2017 QCCQ 7459, 2017 QCCQ 7459

R. c. Thomson 2017 QCCQ 7459 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF GATINEAU CITY OF GATINEAU Criminal Division No. 550-01-077798-140 DATE: July 4, 2017 ______________________________________________________________________ PRESENT: THE HONOURABLE SERGE LAURIN J.C.Q. ______________________________________________________________________ The Queen Plaintiff v. Eric Michael Thomson Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ INTRODUCTION [ 1 ] Mr. Thomson is facing two counts: 1.

On or about January 23, 2014, in Gatineau, District of Gatineau, did operate a motor vehicle while his ability to drive a motor vehicle was impaired by alcohol or a drug, committing thereby the offence punishable on

summary conviction provided by sections 253(1)

a) and 255(1) of the Criminal Code . 2. On or about January 23, 2014, in Gatineau, District of Gatineau, did operate a motor vehicle having consumed alcohol in such a quantity that the proportion thereof in his blood exceeded 80 milligrams of alcohol in 100 milliliters of blood, committing thereby the offence punishable on

summary conviction provided by sections 253(1)

b) and 255(1) of the Criminal Code . [ 2 ] Mr. Thomson is presenting an application under section 24(1) (2) of the Canadian Charter of Rights and Freedoms : [1] (

i) Were the Applicant's Charter rights violated by the casino security agents? a. Was the Applicant detained by the casino security agents? b. Are the casino security agents subject to the Charter of Rights ? c. Did the casino security guards respect the Applicant's Charter rights? (ii) Has the Crown established on a balance of probabilities the legality of the roadside seizure of breath? a. Was the demand read and in a legal form? b. Did the officers have the required reasonable suspicion?

(iii) In light of the findings of fact the Court can make, has the Applicant established on a balance of probabilities that the ‘informational component’ of the rights to counsel were not provided him ''without delay'' upon his arrest? (iv) Has the Crown established on a balance of probabilities that the breath samples were taken pursuant to a lawful demand? a. Was there a validly worded breath demand? b. Was the demand made as soon as practicable? c. Were there sufficient reasonable and probable grounds to make the demand? (

v) What is the proper remedy? QUESTIONS IN DISPUTE [ 3 ] The Court will address the merit of the grounds stated above by answering the following questions: 1. Did Mr. Thomson demonstrate, on a balance of probabilities, that the Casino security guards are bound by the Charter and that his rights were infringed ? 2. Did Mr. Thomson establish, on a balance of probabilities, that the demand by Officer Barsalou to provide a breath sample for the ASD was not forthwith ? 3.

In the event that a demand is not forthwith and constitutional infringements are demonstrated, what is the proper remedy (section 24(2) Charter of Rights and Freedoms ) ? THE FACTS [ 4 ] On January 23, 2014, Mr. Thomson went to the Casino du Lac-Leamy, and left at about 3:20 a.m. The casino’s security guard, Mr. Germain, believed that Mr. Thomson was intoxicated and decided to follow him outside. [ 5 ] Security guard Germain grabbed a coat because it was -25°C and asked Mr. Ethier, surveillance camera operator, to follow Mr.

Thomson’s whereabouts on video. [ 6 ] Most of the facts reported by the witnesses are shown on the videos, which are mute. [ 7 ] At about 3:21 a.m. (bottom left of the screen), the video showed Mr. Thomson walking steadily through the parking lot toward his motor vehicle. Behind him, security guard Germain followed. [ 8 ] At 3:21:40 a.m., Mr. Thomson opened without hesitation the driver’s door of his Nissan Maxima (Maxima) and got inside.

At 3:21:59 a.m., the right side rear bumper of his car hit the right front bumper of a Chevrolet Monte Carlo (Monte Carlo). [ 9 ] Security guard Germain immediately positioned himself directly in front of Mr. Thomson’s vehicle, raised his arm and ordered him to stop. [ 10 ] He then asked for Mr. Thomson’s driver’s licence and car keys. He also asked another security guard to contact the police. [ 11 ] Officers Barsalou and Gagnon-Hamel responded to the call at 3:26 a.m. and arrived on site in their patrol car at 3:28 a.m. [ 12 ] Officer Barsalou immediately went toward security guard Germain, and Mr.

Thomson stepped toward them and handed her his papers. Security guard Germain told Officer Barsalou that he saw Mr. Thomson consume alcohol during the evening and hit the Monte Carlo with his vehicle while attempting to back out of his parking space. Security guard Germain left them at 3:28:35 a.m. Officer Barsalou continued to speak alone with Mr. Thomson until 3:28:54 a.m. During that time, Officer Barsalou told Mr. Thomson that he was a suspect in an investigation for impaired driving and that he had the right to remain silent.

