2015 MBPC 17, 2015 MBPC 17

Cite # 2015 MBPC 17 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) A. Parker for the Crown ) - and – ) ) Derek Decruyenaere ) K. E. Smith for the Accused ) ) Judgment delivered: ) March 23, 2015 CORRIN, P.J. Statement of Facts [ 1 ] On August 31, 2013, Constables Delaronde and Keith of Ste. Anne’s Police Department were on general patrol. [ 2 ] At 11:20 p.m. the Constables passed, driving opposite directions, a vehicle travelling into the town of Ste.

Anne and decided to conduct a traffic stop on that vehicle based on, according to Constable Delaronde, the observation that the vehicle’s plate light was not functioning. [ 3 ] Constable Delaronde agreed that there was nothing unusual about the manner in which the Applicant was operating his vehicle. [ 4 ] Upon activating his emergency equipment, the vehicle in question immediately pulled over to the shoulder of his lane and Constable Delaronde approached the driver’s side of the vehicle to speak with him. [ 5 ] While advising the driver of the reason for the stop, being the non-functioning plate light, Constable Delaronde testified that he detected, what he agreed in cross-examination was a faint, odour of alcohol about the vehicle and asked the driver if he’d consumed any alcohol that night.

The driver responded that he had not. [ 6 ] Constable Delaronde testified that the driver’s eyes appeared glossy and his speech was slow. [ 7 ] Next, Constable Delaronde’s partner, Constable Keith, alerted Constable Delaronde to a firearm in the rear of the vehicle, from which no charges flowed, but in any event, the driver exited the vehicle at that point and attended to the rear with the officers, at which time Constable Delaronde testified that he detected an odour of alcohol on the driver’s breath. [ 8 ] At 11:24 p.m., Constable Delaronde, who was not personally a qualified operator respecting approved screening devices [‘ASD’] made an ASD demand of the Applicant.

To his knowledge, Constable Taman was the only qualified ASD operator at the Ste. Anne’s Police Department that evening. [ 9 ] The Applicant indicated that he understood and that he would provide a sample of his breath. [ 10 ] Approximately one minute later, Constable Delaronde radioed dispatch that he required an ASD test at his location. He was advised that due to an urgent call for service, there would be a delay before Cst.

Taman could respond to his request. [ 11 ] Constable Delaronde continued to detain the Applicant and asked him questions regarding recent consumption of alcohol and obtained an admission that he’d consumed a number of beer . [ 12 ] At 11:40 p.m., Contable Taman arrived on scene. [ 13 ] At 11:42 p.m. Constable Taman determined that the accused had ‘failed’ the ASD test. [ 14 ] At this point, Constable Delaronde advised the Applicant that he was under arrest and gave him his right to counsel and the usual police caution. [ 15 ] At 11:43 p.m.

Constable Delaronde made a breath demand which the Applicant acknowledged and agreed to comply with.

[16] Constable Delaronde then departed for the detachment with the Applicant where they arrived at 11:56 p.m. [17] Once at the detachment, the Applicant requested to speak with duty counsel and was afforded the opportunity to privately do sofrom 11:58 p.m. until 12:02 a.m. [18] Constable Taman then conducted the breath tests obtaining two samples; the first at 12:18 a.m. and the second at 12:40 a.m. [19] The applicant was eventually released into the custody of his father.

Issues [20] A blended voir dire was held to determine the following issues which arose in the context of an impaired driving and drive over.08 trial: The accused alleges that the ASD demand was not provided “forthwith”. As such, the officer failed to comply with section 254(2)of the Criminal Code of Canada and the samples were taken in breach of s. 8 and 9 of the Charter of Rights and Freedoms. The Accused was not provided with his right to counsel at roadside and argues this violated his s. 10(

b) Charter rights. [21] The only witnesses testifying at the voir dire were Constables Delaronde and Taman. The accused didn’t testify. The Law [22] Section 254(2) only allows a police officer, if he has reasonable grounds to suspect a motorist has alcohol in his/her body, todemand that person provide “forthwith” a sample of their breath into an approved device. “Forthwith” means “immediately” or “withoutdelay” (see R. v. Bernshaw, (1995) 1.S.C.R. 254; R. v. Woods, 2005 SCC 42, (2005) 2 S.C.R. 205). [23] Martin, J in R. v.

Bergen, 2014 MBQB 84 , 2014 MBQB84 concisely reviews the “forthwith” concept as enunciated bythe Supreme Court of Canada in the Bernshaw and Woods cases. I herein incorporated and rely upon Martin, J’s excellent synopsis ofthe relevant law as follows: “[13] ... the objective of obtaining a valid test result from the breath sample puts common sense into play in this immediacyconcept.

