2019 QCCQ 4800, 2019 QCCQ 4800

Gouze c. R. 2019 QCCQ 4800 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Criminal Division No: 500-01-161571-176 DATE: July 12, 2019 ______________________________________________________________________ BY THE HONOURABLE DAVID SIMON, J.C.Q. ______________________________________________________________________ STEVEN GOUZE Applicant v.

HER MAJESTY THE QUEEN Respondent ______________________________________________________________________ RULING ON APPLICATION TO EXCLUDE EVIDENCE PURSUANT TO SECTIONS 8, 9 AND 24(2) OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS (“ CHARTER ”) ______________________________________________________________________ I. OVERVIEW [ 1 ] Applicant is charged with operating and/or having the care or control of a motor vehicle while impaired by alcohol or a drug pursuant to section 253 (1) (

a) of the Criminal Code (“ C.C . ”). The offence is alleged to have taken place on July 28, 2017. [ 2 ] In a nutshell, police officers were called to the scene of an accident involving Applicant’s car. They arrived on site and interacted with Applicant. They observed signs of drug impairment and therefore directed Applicant to perform roadside sobriety tests. [ 3 ] Applicant failed the tests and was arrested for driving while drug impaired. The officers demanded that he undergo a drug recognition evaluation (“DRE”). Applicant was taken to a police station where a drug recognition expert conducted a 12-step DRE.

Upon completion of the evaluation, Applicant was required to provide a urine sample for analysis. [ 4 ] Applicant contends that the DRE was not conducted “as soon as practicable” following his arrest. [ 5 ] Consequently, he asserts violations of his

section 8 and 9 Charter rights and applies for the exclusion of the following items of evidence: the DRE results, the urinalysis as well as the marijuana seized during the inventory search of his car [1] . [ 6 ] The issue in this matter therefore turns on whether the DRE was conducted as soon as practicable. [ 7 ] On May 28, 2019, I verbally dismissed Applicant’s Charter motion and indicated that I would provide written reasons at a later date. These are my reasons. II. THE EVIDENCE

[ 8 ] By agreement of the parties, this matter proceeded as a blended trial/ Charter voir dire. The evidence relevant to the Charter issue can be summarized as follows. [ 9 ] On July 28, 2018, Officer Bogdan Coapsi and his partner, Officer Steven Thériault, were patrolling in a cruiser in the area of Pierrefonds. [ 10 ] At 11:48 am, they received a dispatch call, on their radio , regarding two vehicles involved in a collision at the intersection of Pierrefonds Blvd. and René-Émard Street in the West End of Montreal. [ 11 ] At 11:51 am, they arrived at the site of the accident.

The engines of both vehicles involved in the accident were still running. Applicant was standing near his car, appearing to assess damages to his front bumper. [ 12 ] Officer Coapsi approached Applicant and began interacting with him. He noticed that he had difficulty speaking. His language was slurred and unclear. His lips were dry with white paste around his mouth. Officer Coapsi switched from French to English.

He requested Applicant’s driver’s licence and proof of registration. [ 13 ] As Applicant went to retrieve his documents from his car, Officer Coapsi observed that he had a hard time standing up straight and that he was dragging his hand on the hood to maintain stability. [ 14 ] Officer Coapsi asked Applicant if he was hurt, physically handicapped, or light-headed. Applicant answered in the negative. Officer Coapsi then asked him whether he had taken medication or alcohol.

Applicant replied that he had not, but specified that he usually takes opioid-based medication once a day. [ 15 ] At 12:00 pm, Officer Coapsi informed Applicant that he had reasonable grounds to suspect that he had driven under the influence of drugs. He directed him to perform roadside sobriety tests and explained the consequences of a refusal to respect the order. Applicant accepted to perform the tests and was cooperative throughout. [ 16 ] Applicant performed three different tests which ran from 12:00 pm to 12:28 pm [2] .

