R. v. Bahra, 2013 ONCJ 489

Citation: R. v. Bahra , 2013 ONCJ 489 ONTARIO COURT OF JUSTICE Brampton BETWEEN: HER MAJESTY THE QUEEN — AND — ABRUJEET BAHRA ) ) ) ) ) ) ) ) ) ) ) ) ) M. Michaud For the Crown D. Locke For the Defendant Heard: August 13 and 14, 2013 REASONS for JUDGEMENT MELVYN GREEN, J.: A. INTRODUCTION [ 1 ] Abrujeet Bahra, the defendant, was pulled over for investigation of his driving conduct in Brampton in the early hours of June 2, 2012. He was arrested for operating a motor vehicle with an excessive blood alcohol concentration (BAC) after failing a roadside screening test.

His subsequent Intoxilyzer readings were both more than twice the legal limit. The defendant was not charged with impaired driving. [ 2 ] The trial proceeded by way of a blended proceeding, the Crown and defence relying on the evidence of the two police officers called by the prosecution. The defence position, in essence, is that the arresting officer’s delay in making the approved screening device (ASD) demand of the defendant failed to comply with the officer’s statutory obligations.

The warrantless search and seizure of the defendant’s breath samples therefore remained unreasonable and, thus, violative of his Charter s. 8 rights to privacy. The appropriate remedy for this breach, says the defence, is an order excluding the defendant’s roadside and Intoxilyzer breath test results. Such an order would, of course, result in the defendant’s acquittal. Failing such exclusionary order, the defendant concedes a conviction properly follows. B. EVIDENCE [ 3 ] The defendant’s abrupt driving attracted the attention of Peel Police Cst. Sean McCurley at about 3am on June 2, 2012.

McCurley pulled over the defendant (the sole occupant of the car) and approached the driver’s side window while his escort, a cadet McCurley was then training, approached the passenger side of the vehicle. McCurley detected a slight odour of alcohol on the defendant’s breath. In answer to the officer’s question, the defendant admitted consuming “four pints” that evening, the last an hour or so earlier. McCurley returned to his cruiser to run some identification checks at 3:03am. By then he suspected that the defendant had

alcohol in his body and had operated a motor vehicle within the preceding three hours. Based on this reasonable suspicion, McCurleyread a roadside screening demand to the defendant at 3:10am, some seven minutes later. The officer had an approved screening devicein his police vehicle. [4] The defendant registered a “fail” on the ASD. A formal charge of driving with an excessive BAC and rights to counselfollowed, as did, by 3:16am, an Intoxilyzer demand. McCurley summoned a second Peel unit to assist with the tow of the defendant’scar.

It arrived at 3:21am and, after instructing the arriving officer, McCurley left for the station at 3:33am, arriving five minutes later, at3:38am. The defendant was turned over to a qualified breath technician who conducted the appropriate Intoxilyzer tests at 3:59am and4:21am. The defendant’s recorded BAC in both tests was 180 milligrams of alcohol in 100 millilitres of blood – more than twice thelegal limit. [5] McCurley understood that he was required to make an approved screening device demand “forthwith” upon forming thepredicate suspicion.

He attributed part of his delay in verbalizing this demand to his hands-on training of the cadet riding with him thatevening. He also testified that he hoped to build an impaired driving charge against the defendant, thus explaining his protractedquestioning and related investigation. The defendant was never charged with impaired driving. [6] The defendant was advised of his right to counsel by the arresting officer and, several times, by the qualified breathtechnician. On each occasion the defendant declined the proffered opportunity to speak with counsel. C. ANALYSIS (

a) Introduction [7] As noted earlier, two central questions frame the legal issues in this case. First, were the defendant’s s. 8 rights to be secureagainst unreasonable search and seizure infringed by Cst. McCurley’s delay in making a roadside demand? And, if so, is an exclusionaryorder the appropriate remedy for this Charter breach? (

b) The

Section 8 Claim [8] There was, here, no warrant for the seizure of the evidence of the BAC readings that ground the charge faced by thedefendant. Lawful authorization for this seizure – that is, the reasonableness of the search for and seizure of evidence of the defendant’sBAC – thus depends on compliance with the regime set out in s. 254 of the Criminal Code. In so far as the defendant’s “fail” on theASD afforded Cst. McCurley with the legal basis for his arrest of the defendant and the Intoxilyzer demand that followed, the requisiteanalysis must focus on the lawfulness of the ASD demand.

As set out in s. 242(2) of the Code (italics added): 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, within thepreceding three hours, operated a motor vehicle … the peace officer may, by demand, require the person … (

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. The oft-visited jurisprudential question is whether the “forthwith” requirement in s. 254(2) informs not only the provision of the soughtsample but, as well, the timing of the investigating officer’s ASD demand. Where, as here, a driver is detained, the near-settled answer, with which I concur, is that expressed by Hill J. in R. v. Fildan (2009), (ON SC), 69 C.R. (6th) 65 (Ont.

