HER MAJESTY THE QUEEN, v. TREVOR THOMAS., 2013 NBPC 26

2013 NBPC 26 CANADA File No.: 06834702 PROVINCE OF NEW BRUNSWICK PROVINCIAL COURT BETWEEN: HER MAJESTY THE QUEEN, -and- TREVOR THOMAS. BEFORE: Judge Marco R. Cloutier TRIAL HELD: Saint John, New Brunswick DATE OF TRIAL: September 3, 2013 DATE OF DECISION: October 28, 2013 APPEARANCES: Chris Titus, on behalf of Her Majesty the Queen W. Rodney MacDonald on behalf of the Accused

Ruling on Voir Dire M.R. CLOUTIER PROV. CT. J .: I Introduction [1] The Accused, Trevor Thomas, (“the Accused”) stood trial on an Information alleging three counts: first, with refusing to comply with a demand for a roadside breath sample contrary to s. 254(5) of the Criminal Code (“Count 1”), second, with having operated a motor vehicle while his ability to operate the said vehicle was impaired by alcohol or a drug, an offence under s. 253(1) (

a) of the Criminal Code (“Count 2”) and, third , with failing to comply with a Probation Order contrary to s. 733.1 of the Criminal Code (“Count 3”). These offences are alleged to have occurred at or near Saint John, New Brunswick, on or about July 26, 2012. [3] The proceedings were conducted as a blended trial and Charter voir dire . [4] This written decision pertains solely to Count 1. It consists of my ruling on the admissibility of the Accused’s failure or refusal to provide a roadside breath sample. [5] The Crown presented three witnesses at trial; Cst. Parsons, Cst. Young and Sgt. McGee.

I accept their respective evidence in its totality and I qualify it as being credible and reliable. Each testified in a straight forward manner and their accounts were not undermined. In particular, I accept Cst. Parsons’ accounts of his dealings with the Accused and the approximate timing for the various stages of the investigation. [6] The Defence called no evidence on the voir dire or the trial proper. II EVIDENCE [7] Cst. Parsons testified that, on July 26, 2012, he was patrolling with a marked police vehicle in the City of Saint John, in the County of St. John and in the Province of New Brunswick. [8] Cst.

Parsons was stopped at the traffic light at the intersection of McAllister Drive and Loch Lomond Road. He observed a Chevy pick-up truck, an older model, (the “pick-up”) proceeding westbound, at what appeared to be a high rate of speed, on Loch Lomond Road. The speed limit in this area of the city is 50 km/hr as indicated by Cst. Parsons. Cst. Parsons turned right onto Loch Lomond Road and followed the pick-up for about one kilometer. [9] Suddenly, the pick-up came to a “dead stop” in the middle of the road. It then turned right up over the grass curb in the Saint- Joachim’s Church parking lot.

Smoke was coming from the engine.

[10] At approximately 03h31, Cst. Parsons activated his emergency lights and “called in the stop”. He parked the police vehicle while the operator of the pick-up stepped out. Cst. Parsons instructed him to get back in the pick-up for officer safety concerns. [11] Cst. Parsons approached the operator of the pick-up who was identified as the Accused, Trevor Thomas. He was the sole occupant. Cst. Parsons inquired in which of the two official languages the Accused wanted to proceed to which he replied: “In English”. [12] Cst. Parsons asked the Accused why he had driven over the grass curb.

He replied: “I do not know what you are talking about”. Cst. Parsons then asked for routine documents. The Accused produced the insurance and registration cards but indicated: “I don’t have my license”. [13] Cst. Parsons detected an odor of alcohol from the Accused’s breath. He also noted that the Accused had red watery eyes. Cst. Parsons asked the Accused if he had consumed alcohol and if he had any open liquor in the pick-up to which he replied: “No”. At that time, the Accused spontaneously invited Cst. Parsons to search the pick-up for open liquor. By then, Cst. Parsons indicated that Cst.

Young had been at the scene for about two to three minutes since “calling in the stop” at 03h31. Cst. Parsons proceeded with the consensual search of the pick-up’s cab. The results were negative. [14] On cross-examination, Cst. Parsons candidly admitted that the Accused’s speech was normal and he was not fumbling upon looking for his documents. [15] Cst. Parsons testified that it was now approximately 03h36, being approximately five minutes after he had “called in the stop”.

At that point, he had observed the Accused’s red watery eyes, had detected the smell of liquor from his breath and had observed him driving at what appeared to be a high rate of speed. He had also observed him driving the pick-up over the grass curb. By then, Cst. Parsons had just completed the consensual search of the pick-up’s cab. He then advised the Accused that “he believed he had alcohol in his body and he would have to provide a breath sample into an approved screening device (“ASD”)…a formal demand would be read later in the police vehicle”. [16] Cst.

Parsons then escorted the Accused to the back of the police vehicle where he had the ASD, searched him for safety reasons and, at 03h40, he read him the formal 254(2) demand from a card. He then warmed up the ASD, inserted a new mouth piece and explained to the Accused the proper method of providing a sample [17] At 03h43, Cst. Parsons administered the ASD to the Accused who attempted to provide a sample but without success. Cst. Parsons noted that he was blowing and stopping. The Accused was also putting the ASD on the corner of his mouth rather than in front of his lips. Cst.

Parsons immediately reminded him of the proper way to provide a sample. After eight attempts, the Accused had yet to provide a valid sample and the EO message, indicating “error”, was displayed on the ASD. Cst. Parsons was of the opinion that, each time, the Accused was not blowing sufficiently and that he was purposely putting the device on the corner of his mouth. [18] Cst. Parsons re-warmed the ASD after the EO message was displayed. He also advised the Accused that he would be charged for refusal if he failed to provide a proper sample. [19] Cst.