Given their outcome, Officer Coapsi concluded that he had reasonable grounds to believe that Applicant drove under the influence of drugs (or alcohol). [ 17 ] At 12:30 pm, Officer Coapsi arrested Appplicant for impaired driving, advised him of his constitutional rights, searched him and placed him inside the police cruiser without handcuffs. [ 18 ] At 12:40 pm, once inside the car, Officer Coapsi read the official warning and right to counsel card to Applicant. He also read him the order to undergo a DRE. [ 19 ] Officer Coapsi then called 911 dispatch to ascertain the whereabouts of a drug recognition expert.

He waited on the line for approximately 5 to 10 minutes. [ 20 ] At 12:55 pm, Officer Coapsi was informed by 911 dispatch that the only available drug recognition expert was to be found at the East Operational Centre in the East End of Montreal [3] . [ 21 ] The closest police detachment providing for drug recognition evaluations, that is the West Operational Centre situated at 2085 Thimens Blvd., was under renovations at the time. The evaluation could not be held there. [ 22 ] With Applicant still in the backseat of the cruiser, Officer Thériault called for a tow truck [4] to impound Applicant’s vehicle.

Meanwhile, Officer Coapsi began drafting an accident report. A second cruiser was also called to the scene for assistance.

[ 23 ] While awaiting the tow truck, Officer Coapsi continued drafting the accident report and also filled out all the fields of a document required for towing, with a view to handing it over to the police officers called for assistance and thereby expedite matters [5] . [ 24 ] At 1:05 pm, Officer Coapsi did an inventory search of Applicant’s vehicle, before towing, in order to determine whether any valuable objects might have been left behind so as to avoid any liability issues. [ 25 ] While checking inside the glove compartment of Applicant’s vehicle, Officer Coapsi smelled an odour of marijuana coming from a plastic container.

Believing he had grounds to do so, he opened the container and found a small quantity of marijuana in it. [ 26 ] At 1:07 pm, Officer Coapsi seized the marijuana. He arrested Applicant for possession of marijuana and advised him of his rights. [ 27 ] Next, the tow truck arrived. Applicant’s car was towed and the truck left the scene. Officer Coapsi was unable to recall precisely at what time the tow truck arrived or departed.

Likewise, he could not exactly recall when the second police cruiser arrived on the scene. [ 28 ] Around the same time the tow truck arrived and not long before heading to the East Operational Centre, Officer Coapsi, as is his habit, asked Applicant if he needed to take any medication with him while in detention. Applicant replied in the affirmative and specified that had yet to take his daily dose of Suboxone to treat his opioid addiction. [ 29 ] Officer Coapsi first did a google search to find the phone number of Applicant’s pharmacy.

He then called the pharmacy to determine if the medication could be brought to the detention centre. He was informed that Applicant was under the obligation to take his medication at the pharmacy in the physical presence of the pharmacist. [ 30 ] The steps taken by Officer Coapsi to contact Applicant’s pharmacy lasted approximately 10 minutes. [ 31 ] At 1:11 pm (or 1:14 pm) [6] , Officer Coapsi, his partner and Applicant left the scene and drove directly to the East Operational Centre, 25 kilometers or so from the accident site [7] .

They took Highway 40 to reach their destination. [ 32 ] At around 2:00 pm, they arrived at the East Operational Centre. Once at the station, Applicant was formally booked. Some of his personal belongings were taken and itemized.

He was then given the opportunity to speak to counsel in relation to both the impaired driving and possession of narcotics offences. [ 33 ] At 2:14 pm, Applicant exercised his right to consult counsel. [ 34 ] At 2:25 pm, Applicant was turned over to the drug recognition expert, Commanding Officer (then Sergeant) Jean-Marc Schanzenbach, to undergo the DRE. [ 35 ] At approximately 2:25 pm, Officer Schanzenbach began his 12-step evaluation of Applicant.

Officer Coapsi was present throughout to keep an eye on the detainee and to film the DRE. [ 36 ] Based on his assessment of Applicant, Officer Schanzenbach opined that his ability to operate a motor vehicle had been impaired by drugs. At 3:13 pm, he therefore required Applicant to provide a urine sample [8] .

