R. v. Johnston, 2016 ONCJ 562

DATE: 2016·September·15 CITATION: R. v. Johnston, 2016 ONCJ 562 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — TRAVIS JOHNSTON Before Justice Paul M. Taylor Heard on July 4, 5, 2016 Reasons for Judgment released on September 15, 2016 C. Vandenbroek ............................................................................................. counsel for the Crown M.

De Rubeis ................................................................... counsel for the defendant Travis Johnston Taylor, J.: Introduction [1] Travis Johnston was driving his car on Queen Street, in the City of Brampton, when he was seen by Sergeant StevenCeballo of the Peel Regional Police. Concerned about Mr. Johnston’s driving, the officer stopped the car a few minutes later. SergeantCeballo made a demand for Mr. Johnston to provide a sample of his breath into an Approved Screening Device. At the conclusion of theevidence, I asked Counsel to make written submissions. [2] Mr.

De Rubeis, who acts for the Accused, has framed the issues as: Was there a violation of Sections 8, 9, and 10 of the Charter because [A] The roadside demand was not made forthwith and/or P.C. Lunevska, (now Marchese), did not have reasonable grounds thatthe Applicant had, within the preceding 3 hours, operated or had care or control of a motor vehicle and/or [B] The Applicant was not given his 10 [b] Right to Counsel while waiting for the arrival of the A.S.D. If I were to find the Charter violations, Mr. Johnston seeks the exclusion of the Intoxilyzer tests.

Without the results there would be noadmissible evidence as to Mr. Johnston’s blood alcohol concentration at the time of driving and he would be acquitted. [3] The Crown asserts that there were no Charter violations, however if any did occur, the results of the tests ought not tobe excluded. Mr. Johnston’s case provides yet another opportunity for a review of the jurisprudence concerning the phrase “forthwith”in the context of roadside breath testing. Analysis, the Applicable Legal Principles, “Forthwith and The Demand” [4] Section 254 (2) of the Criminal Code of Canada provides: “

(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, withinthe preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment orhad the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officermay, by demand, require the person to comply with paragraph (a), in the case of a drug, 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. (emphasis added) [5] The meaning and parameters of the word “forthwith” has been the subject of considerable judicial commentary. InR. v. MacMillan, 2013 ONCA 109 , [2013] O.J. No. 727 at Justice Rosenberg set out the issue in a succinct fashion, at paras.

29-30, he wrote: “29 With respect to the timing of the test, while s. 254(2) (

b) is worded as if only the operator must act forthwith, the courts have alsoheld that the officer must be in a position to administer the test forthwith. This latter "forthwith" requirement flows from the wording ofthe

section and the exigencies of the Charter. Since the operator must forthwith comply with the demand, it follows that the officermust be in a position to facilitate compliance forthwith: R. v. Grant, (SCC), [1991] 3 S.C.R. 139, at p. 150. Oneproblem faced by police officers making the demand is that, on occasion, officers would not have an approved screening device andthere would be a delay while the device was brought to the scene by another officer.

In the result, there has been considerable litigationon how much delay in facilitating the administration of the approved screening device test can be tolerated while still complying with theforthwith requirement. However, it is important to point out that this forthwith requirement flows from the making of the demand, notfrom when the officer had the grounds to make the demand. 30 The other temporal requirement, the timing of the demand, also flows from the interaction of s. 254(2) and s. 10(

b) of the Charter. Soon after the Charter came into force, the Supreme Court of Canada held that a motorist was detained within the meaning of s. 10(b)when required to comply with a demand under the predecessor to s. 254(2), the former s. 234.1(1): R. v. Thomsen, (SCC), [1988] 1 S.C.R. 640. At that time, the demand was limited to motorists and was described as a roadside screening devicedemand.