Parsons once again explained at length to the Accused how to provide a proper sample. He also used a new mouth piece. However, the Accused provided two more improper samples and another error message was displayed on the ASD. [21] At 03h55, Cst. Parsons placed the Accused under arrest for refusal to provide a breath sample in an ASD and for impaired driving. He also advised him of his constitutional rights, including those under s. 10(

b) of the Charter. The Accused understood and indicated that he wanted to speak to with his lawyer, Al Levine. [22] Cst. Young, who had by then arrived, stayed at the roadside to look after the pick-up getting towed. Cst. Parsons drove the Accused to City Hall Detention Center (the “Detention Center”) where they arrived at 04h07. The Accused was booked in, so to speak, and escorted to the phone room. Cst. Parsons called Al Levine and left a message at his office. However, he was put through to Steven Ritchie, another lawyer. The Accused refused to speak with Mr. Ritchie.

[23] At this point, the Accused was getting irritated and agitated. He was placed in cells and, once the appropriate paperwork was completed by Cst. Parsons, he was turned over to the case manager. He was to be released when calm and sober. [24] At 05h16, lawyer Al Levine called back and he was put in contact with the Accused at 05h20. Their conversation ended at 05h25. [25] The Accused was escorted back to cells. He also apologized to Cst. Parsons for his previous demeanor. The Accused was again turned over to the case manager who was the sergeant in charge that night. [26] Cst. Young also testified.

His involvement was limited. He simply attended at the roadside with Cst. Parsons shortly after 03h30 for officer safety concerns. Otherwise, he looked after getting the pick-up towed. He was also asked by Cst. Parsons if he could smell alcohol on the Accused’s breath, too. He did. However, he did not make note of his eyes and he indicated that the Accused’s balance was fine. Cst. Young also indicated that the search of the pick-up’s cab “was not very long”. He also confirmed that, on the night in question, he did not take notes. [27] The next Crown witness was Sgt. McGee.

She provided the Court with a thorough description of her role as a case manager. In particular, she testified that, on the night in question, she commenced her shift at 06h00. Upon arriving, as per usual practice, she spoke with her relief as to whom and how many were in detention and talked to the commissionaires who check on cells every 15 minutes to determine if there are any medical issues with anyone. She then perused notes and forms in every file. [28] Sgt. McGee also testified that, on the night in question, she “got to” the Accused’s file at approximately 08h00.

She could not recall how many individuals were in lock up that night nor what circumstances arose prior to getting to the Accused’s file. However, she testified that when she did, she perused a note “not to be released until calm and sober”. As she observed no visible signs of impairment or gross motor skills, albeit somewhat agitated upon signing paperwork, Sgt. McGee agreed to the Accused’s release. [29] Sgt. McGee also testified that, as a case manager, when an individual is brought in at the Detention Center, she makes a determination as to how long he or she is to remain in cells prior to being released.

She indicated that there is a four hour guideline that is determined by the level of sobriety. In some cases, one could be detained for up to six or seven hours. To use her words, “someone highly intoxicated can stay longer than one who is not”. [30] I summarize the relevant time sequence as follows: • 03h31: Cst. Parsons “calls in the stop” after observing the pick-up proceeding at a high rate of speed on Loch Lomond Road, coming to a dead stop and running over the grass curb. Cst. Parsons parks the police vehicle while the Accused steps out of the pick-up. Cst. Parsons instructs him to get back in the pick-up.

Cst. Parsons approaches the Accused, the driver of the pick-up, detects an odor of alcohol from his breath and notes his red watery eyes. He asks the Accused if he has consumed alcohol and whether there is any open liquor in the pick-up. The Accused denies any consumption or any open liquor and spontaneously invites Cst. Parsons to search the pick- up’s cab for open liquor. By then, Cst. Young had been at the scene for about two to three minutes from the time Cst. Parsons had “called in the stop”. Cst. Parsons proceeds with the consensual search at the Accused’s request; • 03h36: Cst.

Parsons advises the Accused that “he believes he had alcohol in his body and he would have to provide a breath sample into an ASD …a formal demand would be read later in the police vehicle”, Cst. Parsons searches the Accused for safety reasons and escorts him to the back of the police vehicle; • 03h40: Cst. Parsons reads a formal ASD demand from a card to the Accused, warmsup the ASD and inserts a new mouth piece; • 03h43: Cst.

Parsons administers the ASD to the Accused who fails to provide a valid breath sample after numerous attempts and after being warned that a failure to provide a proper sample would result in a charge under s. 254(5) ; • 03h55: Cst. Parsons places the Accused under arrest for refusal under s. 254(5) and for an offence under 253(1)(a);

• 04h07: Cst. Parsons arrives at the Detention Center with the Accused who speaks with his lawyer, Al Levine, from 05h20 to05h25. He is detained with a note “not to be released until calm and sober”; • 08h00 (aprox.): The Accused is released after signing paper work. III The Voir Dire [31] The Defence filed and served a Notice of Charter Application (“the Application”) on January 7, 2013 seeking an order forexclusion of evidence, pursuant to s. 24(2) of the Charter, hence the need to proceed with a Charter voir dire. The Application containsthree grounds. 1.

That the demand for breath sample, pursuant to s. 254(2) of the Criminal Code, at the roadside was not made forthwith, resulting ina breach of s. 8 of the Charter; 2. That the s. 254(2) demand lacked “reasonable grounds to suspect” the Accused had alcohol in his body, resulting in an unlawfuldemand and a breach of s. 8 of the Charter; 3. That the Accused was arbitrarily detained in the police holding cells, in violation of s. 9 of the Charter. [32] I pause to make a few comments on procedure.