[ 37 ] At 3:17 pm, Applicant provided a urine sample [9] . [ 38 ] The evaluation was fully completed at 3:20 pm [10] . [ 39 ] Applicant was then placed in a transitory cell while awaiting for Officer Coapsi to carry out administrative paperwork related to his intervention. [ 40 ] At 4:55 pm, Applicant was officially released.

Officer Coapsi gave him back his belongings and handed him a summons to appear in Court. [ 41 ] Noticing that Applicant had difficulty signing the promise to appear, looked dazed and seemed to be falling asleep, Officer Coapsi decided that it was best to drive him personally to his pharmacy in order to have him take his medication. [ 42 ] When they arrived at the pharmacy located in Pierrefonds, Applicant had trouble exiting the police cruiser.

Officer Coapsi had to help him stand because he was slouching, almost falling to the ground. [ 43 ] Within seconds after ingesting his pill of Suboxone, Applicant appeared revived and stood straight as if he had received a shot of adrenaline. [ 44 ] Although he still seemed impaired to Officer Coapsi, his condition had improved significantly. Applicant then thanked the police officers for taking care of him and left the premises. III. SUBMISSIONS Applicant [ 45 ] Applicant points out that 1 hour and 55 minutes elapsed between his arrest (12:30 pm) and the beginning of the DRE (2:25 pm).

He submits that such delay fails to comply with the “as soon as practicable” criterion. [ 46 ] Applicant notes that a drug recognition expert was available as of 12:55 pm, yet the assessment only commenced at 2:25 pm. The fact that the police had to wait for a tow truck and then drive to a detachment on the other side of the city to conduct a DRE cannot serve as a reasonable explanation for the delay. [ 47 ] Relying on the case of R . c.

Nguyen [11] , Applicant contends that the delay was unjustifiably increased as a result of inadequate police procedures and defective resource allocation. [ 48 ] Because the DRE was not performed as soon as practicable, Applicant claims that his detention was unduly prolonged in violation of

section 9 of the Charter . [ 49 ] He also advances that the DRE and the taking of the urine sample amounted to an illegal search and seizure. These violations warrant exclusion of the impugned evidence pursuant to section 24(2) of the Charter [12] . Respondent [ 50 ] Respondent argues that the police acted reasonably during the relevant time frame and even beyond. While the DRE might not have been conducted as “soon as possible”, it definitely took place “as soon as practicable”.

[ 51 ] Respondent puts forth that it was not required to present evidence to explain why the police did not have additional resources or personnel at hand to perform the DRE sooner or, more generally, why the police were not organized in a different way [13] . [ 52 ] Respondent believes that it is not appropriate for courts to consider resource allocation of police forces in assessing whether the DRE or breathalyzer tests were performed as soon as practicable.

What should be of concern is whether the police officers acted reasonably in the circumstances of each case [14] . [ 53 ] In any event, unlike the Nguyen case, Respondent submits that there is no evidence of inadequate police procedures or defective resource allocation in the present case. [ 54 ] Finally, Respondent asserts that when the police make a lawful arrest, as is the case here, the failure to comply with the “as soon as practicable” criterion can only give rise to a

section 8 violation (right to be secure against unreasonable search and seizure), but not a

section 9 Charter breach (right not to be arbitrarily detained or imprisoned) [15] . IV. GOVERNING PRINCIPLES [ 55 ] Applicant argues that he was not submitted to a DRE as soon as practicable, contrary to paragraph 254(3.1) C.C . [ 56 ] Paragraph 254(3.1) C.C . reads as follows: Evaluation

(3.1) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under paragraph 253(1) (

a) as a result of the consumption of a drug or of a combination of alcohol and a drug, the peace officer may, by demand made as soon as practicable , require the person to submit, as soon as practicable , to an evaluation conducted by an evaluating officer to determine whether the person’s ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, and to accompany the peace officer for that purpose. [Emphasis added] [ 57 ] The “as soon as practicable” requirement is found in various provisions of the Criminal Code pertaining to impaired driving and has generated a plethora of jurisprudence. [ 58 ] The leading authority with respect to the “as soon as practicable” criterion is R . v.

