R. v. Mehta, 2012 ONCJ 732

Citation: R. v. Mehta , 2012 ONCJ 732 ONTARIO COURT OF JUSTICE BETWEEN: ) ) P. Woods for the Crown HER MAJESTY THE QUEEN ) ) ) — AND — ) ) ) J. Stilman UDAYA MEHTA ) for the defendant ) ) ) ) lipson J. REASONS FOR JUDGMENT [ 1 ] Udaya Mehta, the accused, pleaded not guilty to a charge of drive over 80 mgs. The main issue is whether the police complied with the “forthwith” requirement found in section 254(2) of the Criminal Code . Overview of the evidence [ 2 ] On January 28, 2012, P.C. Levy was on duty at a roadblock protecting a crime scene on a Scarborough street. At 12:24 a.m. Mr.

Mehta stopped his vehicle near the roadblock and approached the officer who was sitting in a marked cruiser. Mr. Mehta showed some unsteadiness as he moved. He wanted to know how he could get to his house on the street that was being blocked. Mr. Mehta asked the officer how he could avoid the roadblock to get to his house. P.C. Levy explained a number of times an easy alternative route to get home but Mr. Mehta seemed confused and unable to grasp the officer’s simple directions. Mr. Mehta had bloodshot eyes and a strong smell of alcohol was coming from his mouth.

At 12:25 a.m. the officer formed the suspicion that Mr. Mehta had alcohol in his body. P.C. Levy did not have an approved screening device (ASD) nor did he make an immediate ASD demand. He asked Mr. Mehta some questions about any earlier alcohol consumption, created an “event” with his dispatcher and requested that another officer attend with an ASD. He told Mr. Mehta that he was going to be investigated for “a drinking and driving offence, impaired operation.” P.C. Levy directed the accused to remain in his car while he confirmed Mr. Mehta’s identity. At 12:32 a.m. P.C.

Levy read the ASD demand from the back of his memo book and the accused responded that he understood. P.C. Levy advised him that another officer was on his way with an approved screening device and that he would be required to provide a sample of his breath. The officer also told the accused to spit out some cardamom seeds he was chewing. P.C. Lai arrived with an ASD at 12:39 a.m. P.C. Levy explained the circumstances of the investigation to P.C. Lai and turned Mr. Mehta over to Lai for the ASD testing. Between the time of making the ASD demand and the arrival of P. C. Lai, P.C.

Levy continued to guard the crime scene. [ 3 ] In cross-examination, P.C. Levy conceded that the accused was not free to leave the scene after he had formed his suspicion and that he considered Mr. Mehta to be detained. [ 4 ] P.C. Lai testified that he received the radio call to attend the scene at 12:25 a.m. and arrived at 12:39 a.m. He took information from P.C. Levy and the accused. He explained to Mr. Mehta that he was taking over the investigation because P.C. Levy was required to continue guarding the crime scene. P.C. Lai also formed the suspicion that Mr.

Mehta consumed alcohol based on his own observations of the accused. At 12:44 a.m. P.C. Lai read the ASD demand to Mr. Mehta and explained how to perform the test. After a few unsuccessful attempts to blow, the accused provided a suitable sample at 12:53 a.m. and registered a “fail”. He was arrested for drive over 80 mgs and at 12:55 a.m. was given his right to counsel. P.C. Lai transported Mr. Mehta to 41 Division for approved instrument testing. Mr. Mehta provided samples with readings of 131 mgs at 2: 21a.m. and 124 mgs at 2:45 a.m.

He declined the opportunity to contact private counsel or duty counsel prior to providing samples. [ 5 ] It was agreed that Mr. Mehta had a cell phone in his possession throughout the investigation. The defence agreed to the admission of a report of a forensic toxicologist. The relevant findings based on the readings and information were that at the time of driving at 12:25 a.m. the accused’s projected blood alcohol concentration was between 120 and 165 milligrams of alcohol in 100 millilitres of blood. The issues [ 6 ] The defence submits that Mr. Mehta’s ss. 8, 9, and 10(

b) Charter rights were violated and that, as a result, the ASD and Intoxilyser results should be excluded pursuant to s. 24(2). It is submitted that the ASD demand was not made “forthwith” and therefore invalid. It is submitted that Mr. Mehta’s detention was therefore arbitrary, contrary to s. 9 of the Charter . Also, any

