejected on a number of bases discussed below. Assuming there is a requirement for an immediate demand: 7 .

Assuming the correctness of the view that the demand must be made immediately [1] , in my opinion the requirement was satisfied in the circumstances of this case. The informal conversation in which Sgt. Eimann told the defendant that he would be testing his breath, occurring somewhere between 11:50 and 11:52, some 2 to 4 minutes after the defendant was stopped, was a sufficient substitute for a demand, at least for the purposes of the Charter: R v Wackernagel [2004] OJ No 5543 (OntS.C. Hill J) . 8 .

It is argued however, that even that informal advice was not given soon enough to satisfy the immediacy requirement. It is argued that since a sufficient suspicion for a 254(2) demand arose when the officer first attended the defendant’s car, smelled alcohol and received the admission of drinking, the demand had to have been given at that point in time to be “immediate”. 9 . I disagree.

Even on the view that the law requires an immediate demand, the expectation is that the demand will be made immediately upon the formation of the requisite suspicion AND the determination that it is appropriate to administer the test ( R v Fildan [2009] OJ No 3604 ) which includes, in my view, a determination that the test can be administered without undue delay. It was quite appropriate - and likely even legally required - that the Sergeant not make a demand (formally or informally) until he determined that an ASD could be brought quickly to the scene. 10 . In

summary, even assuming that an immediate demand was required, it is my view, for the above reasons, that the requirement was satisfied and there was no Charter breach in this case. Is an immediate demand required? 11 . If I am wrong in the above conclusion, it becomes necessary to analyze the foundational assumption on which the argument is based – that an immediate demand is legally or constitutionally required. [2]

12. Where does this requirement for an immediate demand come from? It is clearly not in the statute itself. Section 254(2) refers only toproviding the sample forthwith. The relevant

section of the Criminal Code as it read at the time of the present offence: 254(2): Where a peace officer reasonably suspects that a person who is operating a motor vehicle ….has alcohol in the person’s body,the peace officer may by demand made to that person, require the person to provide forthwith such a sample of breath as is the opinionof the peace officer is necessary to enable a proper analysis of the breath of the person to be made by means of an approved screeningdevice 13.

Reference may also be made, by contrast, to the wording (at the time) of the Intoxilizer demand (254(3) - “may by demand made tothat person forthwith or as soon as practicable”. The clear implication is that when Parliament wanted the demand to be made“forthwith” it said so. No such words were used in respect of the ASD demand. The Code does not require an immediate demand. 14. If not in the statute, is an immediate demand constitutionally required? It has been authoritatively established that the “forthwith”requirement for the roadside testing itself is constitutionally necessary.

The constitutional requirement implicates Charter sections 8, 9,10(

a) and 10(b). The path of reasoning with respect to each can be summarized as follows: •

Section 8: A demand to provide a sample at a time beyond “forthwith” is not a demand within the meaning of section 254(2). R vGrant (SCC), [1991] 3 SCR 139. Breath samples obtained without warrant pursuant to such a demand will not be legallyauthorized, and will therefore constitute a prima facie unreasonable search under

section 8. •

Section 9: A motorist subjected to roadside testing will usually be detained within the meaning of sections 9 and 10: R v Thomson (SCC), [1988] 1 SCR 640. The law permits detention only for the purpose of testing conducted “forthwith”. A detentionbeyond “forthwith” is therefore unlawful. A detention that is not lawful is arbitrary and a violation of

section 9 of the Charter: R v.Suberu [2009] 2 SCR 245. •

Section 10(b): Normally a motorist who is detained will have the right to counsel. However the roadside testing situation, includingits requirement that the test be conducted “forthwith”, renders access to counsel impractical and a suspension of the 10b right is areasonable and justified limit on the right. But if the testing is not conducted “forthwith” the

section 1 suspension loses its underlyingrationale, is not justified and will disappear. A 10(

b) violation will occur. •

Section 10(a): A person in detention has the right to be informed promptly of the reason therefore. If the detainee has not otherwisebeen informed, an immediate demand will serve to satisfy this constitutional requirement: R v Wackernagel supra 15. Do any of these points underpinning the constitutional necessity for “forthwith” roadside testing carry the further implication thatthe demand itself must be made immediately? With respect to those who hold a contrary view, I see nothing in respect of the first threeCharter points enumerated above –

section 8, 9 and 10(b) – that either directly or by implication requires an immediate demand. All areconcerned solely with the allowable time for testing. 10(

a) is somewhat different as discussed below. 16. It should be acknowledged that the arguments under sections 9 and 10(

b) can be recast to place apparent significance on the timingof the demand. The argument goes: It is only pursuant to a demand for roadside testing that detention is permitted – more particularly adetention without right to counsel. Therefore the demand must be made immediately or it is not a section 254(2) detention. 17. With respect, it seems to me that whether a detention is for roadside testing is a function of the police officer’s purpose and not theprecise timing of the steps he takes in pursuit of that purpose.