The Application is very broad in that it does not precisely refer what evidence, ifany, should be excluded in light of the alleged violations of ss. 8 and 9 of the Charter. In most s. 254(5) trials where violations otherthan, or in addition to, s. 8 Charter rights are argued, a Charter voir dire is usually held and the proper remedy for such Charterviolations, if any, is the exclusion from the evidence of an accused’s failure or refusal to provide a breath sample. See, for instance, R. v.Birnie [2013] S.J.

No. 173 at par. 33. [33] It has however not escaped my mind that a person who refuses to comply with a demand which does not itself comply with s.254(2)(

b) is entitled to an acquittal, because there is no obligation to comply with an unlawful demand: R. v. Grant, (SCC), [1991] 3 S.C.R. 139; R. v. Lytle, 2008 SKPC 156. Clearly, in such cases, no Charter application or Charter voir dire is required:Grant, supra and R. v. Luider-Grebnev, 2013 SKP 22. Further, the Defence in this case does not allege any s. 9 (arbitrary detention)breach stemming from the Accused’s detention while the pick-up’s cab was searched or while he was administered the ASD.

The s. 9breach is solely argued for the alleged post-offence arbitrary detention of the Accused by police in holding cells. Be that as it may, andamid my views that the exercise will be somewhat theoretical, I will consider the Defence’s Application for exclusion of evidencepursuant to s. 24(2) with respect to the alleged s. 8 Charter violation as it now forms part of the record. IV Law and Analysis 1. “That the demand for breath sample, pursuant to s. 254(2) of the Criminal Code, at the roadside was not made forthwith, resultingin a breach of s. 8 of the Charter” 2.

That the s. 254(2) demand lacked “reasonable grounds to suspect” the Accused had alcohol in his body, resulting in an unlawfuldemand and a breach of s. 8 of the Charter” [34] I will address grounds 1 and 2 of the Application together as they are clearly related.

Relevant Statutory Authorities [35]

Section 254 of the Criminal Code provides that: Testing for presence of alcohol or a drug

(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 equipmentor had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peaceofficer may, 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) (…) (

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. Failure or refusal to comply with demand

(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section. (Underline mine) [36] The Accused is charged with failing or refusing to comply with a demand to provide a breath sample into an approved screeningdevice (ASD). [37] In order for a demand of this nature to be lawful, it must comply with s. 254(2)(

b) of the Criminal Code. That means the peaceofficer who makes the demand must:

(1) Have reasonable grounds to suspect that the subject of the demand (

a) has been operating a vehicle within the preceding three hours,and (

b) has alcohol in his or her body; and

(2) Make a demand that the person provide the breath sample forthwith. [38] Furthermore, if the demand is not lawful, then: (

i) a breath sample obtained in connection with it is an unlawful search and seizure, which violates s. 8 of the Charter; (ii) the detention necessary to obtain the breath samples is arbitrary, and violates s. 9 of the Charter; and (iii) the Accused's rights under

section 10(

b) are not suspended during the period of detention, and obtaining breath samples withoutinforming the Accused of, and implementing, the right to counsel violates s.10(

b) of the Charter: R. v. Thomsen, (SCC), [1988] 1 S.C.R. 640; R. v. Grant, supra. The Accused is required to establish a Charter breach on a balance of probabilities.

[39] In the instant case, I am satisfied that, at the time of making the ASD demand, Cst. Parsons had reasonable grounds to suspectthat the Accused had alcohol in his body and that he had operated the pick-up within the preceding three hours. Let me explain. Cst.Parsons testified that, just before “calling in the stop” at 03h31, he observed the pick-up operated by the Accused proceeding at a highrate of speed, coming to a “dead stop” in the middle of the road and driving over the grass curb.

Once the “stop was called in”, hedetected an odor of alcohol from the Accused’s breath who was the sole occupant of the pick-up. Further, he noted the Accused’s redwatery eyes. [40] That Cst. Parsons also asked Cst. Young if he too could smell alcohol from the Accused’s breath does not, in my view, cast anydoubt on his observations and as to whether he objectively and subjectively believed there was indeed an odor of alcohol coming fromthe Accused’s breath. It is trite law that an officer detecting an odor of alcohol coming from the driver’s breath is a sufficient basis tosupport an ASD demand. See R. v.

Lindsay (ON CA), [1999] O.J. No. 870.

Interpretation of "Forthwith" - General Principles [41] In my view, the only real question to be resolved with respect to the lawfulness of the ASD demand is whether it met the"forthwith" requirement. [42] The provisions of s. 254(2) violate s. 8, 9 and 10 of the Charter. However, the screening mechanism described in s. 254(2) isreasonably necessary to protect the public's interest in keeping impaired drivers off the road and is thus saved by s. 1 of the Charter: R.v. Thomsen, (SCC), [1988] 1 S.C.R. 640; R. v. Orbanski, 2005 SCC 37 , [2005] 2 S.C.R. 3; R. v.

Woods,2005 SCC 42 , [2005] 2 S.C.R. 205. [43] Even though s. 254(2) is justified and thus saved by s. 1, a detention for an ASD sample will only be Charter compliant if thespecific legislative requirements of s. 254(2) are met including, in particular, the requirement that the ASD breath sample be taken"forthwith". This requirement is the justification for a suspension of the right to counsel without delay. Thus, the "forthwith" requirementis inextricably linked to the constitutional integrity of s. 254(2): Woods, supra, at par. 29. [44] The word "forthwith" in s. 254(2) must be given a flexible

interpretation: R. v. Bernshaw, (SCC), [1995] 1S.C.R. 254 at par. 70; R. v. Megahy 2008 ABCA 207 at par. 10. [45] In the context of a demand under s. 254(2), "forthwith" means "immediately" or "without delay", and connotes a prompt demandby the police and an immediate response by the accused. Because a demand under s. 254(2) involves detention in connection with asuspension of the right to counsel, this requirement of immediacy is crucial to its constitutionality: R. v. Woods, supra. [46] This does not mean that any delay, no matter how slight, fails the "forthwith" test: see R. v.