subsequent seizure of breath samples contravened s. 8 of the Charter. It is submitted that since there was a significant delay between theofficer forming his grounds and the arrival of the approved screening device, the officer had an obligation to advise the applicant of hisright to retain and instruct counsel. Because Mr. Mehta was not advised of his right to counsel, it is submitted that his s.10 (

b) Charterright was violated. It is submitted that the test results should be excluded under s. 24(2) since the admission of such evidence wouldbring the administration of justice into disrepute. Analysis [7] The Charter issues in this case relate to the

interpretation of “forthwith” found in section 254(2) of the Criminal Codewhich provides: If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within thepreceding three hours, operated a motor vehicle ... or had the care or control of a motor vehicle, ... whether it was in motion or not, thepeace officer may, by demand, require the person to ... to provide forthwith a sample of breath that, in the peace officer's opinion, willenable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for thatpurpose. [8] The last word from the Ontario Court of Appeal on the

interpretation of “forthwith” found in s. 254(2) is R. v. Quansah,2012 ONCA 123. Justice Laforme said the following at paras. 20-23: The “forthwith” requirement of s. 254(2) is inextricably linked to its constitutional integrity: see Woods, at para. 29. This justifies whatwould otherwise be sustained as violations of ss. 8, 9 and 10(

b) of the Charter. Thus, in interpreting “forthwith”, this court must bear inmind Parliament’s choice of language and Parliament’s intention, which is to strike a balance between the public interest in eradicatingdriver impairment and the need to safeguard individual Charter rights: see Woods, at para. 29. So long as the demand is validly made pursuant to s. 254(2) – that is, so long as it is made “forthwith” – for Charter purposes there isno unjustified seizure or arbitrary detention or breach of the requirement to advise the detainee of his or her right to counsel.

This isbecause this statutory detection and enforcement procedure constitutes a reasonable limit on Charter rights, given the extreme dangerrepresented by unlicensed or impaired drivers on the roads: see Degiorgio, at para. 37. As this court noted in Degiorgio, at para. 46, the “forthwith” period is the time in which Charter rights are justifiably infringed.

Thatis to say, within this time a detained person can be required to comply with an ASD demand and respond to that demand – be it blowingand registering a “fail” or be it refusing or failing to blow – and incur criminal liability that is justified despite ss. 8, 9 and 10(

b) of theCharter. [9] At paras. 45-49 of Quansah, Justice Laforme summarized the immediacy requirement in section 254(2) as follows: 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.

Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver hasalcohol in his or her body. The immediacy requirement, therefore, commences at the stage of reasonable suspicion. 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). 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.

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. [10] In the above passage, Justice Laforme indicates that there may be a reasonably necessary delay where breath tests cannotimmediately be performed because an ASD is not immediately available. I do not consider this statement to constitute a departure fromthe state of the law preceding Quansah. It was already the case that in order to meet the statutory standard of being able to take thesample “forthwith”, a police officer did not need to have an approved screening device in his immediate possession: R. v.

Grant, (SCC), [1991]S.C. J, No 78; R. v. Cote, (ON CA), [1992] O.J 7 (C.A.). Any delay awaiting the arrival ofthe ASD to the roadside must be short and “reasonably necessary” in order to comply with the “forthwith” requirement in s. 254(2). InR. v. Gill [2011] O.J. No.3924 (S.C.J.) at para. 36, Justice Durno reviews some of the leading cases in this area where courts haveviewed various time frames within the “forthwith” window and determined whether or not there was a realistic opportunity to consultcounsel:

a) cases where a realistic opportunity to consult counsel existed: R. v. Fildan, [2009] O.J. No. 3604 (S.C.J.) -- 15 minutes; R. v. Beattie,[2009] O.J. No. 4121 (Ont. C.J.) -- 20 minutes; R. v. Grant, (1991), (SCC), 67 C.C.C. (3d) 268 (S.C.C.) -- 30 minutes;R. v. Najm, (2006), 32 M.V.R. (5th) 204 (Ont. C.A.) -- 12 minutes, R. v. Cote, supra -- 14 minutes; and R. v. George (2004), (ON CA), 187 C.C.C. (3d) 289 (Ont. C.A.) -- where the officer knew in advance the device would not arrive for 15 to 20minutes and it arrived in 18 minutes.

b) Cases where there was no realistic opportunity to consult counsel: R. v. Pillon, [2006] O.J. No.701 (S.C.J.) -- 7 minutes; R. v. Torsney, (2007), supra -- 6 or 7 minutes; R. v. Yamka, (2011), 2011 ONSC 405 , 267 C.C.C.

