R. v. John, 2014 ONCJ 217

COURT FILE No.: Toronto Citation: R. v. John , 2014 ONCJ 217 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — LAWSON JOHN Before Justice Fergus ODonnell Heard on 11 February and 5 March, 2014 Reasons for Judgment delivered orally on 16 April, 2014 Released: 28 April, 2014 Ms. I. Rodopoulos......................................................................................................... for the Crown Mr. R. Jourard..................................................................................... for the defendant Lawson John ODonnell, J.: Overview 1 .

Lawson John stands charged with refusing to provide a breath sample at the roadside. The evidence at Mr. John’s trial included the testimony of the arresting officer, who demonstrated great courtesy and patience towards the erratic and mercurial Mr. John, as well as records of police communications and an affidavit in relation to the availability of legal aid duty counsel during the period Mr. John was detained. I also had the benefit of the in-car video of the roadside interaction, although for some reason the audio portion of the early interaction was not captured.

The audio on the in-car camera starts to function around 1:20 a.m., around eleven minutes after the officers approached Mr. John’s car. The Evidence 2 . Constable Bishal Uppal is a fifteen-year member of the Toronto Police Service. Around 1:06 a.m. on 17 August, 2012 he and his partner were parked near Eglinton Avenue and Oakwood Avenue in Toronto when Mr. John drove through an amber light at a very high rate of speed. Constable Uppal followed Mr. John and activated his emergency lights as Mr. John turned north onto Marlee Avenue. Mr.

John did not pull over for a long distance; as he approached Ridelle Avenue, about six or seven blocks north of Eglinton, Mr. John at first appeared to be continuing northbound, but then turned left onto Ridelle. It was only when Constable Uppal activated the cruiser’s air horn that Mr. John pulled over. It was now 1:08 a.m. according to Constable Uppal. On the video, as Constable Uppal and his escort walk towards Mr. John’s car it is seconds away from 1:09 a.m. 3 . Constable Uppal said that he approached Mr. John and asked him for his driver’s licence, ownership and insurance. He noticed Mr.

John putting a piece of gum in his mouth and also noticed a strong odour of alcohol coming from his breath, that his eyes were red and that his speech was slurred. Mr. John took a little while to get his wallet out of his pocket (1:11 a.m.) and as he walked to the passenger side of the car to retrieve his insurance and registration, Constable Uppal said he staggered a bit at the back of the car. 4 . At different times in his testimony, Constable Uppal said that he formed his suspicion for s. 254(2) purposes around the time when Mr.

John was getting his wallet out of his back pocket (i.e. after he had gotten out of the car) or alternately while talking with him in the driver’s seat. This is a difference of such trivial duration that I do not believe anything hangs on it. 5 . Constable Uppal testified that he called for an approved screening device to be brought around 1:14 a.m., although the video suggests that this call was made around 1:17 a.m.

This appeared to be an estimate on Constable Uppal’s part, although it could arguably reflect imprecision by him or it could simply reflect the fact that any two sources of time such as a computer and a wristwatch will seldom read the same. [1] Constable Uppal said that by the time he called for the approved screening device he had already made an informal demand for a sample to Mr. John. The video is consistent with Constable Uppal reaching for his radio at 1:16:17 a.m., but being interrupted by Mr. John before he can make the radio call. 6 .

The audio recording on the in-car video kicked in just before 1:20 a.m. and Constable Uppal can be heard making a formal demand for the breath sample. Mr. John can be heard refusing to provide a sample despite Constable Uppal explaining to him the consequences. Constable Brar arrived with the approved screening device at 1:24 a.m. Mr. John was arrested for refusing to provide a sample.

7. The testimony of Constable Uppal, which I accept as truthful both on its own terms and insofar as it is consistent with the videoevidence, the body language of Mr. John and the audio portions of the video that were successfully recorded, makes it clear thatMr. John was not the average drink-driving detainee. He was a handful.[2] I am satisfied beyond any doubt that any process ofhuman interaction that involved Mr. John behaving as he did that night would take substantially longer than the same interactionwith almost any other detainee.8. Mr.