Giesbrecht, 2005 SKQB 314, 267Sask. R. 158. Police must act diligently, but cannot be expected to act so quickly as to put themselves at undue risk of harm or otherwiseinto a situation where they cannot properly discharge their duties: R. v. Megahy, supra, R. v. Orbanski, supra, R. v.

Elias, 2005 SCC37, [2005] 2 S.C.R. 3. [47] The Court must consider the length of the delay and the reasons for it in the context of the circumstances of the case whilebalancing Parliament's objective in combating the dangers of drinking and driving against the constitutional right to be free fromunreasonable search or seizure and the fact that a person's right to consult counsel is suspended upon a demand for a screening samplepursuant to s. 254(2): R. v. Janzen, supra, at par. 4. [48] Section 254(2)(

b) requires that a sample of breath be taken forthwith after the demand is made. While the

section does notspecify that the demand itself be made forthwith, it must be made as soon as the police officer has reasonable grounds to suspect that thedriver has alcohol in his or her body: R. v. Anderson, 2011 SKCA 13. As Madame Justice Arbour of the Ontario Court of Appeal (asshe then was) said in R. v. Pierman, (R. v. Dewald) (1994), (SCC), 19 O.R. (3d) 704 (affirmed by S.C.C., (1996), 103C.C.C. (3d) 382), that is the only

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

b) of the Charter. [49] I am also of the opinion that the calculation of minutes is not determinative of whether there was a breach of the "forthwith"requirement. Rather, a broad purposive

interpretation should be given to Charter rights (R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353at paras. 15-18). Clearly, the purpose of the statutory protection is to prevent unnecessary and long detention of a suspect where thepolice do not have evidence to lay charges. An officer is not to engage in tasks unnecessary or unrelated to the purpose of the stop andthe administration of the ASD. [50] The meaning of "forthwith" was yet again analyzed recently by the Ontario Court of Appeal in R. v.

Quansah, 2012 ONCA 123.In paragraph 44, Justice LaForme concludes: The "forthwith" requirement in s. 254(2) appears to me, however, to connote a prompt demand by the peace officer, and an immediateresponse by the person to whom that demand is addressed. [51] Justice LaForme also summarizes as follows in paragraphs 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 of theforthwith 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 has

alcohol in his or her body. The immediacy requirement, therefore, commences at the stage of reasonable suspicion. 47 Third, "forthwith" connotes a prompt demand and an immediate response, although in unusual circumstances a more flexibleinterpretation may be given.

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

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

Anydelay not so justified exceeds the immediacy requirement. 49 Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implementthe detainee's s. 10(

b) rights before requiring the sample. If so, the "forthwith" criterion is not met. (Underline mine) [52] I am also mindful that the Quansah decision, supra, including the directions it gives, has recently been approved and applied inNew Brunswick by my Colleague R. LeBlanc J. in R. v. Arnold Ellis, 2013 NBPC 13 .

Interpretation of "Forthwith" - case law [53] In R. v. Smith, (ON CA), [1996] O.J. No. 372, the court ruled that officers may continue to investigate todetermine whether there are grounds for a s. 254(3) (breathalyzer) demand even after forming a s. 254(2) suspicion. A delay in makingthe s. 254(2) demand is permitted to allow the investigation. [54] In R. v. McMahon, 2002 SKPC 139, 34 M.V.R. (4th) 254, the Saskatchewan Provincial Court commented that it was notrequired that the constable in that case make his notes in the vehicle prior to making the formal demand.

However, in McMahon, theofficer resolved that he was going to require an ASD sample and then took 15 minutes before making the demand during which time heengaged in small talk, incidental investigation of muffler and tail-lights and writing notes. [55] In R. v. Ferland (G.), 2011 MBPC 66, 271 Man.R. (2d) 109, it was open to the learned trial judge to find that the time requiredto conduct the computer checks and the updating of notes did not result in unnecessary delay (par. 56). [56] R. v. Fildan (ON SC), (2009), 69 C.R. (6th) 65 (Ont.

S.C.), outlines other examples where a delay betweenforming suspicion and the making of the demand may be reasonable. And, of course, it is not only permissible, but required, to delay theapproved screening demand if there is credible concern regarding mouth alcohol. Several additional examples are recited where, despitea short delay, the immediacy requirement would be met. At par. 39, Hill J. describes three of them:

(1) Where the police officer takes further reasonable steps (such as sobriety and physical coordination tests) to determine whetherthere are reasonable grounds for an intoxilyzer demand (R. v. Smith (ON CA), (1996), 105 C.C.C. (3d) 58 (Ont. C.A.)at para. 19, 27, 57) or

(2) Where the officer asks questions to learn the amount of alcohol said to have been consumed - with confidence that only one drinkwas consumed, the constable may direct the motorist on his or her way: (Megahy, at para. 17-8), or

(3) Where legitimate public safety or similar exigencies arise justifiably explaining a brief delay preventing immediatecommunication of a formed intention to demand and undertake ASD testing. [57] In R. v. Eddahia [2013] J.Q. No. 4275 (QL), the accused was charged with refusing to comply with a demand for a roadsidebreath sample contrary to s. 254(5) of the Criminal Code. The ASD demand was read eight minutes after the officer formed thereasonable suspicion that the accused had alcohol in his body.