Also, on pages 66 and 67 of the stenographic notes of April 25, 2016, Officer Barsalou said: - I asked him if he consumed alcoholic beverages. - He said: “Yes two (2) beers.” - Now it was minus twenty-five degrees (-25°

C) outside. - He’s very cold, he’s trembling. - So I asked him to wait inside his vehicle while I did some verifications. [ 13 ] Regarding this last sentence, the video shows that, after speaking with Mr. Thomson, Officer Barsalou went to the patrol car while Mr. Thomson was left standing by his car. He was steady on his feet. During the first encounter, Officer Barsalou noted only that Mr. Thomson had red eyes. She did not notice any odour of alcohol on his breath, any slurred speech or that he was unsteady on his feet. [ 14 ] Security guard Germain left Officer Gagnon-Hamel and the other security guard, and went to the patrol car to discuss with Officer

Barsalou. [ 15 ] Officer Gagnon-Hamel went between the Maxima and the Monte Carlo to look for damage on both cars with his flashlight. He was joined by three Casino security guards (Bruce Sfinta, an unidentified female and later Eric Germain). [ 16 ] Officer Gagnon-Hamel does not specifically remember this incident, but selected No. 1 on the accident report, indicating that damage to both cars could be evaluated at up to $2000.

When confronted with the statement of security guard Sfinta on cross- examination, that the scratches may not have been the result of that impact, he maintained that the damage was between 1 cent and $2000. [ 17 ] At 3:33:39 a.m. on the video, Officer Gagnon-Hamel instructed Mr. Thomson to sit in his vehicle (contrary to Officer Barsalou’s above-mentioned testimony). According to security guard Germain and Officer Barsalou’s testimony, it was -25°C. Mr.

Thomson was not in possession of his car keys and the driver’s window was open. [ 18 ] When Officer Barsalou got in the patrol car, she immediately contacted the police station and requested an approved screening device (ASD) on site. [ 19 ] Versions of the events involving Mr. Thomson’s admission of drinking and the moment Officer Barsalou had reasonable suspicions differ between the defence and the Crown. [ 20 ] According to the defence, Mr.

Thomson informed Officer Barsalou of his drinking before 3:28:54 a.m., when she initially met with him. [ 21 ] According to the Crown, Officer Barsalou believed the admission took place when she went back to his vehicle. She testified that it was when Mr. Thomson opened his window that she first smelled an odour of alcohol on his breath. Mr. Thomson allegedly then told her that he had consumed alcohol. [ 22 ] She did not note in her report the time when each conversation took place. The Court notices from the video caption that Mr.

Thomson did not have his car keys and that the driver’s window was rolled down on the initial contact with security guard Germain. [ 23 ] At 3:32:30 a.m., another patrol car carrying the ASD arrived at the site, and a police officer gave the device to Officer Barsalou. We see on the video that Officer Barsalou immediately put the ASD on the trunk of her patrol car and opened the case to prepare the device. She left the carrying case on the trunk of her car and carried the ASD to Mr. Thomson’s car. She addressed him through the driver’s window, which was already open.

At 3:33:50 a.m., she opened the driver’s side door and asked him to blow into the ASD. [ 24 ] Regarding the order to supply, she testified: [2] “I read him the information that comes with the apparatus in English on the card, in English”. The Court finds that this statement contradicts the video footage, because she left the ASD case on the trunk of the patrol car. [ 25 ] At 3:35:30 a.m., Mr. Thomson stepped out of his car, was brought to the patrol car to be handcuffed, searched and placed inside. Officer Barsalou informed Mr.

Thomson that the result of the ASD indicated “fail” and that she had reasonable grounds to believe that he committed the offence of impaired driving. She proceeded to arrest Mr. Thomson for impaired driving and ordered him to supply a breath sample in a breathalyzer at the police station. At about 3:34 a.m., she read him his rights as they appear on a police card. [ 26 ] Once at the police station, Mr. Thomson blew twice in the breathalyzer, and the lowest concentration detected, at 4:19 a.m., was 144 mg of alcohol per 100 ml of blood. ANALYSIS 1. Did Mr.

Thomson demonstrate, on a balance of probabilities, that the Casino security guards are bound by the Charter and that his rights were infringed ? [ 27 ] According to the defence, security guard Germain was acting as a police officer, and was bound by the Charter (he arrested Mr.

Thomson, took his keys and recorded the sequence of events on tape). [ 28 ] The Crown disagrees with that statement, and contends that security guard Germain was not bound by the Charter because he was not acting as an agent of the state. [ 29 ] The defence bases its position on the three following grounds: the arbitrary arrest by the security guard, the unlawful seizure and the fact that Mr. Thomson was not given his right to counsel, which infringe sections 8 , 9 and 10 of the Charter . [ 30 ] The defence submits the case of R. v . Lerke [3] where Mr. Lerke tried, for a second time, to enter an Edmonton tavern.