Vanderbruggen [16] rendered by the Ontario Court of Appeal. [ 59 ] While decided in the context of alcohol impairment [17] , the principles in Vanderbruggen are equally applicable to the case at bar. Regarding the meaning of “as soon as practicable”, the Court stated the following: That leaves the question that is at the heart of this appeal—the meaning of as soon as practicable. Decisions of this and other courts indicate that the phrase means nothing more than that the tests were taken within a reasonably prompt time under the circumstances […].

There is no requirement that the tests be taken as soon as possible. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably […] In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The “as soon as practicable” requirement must be applied with reason.

In particular, while the Crown is obligated to demonstrate that—in all the circumstances—the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody [18] . […] [Citations omitted]

[ 60 ] In R . v. Singh [19] , the Ontario Court of Appeal confirmed that Vanderbruggen is the governing authority in relation to the “as soon as practicable” criterion [20] . The Court reiterated that the requirement that the samples be taken as soon as practicable means “nothing more than that the tests should be administered within a reasonably prompt time in the overall circumstances” [21] . The Court also emphasized that “as soon as practicable” does not mean “as soon as possible” [22] . [ 61 ] The length of time between the DRE demand and the beginning of the assessment is not determinative of the issue.

The case law is replete with instances in which unexplained or inadequately explained delays of varying lengths have resulted in the courts concluding that the Crown has not met its onus of proving that the tests were taken as soon as practicable [23] . [ 62 ] Each case must be examined on its own facts. Of utmost importance is whether the evidence demonstrates that the police acted reasonably during the relevant time frame. V. PRINCIPLES APPLIED [ 63 ] Based on the evidence, 1 hour and 45 minutes elapsed between the DRE demand (12:40 pm) and the commencement of the test (2:25 pm).

Given the wording of paragraph 254(3.1) C.C . , this is the principal period that must be considered. [ 64 ] While aware that I must examine the whole chain of events and that the Crown is not required to provide a detailed explanation of what occurred during every minute that the accused is in custody, I find it useful for the purpose of the analysis to divide the relevant time frame into four different periods: 1) from the arrest to the DRE demand; 2) from the DRE demand to the departure to the station; 3) from the departure to the station to the arrival at the East Operational Centre; and 4) from the arrival at the East Operational Centre to the beginning of the DRE. 1) from the arrest to the DRE demand [ 65 ] Officer Coapsi arrested Applicant for impaired driving at 12:30 pm and demanded that he submit to a DRE at 12:40 pm. [ 66 ] During that time period, Officer Coapsi arrested Applicant, advised him why and informed him of his right to remain silent and his right to counsel, albeit without reading the card. [ 67 ] Officer Coapsi then conducted a search of Applicant before placing him in the back of the police cruisier.

Once in the car, just prior to making the DRE demand, Officer Coapsi read the formal warning and right to counsel card to Applicant. [ 68 ] It is entirely reasonable to have taken 10 minutes to go through these steps. Officers are entitled to conduct a search incident to an arrest, including for safety reasons. Also, the informational component of the right to counsel must be provided to detained and arrested persons in a clear and comprehensive manner.

This cannot be done in a matter of seconds. [ 69 ] The DRE demand was therefore made as soon as practicable following the arrest. 2) from the DRE demand to the departure to the station [ 70 ] Police officers left the scene to drive Applicant to the East Operational Centre at either 1:11 pm or 1:14 pm, slightly more than 30

minutes after the DRE demand. [ 71 ] A significant portion of this delay was attributable to determining the whereabouts of a drug recognition expert, waiting for the tow truck operator as well as the second police cruiser which was called in order to attend to the towing of Applicant’s vehicle. [ 72 ] It is unclear in what order the police called the 911 dispatch, the tow truck company and the second cruiser.

Based on the evidence [24] , it can be inferred that it was around the same time, shortly after the DRE demand at 12:40 pm. [ 73 ] Identifying where the DRE could be conducted before leaving the scene was appropriate. Had the police gone directly to the closest detachment without calling the 911 dispatch first, the DRE would have likely been further delayed. [ 74 ] I am satisfied that a tow truck was required to move Applicant’s vehicle. The car had been involved in a collision and was blocking a lane of traffic in a relatively busy area close to a school.