In applying the principles enunciated in Quansah, supra, the court ruledthat the ASD demand was lawful and it satisfied the immediacy requirement contemplated under s. 254(2). Most importantly, the courtheld that the eight minute delay complained about between the forming of the officer’s reasonable suspicion and the reading of the ASDdemand was, in part, explained by the accused’s spontaneous and unsolicited self-sobriety test by attempting to walk in a straight line toestablish that he was not impaired. [58] In R. v. John, [2012] O.J.

No. 3567 (QL), after forming the reasonable suspicion to make an ASD demand, the officer wentback to his vehicle for either three or five-and-a half minutes to take notes. It was held that the demand was not lawful in that the delaycomplained about had no connection to the ASD equipment and it was not justified in the circumstances. [59] In R. v. Cole [2012] O.J. No. 3138 (QL), there was an eight minute delay following the reasonable suspicion being formed andthe decision to require a breath sample before the ASD demand was made.

During this time, the officer made routine license enquirieswhich were held not necessary to enable the officer to discharge her duties under s. 254(2). [60] In R. v. Davis, 2011 NBPC 9 the officer’s only explanation for not making the demand at the time he formulated hisreasonable suspicion was that he wanted to issue a traffic warning to document his initial stop and wasted half a minute confirming the

driver’s employment. [61] In

summary, it is clear from a review of jurisprudence in Canada that the immediacy requirement will not be met and a demand for an ASD will not be made forthwith, nor will it be lawful if, between the forming of an officer’s reasonable suspicion and the making of the ASD demand under s. 254(2) , he or she engages in small talk, conducts an incidental investigation of the vehicle’s condition, or goes back to the police vehicle to complete notes, to conduct computer checks on the driver and his vehicle, or to write a traffic ticket .

That being said, however, I am of the opinion that, between this period of time, an officer is allowed to take brief notes, here and there, so to speak, and it does not constitute a breach of the “forthwith” or “immediacy requirement” under s. 254(2) so long as the delay is not unreasonable and there is no evidence that the officer was focused on anything other than the task at hand. [62] Likewise, an officer may continue to investigate to determine whether there are grounds for a s. 254(3) (breathalyzer) demand even after forming a s. 254(2) suspicion.

A reasonable delay in making the s. 254(2) demand is permitted to allow the investigation. While it is incumbent upon an officer to conduct a s. 253(1) (

a) and (

b) investigation with reasonable diligence, he or she must be given time to properly investigate cases and make observations and cannot be required to make snap decisions as suggested by the Defence. Position of the parties [63] The Defence contends that the ASD demand does not meet the immediacy requirement. [64] In particular, the Defence argues that Cst.

Parsons’ reasonable suspicion for the ASD demand, if any, was based on his observations of the Accused driving the pick-up at a high rate of speed, suddenly stopping in the middle of the road, driving over the grass curb, red watery eyes and the smell of liquor detected from his breath (“the observations”) and was not at all based on the search of the pick-up’s cab or its result. [65] In other words, the Defence argues that Cst.

Parsons formed the reasonable suspicion that the Accused had alcohol in his body once he completed the observations described earlier which was immediately prior to proceeding with the search of the pick-up’s cab. Therefore, the ASD demand ought to have been communicated to the Accused prior to the search. [66] Further, the Defence submits that I should infer from the evidence that the search in question took approximately five to six minutes, a delay which is neither reasonably necessary nor needed to ensure an accurate result of the ASD.

Finally, the Defence states that the search had no connection with the ASD equipment and that it was not justified in the circumstances. [67] Not surprisingly, the Crown argues that the ASD demand was lawful and it complied with the immediacy requirement as enunciated in Quansah , supra . The search of the pick-up would have taken 90 seconds at most. The delay caused by the search was not unreasonable and there is no evidence that Cst. Parsons was focused on anything other than the task at hand.

Likewise, an officer may continue to investigate to determine whether there are grounds for a s. 254(3) (breathalyzer) demand even after forming a s. 254(2) suspicion. Applying the law to the facts if this case [68] In the instant case, I find as a fact that at 03h34, being three minutes after Cst. Parsons had “called in the stop” at 03h31, he formed the reasonable suspicion that the Accused had operated the pick-up within the preceding three hours with alcohol in his body. [69] I also find as a fact that Cst.

Parsons’ reasonable suspicion for the ASD demand was based on the observations which, as discussed earlier, included witnessing the Accused driving the pick-up at a high rate of speed, suddenly stopping in the middle of the road, driving over the grass curb, red watery eyes and the smell of alcohol detected from his breath. [70] Likewise, I find as a fact that it was the Accused who, upon being asked at 03h34 if he had consumed alcohol and if there was any open liquor in the pick-up, spontaneously invited Cst.

Parsons to proceed with the consensual search of the pick-up’s cab in an attempt to establish that he had not consumed alcohol. [71] I also find as a fact, which I infer from the totality of the evidence before me, that the search of the pick-up’s cab by Cst. Parson’s took no more than two minutes, if that. I rely on the following facts which were established through evidence led by the Crown. Cst. Parsons, to use his words again, “called in the stop” at 03h31. From this point, he activated the emergency lights, parked the police vehicle and stepped out. The Accused stepped out of the pick-up. Cst.

Parsons instructed him to get back inside. He walked over to the pick-up to address the Accused. Cst. Parsons requested and perused routine documents. A discussion took place during which the Accused advised that he did not have his license. Another discussion took place during which the Accused was asked if he had consumed

any alcohol and if there was any open liquor in the pick-up. During this same period of time, the Accused spontaneously invited Cst. Parsons to search the cab of his pick-up for open liquor. By then, Cst. Young had been on the scene for about two to three minutes from the “stop being called in” by Cst. Parsons at 03h31. Cst.