The supervisor asked him to come in the office where he asked him if he now had proper identification and Lerke did not. The manager told him that he was under arrest for “re-entering”. Another tavern employee asked him to put the content of his pockets on the desk and Mr. Lerke complied. In his jacket laid on a chair, they found a small plastic bag containing marijuana. The Court ruled that the search was unlawful and that it infringed the Charter . The Court applied section 24(2) of the Charter and required the exclusion of the evidence obtained by the search.

Otherwise, the proceedings would bring the administration of justice into disrepute. [ 31 ] The defence also submits the case of R. v . N.S ., [4] where a security guard at a dance hall was informed of someone dealing drugs. Three security guards told N.S. that he needed to leave. When he protested, they proceeded to escort him outside the premises, pat him down, conduct a search on his person and demand that he remove whatever was in his pockets. N.S. finally produced a number of pills which he threw on the ground. N.S. was later charged with possession of ecstasy for the purpose of trafficking.

[32] The Ontario Court of Justice concluded that the search of the accused was unreasonable because the security guards did not act asprivate citizens. Rather, they purported to act under the Trespass to Property Act[5] and the Controlled Drugs and Substances Act.[6]Therefore, the Charter applied to their activity. Finally, the Court concluded that the exclusion of the evidence did not undermine thereputation of the administration of justice. [33] This Court notes that the two decisions submitted by the defence occurred before the decision of the Supreme Court of Canada inBuhay v. Queen[7] submitted by the Crown.

The case concerns two private security guards, employed by Greyhound, who searched alocker following the detection of a strong odour of marijuana. The said locker was located in a Winnipeg bus depot. [34] Justice Arbour answered the following question: B. Were the Security Guards State Agents During the Initial Search of Locker 135? 25

Section 32 of the Charter provides that its provisions apply to the Parliament and government of Canada, and to the legislature andgovernment of the provinces. Accordingly, the initial search of the appellant’s locker by the security guards can only come under s. 8 scrutiny if the guards can be categorized either as “part of government” or as performing a specific government function (Eldridge v.British Columbia (Attorney General), (SCC), [1997] 3 S.C.R. 624), or if they can be considered state agents (R. v.Broyles, (SCC), [1991] 3 S.C.R. 595; M. (M.R.), supra).

For this latter determination, it is important to focus on therelationship between the state (the police) and the private entity (the security guards). The test was enunciated in the context of policeinformers by Iacobucci J., writing for the Court, in Broyles, at p. 608: A relationship between the informer and the authorities which develops after the statement is made, or which in no way affects theexchange between the informer and the accused, will not make the informer a state agent for the purposes of the exchange in question.

Only if the relationship between the informer and the state is such that the exchange between the informer and the accused is materiallydifferent from what it would have been had there been no such relationship should the informer be considered a state agent for thepurposes of the exchange.

I would accordingly adopt the following simple test: would the exchange between the accused and theinformer have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents? 26 In M. (M.R.), supra, at para. 29, the Court applied that test in the context of a search of a student by a school official.

Cory J., forthe majority, held at para. 28 that “[t]he mere fact that there was cooperation between the vice-principal and the police and that an officerwas present during the search is not sufficient to indicate that the vice-principal was acting as an agent of the police. . . . There is noevidence of an agreement or of police instructions to Mr. Cadue that could create an agency relationship.” 27 In the present case, both the Court of Appeal and Aquila Prov. Ct. J. held that there was no Charter violation since the securityguards were private actors and were not agents of the state.

I agree. 28 Nothing in the evidence allows a conclusion that the security guards or the agency by which they were employed can be assimilatedto the government itself, nor can their activities be ascribed to those of the government. Private security guards are neither governmentagents nor employees, and apart from a loose framework of statutory regulation, they are not subject to government control.

Their workmay overlap with the government’s interest in preventing and investigating crime, but it cannot be said that the security guards wereacting as delegates of the government carrying out its policies or programs. Even if one concedes that the protection of the public is apublic purpose which is the responsibility of the state, this is not sufficient to qualify the functions of the security guards asgovernmental in nature.

To this effect, this Court, in Eldridge, supra, held, at para. 43: . . . the mere fact that an entity performs what may loosely be termed a “public function”, or the fact that a particular activity may bedescribed as “public” in nature, will not be sufficient to bring it within the purview of “government” for the purposes of s. 32 of theCharter . . . . In order for the Charter to apply to a private entity, it must be found to be implementing a specific governmental policy or program.

AsI stated further on in McKinney, at p. 269, “[a] public purpose test is simply inadequate” and “is simply not the test mandated by s. 32 ”.[Emphasis in original.] 29 The security guards cannot either be considered state agents. Based on the test set out in Broyles, supra, and M. (M.R.), supra, theproper question is whether the security guards would have searched the contents of locker 135 but for the intervention of the police. Onthe facts here, it is clear that the security guards acted totally independently of the police in their initial search.

