R. v. Mahon, 2017 ONCJ 654

ONTARIO COURT OF JUSTICE CITATION: R. v. Mahon , 2017 ONCJ 654 DATE: 2017 08 08 Central East Region: Oshawa Court File: 15-A33935 BETWEEN: HER MAJESTY THE QUEEN — AND — DANIEL MAHON Before Justice Peter C. West Heard on August 8, 2017 Oral Reasons for Judgment released on August 8, 2017 Mr. I. Skelton.................................................................... counsel for the Crown Mr. B. Scott........................................ Counsel for the defendant Daniel Mahon WEST J.: [ 1 ] On July 3, 2015, Daniel Mahon was charged by Durham Regional Police with the offence of over 80, having the care or control of a motor vehicle, contrary to s. 253 (

b) of the Criminal Code . [ 2 ] The defence brought a Charter application alleging the investigating officer did not have reasonable suspicion to make an ASD demand pursuant to s. 254(2) of the Criminal Code . Consequently, the result of the ASD could not provide the officer with reasonable and probable grounds to make a breath demand pursuant to s. 254(3) that Mr. Mahon provide a breath sample into an approved instrument. Second, the defence argued there was a delay of 13 minutes after the s. 254(3) breath demand while the officer waited for a contract tow truck to attend the address where Mr.

Mahon’s car was parked in the driveway to impound the vehicle. It was agreed by both counsel the Charter application could proceed by way of a blended hearing. [ 3 ] Mr. Mahon pled not guilty and the Crown called the investigating officer, P.C. Adam Handscomb. Factual Background [ 4 ] At 2:28 a.m. on July 3, 2015, P.C. Handscomb, a DRP officer for 8 years, together with his partner P.C. Schutt, was operating a marked police cruiser westbound on Taunton Road in Oshawa when he observed a dark coloured pickup truck make a left turn onto northbound Ritson Road and then proceed at a high rate of speed. P.C.

Handscomb turned onto northbound Ritson intending to stop this pickup truck for speeding and also for a sobriety check pursuant to the Ontario HTA . The pickup continued at a high rate of speed, put on its left indicator and turned westbound onto Woodmount. The police cruiser was about 200 feet behind the pickup truck and when P.C. Handscomb turned onto Westmount he could no longer see the pickup truck. [ 5 ] P.C. Handscomb decided to check the area for the truck and turned onto Eatonwood Drive.

He observed what he believed to be the same dark coloured pickup truck reversing onto the bottom of a residential driveway. He saw the truck to be turned off and a male person exited the driver’s door. At 2:30 a.m., P.C. Handscomb requested the driver sit back in his truck, which request the driver complied with.

[6] P.C. Handscomb asked why the driver had been travelling so fast. The driver asked where the officer had seen him and theofficer told him on Ritson Road. The driver replied he was just trying to get home. P.C. Handscomb observed the driver’s speech to beslightly slurred and to have a flushed face. While he was speaking to the driver he detected an odour of alcohol coming from the driver’smouth. He asked the driver for his driver’s license, which was provided. The officer confirmed the driver was Daniel Mahon from thephoto ID. [7] P.C. Handscomb asked how much alcohol Mr. Mahon had consumed that evening. Mr.

Mahon advised he had not consumedany alcohol. The officer told him he could smell alcohol coming from him but Mr. Mahon told the officer he had friends in his car earlierwho had been drinking and that was probably the alcohol he was smelling. [8] P.C. Handscomb testified he did not believe Mr. Mahon as he could detect the odour of alcohol coming directly from Mr.Mahon’s breath when he was speaking. P.C. Handscomb was standing directly in front of Mr. Mahon, in the open driver’s door with onlytwo feet between them. [9] At 2:32 a.m., P.C. Handscomb read Mr. Mahon the ASD demand from the rear of his police notebook.

Mr. Mahon said heunderstood. The ASD was a Draeger Alcotest 6810 and was calibrated on June 28, 2015 by P.C. Johnson. After turning on the ASD, thedevice indicated “Ready,” which meant it was ready to receive a sample of breath. P.C. Handscomb believed the ASD was workingproperly. P.C. Handscomb explained what Mr. Mahon needed to do and at 2:33 a.m. Mr. Mahon provided a suitable breath sample,which resulted in a “Fail.” A “Fail” means the reading is higher than 100 mg of alcohol in 100 ml of blood. [10] As a result of the “Fail,” at 2:34 a.m., P.C. Handscomb told Mr.