Parsons then searched the pick-up’s cab and, upon completion at 03h36, he advised the Accused that “he believed he had alcohol in his body and he would have to provide a breath sample into an ASD …a formal demand would be read later in the police vehicle”. [72] To be clear, on the totality of the evidence before me, I find as a fact that a period of at least three minutes had elapsed from the time Cst. Parsons “called in the stop” to the beginning of his search of the pick-up’s cab.

The search took, at most, two minutes. [72] Accordingly, I reject the Defence’s submission that the search took about five to six minutes. I find that it took significantly less. What was searched by Cst. Parsons was simply the cab of the pick-up; not a van, nor a station wagon. [73] As I see it, there was a two minute delay, at most, following the reasonable suspicion being formed by Cst. Parsons and the making of the ASD demand to the Accused (“the delay”). It is during this period of time that Cst.

Parsons searched the pick-up’s cab for open liquor. [74] I also find that, during the delay, there was no realistic possibility for Cst. Parsons to implement the Accused’s s. 10(

b) rights taking into account there was no evidence that he had a mobile phone with him. Even if he did, the Court can rely on its own experience to conclude that it takes more than two minutes to first contact a lawyer, either by a phone book (if any available onsite) or otherwise, and then have a meaningful consultation with him or her, in the middle of the night, from the back of a police vehicle. In fact, it is not unheard of that an accused could argue, albeit unsuccessfully, a s. 10(

b) Charter violation on the basis that the legal advice received was of such short duration that it amounted to no advice at all: see, for instance, R. v. Braithwaite, [2002] O.J. No. 1955 . [75] In analyzing the immediacy requirement contextually in this case, taking into account all the circumstances and assessing the factors outlined in Quanish , supra , I find that the immediacy requirement in s. 254(2) is satisfied for the following reasons:

a) The delay complained about was mostly caused by the Accused’s spontaneous and unsolicited invitation to have the pick-up’s cab searched, with his consent, for open liquor in an attempt to establish that he had not been drinking that night despite the smell of alcohol detected on his breath by Cst. Parsons. An Accused’s contribution to the delay is to be considered by the court it its immediacy assessment: R. v. Eddahia, supra;

b) Cst. Parsons had to proceed with the search of the pick-up’s cab for open liquor once it was raised by the Accused. Had he found any indication of recent consumption, namely open liquor, he would have had to delay administering the ASD for 15 minutes to eliminate the possibility that the presence of residual mouth alcohol might affect the reliability and accuracy of the ASD test results. See R. v. Boyd [2013] N.S.J. No. 42 (QL) . Clearly, then, the search of the pick-up’s cab had a connection with the ASD equipment and it was justified in the circumstances.

c) Cst. Parsons was allowed to continue to investigate, namely by performing the consensual search of the pick-up’s cab for open liquor, to determine whether there were grounds for a s. 254(3) (breathalyzer) demand even after forming a s. 254(2) suspicion. A delay reasonable in making the s. 254(2) demand is not only permitted, but required, to allow such investigation: See Smith , supra, also referred to in Fildan and Quansah , supra;

d) There is no evidence that Cst. Parsons was focused on anything other than the task at hand. He was also allowed to take odd notes here and there during the delay: R. v. Goetz [2012] M.J. No. 273 ;

e) This was not a lengthy or unreasonable investigation. The search of the pick-up’s cab did not exceed two minutes. It was focused and sensitive to the Accused’s Charter rights. Cst. Parsons was entitled to continue his investigation to satisfy himself that he had the requisite grounds provided that his investigation was done promptly and efficiently. This one was;

f) There is no evidence that, during the delay, Cst. Parsons went back to the police vehicle to complete lengthy notes, to conduct computer checks on the driver and his vehicle, to write a traffic ticket or that he engaged in small talk or conducted an incidental investigation of the pick-up’s condition: See R. v. McMahon , Davis , John and Cole, supra. [76] In all the circumstances, I am satisfied that the delay between the formation of Cst. Parsons’ reasonable suspicion and the making of the ASD demand to the Accused was entirely reasonable and necessary and that the immediacy requirement has been satisfied.

I also find that the delay was reasonably necessary to enable Cst. Parsons to discharge his duty. The s. 24(2) Grant analysis [77] There being no breach of the Accused’s s. 8 Charter rights, and for the reasons I discussed earlier at paragraph 33, there is no need, in my view, to carry out the Grant analysis under s. 24(2) of the Charter . However, because the outcome of this analysis would

be so clear had I ruled there was a breach, I will nonetheless do so. [78] Parenthetically, it seems to me that the question of whether the demand was made "forthwith", or whether it met the immediacyrequirement, comes down to the wire. In other words, whether I am right or wrong in that conclusion, I do not believe it makes anydifference at all.

Because on the facts of this case, again, I simply cannot see how the evidence of the Accused’s failure or refusal toprovide a breath sample into the ASD could be properly excluded under s. 24(2) of the Charter. [79] Section 24(2) of the Charter places the onus on the Accused to demonstrate that the admission of unlawfully obtained evidencewould bring the administration of justice into disrepute. This is also in accord with the most recent comments by the Court of Appeal ofOntario in R. v. McMillan 2013 ONCA 109 , [2013] O.J. No. 727 at par. 94.

The current test for s. 24(2) is set out in thedecision of the Supreme Court of Canada in R. v. Grant 2009 SCC 32 , [2009] 2 S.C.R. 353, which sets out a three-part test. Seriousness of the Charter-infringing state conduct [80] The Defence characterizes the nature of the alleged breach as constituting reckless disregard for the Accused’s Charter rights,even if it was not deliberate.