In M. (M.R.), theinvolvement of the police was even greater than in the case at bar, since the police had been contacted prior to the search and werepresent during the search. In the present case, the relationship between the police and the security guards developed after the securityguards searched the appellant’s locker. The guards started an investigation on their own initiative, without any instructions or directionsfrom the police.

While the incident report forms used by the security guards contain spaces for police incident numbers and badgenumbers, I agree with the Crown that this only reflects a general policy of the security company to cooperate with the police. It is onlynormal, considering their functions, that security guards may be called upon to contact the police on a regular basis. That does not putthem in a “standing” agency relationship with the police. This is confirmed by the Private Investigators and Security Guards Act, R.S.M.1987, c. P132, which regulates the security guards’ activities in Manitoba.

Indeed, s. 35 expressly provides that security guards shouldnot hold themselves out in any manner as performing or providing services or duties connected with the police. 30 Volunteer participation in the detection of crime by private actors, or general encouragements by the police authorities to citizens toparticipate in the detection of crime, will not usually be sufficient direction by the police to trigger the application of the Charter.

Rather,the intervention of the police must be specific to the case being investigated (see, on the specific issue of whether security guards wereacting as agents of the state: Fitch, supra; R. v. Caucci (1995), (QC CA), 43 C.R. (4th) 403 (Que. C.A.)). In the caseat bar, there is nothing in the evidence which supports the view that the police instructed the security guards to search locker 135 andtherefore the security guards cannot be considered state agents.

31 While there has been a growing use of private security in Canada and while private security officers arrest, detain and searchindividuals on a regular basis, “[t]he exclusion of private activity from the Charter was not a result of happenstance. It was a deliberatechoice which must be respected” (McKinney v. University of Guelph, (SCC), [1990] 3 S.C.R. 229, at p. 262). It may bethat if the state were to abandon in whole or in part an essential public function to the private sector, even without an express delegation,the private activity could be assimilated to that of a state actor for Charter purposes.

This is not the case here. As for whether privatesecurity guards are “agents of the state”, the test in Broyles, supra, invites a case-by-case analysis which focusses on the actions whichhave given rise to the alleged Charter breach by the security guards and the relationship between them and the state. In any event, itshould be noted that where no state actors are involved, other remedies than those under the Charter may be available for exclusion ofthe impugned evidence, as we will see below.

In this case, the trial judge correctly focussed his analysis on the search conducted by thepolice, to which I now turn. [35] Even though security guard Germain was hesitant during his cross-examination, and denied the existence of an established protocolbetween the Casino and the police regarding impaired drivers, he finally admitted that while training as a security guard for the Casino,he was taught how to behave with impaired drivers. [36] The most important facts he related are corroborated in the videos or by other witnesses. He knew that Mr. Thomson had consumedalcohol during the evening.

He saw him walking to the exit and believed that either he was drunk or was disabled. On the contrary, thevideo shows Mr. Thomson walking straight, with ease and at a good speed. He appears to be steady on his feet. [37] Concerning the collision between Mr. Thomson’s car and the Monte Carlo, the parties have contradictory positions. The Courtconcludes that there was a minor impact. Security guard Germain was standing a few feet from Mr. Thomson’s vehicle when hewitnessed the collision. Mr. Thomson may not have noticed the impact or it was a hit and run.

Nevertheless, the video shows when Mr.Thomson backed up from his parking space and hit the Monte Carlo. There was enough of an impact that we can see movement of thelamppost light reflecting onto Mr. Thomson’s car windshield. [38] Security guard Germain witnessed the accident and then saw Mr. Thomson put his vehicle in drive to get away from the accidentwithout stopping. He saw Mr. Thomson commit a criminal offence and was entitled to arrest him, just like any citizen, without a warrant, as stated at

section 494 of the Criminal Code (Cr.C.).[8] [39] Applying the Supreme Court’s instructions in Buhay v. The Queen[9] to the present case, the Court concludes that the defence hasnot demonstrated that the Casino’s security guards were acting for the government in the application of the Criminal Code or otherenforcement laws. It is of public notoriety that Loto-Québec is a provincial Crown corporation managing several subsidiaries and moreparticularly the Société des casinos du Québec who is responsible for operating casinos in the province of Québec, thus the Casino duLac-Leamy.

Loto-Québec has its own board of directors and is mandated to conduct and administer lottery schemes and operatebusinesses incidental to the operation of the casinos. [40] Loto-Québec is not mandated to apply law and order. The defence did not demonstrate that to be so. It is understandable that acasino hires security guards to ensure the security of its guests, as any establishment that serves alcohol.

The fact that Loto-Québec is aprovincial Crown corporation does not make their security guards police officers or state agents. [41] The Court also concludes that the defence did not demonstrate that the police instructed the Casino’s security guard to arrest Mr.Thomson or any other customer in the event of impaired driving or another criminal offence. Therefore, the Casino’s security guardscannot be considered state agents. [42] Last, the Court concludes that Mr.