Mahon he was under arrest for having care or control of a motorvehicle with a blood/alcohol concentration over 80. He handcuffed Mr. Mahon to the rear and did a cursory pat-down search. He foundthe keys to the pickup truck in Mr. Mahon’s right front pocket and seized them. He also detected the odour of an alcoholic beverage onMr. Mahon’s person. [11] He read the right to counsel at 2:35 a.m.; the caution at 2:36 a.m. and the breath demand pursuant to s. 254(3) at 2:37 a.m. Mr.Scott did not raise any issues with the wording of what P.C. Handscomb read to Mr. Mahon. Mr.

Mahon advised he did not wish to speakto a lawyer and P.C. Handscomb told him if he changed his mind when they got to the police station to just let him know. P.C.Handscomb then requested a contract tow truck to attend to impound Mr. Mahon’s pickup truck. When Mr. Mahon was advised hisvehicle would be impounded for 7 days he became angry. No other police officer attended their location to take over the keys of Mr.Mahon’s pickup truck and wait for the contract tow. As a result P.C. Handscomb testified he waited for the tow truck to arrive and takecontrol of Mr. Mahon’s vehicle. [12] At 2:50 a.m., P.C.

Handscomb left the scene and transported Mr. Mahon to 17 Division in Oshawa, arriving by the most directroute at 2:58 a.m. In cross-examination P.C. Handscomb agreed he did not have the reason he waited for the tow truck noted in hisnotebook; however, it was his usual practice to call for backup to handle the towing of a detainee’s vehicle. Knowing he remained onscene until the tow truck arrived caused him to believe there were no other police units available to take control of the vehicle until thetow truck arrived. [13] Once at the police station, Sgt.

Lafontaine was dealing with the release or transport of another prisoner and as a result Mr. Mahonhad to wait in the sally port in the police cruiser until the sergeant was free. P.C. Handscomb spoke to P.C. Rogers, the qualified breathtechnician, at 3:14 a.m. and provided his grounds for Mr. Mahon’s arrest. [14] After providing his grounds Mr. Mahon was paraded before the booking sergeant. At 3:23 a.m., Mr. Mahon was turned over tothe qualified breath technician, P.C. Rogers. The first breath sample was provided at 3:26:28, with a result of 130 mg of alcohol in 100ml of blood.

The second sample was provided at 3:48:42, with a result of 120 mg of alcohol in 100 ml of blood. P.C. Handscomb wasprovided the Certificate of the Qualified Breath Technician with copies by P.C. Rogers, which he compared and found to be identical andhe served one of the copies on Mr. Mahon, which Mr. Mahon signed. The Certificate was filed as Exhibit 1 pursuant to s. 258(1)(

g) ofthe Criminal Code. Analysis [15] During submissions Mr. Scott conceded that P.C. Handscomb on the evidence had a reasonable suspicion Mr. Mahon had alcoholin his body. The odour of alcohol alone would be sufficient to provide the officer with a reasonable suspicion. [16] In R. v. Lindsay, (ON CA), [1999] O.J. No. 870, at para 2., the Ontario Court of Appeal held the smell ofalcohol on the respondent’s breath by the officer was sufficient to amount to reasonable suspicion justifying an ASD demand (see also R.v. Carson, 2009 ONCA 157 , [2009] O.J. No. 660). [17] Further, Mr.

Scott conceded the “Fail” result on the ASD, which the officer believed was working properly, provided thenecessary reasonable and probable grounds to P.C. Handscomb to arrest Mr. Mahon with care or control of a motor vehicle when hisblood/alcohol concentration was greater than 80 mg of alcohol in 100 ml of blood. P.C. Handscomb testified the ASD he used registereda “Fail” when the blood/alcohol concentration was greater than 100 mg of alcohol in 100 ml of blood. [18] As a result, Mr.

Scott abandoned this aspect of his s. 8 Charter application; however, he submitted the delay of 13 minutes afterthe breath demand pursuant to s. 254(3) was read, when P.C. Handscomb delayed driving to 17 Division as he waited for a tow truck toarrive to impound Mr. Mahon’s vehicle, meant the breath samples were not taken as soon as practicable. [19] Section 254(3) reads as follows:

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

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon aspracticable, require the person

(

a) to provide, as soon as practicable, (

i) samples of breath,… [20] This provision requires that a police officer make a timely demand for samples of the breath of a person who is believed to havecommitted either the offence of impaired driving or that of operating a motor vehicle with more than the permissible amount of alcohol inhis or her blood. [21] Section 254(3)(

a) requires that the person provide these samples “as soon as practicable”. [22] Mr. Scott asserted that the police failed to secure samples of the Mr. Mahon’s breath in compliance with this statutory obligationand accordingly, the subsequent seizure of samples of his breath constitute an unreasonable search and seizure, contrary to

section 8 ofthe Charter, rendering Mr. Mahon’s detention for that purpose as arbitrary and in violation of

section 9 of the Charter. [23] Mr. Skelton for the Crown, submitted that the breath samples in issue were secured within “a reasonably prompt time” underconsideration of all of the circumstances in issue in this case. [24] A number of authorities were cited and reviewed by Mr.