S.C.J.), atpara. 39: [T]he constitutional expectation is that the s. 254(2) demand will, in the ordinary course, be made immediately of a detained driver oncethe investigating officer (1) has determined that he or she has the requisite reasonable suspicion and (2) has determined that it isappropriate to administer an ASD test. [Emphasis in original.] (For the constitutionally-driven logic of this construction see, also, R. v. George (2004), (ON CA), 187 C.C.C. (3d) 289 (Ont. C.A.), R. v. Wackernagel (2004), 16 M.V.R. (4th) 237 (Ont. S.C.), R. v. Vinoharan, [2009] O.J. No. 4037 (S.C.), R. v.

Suberu,2009 SCC 33 , [2009] 2 S.C.R. 460, and R. v. Kerr (2010), 212 C.R.R. (2d) 149 (Ont. C.J.); affd. [2011] O.J. No. 6143 (S.C.).) [9] Accepting that “forthwith” effectively means “immediately”, the claim of constitutional trespass here devolves into aninquiry, first, as to when McCurley formed the requisite “reasonable suspicion” and intention to administer the roadside test and, second,as to whether the delay between those formulations and his making of the ASD demand complies with the “forthwith” requirement in s.254(2)(b). [10] As to the first consideration, Cst.

McCurley agreed that the defendant had advised him, before he returned to his scout, of hisconsumption of four pints of beer that evening, the last occurring approximately an hour before he pulled the defendant over. McCurleydid not point to any impediment to his provision of the roadside test or its demand. Further, he at no point suggested that any subsequentevent or exchange with the defendant impacted on the formation or strength of his suspicion or on his determination to administer anASD demand. Accordingly, I am amply satisfied that Cst.

McCurley had, in the language of s. 254(2), “reasonable grounds to suspect”that the defendant had “alcohol … in [his] body and … within the preceding three hours, operated a motor vehicle”, and that he had, infact, formed this suspicion and the intention to administer a test by the time he went back to his police vehicle at 3:03am.

WhileMcCurley may have wished to generate additional evidence that could justify an arrest without having to conduct a roadside screeningtest, this hope cannot excuse a further extension of the suspension of at least the informational component of the defendant’s right tocounsel once, as here, he was detained.

The remaining question, then, is whether the seven minutes that bridge the crystallization of thepredicate suspicion and his articulation of the ASD demand comports with the “forthwith” standard. [11] Despite satisfaction of the predicate conditions identified by Justice Hill in Fildan, there are undoubtedly occasions when

ambient circumstances or events may excuse a delay in the immediate articulation of an ASD demand. Without essaying an exhaustiveinventory, officer or public safety is one legitimate rationale for a reasonable delay. Attention to a serious accident or medicalemergency may well be another. Reasonable pursuit of a continuing sobriety-related inquiry is a jurisprudentially recognized thirdrationale for a delay in advancing an ASD demand, so long as the investigation is conducted with “dispatch”. (See R. v. Smith (1996), (ON CA), 105 C.C.C. (3d) 58 (Ont. C.A.), at 73 and R. v.

Orbanski (2005), 2005 SCC 37 , 196 C.C.C. (3d)481 (S.C.C.), at para. 46.) [12] In my view, Cst. McCurley’s delay in making the ASD demand after he had formed the requisite suspicion failed to complywith the “forthwith” requirement. His initial investigation and inquires at the side of the defendant’s car were reasonably prompt. However, neither his intention to conduct a license check nor the education of his on-board cadet justified any further suspension of thedefendant’s rights to counsel.

Nor, in the circumstances of this case, could McCurley’s subsequent engagement of the defendant inconversation in the hope of developing evidence sufficient to warrant an impaired driving charge. The further seven-minute delayinfringed the immediacy requirement and thus failed to comply with McCurley’s statutory mandate. Indeed, Crown counsel rightlyagrees with this appraisal if I find, as I have, that McCurley formed the requisite reasonable suspicion by 3:03am.

In the result, thesubsequent searches and seizures of evidence of the defendant’s breath samples were unreasonable and, thus, violative of his s. 8 rights.