Thomson did not demonstrate on a balance of probabilities that the Casino’s security guards werebound by the Charter and that those rights were infringed. 2. Did Mr. Thomson establish, on a balance of probabilities, that the demand by Officer Barsalou to provide a breath sample for theASD was not forthwith? THE LAW [43] The Court finds helpful to cite section 254(2) Cr.C. for a better comprehension: 254

(2) Testing for presence of alcohol or a drug — If a peace officer has reasonable grounds to suspect that a person has alcohol or adrug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted inthe operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment,whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of adrug, or with either or both of paragraphs (

a) and (b), in the case of alcohol: (

a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demandmay be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and (

b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of anapproved screening device and, if necessary, to accompany the peace officer for that purpose. (Our emphasis.) [44] In the case of Regina v. Pierman,[10] Justice Arbour, when sitting at the Ontario Court of Appeal, stated regarding the

interpretationof the word “forthwith” in section 254(2) Cr.C.: 5. This

section contemplates an immediate testing, and therefore it cannot accommodate the exercise of the constitutional right tocounsel. As the Supreme Court of Canada held in R. v. Thomsen, (SCC), [1988] 1 S.C.R. 640, 40 C.C.C. (3d) 411, and

in R. v. Grant, (SCC), [1991] 3 S.C.R. 139, 67 C.C.C. (3d) 268, and as this court held in R. v. Ct (1992), (ON CA), 6 O.R. (3d) 667, 70 C.C.C. (3d) 280, the breath sample must be taken "forthwith" after the demand is made, andtherefore there is no opportunity to contact a lawyer. This infringement, however, was held to be a reasonable legislative limit on theright to counsel, and the

section was declared valid under s. 1 of the Canadian Charter of Rights and Freedoms. In light of thatjurisprudence, it seems clear to me that although the

section merely requires that the sample be provided "forthwith" after the demand ismade, and does not require that demand itself be made "forthwith" after the person is stopped, it is implicit that the demand must bemade by the police officer as soon as he or she forms the reasonable suspicion that the driver has alcohol in his or her body. This is theonly

interpretation which is consistent with the judicial acceptance of an infringement on the right to counsel provided for in s. 10(

b) ofthe Charter. If the police had discretion to wait before making the demand, the suspect would be detained and therefore entitled toconsult a lawyer. The basis upon which the courts have held that Parliament may infringe on a suspect's right to counsel is that there isno opportunity for the police to accommodate that right if the breath sample must be taken "forthwith". It follows, in my view, that forthe

section to maintain its constitutional integrity, we must assume it also contemplates that there be no opportunity for the suspect toconsult counsel before the demand is made. (…) 21. In my view, a police officer cannot delay the taking of a breath sample, when acting pursuant to s. 254(2) of the Criminal Code,unless he or she is of the opinion that a breath sample provided immediately will not allow for a proper analysis of the breath to be madeby an approved screening device.

The officer is not required to take a sample that she or he believes is not suitable for a proper analysis.The expression "proper analysis" incorporates an element of accuracy. A police officer may be of the opinion that a breath sample whichhas been recently contaminated, by cigarette smoke or by the recent consumption of alcohol, will not provide a basis for a properanalysis. If there are facts which cause the officer to form the opinion that a short delay is required in order to obtain an accurate result, Ithink that the officer is acting within the scope of the

section in delaying the taking of the breath sample. In such a case, as I indicatedearlier, I do not think that it matters whether the officer postpones making the demand or postpones administering the test after havingmade the demand. (Our emphasis.) [45] The Supreme Court, in R. v. Woods,[11] states: 43. It is true, as I mentioned earlier, that “forthwith”, in the context of s. 254(2) of the Criminal Code, may in unusual circumstances begiven a more flexible

interpretation than its ordinary meaning strictly suggests. For example, a brief and unavoidable delay of 15 minutescan thus be justified when this is in accordance with the exigencies of the use of the equipment: see Bernshaw. 44. The “forthwith” requirement in s. 254(2) appears to me, however, to connote a prompt demand by the peace officer, and animmediate response by the person to whom that demand is addressed.

To accept as compliance “forthwith” the furnishing of a breathsample more than an hour after being arrested for having failed to comply is in my view a semantic stretch beyond literal bounds andconstitutional limits. (The underlined are added.) [46] The Ontario Court of Appeal, in the case of R. v. Quansah,[12] analyzes the cases on the “forthwith” requirement of section 254(2)Cr.C.: 26. Woods confirms this and reasserts that the constitutional validity of s. 254(2) depends on its implicit and explicit requirements ofimmediacy.