In Thomsen, the court held that requiring the detained motorist to comply with the demand before being advised of the right tocounsel and given the opportunity to consult counsel was a reasonable limit within the meaning of s. 1 of the Charter. The SupremeCourt of Canada has since extended this principle to other roadside tests, such as requiring the motorist to comply with a physicalcoordination test: see R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3, at para. 52.” He continued his analysis at paras 31-34: “31 Cases that have considered the relationship between s. 254(2) and s. 10(

b) have generally been in the context of the operator of thevehicle being detained, either when the motorist was stopped by the police, as in Orbanski, or by reason of the demand itself, as inThomsen. It is because the motorist is detained and would otherwise be entitled to consult counsel that the test must be administeredimmediately. Otherwise, there would be no justification for not giving the motorist his or her s. 10(

b) rights. There does not seem to havebeen any consideration of how s. 254(2) should be interpreted in a case where the operator has not been detained. 32 Be that as it may, the Supreme Court of Canada in Woods and thisc court as recently as 2012 in R. v. Quansah, 2012 ONCA 123,286 C.C.C. (3d) 307, have held that "forthwith" requires that the demand be made as soon as the officer has formed the requisitegrounds to make the demand; the justifiable delay does not seem to be tied to the fact that the motorist is detained.

As Fish J. held inWoods, at para. 15: Section 254(2) authorizes roadside testing for alcohol consumption, under pain of criminal prosecution, in violation of ss. 8, 9 and 10 ofthe Canadian Charter of Rights and Freedoms.

But for its requirement of immediacy, s. 254(2) would not pass constitutional muster. 33 In Quansah, the Crown had argued for an expansive definition of the forthwith requirement and that the demand would be valid if"the sequence of events between the police officer forming grounds to make an ASD demand, and the detainee responding to thedemand, occurs faster than the time in which the detainee realistically could consult with counsel" (at para. 15). Speaking for the court,LaForme J.A. rejected this

interpretation. He held, at para. 35, that the opportunity to consult with counsel is not the only criterion forassessing whether the forthwith requirement has been met. LaForme J.A. went on to set down five things a court must consider indetermining whether the demand was made forthwith. His second point is set out at para. 46: Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driverhas alcohol in his or her body.

The immediacy requirement, therefore, commences at the stage of reasonable suspicion. 34 It follows that the trial judge in this case did not err in holding that the demand had to be made promptly after Ariss formed thegrounds. The Crown argues that even if the demand had to be made forthwith after Ariss formed his grounds, the demand was stillvalid; Ariss had to attend to the other people who were arriving at the scene, and some delay was inevitable while the officer obtainedthe device from his car, powered it up and explained its use to the respondent.

In Quansah, LaForme J.A. held that in unusualcircumstances, a court may give a more flexible

interpretation to the forthwith requirement. The test adopted by LaForme J.A., at para.47, is one of reasonable necessity: In the end, the time from the formation of reasonable suspicion to the making of the demand to the detainee's response to thedemand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his orher duty as contemplated by s. 254(2).” (emphasis added ) [6] As Justice Rosenberg wrote in R. v. McMillan, supra, the Court of Appeal, differently constituted, had consideredthe “forthwith” issue a year earlier in R. v.

Quansah, 2012 ONCA 123 , [2012] O.J. No. 779 Justice LaForme for the Courtwrote at paras. 45-49: 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 toimplement the detainee's s. 10(

b) rights before requiring the sample. If so, the "forthwith" criterion is not met. The Principles Applied [7] Sergeant Ceballo’s evidence, which I accept, is that shortly after stopping Mr. Johnston they had a brief conversation inwhich after telling Mr. Johnston that he could smell alcohol on his breath, Sergeant Ceballo said he was going to go back to his car to gethis notebook, so that he could read a demand to Mr. Johnston, that Mr. Johnston provide a sample of his breath into an approvedscreening device. Sergeant Ceballo testified that Mr. Johnston replied “OK”.