I think those are very strong words for what happened here, especially considering the quandary Cst.Parsons faced the night in question as to whether or not to search the pick-up’s cab prior to making the ASD demand to the Accused. [81] Even accepting that Cst. Parsons would have been better advised to proceed with the consensual search of the pick-up’s cab aftermaking the ASD demand to the Accused, there would have been nothing willful or reckless about anything done by him on the night inquestion. [82] One could argue long and hard about whether Cst.

Parsons' behavior fell into the fairly narrow definition of "good faith" for s.24(2) purposes, but it is inescapably clear to me that he was leagues away from bad faith. At most, his failure to make the ASD demandand administer it to the Accused prior to proceeding with the search of the pick-up’s cab was nothing more than a slight error injudgment.

Impact on the Charter-protected interests of the Accused [83] In considering the second line of inquiry, had I ruled that was a breach, which is not the case, I would have found that the impactof the breach on the Accused’s Charter-protected interests not be particularly serious.

I note that, in the end, the Accused would havebeen detained for two minutes, at most, pending the consensual search of the pick-up’s cab which he spontaneously requested himself. [84] Furthermore, the evidence obtained from the Accused, again, his refusal or failure to provide a sample into the ASD, did notinvolve any intrusive procedures, violation of bodily integrity, or gathering sensitive personal information. In my view, analysis of thisfactor would have weighed in favour of admission of the evidence.

Society’s interest in an adjudication on the merits [85] In considering the third factor, society’s interest in adjudication of the case on its merits, I am mindful of the fact that alcohol-related driving offences are a significant problem in Canadian society. It is also a problem that has preoccupied Parliament and the courtsfor several decades now. (See R. v. St-Onge Lamoureux 2012 SCC 57 , [2012] 3 S.C.R. 187 at par. 4). This was not a randomstop; Cst.

Parsons had intercepted a pick-up whose driver had just driven at a high rate of speed, had completed a “dead stop” in themiddle of the road and had driven over the grass curb at about 03h31 on an urban street. Clearly, Cst. Parsons had reasonable grounds foran ASD demand. Had I ruled there was a breach, Cst. Parsons, in my view, would have been simply dilatory in making the ASD demandand administering it to the Accused. Analysis of this factor would have weighed in favour of admitting the evidence.

Balancing the factors [86] Having regard to the test for exclusion set out in Grant, supra, and bearing in mind that one's focus must always be on the long-term effect of admission on the administration of justice, it seems to me that the nature of the breach here, had I ruled there was one,would have been on the low end of the scale. [87] The real-life impact on the Accused’s Charter-protected interests would have been minimal and, on the facts of this case,excluding the evidence of his failure or refusal to provide a breath sample into the ASD on a serious offence would have brought theadministration of justice into disrepute rather than the other way around.

When balancing all three of the criteria, the Accused’sApplication to exclude the evidence would have failed.

3. “That the Accused was arbitrarily detained in the police holding cells, in violation of s. 9 of the Charter”. [88] In R. v. James 2011 NBQB 315, the Court of Queen’s Bench of New Brunswick dealt with an appeal from the New BrunswickProvincial Court where the trial judge, after finding a violation of the Accused’s s. 9 Charter rights, granted a stay of proceedings unders. 24(1). The Court of Queen’s Bench allowed the appeal, set aside the stay of proceedings and ordered a new trial. [89] In James, the accused was charged with an offence under s. 253(1)

b) of the Criminal Code. He was served the requireddocumentation after taking the breathalyzer test and he was then incarcerated from 05h00 until 13h30 the next day for a period in excessof eight hours. The time of incarceration was well over the normal four hours the officer said was his practice. In finding that the lengthof the incarceration under the circumstances was in violation of Mr. James’ s. 9 Charter rights, the trial judge found that the officer’sattitude was unprofessional and vengeful. He also said that, after Mr.

James’ incarceration, the constable was no longer concerned andleft no instructions with respect to his release. Likewise, no one had checked on his sobriety at any time after his breath test and beforehis release. [90] In setting aside the stay of proceedings, the Court of Queen’s Bench of New Brunswick ruled that a stay of proceedings was not aproper remedy for a post-arrest, post-investigative and post-evidence gathering arbitrary detention. The reasons included the fact that thebreach had nothing to do with the investigation and the gathering of evidence against the Accused.

Also, it did not impact the trialfairness. [91] The James case was not a “clearest of cases” as contemplated in R. v.

O’Connor (SCC), [1995] 4 S.C.R. 411,especially keeping in mind the comments by Madame Justice L’Heureux-Dubé at para. 82: It must always be remembered that a stay of proceedings is only appropriate "in the clearest of cases", where the prejudice to theAccused's right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity ofthe judicial system if the prosecution were continued. [92] Under the Criminal Code, an officer is authorized to detain a person impaired by alcohol until he sobers up. See R. v. Simons2009 ABCA 260 , [2009] 460 A.R. 215 (Alta.

C.A.) at paragraph 20: The decision to detain or not must be based on what are then present known facts. Alcohol intoxication wears off over some hours, as theconstable testified here. Whether it is even safe to release the detainee into the custody of a lay person may well change in a few hours.Whether the intoxicated man is wakeful or sleepy, calm or combative, similarly is likely to change.

Monitoring those changes andfinding and making suitable arrangements with friends or relatives, could well be more complex and time consuming than one might firstassume. (Underline mine) [93] In the instant case, where there has been an arrest without a warrant, ss. 497 and 498 of the Criminal Code contain the guidingprinciples that a peace officer must follow and they are in part set as follows: Release from custody by peace officer 497.