This immediacy requirement is implicit for the police demand for a breath sample and explicit for the mandatory response:the driver must provide a breath sample “forthwith”. The term “forthwith” in s. 254(2), therefore, means “immediately” or “withoutdelay” and indicates a prompt demand by the peace officer and an immediate response by the person to whom that demand is addressed:see Woods, at paras. 13-14 and 44. However, in unusual circumstances “forthwith” may be given a more flexible

interpretation than itsordinary meaning strictly suggests: see Woods, at para. 43. (…) 29. This “flexibility” was adopted by the Supreme Court of Canada in R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254.Sopinka J., at para. 73, agreed that “waiting 15 minutes is permitted under s. 254(2) of the Code when this is in accordance with theexigencies of the use of the equipment”, provided the officer is aware of the potential inaccuracy of the equipment.

He went on to say inthe same paragraph that such a delay “is in accord with the purpose of the statutory scheme and ensures that a police officer has anhonest belief based on reasonable and probable grounds prior to making a breathalyzer demand.” (The underlined are added.) [47] Also, the Ontario Court of Appeal summarizes the principles appearing in these cases and applies a five-step analysis: 45. In sum, I conclude that the immediacy requirement in s. 254(2) necessitates the courts to consider five things. First, the analysis ofthe forthwith or immediacy requirement must always be done contextually.

Courts must bear in mind Parliament’s intention to strike abalance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights. 46. Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver hasalcohol in his or her body. The immediacy requirement, therefore, commences at the stage of reasonable suspicion. 47. Third, “forthwith” connotes a prompt demand and an immediate response, although in unusual circumstances a more flexibleinterpretation may be given.

In the end, the time from the formation of reasonable suspicion to the making of the demand to thedetainee’s response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officerto discharge his or her duty as contemplated by s. 254(2). 48. Fourth, the immediacy requirement must take into account all the circumstances.

These may include a reasonably necessary delaywhere breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed toensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns.These are examples of delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty. Anydelay not so justified exceeds the immediacy requirement.

49. Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implementthe detainee’s s. 10(

b) rights before requiring the sample. If so, the “forthwith” criterion is not met. [48] Moreover, the Appeal Court of Ontario found it an unusual circumstance to justify a delay of 17 minutes between when the officerformed the required reasonable suspicion and when he made the demand to Mr. Quansah, who had just sped away from the officer whohad just formed the required reasonable suspicion to arrest him. [49] The Ontario Court of Justice, in the case of R. v. Nithiyananthaselvan,[13] summarizes “forthwith” cases when some delay occursin the ASD demand: 43.

The other type of forthwith case occurs where there is some delay in the making of the ASD demand. That is the circumstance inthe case at bar. In R. v. Kerr (2010), 212 C.R.R. (2d) 149 (Ont. C.J.) affirmed [2011] O.J. No. 6142 (Sup. Ct.), my colleague JusticeMelvyn Green dealt with a forthwith case in circumstances where the ASD demand was not made until 6 minutes after the policeofficer’s suspicion under s. 254 (2) was first formed.

He noted that once the forthwith or immediacy requirement of 254 (2) was notcomplied with, the police officer was operating outside of the 254 (2) framework and there was no suspension of the defendant’s Charterrights (following Vinoharan, supra). He ultimately excluded the breath sample evidence under s. 24 (2) of the Charter and found thedefendant not guilty of the over 80 charge. His decision was upheld by a Superior Court Judge. 44. In R. v.

Vinoharan, supra, Justice Backhouse of the Ontario Superior Court dealt with an appeal from an Ontario Court of Justicetrial in which an ASD demand was delayed by seven minutes after the presence of alcohol in the body of the driver was first suspectedby the officer in that case. Notwithstanding that the Crown conceded a violation of s. 8, 9, 10(

a) and 10(

b) of the Charter, the trial judgefound only a violation of s. 8 and s.10 (

a) and admitted the evidence in any event. The Superior Court Judge found that the demand wasmade outside of the parameters of s. 254 (2) and, as a result, there was a violation of ss. 8, 9, 10(

a) and 10 (

b) of the Charter. However,the Superior Court Judge found that the Charter breaches were “technical” and that the evidence should not be excluded pursuant to a s.24 (2) of the Charter. 45. In R. v. Megahy (2007), 2008 ABCA 207 , 233 C.C.C. (3d) 142 (Alta. C.A.), there was a four minute delay between thetime the suspicion was formed and the ASD demand was made. For reasons of personal convenience and for no good reason, the policeofficer kept the ASD in a location a short distance away. The trial judge found the demand was not made forthwith and the breathsample evidence was excluded and an acquittal entered. The

summary conviction appeal court judge reversed the trial decision. TheAlberta Court of Appeal restored the trial judge’s decision and an acquittal was entered. The issue of the s. 24 (2) Charter exclusion wasnot before the Court of Appeal. One judge of the Alberta Court of Appeal expressed the view, obiter, that he would not have excludedthe evidence under s. 24 (2) had the issue been before the Court.