This informal demand would have been made withinseconds of Sergeant Ceballo forming a reasonable suspicion. Mr. Johnston testified on a voir dire and did not dispute Sergeant Ceballo’sevidence, nor was Sergeant Ceballo cross-examined on the informal demand. Counsel seemed to focus exclusively on the timing of the“formal “demand at 11:45. In R. v. Torsney, 2007 ONCA 67 , [2007] O.J. No. 355 the Ontario Court of Appeal wrote at para.6: “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 her breath 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.).” [8] I find that an informal demand was made forthwith, followed by a formal demand at 11:45 a few minutes later. Applying a purposive approach to the facts of this case, Mr. Johnston was aware of the reason for his detention, he was going to have toprovide a sample of his breath into an Approved Roadside Screening device, that it was a demand, not a request, and that in the context itwas going to be relatively immediate.

My view of the timing is reinforced by Constable Lunevska, (Marchese)’s testimony that shereceived a radio call at 11:41 requesting an A.S.D. This would have been within a few moments of the stop and the informal demand. Iam cognizant of the fact that Sergeant Ceballo testified that he called for the A.S.D. after the formal demand at 11:45. I am also satisfiedhe was in error. The officers agree that Lunevska arrived on scene at about 11:50, (11:49 in his notes, 11:51 in her’s). Lunevska wasabout ten kms away, on the other side of Brampton, when she got the call.

If Sergeant Ceballo called for the A.S.D. at 11:45, ConstableLunevska would have had to drive at 120kms / hr to arrive in five minutes, more than double the posted speed limit. (120 kms/hr = 2 kms/ minute) [9] Once Constable Lunevska arrived on scene at 11:51, according to her notes, matters moved quickly. ConstableLunevska received a briefing from Sergeant Ceballo, made her own observations and demand, and at 11:53 Mr. Johnston registered a failon the A.S.D. The total elapsed time from the radio call at 11:41 until completion of the test at 11:53 was 12 minutes.

The next issue forme to decide is whether this was no more than reasonably necessary, and whether there was a reasonable opportunity for Mr. Johnston toconsult with counsel. In my view, it was reasonably necessary, it is abundantly clear that an A.S.D. may not always be immediatelyavailable and that a reasonable time is allowed to procure one. Once the A.S.D. arrived, Constable Lunevska proceeded with greatdispatch demonstrating the use of the device and obtaining the sample. Realistically there would be about 10 minutes for Mr.

Johnstonto decide whether he wished to call counsel, place a call to duty counsel, get the call back, afford Mr. Johnston privacy and then get theadvice. Common experience for those of us trying drinking and driving cases is that there is always a lag between the call to dutycounsel and the return call. It is rarely less than 10 minutes, frequently far longer. [10] Mr. Johnston testified on the voir dire.

His evidence was that he had a cellular phone and when asked what he wouldhave done if Sergeant Ceballo had given him his right to counsel he, “absolutely would have taken that advice, it would have been goodto talk to someone.” In cross-examination, Mr. Johnston, who testified he had a good recollection of the events, initially insisted hisrights to counsel where only given at the station. He then corrected himself and agreed that Constable Lunevska had given him his rightsat the scene.

He also agreed that his response was far more equivocal than “yes, absolutely”, he actually agreed that he wanted to thinkabout it. His remarks are not being used for proof of their truth, but rather to assess Mr. Johnston’s credibility and to assess the evidencegenerally. [11] On the facts of this case, Sergeant Ceballo had no idea of when the A.S.D. would be arriving. He did testify that if, in hisopinion, it was an inordinate amount of time, he would have given Mr. Johnston his rights to counsel.

On the unique facts of this case, Ifind that the delay of the advice of the Right to Counsel was within constitutionally acceptable parameters. The Applicable Legal Principles; “Reasonable Grounds” [12] The concept of “reasonable grounds”, in the context of drinking and driving cases, has been the subject of countlessjudicial commentaries, indeed it is the staple diet of most Ontario Court Justices. While the facts are different, the principles remain

relatively constant. Recently, Justice F. Javed, of this Court was called upon to deal with a remarkably similar case. He wrote in R. v. Ablack, [2016] O.J. No. 2597 at paras. 38-40: “38 Mr. Aitken submits that Cst. Bastien didn't develop reasonable and probable grounds about the last time of operation or care andcontrol. In support of this position, Mr. Aitken points to the lack of information known to Cst. Bastien from the dispatch about the lasttime of driving or how long the vehicle had been stopped at the roadway waiting for gas.