John filed an affidavit from the director of the company that was providing duty counsel telephone services on the night of thearrest. That affidavit sets out that there were four lawyers working that night, describes which case types are given priority andlists all of the calls for advice that were received between 12:30 a.m. and 1:30 a.m. that morning, along with when the call wasreceived, when it was returned, which lawyer returned the call and when the call was over. The affidavit ends with the conclusionthat if a request to speak to duty counsel had been put in on behalf of Mr.

John between 1:09 and 1:16 a.m. two lawyers appear tohave been available and, “likely would have immediately returned the call for Mr. John.” Has The Crown Proved Its Case Beyond A Reasonable Doubt?[3] 9. The principal focus of this trial was the question of whether or not Constable Uppal made a lawful demand to Mr. John to providea sample of his breath. Whether or not a demand was lawful engages questions about how the demand fits within the requirementsof the Criminal Code as those requirements have been defined in the case-law. If there was no lawful demand, refusal is not anoffence.

Otherwise, it is clear that there was a refusal by Mr. John and it is clear that that refusal came in the face of clear advicefrom Constable Uppal about the consequences of refusal.10. Determining the lawfulness of the demand requires a consideration of what Constable Uppal suspected about the presence ofalcohol in Mr. John’s body as their interaction progressed, as well as a consideration of the timeliness of police conduct and therealistic availability of legal advice to Mr. John on the night in question.

Much of the focus in these cases is on what has becomeknown as the “forthwith window” as elaborated upon by the Court of Appeal in R. v. Quansah, 2012 ONCA 123 , [2012]O.J. No. 779. The case-law before and including Quansah, supra, has made it clear that s. 254(2) of the Criminal Code imports an“immediacy” requirement for both the officer’s demand and the performance of the test. Quansah, however, points out that somecircumstances may justify a more flexible

interpretation of the otherwise exacting word “forthwith”, although care should be takento ensure that those exceptions remain fairly exceptional. The Court of Appeal specifically rejected the Crown’s argument that anydelay shorter than the time realistically required to consult with counsel was immaterial and the argument that “forthwith” means“within a reasonable time”. 11. Quansah sets out five considerations in the analysis of whether or not the “forthwith” requirement has been satisfied: a.

The analysis must be contextual, keeping in mind the balancing of public safety and defendants’ rights under the Charter and thestandard imposed for a lawful demand in the Criminal Code; b. The demand must be made promptly once the officer reasonably suspects the driver has alcohol in his body. c. There must be a prompt demand and ideally an immediate response, although some circumstances may justify a delay in the actualtaking of the roadside sample. d.

Some delays such as the unavailability of the approved screening device on scene or a concern for a proper reading due to mouth-alcohol issues will fall within the reasonable requirements of an officer properly discharging his duty. e. If the police could realistically have facilitated access to counsel before the sample was required and did not do so, thelimitation on the right to counsel is not justified.11. It is argued by the Crown that there were two demands made by Constable Uppal to Mr. John and that each of them was a lawfuldemand that Mr. John was lawfully required to obey.12.

It is clear that there are imperfections in the evidence here. To begin with, the audio of the first portion of Mr. John’s interactionwith Constable Uppal is missing. Constable Uppal explained how the recording system works. I accept his explanation that hetook the microphone with him when he first went to speak with Mr. John and I see no basis whatsoever for the suggestion that heonly went to retrieve the microphone from the car and engage it half way through the encounter. His explanation that he returnedto the cruiser to retrieve his notebook is supported by the video evidence.13.

There are also limitations with Constable Uppal’s notes. For example, he testified to having given Mr. John a less formal demandsome time before he called for the approved screening device to be brought to the scene, although that is not in his notes. Theomission of a significant detail such as that from an officer’s notes is always a cause for reflection on the part of a trier of fact, butit would be fundamentally wrong to apply the “if it’s not in the notes, it didn’t happen” analysis that is often argued and that hassometimes been accepted.

