BETWEEN: COURT FILE No.: District Municipality of Muskoka #07-354 Citation: R. v. Andrews, 2008 ONCJ 599 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN AND DANNY ANDREWS Before Justice Wm. G. Beatty Heard on September 25, 2008 Reasons for Judgment released on November 17, 2008 at Bracebridge Lyndsay Jeanes... for the Crown Peter G. Derry... for the accused Danny Andrews BEATTY J.: Introduction [1] Danny Andrews is charged with care and control of a motor vehicle with over 80 mg of alcohol in 100 ml of blood on August 5, 2006. Defence counsel filed a Notice of Application alleging breaches of s. 8 and s. 10 (b) of the Charter and requesting exclusion of the evidence of the Intoxilyzer readings pursuant to s. 24(2). The trial proceeded on a blended voir dire. P.C. s Fraser and Hetherington and Sgt. Collins of the O.P.P. testified for the prosecution and Mr. Andrews testified on his own behalf. Issues 1. Was a demand for a sample into an Approved Screening Device made forthwith within the meaning of s. 254(2) of the Criminal Code? 2. Were the provisions of s. 10(b) of the Charter engaged in the circumstances of this investigation? 3. If the subsequent breath tests were obtained in a manner that infringed or denied any rights or freedoms provided by the Charter, should such evidence be excluded as to allow its admission in all the circumstances, would bring the administration of justice into disrepute?
2 Facts [2] A R.I.D.E. program had been set up at the intersection of Aspdin and Yearly Road in Huntsville. P.C. Fraser stopped Mr. Andrews who said he had not consumed any alcohol. P.C. Fraser noted no signs of impairment and sent Mr. Andrews on his way at 9:22 p.m. As he pulled away, P.C. Hetherington noted that the trailer being pulled by Mr. Andrews vehicle had no licence plate. He yelled at Mr. Andrews who drove away slowly. He got in his police cruiser and stopped Mr. Andrews about 300 metres from the R.I.D.E. location. He noted that Mr. Andrews pulled over slowly and when questioned about the plate, Mr. Andrews said that he had left it in the boat. While dealing with the licence and ownership documents, P.C. Hetherington smelled a strong odour of gum from Mr. Andrews mouth and thought he smelled alcohol in the vehicle. Mr. Andrews said he had not been drinking. P.C. Hetherington returned to his cruiser and wrote a Provincial Offences Notice for the missing plate. While explaining the ticket to Mr. Andrews, he thought he could smell alcohol masked by the gum on Mr. Andrews breath. Mr. Andrews again denied drinking. P.C. Hetherington formed a reasonable suspicion that Mr. Andrews had alcohol in his body at 21:33 hrs and called Sgt. Collins at 21:35 hrs to bring the approved screening device. Sgt. Collins was unable to bring the device because he was involved in an investigation. P.C. Hetherington told Mr. Andrews that he was detained and took the keys to his vehicle. He did not make a formal demand. He said that he would be back in a couple of minutes. He left at 21:40 hrs and returned at 21:42 hrs. He read the ASD demand and tested the unit at 21:47 hrs. At 21:48 hrs, Mr. Andrews registered an F. At 21:49 hrs, he arrested Mr. Andrews for over 80 based upon the reasonable and probable grounds supported by the device. At 21:51 hrs Mr. Andrews was read his rights to counsel but would not answer if he understood or wanted a lawyer. He said, Do what you want to do you just ruined my life. After reading the caution, P.C. Hetherington called P.C. Fraser and Sgt. Collins at 21:57 hrs to advise that he had arrested Mr. Andrews. At 21:59 hrs, he read the breath demand and after leaving Mr. Andrews keys with P.C. Fraser, left for the Huntsville detachment, arriving at 22:13 hrs. At 22:15 hrs, Mr. Andrews was lodged in a cell and asked again if he wanted a lawyer. As Mr. Andrews did not appear to be sure if he wanted a lawyer, P.C. Hetherington called duty counsel at 22:17 hrs. Duty counsel returned the call at 22:23 hrs and spoke to Mr. Andrews between 22:26 hrs and 22:32 hrs. At 22:37 hrs, Mr. Andrews was turned over to P.C. Powers for breath tests and returned to custody at 23:13 hrs. [3] On cross-examination, P.C. Hetherington agreed that he did not make the ASD demand or provide rights to counsel when he formed the reasonable suspicion at about 21:33 hrs as he did not know how long it would take to get the ASD and he did not believe he could give the test forthwith. He said that he could have made the formal demand but instead gave him the information as to the ASD and held off on the formal demand. He said that he did not feel Mr. Andrews had a right to counsel before the ASD test in any event and he did not read the right to counsel until after the test was given. He said that had Mr. Andrews asked to use his cell phone, he would not allow it. [4] Mr. Andrews testified that he believed he was stopped for 15-20 minutes before P.C. Hetherington returned with the ASD. He said he had his cell phone with him in his vehicle and a local telephone book which had the telephone number of the lawyer he used for