(3d) 81 (S.C.J.) -- 10 minutes; R. v. Latour, supra -- 12 minutes; R. v. Singh (2004), 4 M.V.R. (5th) 252 (S.C.J.) -- 11 minutes; R. v. Au-Yeung, 2010 ONSC 2292 , [2010] O.J. No. 1579 (S.C.J.), -- 8 minutes; and R. v. Singh, [2005] O.J. No. 4787 (C.A.) where theofficer believed the ASD would arrive in 5 to 10 minutes and it arrived in 10 minutes. Application of the priniciples to this case [11] There is no dispute that at 12:25 a.m., within a minute of encountering Mr. Mehta, P.C. Levy formed a reasonable suspicionthat the accused had consumed alcohol. Mr.

Mehta had bloodshot eyes, smelled from alcohol, was unsteady on his feet and appearedunable to comprehend the officer’s simple directions how he could get home. The s. 254(2) ASD demand should have been made at thetime P.C. Levy formed his suspicion. There was nothing to prevent the officer from doing so. No exigent circumstances connected toguarding the crime scene had arisen. Instead, the officer told Mr. Mehta that he was going to be “investigated for a drinking and drivingoffence, impaired operation”. That, of course, did not amount to a valid s. 254(2) demand. The officer required Mr.

Mehta to remain atthe scene and sit in his own car. P.C. Levy testified that at this point, Mr. Mehta was not free to leave as he was being detained forfurther investigation. At 12:32 a.m. the officer finally read the ASD demand to the accused. Between 12:25 a.m. and 12:32 a.m., aperiod of seven minutes, there was a breach of Mr. Mehta’s s. 9 Charter right. After making the s 254(2) demand, P.C. Levy advised Mr.Mehta that another officer was on route with an approved screening device and that he would be required to provide a sample. Thedetention of the accused continued until 12:44 a.m. when P.C.

Lai made a further s. 254(2) demand and was in a position to administerthe ASD. In my view, the police did not comply with the “forthwith” requirement for the taking of the sample when the delay herebetween the time of the forming of the suspicion to the time the ASD could be administered amounted to 19 minutes. [12] The next issue is whether the police could realistically have fulfilled their obligation to implement the detainee’s s. 10(b)Charter right before requiring the sample. Mr. Mehta had a cell phone. He was not a security risk since P.C.

Levy was content to havehim wait at the scene in his own vehicle until the second officer arrived. The officer testified that Mr. Mehta was pleasant andcooperative throughout the investigation. There was a delay from 12:25 a.m. when P.C. Levy formed his suspicion until at least 12:44a.m. when P.C. Lai had arrived at the scene with the ASD and was ready to begin the test procedure. I am satisfied that the officer couldand should have advised Mr. Mehta of his

section 10(

b) right to counsel. Had this been done, Mr. Mehta would have had a realisticopportunity to consult with counsel during this nineteen minute delay. I appreciate that the accused chose not to exercise his right tocounsel later after being given his 10(

b) right to counsel. This is but one factor in the analysis. P.C. Levy did not know when the ASDwould arrive at the scene. Mr. Mehta was in a position to consult with counsel, particularly duty counsel if he wished. In R. v George, (ON CA), [2004] 187 C.C.C (3d) 289 (Ont. C.A.) an 18 minute delay in the early morning hours where a cell phonewas at hand was held to have amounted to a reasonable opportunity to consult counsel. In R. v Fildan, [2009] O.J. No 3604 (S.C.J), afifteen minute delay was held to give the detainee a realistic opportunity to consult counsel. I am satisfied that Mr. Mehta has establisheda breach of his s. 10(

b) right to counsel in this case. In

summary, I find that the ASD demand was made outside the authority of s. 254(2) and, therefore, the accused’s detentionand testing pursuant to that invalid demand were not authorized by law. I conclude that Mr. Mehta was subject to arbitrary detention andan unreasonable search and seizure contrary to ss. 9 and 8 of the Charter. I also find that during the 19 minute delay between P.C. Levyforming his grounds to make the demand and the time P.C. Lai was ready to administer the ASD, the accused should have been givenhis s.10(

b) right to counsel. Mr. Mehta had a cell phone with him and would have had a reasonable opportunity to consult counsel sincethe ASD could not be done “forthwith”. The section 24(2) analysis Should the evidence of the ASD and Intoxilyser results be excluded? [13] The Supreme Court of Canada in R. v. Grant, 2009 SCC 32 , [2009] S.C.J.