So, an officer is entitled in certain circumstances to wait 15 minutes from the time he suspects the motorist has alcohol in hisbody until giving the ASD test, to ensure the motorist’s recent alcohol consumption does not cause a false ASD result.

This wasexplained by the Supreme Court of Canada in Bernshaw almost 20 years ago. [14] The majority of the justices adopted an approach that permitted an officer to wait 15 minutes before administering theASD test “when this is in accordance with the exigencies of the use of the equipment” including “when an officer is aware of thepotential inaccuracy in the particular case” (para. 73.). Thus the legal authority to wait up to 15 minutes for mouth alcohol to dissipate isan exception to the requirement that the ASD test be done forthwith.

Such a delay must be for a reason more than the motorist havingconsumed alcohol that evening. In other words, suspicion of having alcohol in the body is the grounds for making the ASD demand, notthe justification for delaying the ASD test. [15] Why have courts emphasized that the ASD test must be given forthwith or immediately? First, because that is what s.254(2) plainly sets out, and second, because there is an important constitutional element embedded in the roadside ASD demand.

Notably, an officer may randomly stop a motorist, make a roadside ASD demand, detain the person and search their breath, all withoutbelieving that person has committed any criminal or other offence or allowing that person to contact a lawyer. This is the secondcritical concept – the constitutional aspect – that I referred to earlier. [16] The important and normal safeguard against unwarranted intrusion by government agents in a citizen’s life, of requiringthe officer to have reasonable and probable grounds to believe an offence has been committed, has been done away with for an ASDdemand.

To detain someone for a roadside ASD test, the officer need only to reasonably suspect the person has alcohol in his body. Officers are granted this extraordinary power to infringe on a citizen’s normal rights and security, specifically to combat the scourge ofimpaired driving.

The trade-off is that the roadside ASD test must be done forthwith or immediately upon the officer having thesuspicion, unless there is good reason to delay the test such as a broken ASD or waiting for an ASD to be delivered to the officer, or ifthere is reason to believe the test will not be accurate because of alcohol in the mouth from recent consumption (i.e. within the prior 15minutes). [17] The Supreme Court of Canada addressed this in Woods, supra, as follows: 14. ... Section 254(2) depends for its constitutional validity on its implicit and explicit requirements of immediacy.

This immediacyrequirement is implicit as regards the police demand for a breath sample, and explicit as to the mandatory response: the driver mustprovide a breath sample “forthwith”. 15. Section 254(2) authorizes roadside testing for alcohol consumption, under pain of criminal prosecution, in violation of ss. 8, 9and 10 of the Canadian Charter of Rights and Freedoms. But for its requirement of immediacy, s. 254(2) would not pass constitutionalmuster. ... 29. The “forthwith” requirement of s. 254(2) of the Criminal Code is inextricably linked to its constitutional integrity.

It addresses theissues of unreasonable search and seizure, arbitrary detention and the infringement of the right to counsel, notwithstanding ss.8, 9 and 10of the Charter. In interpreting the “forthwith” requirement, this Court must bear in mind not only Parliament’s choice of language, but

also Parliaments intention to strike a balance in the Code between the public interest in eradicating driving impairment and the need to safeguard individual Charter rights. [ 24 ] In R. v. Quansah

(2012) ONCA123, the Ontario Court of Appeal related the following framework of analysis for employment in these matters: In sum, I conclude that the immediacy requirement in s. 254(2) necessitates the courts to consider five things. First, the analysis of the forthwith or immediacy requirement must always be done contextually. Courts must bear in mind Parliament’s intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights (see para. 45).

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 (see para. 46). Third, “forthwith” connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible

interpretation may be given. In the end, the time from the formation of reasonable suspicion to the making of the demand to the detainee’s response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable to officer to discharge his or her duty as contemplated by s. 254(2) (see para. 47) Fourth, the immediacy requirement must take into account all the circumstances.

These may include a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available , or where a short delay is needed to ensure 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. Any delay not so justified exceeds the immediacy requirement (see para. 48).

Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee’s s. 10(

b) rights before requiring the sample . If so, the “forthwith” criterion is not met (see para 49). Arguments of counsel [ 25 ] The defence submits that there was a very real opportunity for the accused to have been allowed to contact and consult with counsel in the context of this case. [ 26 ] It is Ms. Smith’s contention that during the 20 minute waiting period, from 11:24 p.m. to 11:42 p.m., the time when the test was administered, that Constable Delaronde should have facilitated s. 10(