The other two Appeal Court judges restored the acquittal and expresslydeclined to comment on the s. 24(2) issue. [50] Moreover, the Ontario Court of Justice concluded that a demand made after 9 minutes of the officer’s having suspicions, was notmade forthwith. Finally, it concluded that Charter rights were violated, and excluded the breath samples under 24(2) of the Charter. [51] The Ontario Court of Justice, in the recent case R. v.

Rochon[14] concerning a constable who waited eight minutes after havingreasonable suspicions before making the demand to Rochon, concluded that the demand was not made immediately; that he did not makea prompt demand because he believed that he could take a number of investigative steps before doing so; that there was nothing unusualand that the result was a breach of the accused’s rights under sections 8, 9 and 10(

b) of the Charter. Finally, after applying the analysis of section 24(2) in R. c. Grant,[15] the Court excluded the blood alcohol reading. APPLICATION [52] The Court has pointed out in its

summary of the facts that the version of events referring to Mr. Thomson’s admission of drinkingand the moment when Officer Barsalou formed reasonable suspicions differs between the defence and the Crown. [53] The Court concludes that Officer Barsalou had reasonable suspicions that alcohol was present in Mr. Thomson’s body on their firstencounter. [54] Indeed, she stated in her examination that she mentioned to Mr. Thomson that she was investigating a case of impaired driving, thathe was a suspect, and then advised him of his right to remain silent. “I asked him if he consumed any alcoholic beverages.

He answeredme: ‘Yes two (2) beers.’”[16] [55] She later testified that she ordered Mr. Thomson to sit in his car because of the very cold weather, although the video clearly showsthat Officer Gagnon-Hamel did that. [56] On cross-examination,[17] she seemed uncertain, but admitted that she did not put the time of her demand in her report and that sheprobably asked him right at the beginning if he had consumed alcohol.

From the time she entered the patrol car, she agreed that she wasmaking the request to get an ASD. [57] After taking the ASD from the other officer, we see Officer Barsalou immediately put the device on the trunk of her patrol car, openthe case to prepare it and leave the case on the trunk. Carrying the ASD, she walks towards Mr. Thomson’s car door and addresses himthrough the open driver’s window. In her testimony, she said that this was the first time she smelled a strong odour of alcohol on Mr.Thomson’s breath. [58] In what way is this situation different from their first conversation? Mr.

Thomson’s car window was wide open. Finally, she opensthe driver’s side door and asks him blow into the ASD.

[ 59 ] In her testimony, regarding the order to supply, she says: [18] “I read him the information that comes inside the apparatus in English on the card, in English” (the Court has added the word “inside” to the translation because the interpreter forgot to translate the words “à l’intérieur”, which were pronounced by the witness).

The Court notes that this statement contradicts the video, because the officer left the ASD case on top of the patrol car trunk. [ 60 ] The Court realizes that Officer Barsalou does not properly recall the events, as she has intervened in a number of incidents since; important information establishing a timeline is missing from her report; there are many contradictions between her testimony and the video footage.

Moreover, the sequence of events leading to her decision-making is not consistent with her examination and cross- examination. [ 61 ] Applying the five-step analysis of the Appeal Court of Ontario in the decision R . v. Quansah , [19] the Court concludes that Officer Barsalou’s demand was not forthwith. [ 62 ] Officer Barsalou took six minutes from the moment she had reasonable suspicions of alcohol present in Mr. Thomson’s body and the moment she made the demand to provide a breath sample. She spoke with him after security guard Germain informed her that he saw Mr.

Thomson drink alcohol and hit the Monte Carlo with his Maxima. Also, Mr. Thomson admitted drinking alcohol and gave her all his documents. She then went to the patrol car and immediately called the dispatcher to get an ASD. [ 63 ] Meanwhile, Officer Gagnon-Hamel looked for damage on both cars with a flashlight and filed an accident report, even though he was not sure that the damage was the result of that collision. In fact, he does not recall that event.

On the accident report, he indicated “1” in the box for damage and later testified that damage could be estimated at anywhere from $0.01 to $2 000. [ 64 ] On cross-examination, when confronted with the statement by security guard Sfinta that both men believed the scratches were not caused by the collision, he was speechless. [ 65 ] Also, the Court concluded that no unusual circumstances exist in this case. The fact that Mr.

Thomson collided with the Monte Carlo and that most likely no damage was caused by the impact should have resulted in the officer taking note of the driver’s licence, registration and proof of insurance in case the owner of the Monte Carlo needed that information for insurance purposes, as we are in a no fault system. Mr. Thomson immediately gave Officer Barsalou his documents when he met with her the first time. [ 66 ] Considering the provisions of section 254(2) Cr.C . were not applied by the officer, the constitutional protection recognized by jurisprudence for that

section concerning the infringement of constitutional rights did not benefit the accused. [ 67 ] Multiple infringements of the Charter resulted from the absence of a forthwith demand:

section 8 (unreasonable search or seizure);

section 9 (not to be arbitrarily detained or imprisoned);

section 10(a) (to be informed promptly of the reasons of his arrest);

section 10(b) (to retain and instruct counsel without delay and to be informed of that right). 3. In the event that a demand is not forthwith and constitutional infringements are demonstrated, what is the proper remedy (section 24(2) Charter of Rights and Freedoms ) ? THE LAW [ 68 ] Section 24(2) of the Charter provides the following: 24

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [ 69 ] In the case of R. v .