Notes are not, and never have been, a transcript of an officer’s actions and interactions. They are anaide-memoire to assist the officer in giving his or her testimony. The proper approach to this issue is the one outlined by Garton, J.in R. v. Antoniak, (ON SC): [24] It should be remembered that an officer’s notes are not evidence, but are merely a testimonial aid. Trial judges routinely tellofficers on the witness stand that they may use their notes to refresh their memory, but that they must also have an independentrecollection of the events.

To elevate the absence of a notation to a mandatory finding that the event did not occur would eliminate theofficer’s independent recollection from the equation. The notes would become the evidence. [25] The significance of an omission in an officer’s notebook, just like the significance of an inconsistency in a witness’s testimony,must be determined by the trier of fact on a case-by-case basis…… 15. The determination of whether or not to accept as truthful an officer’s testimony about undocumented events is entirely case-specific.

I think it can fairly be said that Constable Uppal’s failure to note the original demand was less than ideal. His relianceon his expectation that the interchange would be audio-recorded has proved, as is sometimes the case with technology, to be overlyoptimistic. I have to determine, therefore, whether or not I consider his recollection to be sufficiently reliable, in the sense of

accurate, and trustworthy, in the sense of being honest. With respect to the former, it can fairly be pointed out that he thought thecall for the approved screening device was made around 1:14 a.m. whereas the video suggests it was around 1:17 a.m. so hisrecollection may not be absolutely precise. At the same time, it can be fairly noted that a precise time is an event more prone toinaccuracy than whether or not an event occurred. It was suggested to Constable Uppal that his undocumented memory of theseevents would surely be unreliable, some eighteen months after the event.

I accept that Constable Uppal’s memory was not perfect;for example he thought he had delayed the formal demand until after the approved screening device arrived, whereas, he made thatdemand shortly before it arrived. However, the determination I have to make is not whether or not I think Constable Uppal isperfect, but whether his evidence on the material points is sufficient to make the Crown’s case beyond a reasonable doubt.[4] Ithink Constable Uppal’s evidence to the effect that his interaction with Mr.

John was particularly memorable was a convincingrebuttal to the suggestion that eighteen months was too long for remembering. It is presumably not every day that a police officerin one incident is repeatedly told to kiss the defendant’s ass (among other vulgarities), has his Sikh colleague arriving with theapproved screening device described by the defendant as “the brother of Bin Laden” and then ends the evening with the defendantwishing God’s blessing upon the officer and his family.[5] Obviously Mr.

John is not on trial for anything he said to ConstableUppal (other than the words of refusal), but he certainly gave Constable Uppal numerous reasons to remember him.16. It might be suggested that Mr. John’s abusive behaviour towards Constable Uppal should cause me concerns in relation to thehonesty of Constable Uppal’s recollection, in the sense that Constable Uppal’s testimony could be some form of payback for theabuse. The exact opposite is true here. Throughout a long interaction in which Mr.

John was obnoxious and difficult and abusive,Constable Uppal consistently maintained remarkable patience and professionalism. I am entirely satisfied from the video and fromhis testimony before me that he accepted Mr. John’s behaviour as part of the job and brought no hostility with him into the witnessbox.[6]17. It was argued that Constable Uppal testified that in the earlier “demand” he “asked” Mr. John to provide a sample. It is true that incross-examination, when Mr. Jourard phrased his questions with the word “ask”, Constable Uppal agreed with him.

However, thetotality of the transcript is not to the same effect and Constable Uppal was not asked in cross-examination to address the directissue of “ask” vs. “demand”.