Put otherwise, the Crown has not persuaded me that the presumptively unreasonable warrantless searches and seizures are, in thecircumstances of this case, constitutionally redeemed by the officer’s compliance with his statutory obligations. [13] The essential analysis then turns to the consequences of this constitutional breach and, in particular, whether the remedy ofexclusion of the ASD results and the BAC readings that follow are appropriate and just in all the circumstances. (

c) The Exclusionary Analysis [14] While a factor, the duration of the delay in making an ASD demand is not in itself dispositive of whether otherwise admissibleevidence should be suppressed. As very recently said by the Court of Appeal in R. v. Manchulenko, 2013 ONCA 543, at para. 93, “Eachcase requires a fact-specific evaluation of all the circumstances to determine whether the balance settles in favour of exclusion or ofadmission”. In R. v. Kerr, supra, for example, my “fact-specific evaluation” led me to exclude the tendered breath readings following asix-minute delay. My reasons were affirmed on Crown appeal.

In Fildan, supra, and R. v. Yamka (2011), 2011 ONSC 405 ,267 C.C.C. (3d) 81 (Ont. S.C.),

summary conviction appeal courts agreed with the propriety of trial judges’ determinations to admitsimilar evidence after, in each case, approximately ten-minute delays. Significantly, Fildan and Yamka are appellate decisions in thejurisdiction, Peel, in which the defendant’s case was tried. Kerr, in contrast, was litigated and the result upheld in a neighbouringjurisdiction, Toronto, in which I ordinarily preside. [15] The essential scaffolding for any s. 24(2) analysis are the lines of inquiry and balancing directed by the Supreme Court in R. v.Grant (2009), 2009 SCC 32 , 245 C.C.C. (3d) 1.

As summarized at para. 71 of that decision: [W]hether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engagesthree avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societalperspective.

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting theevidence 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 theadjudication 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 ofinquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice intodisrepute.

Of some relevance to the instant case, the Court went on to note, at para. 111, that, While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity is… less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from theaccused’s body may be admitted.

For example, this will often be the case with breath sample evidence, whose method of collection isrelatively non-intrusive. (Emphasis added.) [16] The first Grant factor – the seriousness of the Charter-infringing conduct – focuses on the nature and gravity of the statemisconduct – here, the police infringement of the defendant’s rights. The more serious the intrusion, the greater the need for a court todisassociate itself from conduct that may compromise respect for the administration of justice. Cst.

McCurley claimed to understand theobligations arising by the “forthwith” requirement, and as said in Grant, at para. 75, “negligence or willful blindness [of Charterstandards] cannot be equated with good faith”. Nonetheless, the officer’s misconduct was not close to the more egregious end of thespectrum of constitutional fault. His failure to promptly make the ASD demand was not flagrant or a deliberate effort to undermine thedefendant’s Charter rights. McCurley proffered an explanation for the seven-minute delay.

While it is clear that he mis-prioritized otherconcerns, they all related to the ongoing investigation of the defendant and were within the officer’s realm of professionalresponsibilities. The seriousness of the offending conduct here weighs on the side of exclusion, but only marginally so. [17] Any assessment of the second consideration – the impact of the violation on the defendant’s Charter-protected interests – mayalso lead to variable conclusions. As said in Grant, the collection of breath sample evidence “is relatively non-intrusive”. However, thedefendant’s s. 9 and 10 rights are here also implicated.

In this regard I held, in Kerr, at para. 34, that the “relatively modest impact of theCharter breaches favours admission” in that case. I reach the same conclusion here bearing in mind that, in Kerr, the defendant deferredthe opportunity to consult counsel when, if tardily, she was initially informed of this right while, here, the defendant positively andpersistently declined to seek legal counsel on each of the several occasions he was advised of this prerogative. [18] It is uncontentious that the final factor – society’s interest in an adjudication on the merits – likewise favours admission.

Boththe reliability of the breath test results and their importance to the prosecution’s case enhance the truth-seeking function of the criminaltrial process.

[ 19 ] The final s. 24(2) step involves a balancing. As explained in Grant , at para. 85 : Having made these [three] inquiries, which encapsulate consideration of “all the circumstances” of the case, the judge must then determine whether, on balance, the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute. Most of the inquiries here favour admission. I appreciate that “long-term”, “prospective” and “societal” interests inform the ultimate assessment: Grant , at paras. 68-70 .

They did as well, of course, in Fildan and Yamka , and I can find no principled basis to materially distinguish the relevant factual scenario and legal considerations before me from those that obtained in these two cases of governing value in the jurisdiction of Peel. It is also not insignificant that the defendant’s BAC readings were here more than twice the legally prescribed limit. In the end, a proper balancing, as informed by local precedent, leads me to decline the application to exclude the evidence of the defendant’s breath test results. D.

CONCLUSION [ 20 ] Having admitted the results of the defendant’s ASD and breathalyzer readings, and there being no further challenge to the prosecution’s case, there is no room to doubt that the Crown has proven that the defendant operated a motor vehicle with an excessive blood alcohol concentration on June 2, 2012. Accordingly, I find him guilty of this offence. Released on September 9, 2013. __________________________ Justice Melvyn Green