Furthermore, according to Officer Coapsi, impounding Applicant’s vehicle was required by the Société de l’Assurance Automobile du Québec (“SAAQ”). He also explained that he could not move the vehicle himself as he was prohibited to do so as a matter of policy – a claim which remained unchallenged. [ 75 ] Calling for assistance from a second police cruiser also made sense at the time.

The purpose of such a call was to have other officers supervise the towing of Applicant’s car so as to expedite his transport to a police detachment to have him undergo the DRE. [ 76 ] The steps taken by the police upon Applicant’s arrest were not only reasonable but necessary. The police acted diligently by taking immediate action to identify their final destination and to secure the presence of both a tow truck and a second police cruiser. [ 77 ] Applicant does not take great issue with the fact that the officers initiated these steps.

He places far more emphasis on the reasonableness of the time spent to wait for the tow truck and the second cruiser. [ 78 ] Although Officer Coapsi was unable to specify when the tow truck and the second cruiser arrived on the scene, it can be inferred that it was at some point between the inventory search of Applicant’s vehicle (1:05 pm) and the time of departure from the scene (1:11 or 1:14 pm). [ 79 ] While it is difficult to measure precisely how long the officers waited for the tow truck and the second cruiser, it must have been somewhere between 20 to 30 minutes (at most from 12:40 pm to close to departure time). [ 80 ] Waiting for a tow truck does not necessarily breach the “as soon as practicable” requirement.

Each case turns on its own unique circumstances. [ 81 ] In the case at bar, the wait of 20 to 30 minutes cannot be said to be excessive or inordinate. Again, it should be emphasized that the officers called the tow truck company in the immediate aftermath of the DRE demand. Also, the response time was fairly reasonable.

To expect a tow truck to get to the scene of an accident and to load a vehicle within a few minutes seems unrealistic, especially in an urban setting. [ 82 ] I agree that it would have been best if the second cruiser had arrived sooner, thus allowing the vehicle transporting Applicant to leave earlier. Officer Coapsi conceded that he did not request the second cruiser to rush to the scene. He nevertheless indicated that this was not an emergency call as no lives were endangered.

Officer Coapsi provided a reasonable explanation and Applicant’s counsel did not cross-examine him as to the time taken for the second cruiser to get to the scene. [ 83 ] While the wait for the tow truck and the second cruiser could have possibly been shorter, I cannot overlook the fact that the officers used that time efficiently by conducting an inventory search of Applicant’s vehicle, by getting ahead with drafting reports, including a document required for towing, and by contacting Applicant’s pharmacy out of concern for his well-being.

[ 84 ] The officers did not just sit there and wait. They were proactive with a view to having the DRE performed as soon as practicable [25] . 3) from the departure to the station to the arrival at the East Operational Centre [ 85 ] It took approximately 45 minutes (from 1:11 or 1:14 pm to 2:00 pm) for Applicant to be driven from the accident site to the East Operational Centre. [ 86 ] If not for renovations, the DRE would have been conducted at the West Operational Centre, a police detachment much closer to the accident site, and, in theory, would have begun at an earlier time than 2:25 pm.

However, given the evidence heard, I am not convinced that the DRE would have commenced sooner. [ 87 ] Indeed, Officer Coapsi was informed by 911 dispatch that Officer Schanzenbach was the only drug recognition expert available at the time. Officer Schanzenbach also testified that when he received the call he was in the East End, at 4545 Hochelaga Street. [ 88 ] While unable to mention at what time he received the call, Officer Schanzenbach indicated that he got to the East Operational Centre at around 2:00 pm.

Given that he was leaving from the East End, it is not clear that he would have made it to the West Operational Centre prior to 2:00 pm, had the DRE been scheduled to take place there. [ 89 ] Consequently, the fact the DRE began at 2:25 pm at a police detachment located at a significant distance from the accident site cannot be attributed solely to renovations being underway at the West Operational Centre.