I note that on three previous occasions, where Constable Uppal was using his own words, hetestified: “I explained to him as to-that he would have to give-provide me a suitable sample of his breath into the roadside device,would-to-that would determine as to how much alcohol he’s had in his system” and later: “I had explained all the-how it works,and how to provide-that he would have to provide us a sample of his breath,” and later: “and then it was me explaining to him thatI can detect alcohol off his breath, and that he would have to provide me a sample.” In relation to the subsequent, more formaldemand, Constable Uppal said that he took the language from the back of his memo book.[7] This is consistent with him havingreturned to the scout car and retrieved his memo book as seen on the video before Constable Brar arrived with the approvedscreening device.18.

I am entirely satisfied that Constable Uppal’s testimony on this point in his own words as opposed to the language of counsel incross-examination reflects the true nature of the conversation between Mr. John and Constable Uppal before the formal demandwas made. I have no doubt that he conveyed to Mr. John the mandatory nature of the breath sampling being required of him.19. It was also argued that I could not be satisfied beyond a reasonable doubt that the content of the informal demand made byConstable Uppal was sufficient to constitute a valid demand, thus obligating Mr. John to comply. I disagree.

I accept thetestimony of Constable Uppal about what he said to Mr. John and I am satisfied that it conveyed to Mr. John all that Mr. Johnneeded to know. 20. The perfectly reasonable defence of important constitutional rights that has characterized much of the drink-driving litigation inthis country has, at times, been accompanied by various arguments that manifest more ingenuity than merit and more sophistrythan sense. More so than in any other area of criminal litigation, it appears that dubious and spurious arguments have often foundfertile soil in drink-driving decisions.

For every river of credible and respected authority on various issues in drink-driving law,there appear to be countless little brooks meandering off in every direction. It is likely possible to find authority somewhere inCanada for almost any peculiar argument that might be raised in this area of law.21. The compelling weight of authority makes it clear that the making of a roadside demand is not a magical incantation in which theomission of a particular word will frustrate the officer’s objective.

It is not a test of the police officer’s ability to recite by rote theexact words selected for inclusion in the back of a memo book. It is not a game of Minesweeper, in which a single change of wordsinks the Crown’s ship. Rather, the demand must simply convey to the driver, by any reasonable wording, the nature of hisobligation and what the law requires of him. There is no evidence here to the effect that Constable Uppal used the word“forthwith”, for example, in his informal demand to Mr. John, but that clearly is not the question. The evidence here makes itclear that Mr.

John was made aware that he would be required to provide a sample once the device arrived. I find it hard todistinguish this case in any intellectually honest way from the situation described by the Court of Appeal for Ontario in R. v.Torsney, 2007 ONCA 67: [6] We agree with the

summary conviction appeal judge that the missing word “forthwith” did not render the demand invalid. Thedemand need not be in any particular form, provided it is made clear to the driver that he or she is required to give a sample of his or herbreath forthwith.[2] This can be accomplished through words or conduct, including the “tenor [of the officer’s] discussion with theaccused”. See R. v. Horvath, [1992] B.C.J. No. 1107 (B.C.S.C.) (A.D.). What is crucial is that the words used be sufficient to convey tothe detainee the nature of the demand. See R. v. Ackerman (1972), (SK CA), 6 C.C.C. (2d) 425 at 427 (Sask.

C.A.)and R. v. Flegel (1972), (SK CA), 7 C.C.C. (2d) 55 at 57 (Sask. C.A.). [7] In this case, the demand was made clear and the appellant understood. He knew that he was to provide a sample as soon as themachine arrived and he responded accordingly. Put differently, the appellant understood that the only event between the demand and hisgiving of the breath sample was the arrival of the ASD.

That being so, the only issue of substance is whether the police officer was in aposition to require that the appellant provide a breath sample forthwith, i.e. before there was any realistic opportunity for him to consultcounsel. See R. v. Woods, supra, at 362; R. v. Cote (ON CA), (1992), 70 C.C.C. (3d) 280 at 285 (Ont. C.A.) and R. v.Latour (ON CA), (1997), 116 C.C.C. (3d) 279 at 287 (Ont. C.A.). 22. It was argued before me that the omission of the term “approved screening device” from the informal demand rendered it invalid.