No. 32 sets out the following analyticframework at para. 71: When faced with an application for exclusion under S. 24(2), a court must assess and balance the effect of admitting the evidence onsociety's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission maysend the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests ofthe appellant (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of thecase on its merits.

The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determinewhether considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. [14] Let me first address the seriousness of the Charter infringing state conduct. The Charter violations flow from the officer’smistake in delaying for seven minutes the making of the demand as well as not informing the accused of his right to retain and instructcounsel for some nineteen minutes before P.C. Lai was in a position to administer the ASD.

I appreciate that P.C. Levy was likelydistracted by other duties involving guarding the crime scene. At the same time there is no evidence that he was faced with such exigentcircumstances or issues of public or officer safety that would have prevented him from making the demand. Nevertheless, theimmediacy or near immediacy requirement of the ASD procedure is by now well established and uncomplicated. [15] I recognize that P.C. Levy had the requisite grounds to make the ASD demand. P.C.

Levy’s conduct cannot becharacterized as deliberate effort to contravene the requirements of s. 254(2) or in any way flagrant or abusive. While the investigation ofMr. Mehta did not appear to be a priority for P.C. Levy, this, of course, cannot justify his non-compliance with the “forthwith”requirement of section 254(2) and the resulting violation of three of the accused’s Charter protected interests.

The important linkbetween the forthwith requirement and those constitutional protections was set by Fish J. in Woods as follows; The "forthwith" requirement of s. 254(2) is inextricably linked to its constitutional integrity: see Woods, at para. 29. This justifies whatwould otherwise be sustained as violations of ss. 8, 9 and 10(

b) of the Charter. Thus, in interpreting "forthwith", this court must bear inmind Parliament's choice of language and Parliament's intention, which is to strike a balance between the public interest in eradicatingdriver impairment and the need to safeguard individual Charter rights: see Woods, at para. 29. [16] The seriousness of the Charter infringing conduct in this case favours exclusion of the evidence.

[ 17 ] The second stage of the inquiry calls for an evaluation of the extent to which the breaches actually undermined the interests protected by the infringed rights. [ 18 ] The obtaining of the breath sample was minimally intrusive both in terms of the procedures used and the information obtained thereby. With respect to Mr. Mehta’s

section 9 Charter right, the interference with his liberty was relatively minor. He was able to sit in his own car until P.C. Lai arrived was relatively brief. Although he was not informed of his right to counsel, he had a cell phone with him and nothing prevented him from calling a lawyer if he wished to. [ 19 ] I conclude that the impact on Mr. Mehta’s Charter protected interests was at the lower end of the scale.

This factor militates toward admission. [ 20 ] The third stage of the inquiry requires the court to consider whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion. The results of the approved screening device and Intoxilyzer sought to be excluded are reliable. The truth seeking function would be better served by the admission of the evidence than by its exclusion. [ 21 ] Two of the three areas of the Grant inquiry favour admission over exclusion.

Yet it is also true that the overriding purpose of section 24(2) is to maintain the good repute of the administration of justice by both upholding the rule of law and Charter rights. The focus is both on the long-term and the prospective, not on the immediate reaction to admission or exclusion in a particular case. The purpose of s. 24(2) is to further the long term interests of society and the justice system.

In balancing the effect of admitting the evidence on society’s confidence in the justice system having regard to three lines of inquiry set out in Grant , it seems to me that the seriousness of the Charter infringing conduct in this case is such that the court cannot be seen to condone the disregard of the law by those charged with its enforcement. I am satisfied that the long term interests of the administration of justice are better served by exclusion of the ASD results. The exclusion of this evidence means that there was an absence of reasonable and probable grounds for Mr.

Mehta’s subsequent Intoxilyser testing. Pursuant to section 24(2) the evidence of the accused’s breath test readings is excluded. There is no admissible evidence that Mr. Mehta’s blood alcohol concentration exceeded the legal limit at the time of driving. [ 22 ] In the result, I conclude that the Crown has not proven the charge beyond a reasonable doubt. The charge is therefore dismissed. Released: November 26, 2012 Justice T. Lipson