Officer Schanzenbach’s whereabouts coupled with the unavailability of other drug recognition experts at the time of the call must also be factored in. [ 90 ] As such, the time lapse of approximately 45 minutes to drive to the station lies at the heart of Applicant’s contention that the DRE was not performed as soon as practicable, mostly due to inadequate police procedures and defective resource allocation. [ 91 ] This brings me to Respondent’s argument that it is not appropriate for courts to consider the resource allocation of police forces in assessing whether the DRE was performed as soon as practicable. [ 92 ] To support this view, Respondent relies heavily on the Manitoba Court of Appeal’s decision in Fenske [26] .

However, I do not read Fenske as exempting the Crown in all cases from tendering evidence pertaining to resource allocation. Nor do I understand it as systematically precluding courts from considering how police resources are managed. The Court in Fenske stated the following: There are many lower court decisions on this issue that have come to contradictory conclusions on the Crown’s obligation to explain police policies and procedures.

The appellate decisions, however, establish that some delay caused by a police force’s allocation of resources or the manner in which the police force is organized will generally be considered reasonable if the allocation of police resources or the organization of the police service is itself reasonable in light of the two-hour time limit for taking the first sample and all of the other circumstances . Further, if that is the case, a reasonable amount of delay caused by following those policies or procedures will generally be acceptable.

In those circumstances, no further evidence will be required by the Crown to explain why the police force’s resources were not allocated in a different way, why the police were not organized in a different way or why a different policy was not adopted. The appellate courts have concluded that requiring such explanations would elevate the standard from one of “as soon as practicable” to one of “as soon as possible”.

Additional explanations would thus only be required if the police force’s resource allocation, policy or procedures appear unreasonable to the trial judge in the circumstances of the case [27] . [Emphasis added]

[ 93 ] Hence, where both the police force’s organization and the delay to take the samples or conduct a DRE are prima facie unreasonable, in order to establish compliance with the “as soon as practicable” criterion, the Crown may be required to provide further evidence to explain why the resources were not allocated in a different way [28] . [ 94 ] This issue was specifically addressed in R . v. Burwell [29] .

In that case, the Saskatchewan Court of Appeal recognized that there may be circumstances where routine police practices and procedures in and of themselves will require the Crown to demonstrate that the police force was reasonably organized such that the breath samples were taken within a reasonably prompt time [30] . [ 95 ] The Court in Burwell nonetheless suggested that where the actions of the officer are not unreasonable and the first sample is taken without pushing the two-hour limit, the Crown is not required to lead evidence of that nature [31] . [ 96 ] In the case at bar, given the circumstances, neither the actions of police officers, nor the time span of 1 hour and 45 between the DRE demand and the beginning of the test, can be viewed as being prima facie unreasonable. [ 97 ] Unlike the taking of the first breath sample in cases of impairment by alcohol [32] , there is no legislative requirement that a DRE be conducted within a two-hour limit of the alleged offence.

What is required is that the DRE be performed as soon as practicable after the demand to submit to it. [ 98 ] In addition, there is insufficient evidence on the record to conclude that the police were not adequately organized to perform a DRE within a reasonably prompt time. In that respect, this case can be distinguished from the Nguyen [33] decision relied upon by Applicant. [ 99 ] In Nguyen , the DRE was performed 1 hour and 28 minutes after the arrest of the accused by officers from the Sûreté du Québec (“ SQ ”).

Included in that delay was a 1 hour drive from the site of the arrest in Laval to the closest SQ detachment where a drug recognition expert was available at the time, which turned out to be in Joliette, approximately 80 kilometers away. [ 100 ] Justice Serge Cimon held that the DRE was not performed as soon as practicable because this delay was attributable to illogical police procedures and inadequate resource allocation. [ 101 ] Of importance, the evidence revealed that the SQ was staffed with only one drug recognition expert in the area of Laval, a city with 400 000 inhabitants, and only three for the entire North Shore of Montreal. [ 102 ] The evidence also demonstrated that municipal police forces located in areas near Laval were staffed with a number of drug recognition experts.

Because the SQ officers were bound by a protocol requiring them to strictly ascertain the whereabouts of a drug recognition expert employed by the SQ , they did not communicate with local police forces to inquire as to whether their own experts were not available at the time. [ 103 ] No evidence of that kind was adduced in the case at bar. I am unaware whether Mr.