Scott and I have had an opportunity read all of the referenced authoritiessubmitted on behalf of the defendant, all of which are from either the Ontario Court of Justice or other provincial courts, all courts ofconcurrent jurisdiction. [25] Courts of superior jurisdiction direct that the as soon as practicable consideration must be applied with reason. The prosecutionis not required to explain every time period between the stop and arrest of a defendant and the securing of the breath test as long as thetests are taken as soon as practicable on consideration of the circumstances of the investigation in issue.

In determining whether the assoon as practicable issue has been met with compliance, the court is required to assess whether the conduct of the police was reasonablein all the circumstances; see R. v. Van Derveen (1988), 1988 ABCA 277 , 44 C.C.C. (3d) 38, (Alta. C.A.); R. v. Vanderbruggan(2006), (ON CA), 206 C.C.C. (3d) 489 (Ont. C.A.); R. v. Carter (1981), 59 C.C.C. (3d), 450 (Sask. C.A.); R. v. Payne(1990), (ON CA), 56 C.C.C. (3d) 548 (Ont. C.A.). [26] The governing authority in this province is R. v.

Vanderbruggan, supra, at paras. 12 and 13, where Justice Rosenberg held: 12 That leaves the question that is at the heart of this appeal -- the meaning of as soon as practicable. Decisions of this and other courtsindicate that the phrase means nothing more than that the tests were taken within a reasonably prompt time under the circumstances. SeeR. v. Phillips (1988), (ON CA), 42 C.C.C. (3d) 150 (Ont. C.A.) at 156; R. v. Ashby (1980), (ONCA), 57 C.C.C. (2d) 348 (Ont. C.A.) at 351; and R. v. Mudry, R. v. Coverly (1979), 1979 ABCA 286 , 50 C.C.C. (2d) 518 (Alta.C.A.) at 522.

There is no requirement that the tests be taken as soon as possible. The touchstone for determining whether the tests weretaken as soon as practicable is whether the police acted reasonably. See R. v. Payne (1990), (ON CA), 56 C.C.C.(3d) 548 (Ont. C.A.) at 552; R. v. Carter (1981), (SK CA), 59 C.C.C. (2d) 450 (Sask. C.A.) at 453; R. v. Van DerVeen (1988), 1988 ABCA 277 , 44 C.C.C. (3d) 38 (Alta. C.A.) at 47; R. v. Clarke, [1991] O.J. No. 3065 (C.A.); and R. v. Seed, (ON CA), [1998] O.J.

No. 4362 (C.A.). 13 In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing inmind 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 "assoon as practicable" requirement must be applied with reason.

In particular, while the Crown is obligated to demonstrate that -- in all thecircumstances -- the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide adetailed explanation of what occurred during every minute that the accused is in custody. See R. v. Letford (2000), (ON CA), 150 C.C.C. (3d) 225 (Ont. C.A.) at para. 20; R. v. Carter, supra; R. v. Cambrin (1982), (BC CA), 1 C.C.C.(3d) 59 (B.C.C.A.) at 61-3, and R. v. Seed at para. 7. [27] The recent decision in R. v. Singh, 2014 ONCA 293 , [2014] O.J.

No. 1858 (C.A.), at paras. 12-16, upheld JusticeRosenberg’s comments in Vanderbruggan. [28] When considered within the context of “reasonableness”, I conclude it was not unreasonable for P.C. Handscomb to wait for thecontract tow company to arrive on scene to effect the impound of Mr. Mahon’s pickup truck. The Ontario HTA mandates that a person’svehicle must be impounded for a period of 7 days where that person has been charged with impaired, over 80 or refuse breath sample.P.C. Handscomb had seized Mr. Mahon’s truck keys from his pocket after he searched him and in my view he was now responsible forMr.

Mahon’s vehicle. [29] While some delay resulted as a consequence, while P.C. Handscomb waited for either a backup unit to assist, which did notoccur, or until the tow truck arrived on scene, which occurred within 13 minutes after the breath demand was read, I conclude, onconsideration of the totality of the circumstances, that that period of delay was insufficient to violate the soon as practicable requirementgoverning the lawful securing of samples of the defendant’s breath for the purposes of analysis. [30] A further consideration is that the first breath sample was provided less than an hour after Mr.

Mahon was first observed by thepolice driving at a high rate of speed. In my view this demonstrates the breath samples were taken “as soon as practicable” or as indicatedby the Court of Appeal, a “reasonably prompt time.” Consequently, on the totality of the circumstances of this case the defence Charterapplication must fail and it is dismissed. Released: August 8, 2017

Signed: Justice Peter C. West