The client was charged with operating a motor vehicle with more than 80 milligrams of alcohol in 100 millilitres of blood.  I successfully argued that his Charter Rights had been breached and the charges were dismissed.

[2003] O.J. 5870

1 W.A. GOREWICH J.(orally):– M.R. is charged that on September the 26th, in the year 2002, in Markham, in the Regional Municipality of York, that he had over 80 milligrams of alcohol in 100 millilitres of blood. On the last occasion there was a Charter application brought. The Charter application was based on violations of Mr. Read’s section 10(a) and 10(b) rights, and, as well, the argument was that his section 8 rights were violated. Ultimately, Mr. Berkes argued that the demand was not within the confines of section 254(2); that’s the demand for the roadside.

2 The facts of the case are as follows: that at approximately 1:33 a.m., the investigating officer stopped the applicant after observing certain driving behaviour. At this time, the officer noted, when he approached the vehicle, a strong smell of alcohol, and as well, made observations of the applicant’s bloodshot eyes.

3 The applicant indicated to the officer, during a brief discussion at the car, that he had consumed about three bottles of beer earlier at about ten p.m. The officer later called for an approved screening device at 1:39 a.m.

4 At 1:44 a.m. the device arrived, and at 1:45 a.m. a demand was administered, which was followed by the actual screening test itself at 1:45 a.m. The applicant registered a fail at 1:47 a.m. At 1:48 a.m. the applicant was advised as to the reason for his arrest, and he was arrested. At 1:48 a.m., during that same timeframe, the demand for a formal breathalyser test was read to him. At 1:50 a.m. his rights to counsel were read.

5 The facts in this case were ultimately contained in the affidavit material provided by both counsel, Mr. Berkes on behalf of the applicant and Ms. Hutchinson on behalf of P.C. Pinaiche (ph). counsel agreed that the facts, as contained in the affidavit, would be sufficient.

6 The first area of exploration is that the section 10(a) rights of the applicant were violated. Section 10(a) reads as follows: Everyone has the right on arrest or detention to be informed promptly of the reasons therefore.

7 As I reviewed the affidavit material of both Officer Pinaiche and the affidavit supplied by the applicant, there is no evidence as to what occurred between 1:33 A.m. and 1:39 a.m. I’m not terribly concerned at this stage about the passage of time, but I am certainly concerned about whether during this period, and indeed the period, which followed up until 1:45 a.m., the time of the arrest, whether the applicant knew or was advised as to why he was detained. I find that there Was a detention.

8 In discussing the implications of section 10(a) it’s necessary to get into a discussion of section 10(b). Having found that the applicant was detained, it is clear, based on several cases, that such detention constitutes a limitation on section 10(b), the applicant’s section 10(b) right to counsel.

9 Justice Charron, in R. v. Latour, (1997), 116 C.C.C., (3d), 279 (Ont. C.A.) notes at page 286, “This limitation was justified under section 1 of the Charter, given the important role of the screening device and the fight against impaired driving.”

10 Justice Charron goes on to note in Latour at page 287 as follows: “The determinative question then becomes in any given case whether the police officer was in a position to require that a breath sample be provided by the accused before any realistic opportunity to consult counsel. If so, the demand, if otherwise appropriate, falls within the scope of section 254(2). If not, the demand is not valid.”

11 I find that P.C. Pinaiche did not administer the approved screening demand upon forming his suspicion that the applicant can alcohol in the system, as he wanted to wait until the device arrived. As well, he wanted to check the device to see if it was working properly once it did arrive. This encompassed the timeframe from 1:33 a.m. to 1:45 a.m., a time span of some 12 minutes.

12 It was not until 1:50 a.m., just shortly after the arrest, that the applicant was advised as to his right to counsel and the reason for his arrest.

13 In R. v. Thomsen, (1985), 40 C.C.C. (3d) 411 (S.C.C.) it was held that the giving of one’s right to counsel should only be withheld in circumstances where there is no reasonable opportunity to consult counsel.

14 Arbour J.A., as she then was, in R. v. Pierman and Dewald, (1998), 92 C.C.C. (3d) 160 comments at page 166 as follows: “In the light of that jurisprudence, it seems clear to me that although the section merely requires that the sample be provided “forthwith” after the demand is made, and does not require that demand itself be made “forthwith” after the person is stopped, it is implicit that the demand must be made by the police officer as soon as he or she forms the reasonable suspicion that the driver has alcohol in his or her body. This is the only interpretation which is consistent with the judicial acceptance of an infringement on the right to counsel provided for in section 20(b) of the matter. If the police had discretion to wait before making the demand, the suspect would be detained and therefore entitled to consult a lawyer. The basis upon which the courts have held that Parliament may infringe on a suspect’s right to counsel is that there is no opportunity for the police to accommodate that right if the breath sample must be taken “forthwith.” It follows, in my view, that for the section to maintain its constitutional integrity, we must assume it also contemplates that there be no opportunity for the suspect to consult counsel before the demand is made.”