He did not ask him when he ran out of gas ortake steps to determine if the vehicle was still warm where an inference of recent driving could be made. With respect, I disagree. 39 The controlling principles were nicely distilled by Brown J. in R. v. McMeekin, [2014] O.J. No. 1062 (Prov. Ct.) at paragraph 63: 63 The existence of reasonable and probable grounds imports both an objective and a subjective component.

Section 254(3) of theCriminal Code requires that the police officer subjectively have an honest belief that the suspect has committed the offence andobjectively there must exist reasonable grounds for this belief. See R. v. Bernshaw, (SCC), [1994] S.C.J. No. 87 254 atpara. 48, and R. v. Rhyason, 2007 SCC 39 , [2007] S.C.J. No. 39 at para. 12. 64 The "reasonable grounds to believe" formulation in s. 254(3) applies to the impairment of that person's ability to drive. Further, thetest has both subjective and objective components: R. v. Censoni (2001), 22 M.V.R. (4th) 178 (Ont. S.C.), at para. 32.

As said byProvincial Court Judge MacDonnell (as he then was) in the oft-quoted case of R. v. Cooper (1993), 46 M.V.R. (2d) 231, at paras. 12 to14: This provision [s. 254(3)] bestows a significant power upon a peace office to interfere with the liberty of the citizen. It requires,however, as preconditions to [the lawful exercise of] the grant of power, that the officer form a particular belief, and that the belief bebased on reasonable and probable grounds. ... [Applying the approach to arrest powers endorsed by the Supreme Court in R. v.

Storrey (1990), (SCC), 53 C.C.C.(3d) 316], the question to be addressed is whether, on the basis of the record before the court, a reasonable person placed in the positionof [the arresting officer] could conclude that there were reasonable and probable grounds to believe that the accused's ability to operate amotor vehicle was impaired by alcohol. 65 As said by Hill J. in R. v. Censoni, supra, at para. 43: Reasonable grounds in the context of a s. 254(3) breath demand is not an onerous threshold. It must not be inflated to the context oftesting trial evidence.

Neither, of course, is it so diluted as to threaten individual freedom. 66 In R. v. Bush, 2010 ONCA 554 , [2010] O.J No. 3453 (Ont.C.A.) Durno, J, states at paras. 55-56 as follows: 55 In assessing whether reasonable and probable grounds existed, trial judges are often improperly asked to engage in a dissection of theofficer's grounds looking at each in isolation, opinions that were developed at the scene "without the luxury of judicial reflection":Jacques, (SCC), [1996] 3 S.C.R. 312, at para. 23; also Censoni at para. 43.

However, it is neither necessary nordesirable to conduct an impaired driving trial as a threshold exercise in determining whether the officer's belief was reasonable: R. v.McClelland, 1995 ABCA 199 , [1995] A.J. No. 539 (C.A.). 56 An assessment of whether the officer objectively had reasonable and probable grounds does not involve the equivalent of an impaireddriver scorecard with the list of all the usual indicia of impairment and counsel noting which ones are present and which are absent as theessential test.

There is no mathematical formula with a certain number of indicia being required before reasonable and probable groundsobjectively existed; Censoni at para. 46. The absence of some indicia that are often found in impaired drivers does not necessarilyundermine a finding of reasonable and probable grounds based on the observed indicia and available information: R. v. Costello (2002),22 M.V.R. (4th) 165 (Ont. C.A.) at para. 2; Wang, 2010 ONCA 435 , [2010] O.J.