Provided that his purpose is to conduct a roadside test and he does so“forthwith” pursuant to a demand made at some time in the process, it is my view that he acts within and pursuant to the authority ofsection 254(2). 18. I conclude that a requirement for an immediate demand is not a constitutional imperative. 19. If the immediate demand requirement does not come from the statute or by implication from Charter requirements, where elsecould it come from? Is it from case law? In R v Singh

(2000) O.J. No 4992, Justice Hill brought together passages from judgments ofthe Supreme Court of Canada in support of the immediate demand thesis. Other cases have disagreed with this analysis, in particular withwhether the passages represent majority views.[3] Whether they do or not, I think it is reasonably clear that none of the cases from which

passages were taken involved delayed demands and none of them dealt even tangentially with the present issue. References to delay inmaking the demand that appear in these cases in my view merely reflect imprecision in language used and tend to support the view thatthe distinction suggested, far from being made, was not even in the mind of the writer.

My reading of Justice Hill’s clarifying judgmentin Wackernagel is that his position now is that the net effect of these passages should be understood in negative terms, that is, they donot foreclose the view that an immediate demand is required: (Wackernagel para 30). Accepting that that is so, I cannot see that theyprovide positive authority for the proposition that an immediate demand is required. 20. In

summary, it is my respectful view that there is nothing in the Code, in case law or the Charter sections 8, 9 or 10(

b) that requiresthat a roadside demand be made immediately. Put another way, an argument alleging breach or infringement of any of those sections cannot be constructed on the absence of an immediate demand. 21. With respect to 10(

a) of the Charter – the right to be informed promptly of the reason for detention: In the context of the presentissue, I would characterize this as a stand-alone right. Unlike the others, it is not interwoven with or affected by the roadside testingscheme, including the “forthwith” testing requirement. It sets its own timetable applicable to any detention – that the reason for detentionbe given “promptly”. The timing of the ASD demand can have significance to the 10(

a) right in a narrow set of circumstances that is, ifthe reason for detention has not otherwise been provided, the demand itself, if given promptly, can provide the reason and thussimultaneously satisfy 10(a): R v Wackernagel supra. Other than this narrow potential saving role, I don’t think there is any necessaryconnection between the timing of the demand and 10(a).[4] 22.

In conclusion, with great respect for those who hold a contrary view, my analysis of the issue leads me to the conclusion that Ishould follow the line of authority that holds that there is no legal requirement that an ASD demand must be made immediately. Detention: 23. If I am wrong in the above and an immediate ASD demand is required by law and was not provided here, then the question ofdetention must be addressed for the purpose of determining whether sections 9, 10(

a) or 10(

b) were breached. 24. It is common in cases of vehicle stops to assume that the driver is detained from the moment he is pulled over. There is welcomesimplicity in such a view and there is high authority to support it, as discussed below. The problem with it is that it is also a situationwhere some of the rights that flow from detention, particularly the right to counsel under 10b (but also, plainly the often overlooked rightto habeas corpus under 10c) do not sit well with the vehicle stop situation. 25.

The early Charter cases dealing with the meaning of “detention” dealt at some length with the question of whether a motorist wasdetained when given a breathalyzer demand (R v Therens (SCC), [1985] 1 SCR 613) or an ASD demand (R v Thomsensupra). One wonders why the Court would have to undertake such an analysis if detention arose at the earlier point of simply pullingover the vehicle. Perhaps Therens contains an easy answer on its facts – the accused there was not pulled over; he ran into a tree (a caseof arbor- trary detention?) and the police arrived shortly thereafter.

But in Thomsen the accused was pulled over by the police and thetrial judge found that he was thereby detained. However the Supreme Court did not seize upon that simple answer but as mentioned,analyzed whether he was put into detention by the ensuing roadside demand. It could be inferred that the Court did not consider that themere stopping of the vehicle gave rise to a detention within the meaning of the Charter. 26. The matter appeared to be settled in R v Orbanski and R v Elias 2005 SCC 37 , [2005] 2 SCR 3.

In each case the accusedwas pulled over by police with a view to checking his sobriety as authorized by a Manitoba statute. When approached the driver wasasked for driving documents and asked whether alcohol had been consumed, giving affirmative answers. It was held at trial in each casethat each driver had been detained on stopping, that 10b was not complied with, that the answers were obtained in breach of that right and resulting breath tests should be excluded. On its ultimately successful appeal, the Crown conceded that each driver was detained assoon as he was pulled over.

The Supreme Court of Canada agreed that such concession was “well-founded”. 27. But more recently, in R v Suberu 2009 SCC 33 , [2009] 2 SCR 460, a case that did not involve stopping a moving vehicle,the Court commented on Orbanski to the effect that it was the stopping “coupled with” the demand that gave rise to detention in thatcase. Further, the Court said that its restrictive and purposive definition of detention rendered a general

section 1 pass on the right tocounsel unnecessary: There is no question that the right to counsel, as any other right guaranteed by the Charter in case of detention, is subject to reasonablelimitations as prescribed by law under s. 1. For example, in R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3, the fact that there was adetention was not in issue. Indeed, the police directive to pull over coupled with the restrictive demand that the driver perform sobriety

tests provided a clear basis to ground a detention. Charter rights were therefore [page484] triggered, though ultimately the breach wassaved under s. 1 of the Charter. However, we are not persuaded, on this appeal, that a case has been made out for a general suspension ofthe s. 10(

b) right to counsel for investigatory purposes, with or without some form of use immunity. In our view, the invitation by counselfor the Court to consider s. 1 in order to suspend the right to counsel is premised on an unduly expansive notion of the meaning ofdetention that is inconsistent with the purposive approach to detention taken in Grant.