15 I find that P.C. Pinaiche did not administer the approved screening demand after forming his suspicion that the applicant had alcohol in his system; as I have already indicated.

16 Sopinka, in R. v. Bernshaw, 95 C.C.C. (3d) 193 notes at page 294 is follows: “Section 254(2) of the Criminal Code provides that where the officer has reasonable grounds to suspect that the motorist his alcohol in his body, then the officer may make a demand that the suspect “forthwith” provide breath samples for analysis by screening device. The term “forthwith” does not mean “immediately.” Although the screening test should be administered as soon as possible, a 15-minute delay to enable a proper test to be administered would not offend the provision nor the scheme of section 254 of the Criminal Code. Implicit in the requirement that the sample be provided “forthwith” is any operational time component. A delay in the order of 15 minutes in order to obtain a proper sample does not entitle the suspect to access to counsel under section 10 of the Canadian Charter of Rights and Freedoms. The holding of the court in relation to the predecessor provision to section 254(2) that detention for a roadside screening device test was a reasonable limit on the detainee’s rights under section 10(b) of the Charter has equal application under the present section 254(b), and even where there is a 15 minute delay to enable a proper sample to be obtained.

17 What is thereby derived from a reading of the decisions, amongst other things, is that there must be a reasonable opportunity for the subject to contact counsel; secondly, that “forthwith” does not meet immediately; and lastly, that detention for a roadside screening device test was a reasonable limit on the detainee’s section 10(b) Charter rights.

18 I find, on the facts presented, that the evidence is silent in this case as to whether there was any reasonable opportunity for the applicant to consult counsel. The evidence is silent as to whether there were cell phones or phone booths in the area. I thus cannot make any inference that he would have had a reasonable opportunity to consult counsel. As well, I find that the 12-minute delay falls within the meaning of “forthwith” and does not offend the procedure as set out in section 254(2). Thus, as far as this aspect of the application is concerned, the detention in this case was a reasonable limit on the applicant’s section 10(b) Charter rights.

19 I now turn to a discussion of section 10(a), which I have alluded to earlier. There is a 12 minute time period from the time that the officer forms the opinion, or the suspicion, that the applicant has alcohol in his system until the demand is made. I find on the evidence before me that the applicant was not told, or at least it is no evidence that the applicant was told there was an investigation underway.

20 If one refers to section 10(a), the applicant was entitled to be advised promptly of the reasons for his detention; and the failure to do that feeds into the breach of not advising him of his right to counsel; they are intertwined. The question then becomes was he detained, or can the police delay a detention by not advising the subject of their intention? if done deliberately for that purpose it might be something which could be described as a trick, which would bring the administration of justice into disrepute; if done in good faith to solve a problem, in a way that since the officer’s investigation needs, but without consideration of the time constraints imposed by the Charter and by the Code, then it may also be a breach of his rights.

21 In the case of R. v. Demare (ph), [1997] O.J. No. 4860, decided November 27th, 1997. It’s an Ontario Court of Justice decision by my brother Merredew. He decided that the applicant’s rights in that case, his rights of not being advised promptly as to the reason for the detention, that was not done in that case. He found that that was a violation of the applicant’s Charter rights. Further, in R. v. Mosselin (ph), [1996] O.J. No. 5425, this is a decision, ultimately, on the Ontario Court of Justice General Division, Chadwick J., presiding, decided on April 22, 1996. Chadwick J. states, “I am satisfied that there was evidence to establish the Charter breach under section 10(a), as there was evidence that the accused was not advised or cautioned as to why he was being detained.” The learned trial judge set forth his reasons at page six of his decision, [1995] O.J. No. 4943, and that was a decision of Bigelow J. decided on July the 10th, 1995.

22 On that basis, I must find that there was a breach of the applicant’s section 10(a) rights. He was not advised as to why he was being detained during this period. On that basis, I am excluding the evidence. To admit the evidence would bring the administration of justice into disrepute.

23 MR. BERKES: Thank you very much, Your Honour.

24 THE COURT: Yes. Your charge is stayed.