b) compliance by inquiring whether the accused possessed a cell phone or alternatively by transporting the accused to the nearby detachment office which was admitted by him to be only a one minute drive from where they were located. [ 27 ] The main thrust of the defence argument is that since the authorities have defined the “forthwith” requirement in s. 254(2) in relation to access to counsel that it follows that once the “forthwith” point in relation to that subject had passed, the authority for roadside detention and ASD testing pursuant to the s. 254(2) demand was spent, in the sense that the ASD demand was no longer legally valid because the detention and the taking of the roadside sample would therefore no longer have been authorized by law, making the warrantless search illegal. [ 28 ] On this basis defence counsel submitted that the demand made by Constable Delaronde wasn’t authorized by s. 254(2) and that the subsequent ASD seizure was both unreasonable and in contravention of both s. 8 and 9 of the Charter , and that the accused’s right to counsel pursuant to s. 10(

b) of same was further infringed. [ 29 ] The prosecution contended that the demand scenario did contextually comply with the “forthwith” requirement set out in s. 254(2). It was the Crown’s position that an ASD demand attracts no right to counsel and that in any event the implementation of the demand, the taking of the sample, had met the “forthwith” requirement. The Crown particularly observed that the Quansah test had specifically referenced circumstances where the ASD was temporarily not available as a potential rationale for a flexible and liberal

interpretation of the immediacy requirement. [ 30 ] The Crown reminded the Court that the case involved a small town context where the police department consisted of what she called “a handful” of officers and that most of whom, including Constable Taman, who was the only approved ASD operator on duty, had been deployed to the check stop station that had been established pursuant to the Manitoba Public Insurance’s road safety awareness program.

The Court was further reminded that Constable Taman testified that he was just completing the impoundment of a suspended driver’s vehicle when he received the ASD dispatch and was only approximately 250 yards from where the accused was located at such time. [ 31 ] The Crown argued that the case law does not require that every officer on patrol be qualified to operate an ASD and also that it would be patently unreasonable to require that every police cruiser carry an ASD. Court was reminded that the fourth prong of the

Quansah analysis specifically referenced situations where ASDs were not immediately and unrealistically available because of practicalexigencies and limitations. [32] The Crown’s final argument related to considerations arising from practical concerns related to the implementation of counselrights at the roadside, such things as the need to afford an accused privacy, provide a telephone book and address officer safety issuesrelated to the use of such devices; for example, how can a lone officer, in Constable Delaronde’s position, establish that a hard object insomeone’s pocket is indeed a cell phone as opposed to a weapon.

Indeed, is it prudent for a lone officer to come into physical contactwith a detainee in such circumstances, given the possible risk of their being assaulted and overpowered? Analysis [33] It is trite law that determining “forthwith” compliance is not merely a question of counting the minutes between the demand andthe breath sample being provided into the ASD.

Crown counsel has reminded the Court of its obligation to take into account all of thecircumstances related to why an ASD test was not immediately performed, that a careful consideration of all the circumstances of theparticular case (see para. 52, Quansah) was required at this stage of analysis. [34] In our case, we confront a situation where Constable Delaronde seemingly did his utmost to comply with the spirit and letter ofthe law. He called for the ASD and technician a couple of minutes after he’d established his grounds for a test.

Constable Taman was inthe midst of other important business and took approximately 15 minutes to arrive on scene and a couple more to administer the test. From beginning to end, the detention was approximately 20 minutes. This was not a check stop situation. Constable Delaronde hadbeen on regular patrol when he encountered the accused’s vehicle. He wasn’t trained to do ASD testing and the only officer so certifiedwas performing other professional duties. Delaronde certainly made his demand forthwith, within mere minutes after the stop.

NeitherDelaronde nor Taman did anything unrelated to the taking of the test in relation to the accused. They proceeded as quickly as possible inthe circumstances. This is not a situation where the officers did things that were unnecessary for the implementation of the process. [35] In paragraphs 29 and 30 of Woods Mr. Justice Fish states as follows: “These screening tests, at or near the roadside, determine whether more conclusive testing is warranted.

They necessarily interfere withrights and freedoms guaranteed by the Charter, but only in a manner that is reasonably necessary to protect the public’s interest inkeeping impaired drivers off the road.” (para. 30) “The ‘forthwith’ requirement of s. 254(2) of the Criminal Code is inextricably linked to its constitutional integrity...