This insistence on specific language seems hard to reconcile with the more purposive and less formulaic standard so clearlyestablished by the Court of Appeal in Torsney, supra. The authority for that proposition was presented to me as the decision in R.

v. Allen, [2011] O.J. No. 5764 (ON CJ), which in turn purports to rely on the decision of Hill, J. in R. v. Wackernagel, (ON SC). Allen asserts that Wackernagel held the term “approved screening device” was necessary in an informal demand,but a review of Wackernagel itself makes it clear that the cited portion stands for no such proposition. I cannot accept the decisionin Allen, supra, as consistent with the direction of the Court of Appeal in Torsney, supra.23.

While it is self-evident that the burden of proof is on the Crown to the criminal standard and that the defence does not have anyobligation to adduce evidence, I also note that Constable Uppal’s testimony about having given the earlier demand isuncontradicted.24. I am satisfied beyond a reasonable doubt that Constable Uppal made an informal demand and that it was made and completed,including the refusal, at some time before 1:16:17 a.m.

Given the timing previously recited, the fact that doing anything with Mr.John would take much longer than would be the case with a typical detainee, the valid demand for production of drivingdocuments and the time involved in that[8] and the time involved in delivering and explaining the informal demand to Mr. John, Iam satisfied that this demand met the immediacy requirement that is inherent in s. 254(2).

It is important to keep in mind thatinterpreting the immediacy requirements of the Criminal Code as being synonymous with “instantaneous” would be to ignore theCourt of Appeal’s specific direction to assess timeliness in a contextual manner and to ignore the practical realities of the roadsideand of human interaction in that context.[9] Obviously, however, the

interpretation of timeliness must also not dilute the officer’sobligation so as to result in an

interpretation that was specifically rejected by the Court of Appeal in Quansah. 25. I am also satisfied that the content of the demand met the requirements for a valid demand within the standard established by theCourt of Appeal for Ontario in Torsney, supra. I accept Constable Uppal’s testimony about what he said to Mr. John and amsatisfied that it was clearly a “demand” and that Mr. John was presented with all the information he required to understand hisobligation and his jeopardy if he refused.26.

Even if I were not satisfied of the existence and validity of the informal demand, I am satisfied that the demand made just beforethe arrival of the approved screening device was itself a valid demand. In this case it is clear that Constable Uppal and his escortdid not have an approved screening device in their scout car. Constable Uppal contacted Constable Brar, who did have such adevice. Constable Uppal was confident that, given the dimensions of 13 Division, no matter where Constable Brar was in thedivision, he could be expected to arrive within ten minutes of a request for assistance.

That assessment was relevant in relation tothe likely prolongation of any detention of Mr. John and any denial of his access to counsel. Constable Uppal was correct in hisestimation of how soon Constable Brar could arrive.27. A contextual analysis must also take into account Mr. John’s behaviour that night. While it is clear that there were no compellingofficer safety issues, it is even more clear that nothing involving Mr. John was going to happen fast.

His behaviour on the videoboth with and without audio supports Constable Uppal’s characterization of him being obstreperous, loud, obnoxious, repetitive,uncivil and vulgar. As I have noted earlier, heaping gratuitous abuse on people takes time and slows them down both insofar asMr. John’s utterances and behaviours themselves ran up the clock and additional time was required for Constable Uppal to try todeflect the abuse and bring Mr. John back on track (which he did with remarkable composure). This would necessarily delayConstable Uppal from going about his business.28.

I wish to address the issue of whether the “failure” to allow Mr. John access to duty counsel impacts the timeliness analysis. While every case must be measured on its own facts, the idea of a drink-driving detainee in the wee hours of the morningrealistically being able to reach out to, connect with and obtain meaningful consultation from counsel before the “forthwithwindow” has closed is usually little more than a pipe-dream. It is equally so in this case. I do not find the affidavit from dutycounsel to be helpful to Mr. John.