3 real estate and MOE matters. He was told neither that he could make a call nor had a right to call his own lawyer or duty counsel at the roadside. He says that he hates to bother people, so he would have called duty counsel had he been advised of his rights to counsel. He acknowledged that he was guessing as to times and although he could not remember the conversation regarding a lawyer at the detachment, he did not ask for a telephone book or mention his lawyer s name. P.C. Hetherington said that Mr. Andrews was undecided as to whether or not he needed to consult duty counsel, so he called duty counsel on his behalf so Mr. Andrews would have the benefit of legal advice. Analysis [5] The issues in this case, as those reviewed by Justice Charron at paragraph 1 of R. v. Orbanski, [2005] SCJ No. 37 result from the tension between the individual rights of motorists and the broader societal concern dealing with the carnage caused by those who commit offences involving drinking and driving. These issues include the use of roadside screening device tests, reasonable limits on the right to counsel and necessary detention of drivers for the purpose of investigation. Citing Dedman v. The Queen, [1985] 2 S.C.R. 2, at p. 35, Justice Charron at paragraph 24 states: This Court has recognized that, while movement in a vehicle involves a liberty interest in a general sense, it cannot be equated to the ordinary freedom of movement of the individual that constitutes one of the fundamental values of our democratic society. Rather, it is a licensed activity that is subject to regulation and control for the protection of life and property. [6] In Orbanski, the majority concluded that the screening measures under Manitoba road safety legislation were analogous to the suspension of rights to counsel under s. 254(2) of the Criminal Code and were not objectionable under the test in R. v. Oakes, [1986] 1 S.C.R. 103, namely: 1. the objective of the law must be sufficiently important; 2. there must be a rational connection between the limit and the objective; 3. the infringement of the right must be no more than is necessary to meet the objective; and 4. there must be proportionality between the deleterious and the salutary effects of the measure that limits the right or freedom protected by the Charter. [7] The tension between balancing public safety and personal rights is captured in paragraph 29 of R. v. Woods, 2005 S.C.C. 42: The forthwith requirement of s. 254(2) of the Criminal Code is
4 inextricably linked to its constitutional integrity. It addresses the issues of unreasonable search and seizure, arbitrary detention and the infringement of the right to counsel, notwithstanding ss. 8, 9 and 10 of the Charter. [8] The analysis in Woods, Orbanski and Latour, (1997), 116 C.C.C. (3d) 279 (Ont. C.A) was reviewed in R. v. Torsney, [2007] O.J. No. 355, a decision of the Ontario Court of Appeal. The Court confirmed at paragraph 9 that if: the peace officer is in a position to require the person to provide the sample before there is any realistic opportunity to consult counsel, the statutory requirements are met. The detained person has no cause for complaint as the events will have unfolded in accordance with the legislative scheme and within its constitutional boundaries. I see no sound policy reason for requiring that the statutory requirements be met by design rather than by chance. Compliance is compliance whether fortuitous or otherwise. [9] Justice Hill in R. v. Singh, [2000] O.J. No. 4992 (O.S.C) at paragraph 25 adopts the reasoning in The Queen v. Bernshaw (1995), 95 C.C.C. (3d) 193 (S.C.C.) that the term forthwith does not mean immediately but is to be afforded a practical interpretation with sufficient flexibility to permit the roadside testing scheme to operate in fulfilment of Parliament s objectives. [10] Restated, the test for forthwith compliance or right to counsel runs from the time that the police officer forms a reasonable suspicion that the driver has consumed alcohol to the presentation of the approved screening device. The Court also must consider the circumstances of the detention and demand and whether such is subjectively and objectively reasonable. However, time is an important component of such analysis and the longer the delay, the more difficult to justify the delay as being compliant with s. 254(2) or a reasonable limitation demonstrably justified in a free and democratic society under s. 1 of the Charter. [11] To summarize the facts at hand: 2133H P.C. Hetherington formed a reasonable suspicion of alcohol consumption. He is delayed in obtaining the approved screening device due to another investigation. He explains to Mr. Andrews that he is going to get the device and administer the test. He does not provide a formal demand or right to counsel. 2142H approved screening device obtained 2146H- formal demand 2148H- Mr. Andrews registers a fail
5 2149H- arrest 2151H right to counsel [12] Further, I note the following: a) Mr. Andrews was detained for investigation and processing of a provincial offence ticket before 2133H. Such detention was appropriate and authorized by statute and did not precipitate any right to counsel considerations until the police officer formed a reasonable suspicion for the s. 254(2) demand. b) P.C. Hetherington held off the demand as he believed that he would not administer the test forthwith". c) Mr. Andrews was detained under the s. 254(2) investigation from 2133H as P.C. Hetherington told him to remain in his vehicle until he returned in a couple of minutes and took his keys. d) It appears that P.C. Hetherington implied that a demand would be made as he said that he was going to get the approved screening device thereby providing an informational component. e) P.C. Hetherington did not provide either a formal right to counsel or determine if Mr. Andrews had a cell phone. Mr. Andrews testified that he had a cell phone and phone book in his car, and presumably, he could use it after P.C. Hetherington left. f) P.C. Hetherington said that he did not believe it was necessary to provide rights to counsel and would not allow Mr. Andrews to use his own cell phone if he had asked. He did not believe that there would be a reasonable opportunity to contact and consult counsel in the few minutes available in the late evening. g) Mr. Andrews said that had he been advised of his right to counsel and presumably, the number of duty counsel, he would have spoken to a lawyer from his vehicle. I find that statement suspect as he would not answer P.C. Hetherington s questions whether he wanted to consult counsel when such rights were read