Grant , [20] the Supreme Court elaborated a test when faced with an application for the exclusion of evidence under section 24(2) of the Charter : [71 ] A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2) , viewed in a long-term, forward-looking and societal perspective.

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits.

The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence. APPLICATION A. The seriousness of the State’s Charter-infringing conduct [ 70 ] Mr.

Thomson was detained with no knowledge of why, although the officer knew, since she already had reasonable suspicions. She left him standing in the parking lot of the Casino in the middle of the night with a temperature of -25°C, and got into the patrol car to call for an ASD. Meanwhile, the other officer, after investigating the damage, saw Mr. Thomson and directed him to sit in his car.

[ 71 ] When a third officer arrived in a second patrol car with the ASD, Officer Barsalou took it from him immediately and put it on the trunk of her patrol car. She opened the case and prepared the device. She then went in the direction of Mr. Thomson’s car, spoke to him for a few seconds, opened the car door and asked him to blow in the ASD. [ 72 ] The Court believes that Officer Barsalou voluntarily did not respect the provisions of section 254(2) Cr.C ., either due to a misunderstanding of the law or a poor management of priorities (more important to have the ASD then to express a forthwith demand to Mr.

Thomson). [ 73 ] Because the officer did not respect the provisions of section 254(2) Cr.C . (immediacy of the demand), she lost the benefits of the suspension of Charter rights, which resulted in multiple infringements of constitutional rights. [ 74 ] The court understands that it was only a few minutes, but the jurisprudence’s

interpretation of section 254(2) Cr.C . is strict (immediately or without delay, unless there are unusual circumstances). It does not allow one or two minutes, or more. The demand must be made immediately. The jurisprudence has decided that infringement of the guaranteed right to counsel is permissible, in light of

section 1 of the Charter and its jurisprudence. [ 75 ] The courts must distance themselves from this type of behaviour. Therefore, evidence that Charter-infringing conduct was part of a pattern of abuse tends to support exclusion. [ 76 ] The Court situates the gravity of the Charter breach in the middle of the range suggested by the Supreme Court, because it is not a flagrant disregard of the Charter. However, the Court has to take into consideration that it resulted in multiple infringements. B.

The impact of the breach on the Charter-protected interests of the accused [ 77 ] Because the officer’s demand was not forthwith and no unusual circumstances were established, Mr. Thomson was arbitrarily detained. Moreover, he was not given his right to counsel. Had he been able to speak with a lawyer, he or she most probably would have recommended that he not provide a breath sample with the ASD, because the demand had not been made forthwith and, therefore, was an unlawful demand as decided in R . v. Grant , [21] R . v. Woods [22] and R. v.

Cote . [23] [ 78 ] Consequently, the breath sample taken with the ASD was unlawfully obtained. Finally, Mr. Thomson was not promptly informed of the reasons for his arrest, because the officer had a reasonable suspicion, but did not tell him why he was arrested. [ 79 ] The Court concludes that the gravity of the infringements is at the high end of the range, because of the multiple breaches and because all of the samples (ASD and the approved instrument) were obtained illegally. C.

Society’s interest in adjudication of the case on its merits [ 80 ] The evidence was obtained by multiple breaches of the Charter , which supports its exclusion, but the importance of the said evidence to the prosecution’s case favours its admission. It is obvious that exclusion of the evidence will result in Mr. Thomson’s acquittal on the second count. [ 81 ] The seriousness of the offence is objectively important, since the government is vigorously fighting the social scourge of impaired driving, but progress is slow. On the other hand, the seriousness of this offence is subjectively low, because Mr.

Thomson stopped his vehicle in the parking lot. He collided with a motionless vehicle with no one on board, and, based on the probabilities, there was no damage or injury. [ 82 ] The Court situates the gravity of this element in the middle of the range. D. To weigh the various indications of those three elements [ 83 ] Having analyzed all the circumstances of the case and examined the three previous elements that favour the exclusion of the evidence, the Court determines that the admission of the evidence obtained by multiple Charter infringements would bring the administration of justice into disrepute.

FOR THESE REASONS, THE COURT: [ 84 ] EXCLUDES all the breath samples from evidence.

__________________________________ SERGE LAURIN J.C.Q. Mtre. Pierre Desrosiers Attorney for the plaintiff Mtre. Anber, Defence Attorney for the accused Dates of hearings: July 7, 2015, April 25, 2016, October 7, 2016, January 4, 2017, April 19, 2017 [6] Controlled Drugs and Substances Act , S.C. 1996, c. 19.