No. 2490, at para. 21. 40 In addition to the above principles, the law is clear that the last time of driving can be inferred which must be a reasonable inferencegrounded in the evidence. There is no positive duty on the police to determine the last time of driving. All that must exist are reasonableand probable grounds that an offence is being committed or has been committed within the preceding three hours and a breath demand ismade within two hours of Mr. Ablack being in care and control of the vehicle. In this case, Cst. Bastien found Mr.

Ablack in the driver'sseat of his vehicle, not some place outside of it. The issue is whether he formed reasonable and probable grounds. The secondary issueis whether his failure to ask him of his last time of driving was reasonable in that the inference that he was operating his vehicle between11:53 a.m. and the time of arrest, being 2:53 p.m. was a reasonable one.”

[13] In R. v. Mackay-Clouthier, [2009] O.J. No. 5778, Justice Durno of the Superior Court of Ontario, sitting as a

SummaryConviction Appeal Justice, was called upon to consider the time of driving in the context of reasonable grounds. He wrote at paras. 46-50: “46 In order to make the Intoxilyzer demand, the officer had to have reasonable and probable grounds to believe that the appellant wascommitting or at any time within the preceding three hours had committed either impaired operation, impaired care or control, driving orhaving care or control having consumed excess alcohol. The officer's belief must be subjectively and objectively reasonable.

There isno dispute that the officer subjectively believed the appellant had consumed excess alcohol. That belief was objectively reasonablebased on the ASD results. 47 The issue is whether or not the officer's belief that he was driving within three hours of the demand was reasonable from both asubjective and objective view. The officer testified that she thought the time of driving was the time she was dispatched. That wasclearly within three hours. 48 The key question is whether that belief was objectively reasonable.

While I am not persuaded that the precise time the officerbelieved the accident occurred was objectively reasonable, I am persuaded that it was objectively reasonable to conclude that the drivingwas within three hours of the officer being dispatched. The operable time in assessing the validity of the demand is when it was made,not enhanced by trial evidence that was unknown to the officer at the time of the demand. R. v. Mastromartino, (ONSC), [2004] O.J.

No. 1435 (S.C.J.) at para. 24-28. 49 At the time of the demand, the officer had observed the appellant get out of the driver's seat of a car with its lights on, the vehiclewas imbedded in a snow bank in a ditch, he told her that he was the driver, she had seen tracks going from the road directly into the ditch,not in a sliding motion, the road in the area of the accident was more snow-covered than bare, the traffic in that area was light with oneor two vehicles going by the area each hour, there were no other tracks on the road and it was snowing.

Objectively, the officer's beliefwas reasonable. 50 I am not persuaded the trial judge erred in finding the Intoxilyzer demand was valid.” The Principles Applied [19] The only real issue with respect to Constable Lunevska’s grounds are whether the driving occurred within the previous threehours, clearly Sergeant Ceballo did not tell her the exact time of driving. She was of the view that Sergeant Ceballo had been involved ina continuous sequence of events, that they all happened “one after the other”; that is: observations of driving; following Mr.

Johnstondown Queen Street into the parking lot; boxing the car; speaking to Mr. Johnston; the demand; and calling for the A.S.D. The questionis whether her assumption was reasonable. In my view, objectively, it was. It is inconceivable that the driving did not occur within afew minutes prior to the call for the A.S.D. and her arrival on the scene. To suggest that Sergeant Ceballo and Mr. Johnston sat in theparking lot of the Firkin Pub for hours prior to Constable Lunevska’ s arrival is pure fantasy.

She was entitled, as a matter of commonsense and experience, to assume the driving was shortly before the call for the A.S.D.

Summary and Conclusion [21] There are no constitutional reasons to exclude the results of Mr. Johnston’s breath tests, his rights were not violated in anyaspect by the police. The results are admissible, the presumptions contained in

Section 258 of the Criminal Code apply, there being noevidence to the contrary, Mr. Johnston is convicted of operating a motor vehicle with excess blood alcohol. Released September 15, 2016 _____________________________ Signed: “Justice Paul M. Taylor”