Because the definition of detention, as understoodin these reasons, gives the police leeway to engage members of the public in non-coercive, exploratory questioning without necessarilytriggering their Charter rights relating to detention, s. 1 need not be invoked in order to allow the police to effectively fulfill theirinvestigative duties. 28. I find it impossible to read this passage without concluding that the question of detention in respect of vehicle stops has been re-opened.

But the issue is a difficult one and is complicated if not rendered insoluble by the Court’s declaration in R v Hufsky (SCC), [1988] 1 SCR 621 that the meaning of detention is the same for sections 9 and 10, whereas a purposive approach to

interpretationmight very well dictate different results[5]. It is easy to see that the mere stopping of a vehicle without authority should give rise to asection 9 detention. But it is entirely impractical and divorced from underlying purpose to also declare that the mere stopping shouldtrigger 10(

b) rights. 29. Determination of when detention arises has significance in the present case. If the defendant was not detained until he was subjectedto a demand, there could be no breach of

section 9, 10(

a) or 10(

b) until that point. 30. In this case I am not satisfied that the defendant was detained within the meaning of

section 10 of the Charter when he was pulledover or when he was sitting in his own car smoking a cigarette while the Sergeant checked his driving documents. While he was not freeto leave, I think that Suberu is telling us that there is more to it than that. Here there was no physical restraint, such as being in a lockedpolice car; there was no psychological compulsion, and there was no demand with penal consequences until either the informal or formalASD demand was given. It is at that point that the defendant was detained for the purposes of

section 10. There could be no violationbefore that point. There was no violation after: The demand itself satisfied 10(a); the ensuing detention was pursuant to the 254(2)demand; the 10(

b) right was suspended. In short, there could be no

section 10 issue in this case. 31. As mentioned,

section 9 serves a different purpose and a purposive approach could well justify a finding of detention at an earlierpoint in time, depending on the circumstances, (and if the law permitted). But it is unnecessary for me to grapple with this issue in thecircumstances of this case. If there was a detention it was not arbitrary. The stopping was clearly lawful. The reason for the stop wasgiven. The period of detention preceding the demand was reasonable and commensurate with normal traffic ticketing practice. There canbe no

section 9 violation in this case either. Section 24(2): 32. If I am wrong about all of the above and that the timing of the demand gave rise to an avalanche of constitutional violations –section 8, 9, 10(

a) and 10(b) – it would be my view that the evidence should not be excluded. 33. The circumstances of this case are such that even the most perfervid champion of civil liberties would have difficulty mustering anyenthusiasm for exclusion. The police conduct was benign –at worst failure to be aware of a judicial direction which is still the subject ofdisagreement and dispute in courts of equal authority. The impact on the Charter protected interests of the accused was minimal, if notnon-existent. The grounds for roadside testing existed. The test was conducted “forthwith” as required[6].

The defendant was alreadydetained for the red light infraction and suffered no additional restraint on his liberty or prolongation of detention by reason of any delayin the demand being made[7]. Finally the public interest strongly favours admission of the evidence. See most recently: R v Yamka,January 20 2011 (Ont SC Durno J). It is in the long term interest of the administration of justice that valid and important measures topromote highway safety not be frustrated and that constitutional rights not be trivialized by highly technical

interpretations of the Charterthat serve no ascertainable interest in furtherance of individual rights and freedoms. I suggest that this is exactly the sort of case – wherewindfall exclusion resulted from minor and technical breaches - that the Supreme Court of Canada had in mind in its reformulation ofthe exclusionary rules in the Grant trilogy. Conclusion: 34. The evidence is admitted; the case is proven. The defendant is found guilty as charged.

January 26 2011 B Duncan J Ms Pennypacker for the defendant Mr Sone for the Crown [3] The judgment of Cory J in R v Bernshaw(1995) (SCC), 95 CCC3d 193 (SCC) and Arbour JA in R v Pierman; R vDewald (1994) (ON CA), 92 CCC3d 160 whose dissent in the Court of Appeal was ultimately agreed with in theSupreme Court of Canada However, as pointed out in R vBishun [2004] OJ No 4827 (Ont CJ Blacklock

J) Cory J was in the minority inBernshaw. And as pointed out in R v Spiering[2002] OJ No 4278 (Ont Sup Crt , Arbour JA’s judgments in Pierman actually contained apassage specifically saying she did not think it mattered whether the officer postpones making the demand or postpones administeringthe test after having made the demand. In turn this latter passage was adopted by Sopinka J for what was said to be the majority of theSupreme Court in Bernshaw, a case that is very difficult to ascertain a majority or even plurality position.