While its concluding paragraph would appear to be of some assistance to him, the problem isthat that paragraph appears to me to be entirely unsupported by the actual data upon which it is based. The data in the affidavitand the conclusion might as well have been from two different documents. In fact, the conclusion conflicts with the facts stated inthe affidavit in a number of ways.29.

First, the affiant expresses his opinion that one of two lawyers, identified as J.M. and I.D., would have “immediately” returned Mr.John’s call on the basis that they had become free from other calls shortly before the time during which Mr. John was stopped bythe police. However, the affidavit sets out that in that fourteen-to-nineteen minute period (up to 1:30 when the sample periodends), the duty counsel line received five calls for service and J.M. and I.D. did not respond to a single one of them despiteostensibly being available.

To the contrary, K.V. responded to four of those calls and G.J. responded to a fifth. This is despite thefact that G.J. did not become available from his preceding call until after J.M. and I.D. K.V. dealt with four calls, three of whichcame in at 1:19. Given that he was required to deal with all three of those calls (calling back at 1:26, 1:49 and 2:02 a.m.respectively) as well as a call logged in at 1:24 a.m. (which he called back at 2:12 a.m.), the affiant’s conclusion that thesupposedly immediately available J.M. and I.D. would have been available to serve Mr. John is entirely unsupported.

I do notknow what they were doing during the relevant period, but they were not returning calls.30. I also note that the idea of an “immediate” call back is inconsistent with the call data provided. While there are various instancesof calls being returned during the one hour period catalogued within 1-3 minutes, there are also numerous examples of call-backstaking eight or ten minutes or longer. In terms of precise availability for call back around the time of Mr.

John’s detention, I notethat there was an eight minute delay between when the workhorse K.V. finished his previous call and when he called back to thefirst of the calls logged in at 1:19 a.m. Accordingly, the notion of immediacy asserted by the affiant strikes me as an irresponsibleconclusion.31. The assessment of timing in relation to the realistic availability of counsel necessarily must incorporate the time taken to explainthe duty counsel process, to make the outbound call and to await the return call.

However, it must also incorporate the timerequired to consult and receive advice from duty counsel once contact is established. In that regard, I note that in the two drink-driving cases listed on the affiant’s call catalogue, the time taken just for the provision of advice ranged between twelve andtwenty-two minutes.[10]32. Although it is not at all essential to my conclusion, I note that there was no evidence before me that Mr. John even had a mobilephone in his possession.

While it might now be assumed to be much more likely that a driver would have a mobile phone than itmight have been in, for example, 1996, there is no small number of people who for a variety of reasons choose not to own mobilephones or who forget them at home or otherwise are not in possession of them when stopped by the police. The only evidencebefore me is that Constable Uppal had a mobile phone. He was never asked if it was his or the police service’s phone. If it washis personal phone, he was under no obligation to allow Mr. John to use it.

For me to assume it was a police service phone wouldinvolve speculation on my part, along with disregarding many, many years of experience in which I have never been aware of aToronto police officer other than perhaps a supervisor or someone in a specialized unit being provided with a departmental mobilephone. I do not agree with Mr. Jourard when he argues that it was for the Crown to prove that Constable Uppal’s phone was not

departmentally issued. It was Mr. Jourard’s question as to whether Constable Uppal had a phone and to make his answer at all relevant to any determination I have to make, it was for Mr. Jourard to ask the follow-on questions that might (or might not) have assisted his argument. 33 . When I consider the criteria defined by the Court of Appeal, I am satisfied that the demands made to Mr. John were both timely and lawful and that he was obligated to comply. It is self-evident that from the outset, for reasons known only to him, Mr. John had absolutely no intention of complying with the lawful demand.

Insofar as the demands were lawful and engage no Charter concerns and insofar as the refusals constituted the actus reus of the offence, [11] no voluntariness or other admissibility issue arises. Conclusion 34 . The Crown has proved its case against Mr. John beyond a reasonable doubt. Released: 28 April, 2014