Schanzenbach was the only drug recognition expert employed by the Montreal police at the time, whether other drug recognition experts were actually on duty that day or whether Officer Coapsi had to abide to a restrictive policy when he sought out an evaluating officer.

It should be noted that Counsel for Applicant did not elicit any evidence on that subject from either Officer Coapsi or Officer Schanzenbach. [ 104 ] While I do recognize that the delay between the arrest and the DRE in the case at bar exceeds that in Nguyen , I must reiterate that each case turns on its own set of circumstances and on the nature of the evidence heard. I am of the view that the two cases clearly have distinguishing features.

In any event, said with the utmost respect, I am not bound by the Nguyen decision. [ 105 ] Lastly, the “as soon as practicable” standard requires an assessment on whether the DRE was conducted within a reasonably prompt time in the circumstances and not on whether it could have begun earlier if the police had managed its resources differently. [ 106 ] Overall, Officer Coapsi aptly explained why they waited 30 minutes or so before heading to the East Operational Centre. He also provided sensible justifications for the 45 minute drive to the other side of the city: the West Operational Centre was under renovations

at the time and Highway 40 was jammed, although not necessarily more than usual. [ 107 ] I take judicial notice of the fact that the East Operational Centre is in fact 30 kilometers away from the intersection of Pierrefonds Blvd. and René-Émard Street.

To have taken 45 minutes to cover such a distance while driving on a congested urban highway seems far from unreasonable in the circumstances. [ 108 ] The police have reasonably accounted for the delay between the DRE demand and their arrival at the East Operational Centre. 4) from the arrival at the East Operational Centre to the beginning of the test [ 109 ] The police arrived at the East Operational Centre at 2:00 pm and the DRE began at 2:25 pm.

During that time span, Applicant was first booked and then exercised his right to counsel at 2:14 pm. [ 110 ] Booking is a mandatory routine procedure and requires some expenditure of time. Based on the evidence, it lasted less than 14 minutes. This is reasonable given that police had to search Applicant and itemize his belongings. [ 111 ] Availing himself of his right to counsel was Applicant’s legitimate choice. The evidence does not indicate how long he spoke to counsel.

Assuming even the shortest of conversations, Applicant did not have to wait more than 10 minutes before being turned over to the evaluating officer. It can therefore be reasonably inferred that the time taken to set-up the DRE did not unduly increase the delay. [ 112 ] Again, the police have provided reasonable explanations for the delay of 25 minutes between the time of arrival at the station and the beginning of the test. VI. CONCLUSION [ 113 ] I am aware that the delay between Applicant’s arrest (or the DRE demand) and the beginning of his evaluation at the police detachment is significant.

However, while not conducted as soon as absolutely possible, the evaluation was nonetheless conducted “as soon as practicable” after the arrest and the DRE demand. [ 114 ] Looking at the entire chain of events, I am satisfied that the police acted reasonably, and expeditiously, in all the circumstances. [ 115 ] Moreover, having heard Officer Coapsi’s account and viewed the video recording of the DRE, it is safe to say that the officers were professional and courteous toward Applicant throughout his time in custody and even upon his release.

The police were not only mindful of his constitutional rights, but also showed genuine concern for his general well-being. [ 116 ] In conclusion, Applicant’s Charter rights were not breached. Consequently, I need not undertake a section 24(2) analysis, nor do I need to decide whether the failure to abide to the “as soon as practicable” criterion can give rise to a

section 9 violation in the event of a lawful arrest. FOR ALL THESE REASONS, THE COURT: DISMISSES Applicant’s motion for exclusion of evidence under sections 8 , 9 and 24(2) of the Charter ; ORDERS that the evidence tendered at the voir dire be applied to the trial proper and that exhibits VD1-1 to VD1-6 respectively be marked as P-1 to P-6.

____________________ DAVID SIMON, J.C.Q. Me Vicky Powell Attorney for the Applicant Me Gabriel Lapierre Attorney for the Respondent Hearing dates March 28, 29 2019