6 after arrest and again at the detachment. P.C. Hetherington contacted duty counsel as Mr. Andrews seemed undecided and in need of advice. Surprisingly duty counsel called back in five minutes and was consulted by Mr. Andrews for six minutes. Subjectively and objectively, P.C. Hetherington s belief was reasonable. The delay in this case was 13 minutes from forming a reasonable suspicion to demand for the sample of breath. [13] Delay in this case was nine minutes to obtain the approved screening device and a further six minutes to the test. [14] Other cases are as follows: R. v. Grant, [1991] 3 S.C.R. 139: Delay of 30 minutes to await arrival of ASD total. R. v. Coté, (1992) 70 C.C.C. (3d) 280 (O.C.A.): Officer had no ASD in cruiser and drove accused to detachment where accused refused to provide sample. Total 14 minutes nine minute drive and five minute preparation. Not forthwith. R. v. Bernshaw, (1995) 95 C.C.C. (3d) 193 (S.C.C.): Fifteen minute delay for mouth alcohol. No breach of right to counsel. R. v. Singh, [2000] O.J. No. 4992 (O.S.C): Delay of 18 minutes from reasonable suspicion to results of ASD. Delay caused in part by enforced communication radio silence. No breach of as soon as practicable but temporal and causal connection of breath sample with detention as demand not made forthwith rendering detention unlawful. The seriousness of the breach warranted exclusion of breath test results. R. v. George, [2004] O.J. No. 3287 (O.C.A.): Sixteen minute delay to obtain ASD and another two minutes for sample. Driver s right to counsel violated and breath samples excluded. R. v. Latour, [1997] O.J. No. 2445 (O.C.A.):
7 Eight minutes to obtain ASD and a further four minutes for sample. All circumstances including time elapsed from demand to sample had to be considered to determine whether the officer was in a position to require that a breath sample was provided forthwith, namely before there was any realistic opportunity to consult counsel. Twelve minutes was forthwith. R. v. Radisa, [2007] O.J. No. 4664 (O.C.J.): Four minutes from reasonable suspicion to demand for ASD sample. Driver refused to comply and unsuccessful in supplying sample for a further 14 minutes. Demand made forthwith and need not be in any particular form so long as it was made clear to driver that he must provide sample. R. v. Pierman, (1994), 92 C.C.C. (3d) 160 (O.C.A.): Fifteen minute delay for mouth alcohol satisfies forthwith. R. v. Meisner, [1993] O.J. No. 3354 (Ont. Ct. (Gen. Div.)): Thirty minute delay while police officer arresting passenger for other offences. Driver left locked in cruiser throughout. Right to counsel necessary and breath results excluded. R. v. Boeje, [1995] O.J. No. 4948 (O.C.J. Prov. Div.): Conclusions Six minute delay from reasonable suspicion to demand. Police officer checking documents and making notes, losing focus of s. 254(2) forthwith. Demand not forthwith and rights to counsel not provided. Breath tests excluded. Was the demand made forthwith? [15] P.C. Hetherington testified that he told Mr. Andrews that he would have to submit to an approved screening device test upon forming the reasonable suspicion that Mr. Andrews had alcohol in his body. He delayed the formal demand as he did not know how long would be required to obtain the device. Mr. Andrews was constructively detained by being told to remain in his vehicle and the officer took his keys. He said if he read the formal demand, he did not believe that he would give the test forthwith. He believed honestly but erroneously that by not reading the formal demand, the provisions of s. 254(2) were not engaged. He did not take note of any demand in his notebook until he made the formal demand after returning with the device. I am not satisfied beyond a reasonable doubt that the informational component of the demand was conveyed to Mr. Andrews before the officer left to obtain the device, and the onus lies with the Crown to prove that the
8 requirements of s. 254(2) have been satisfied. [16] The delay of some 15 minutes engages Mr. Andrews s. 10 (b) rights to be advised that he may contact and consult counsel. Suspects are not presumed to know their rights to know the reason for such detention and that they may seek advice. Nothing depends upon Mr. Andrews failure to contact a lawyer while he was not supervised and it may never have occurred to him in the absence of the information from the officer. His lack of response to being read his rights after arrest or at the detachment is not sufficiently probative to conclude that he would have acted differently while detained at the roadside. Mr. Andrews testimony as to his desire to speak to a lawyer was not very helpful or credible, but the officer s testimony that he would not have allowed Mr. Andrews to make a call in any event forecloses the issue. [17] Having determined that the demand was not made forthwith, the Crown is precluded from relying upon the evidential shortcut of proof of the breath test results. The delay further engages Mr. Andrews right to counsel and the failure to provide such information is a serious breach of 10 (b). Admission of the results of the breath test would bring the administration of justice into disrepute per R. v. Oakes (supra). Released: November 17, 2008 Signed: Justice Beatty