In interpreting the‘forthwith’ requirement, this court must bear in mind not only Parliament’s choice of language, but also Parliament’s intention to strike abalance in the Criminal Code between the public interest in eradicating driver impairment and the need to safeguard individual Charterrights” (para. 29) [36] One can take from these remarks that there is a perceived need to even reduce constitutional protections in order to reduce thedevastating consequences of impaired driving, that even an individual’s s. 10(

b) right to counsel may be reasonably held in abeyance forthe purpose of implementing ASD testing. [37] The Saskatchewan Court of Queen’s Bench in the case of R. v. Billette

(2001) CarswellSask 258 conducted a review of the‘forthwith’ concept by reviewing the Supreme Court of Canada decisions in R. v. Thomsen (1988), (SCC), 40 C.C.C.(3d) 411, R. v. Grant, (SCC), [1991] 3 S.C.R. 139 and R. v. Bernshaw (1994), 1 S.C.R. 254 and came to the followingconclusion at paragraph 19: “It is obvious that ‘forthwith’ means as quickly as possible in the circumstances. There should be no undue delay because in thenormal operation of s. 254(2) an individual’s s. 10(

b) Charter rights are being infringed and because under the general scheme set out ins. 254, time is of the essence.” [38] Implicit in that conclusion is the Quansah notion that the demand is to be made as quickly as possible given the presentingcircumstances. Therefore one can conclude that it is not a simple exercise of counting minutes to determine the issue of forthwith butrather it is an exercise in looking at the entirety of the circumstances put before the court to determine if there has been “undue delay”. [39] Any delay must be scrutinized by the courts and as was articulated by the Saskatchewan Provincial Court in the case of R. v.McMahon

(2002) CarswellSask 818 at paragraph 27: “Unnecessary or unwarranted delay will be viewed much more harshly at this step of the investigation simply because it is well settledlaw that no right to counsel exists prior to an ASD compliance...” [40] That all having been said this court does not perceive a statutory breach arising in the context of this case. I will now turn myattention to the issue of Charter violations. [41] Was the officer’s failure to implement the accused’s s. 10(

b) rights a violation of his Charter rights? Not in my view. In R. v.Thomsen (1988) (SCC), 40 C.C.C. (3d) 411 the Supreme Court found that the limit imposed by then s. 234.1(1) (now s254(2)) on the right to counsel was justifiable under s. 1 of the Charter. The Court observed that in making such a decision it hadconsidered “the fact that the right to counsel will be available, in necessary, at the more serious breathalyser stage. [42] In the case at bar Constable Delaronde told Court that it was contrary to police policy to allow the accused access to a cellphone to call counsel even if he had had one. In R. v. Fehr

(1999) CarswellMan 474, Judge L. Giesbrecht reviewed a situation wherepolice officers actually had a cell phone in their cruiser, as did the accused, but the opportunity to contact counsel was not permitted.

Judge Giesbrecht concluded that the advent of cell phone technology did not alter the general approach to s. 254(2). I concur with Judge Giesbrecht’s conclusion. I also concur with Crown counsel, that there are sound safety concerns associated with such police policy. In so doing I express disagreement with the observations made by the presiding judge in the De Chiara case

(2013) ONCJ234 cited by defence counsel. [ 43 ] Defence counsel also argued that Constable Delaronde should have taken the accused to the nearby Ste. Anne’s police detachment to facilitate his right to counsel. Of course, if he’d done this and removed the accused from his vehicle for such a purpose and more time had been lost in connecting him with Constable Taman, then Constable Delaronde’s good intentions might have been cited as improper delay in regard to the “forthwith” principle. Judge C. Devine of this court faced the same argument in R. v. Ollivier

(2003) CarswellMan 434 . She rejected the argument, stating: “The fact that Mr. Ollivier happened to have been stopped and asked for an ASD...sample within a short distance of, and possibly in view of, a police detachment did not give him an enhanced right to consult counsel that someone stopped (at) a greater distance away would not have. If that fact of proximity were determinative of the issue then the quantification difficulties would begin. Is half a mile the limit, or one mile or five miles? Does it make a difference whether the distance is walking distance or driving distance?

Do individuals in urban settings thus have greater constitutional rights than those who live in remote locations? Mr. Ollivier did not have the right to contact counsel in these circumstances and held there had been no breach of his s. 10(

b) Charter rights.” A similar conclusion was reached in R. v. Quong [2006 CarswellAlta 468 (Alta. Prov. Ct.) ], a 2006 decision of the Alberta Provincial Court. In that case a roadside stop was conducted resulting in Mr. Quong being asked to submit to an ASD. He was taken to a police car 50 feet away, performed the test and failed. He was then taken to the check stop bus a further 50 feet away where he was given the opportunity to contact counsel which he did. Mr. Quong argued that his s. 10(

b) rights were violated because he was entitled to right to counsel before being required to comply with the roadside demand where there is a police facility nearby permitting the accused ample opportunity to immediately contact counsel. [ 44 ] This Court also rejects defence counsel’s submission in this respect. I concur with the Crown that the roadside screening procedure is legally required to be administered at the roadside, at such time and place as the motorist is stopped and temporarily detained. [ 45 ] For these reasons I reject the defence argument that the accused’s s. 10(

b) right to counsel was infringed. Accordingly I admit the Certificate of Analysis into evidence. “Original Signed By” CORRIN, P.J.