(1) Subject to subsection (1.1), if a peace officer arrests a person without warrant for an offence described in paragraph 496(a), (b)or (c), the peace officer shall, as soon as practicable, (

a) release the person from custody with the intention of compelling their appearance by way of summons; or (

b) issue an appearance notice to the person and then release them. Exception

(1.1) A peace officer shall not release a person under subsection (1) if the peace officer believes, on reasonable grounds, (

a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody bedealt with under another provision of this Part, having regard to all the circumstances including the need to (

i) establish the identity of the person, (ii) secure or preserve evidence of or relating to the offence, (iii) prevent the continuation or repetition of the offence or the commission of another offence, or (iv) ensure the safety and security of any victim of or witness to the offence; or (

b) that if the person is released from custody, the person will fail to attend court in order to be dealt with according to law. Release from custody by officer in charge

498 .

(1) Subject to subsection (1.1), if a person who has been arrested without warrant by a peace officer is taken into custody, or if a person who has been arrested without warrant and delivered to a peace officer under subsection 494(3) or placed in the custody of a peace officer under subsection 163.5(3) of the Customs Act is detained in custody under subsection 503(1) for an offence described in paragraph 496 (a), (

b) or (c), or any other offence that is punishable by imprisonment for five years or less, and has not been taken before a justice or released from custody under any other provision of this Part, the officer in charge or another peace officer shall, as soon as practicable, (

a) release the person with the intention of compelling their appearance by way of summons; (

b) release the person on their giving a promise to appear; (

c) release the person on the person’s entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs, but without deposit of money or other valuable security; or (

d) if the person is not ordinarily resident in the province in which the person is in custody or does not ordinarily reside within 200 kilometres of the place in which the person is in custody, release the person on the person’s entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs and, if the officer so directs, on depositing with the officer a sum of money or other valuable security not exceeding in amount or value $500, that the officer directs. Exception

(1.1) The officer in charge or the peace officer shall not release a person under subsection (1) if the officer in charge or peace officer believes, on reasonable grounds, (

a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to (

i) establish the identity of the person, (ii) secure or preserve evidence of or relating to the offence, (iii) prevent the continuation or repetition of the offence or the commission of another offence, or (iv) ensure the safety and security of any victim of or witness to the offence; or (

b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law. (Underline mine) [94]

Section 9 of the Charter provides that everyone has the right not to be arbitrarily detained or imprisoned. [95] Section 24(1) of the Charter provides that anyone whose rights or freedoms, as guaranteed by the , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. [96] In my view, based on the provision of s. 497 , and particularly the parts I have underlined, the Accused’s detention could only be justified on the basis that it was necessary for the public interest and/or the prevention of the continuation or repetition of the offence of impaired driving.

The other exceptions provided for in s. 497 would not be applicable considering the circumstances of this case. [97] Turning back to the facts of this case, Cst. Parsons arrived with the Accused at the Detention Center at 04h07. He was released at approximately 08h00, some four hours later. During this period, the Accused spoke on the phone with his lawyer, Al Levine. When he was first unable to contact his lawyer, he refused to speak with any other lawyer and he was getting irritated and agitated. He was placed in cells and, once the appropriate paperwork was completed by Cst.

Parsons, he was turned over to the case manager with a note “to be released when calm and sober”. [98] When Sgt. McGee, a case manager, commenced her shift at 06h00, immediately upon arriving, as per usual practice, she spoke with her relief as to whom and how many were in detention, talked to the commissionaires who check on cells every 15 minutes to determine if there are any medical issues with anyone, and perused notes and forms in every file. When she got to the Accused’s file, so to speak, at approximately 08h00, she read a note “ to be released when calm and sober ”.

As she observed no visible signs of impairment

or gross motor skills, albeit slightly agitated, she released the Accused who signed the paperwork. [99] Sgt. McGee indicated that, with respect to an individual’s release, there is a four hour guideline that is determined by the level of sobriety. In some cases, one could be detained for up to six or seven hours. Someone highly intoxicated can stay longer than one who is not. [100] In the instant case, unlike in James , supra , I find that the Accused was detained at the Detention Center for about four hours (and not in excess of eight hours).

The detention was within the normal four hour guideline explained by Sgt. McGee. The evidence reveals that all officers involved were professional and acted at all times without any vengeance. Cst. Parsons did not leave after his shift without leaving any instructions. On the contrary, he consulted with the case manager and a note was left “ to be released when calm and sober”.

In my view, it cannot be said that the officers acted in bad faith under the circumstances. [101] It is clear that ss. 497 and 498 of the Criminal Code were enacted by Parliament to confer a broad discretion to the police to release or continue to detain an individual. Section 497(1) prohibits police from releasing an individual where it is necessary in the “public interest” to detain him or her. Therefore, in assessing the officer’s decision to arrest or detain on this ground, a court, in my view, must not merely substitute its opinion for the officer’s.

It bears repeating that a peace officer’s decision is entitled to some deference. [102] In all the circumstances, I find that there was no violation of the Accused’s s. 9 Charter rights while he was detained at the Detention Center. RULING ON THE VOIR DIRE [103] In the result, I am satisfied that the delay of two minutes, at most, between the formation of Cst. Parsons’ reasonable suspicion and the making of the ASD demand was entirely reasonable and necessary to enable him to discharge his duty. I also find that the immediacy requirement under s. 254(2) has been satisfied and that the ASD demand was lawful.

Moreover, I find that there was no breach of the Accused’s ss. 8 or 9 rights by actions of the officers. The Charter Application is accordingly dismissed. [104] Consequently, the evidence of the Accused’s failure or refusal to provide a breath sample into the ASD will be admitted into evidence. [105] I do thank both counsel for their very concise and well-informed presentations of the important evidentiary issues in this case. Dated at Saint John, New Brunswick, on October 28, 2013. ____________________________________ Marco R. Cloutier Judge of the New Brunswick Provincial Court