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Court clarifies forthwith requirement in impaired cases

|Written By Michael McKiernan

An Ontario Superior Court decision drives home police officers’ duty to act with dispatch during roadside detentions, according to a Toronto criminal  defence lawyer.

‘The law in relation to roadside detention has got to be strictly construed,’ says Peter Thorning.

In R. v. Creedon, Ontario Superior Court Justice Jane Kelly upheld a provincial court judge’s decision to exclude breath samples given by Conaire Creedon and acquit him.

The trial judge found a violation of Creedon’s rights under ss. 8 and 9 of the Charter of Rights and Freedoms following a 17-minute delay between the initial roadside breath sample request and the results.

Peter Thorning, a partner at Brauti Thorning Zibarras LLP, represented Creedon and says the case is important because of the sheer number of people stopped each year, including those caught up in RIDE programs.

“The law in relation to roadside detention has got to be strictly construed,” he says. “Police interfere with the liberty of hundreds of thousands of people on a yearly basis, so if they can’t get it right, then the violations are going to occur many thousands of times, which is not something we should tolerate.

If all of those people were allowed to be held for 17 or 18 minutes routinely, then we’d be living in a very different society.”

Section 254(2) of the Criminal Code allows police to demand a suspect provide a breath sample “forthwith” into an approved screening device.

In Creedon’s case, an officer who saw him driving in a lane marked for streetcars pulled him over just after midnight.

The officer made a breath demand after smelling alcohol on Creedon’s breath but didn’t have a screening device in his car. About eight minutes later, the approved screening device arrived, but it was another nine minutes before Creedon failed the test.

“Even though the officer was on a traffic detail and he knew there was a likelihood he would stop people during the course of his duty, he didn’t have an approved screening device in his car,” says Thorning.

“If they really believe that drinking and driving is such a plague, why doesn’t every officer have a device in the car so they can quickly confirm or deny their suspicion?”

The trial judge found the 17-minute delay “vitiates the forthwith requirement” and excluded the breath results pursuant to s. 24(2) of the Charter.

Although there was also a question about a possible breach of Creedon’s rights to counsel, the trial judge found that the delay alone was enough to warrant the exclusion.

The Crown appealed the exclusion, arguing that the judge had found seven minutes of the delay related to the preparation of the machine were reasonable and had failed to consider the good faith of the officers involved.

But Kelly found the judge’s analysis sound and that he had properly balanced the societal interest in a trial on the merits with the seriousness of the breach as required by the Supreme Court’s decision in R. v. Grant.

Describing the case as a “close call,” the trial judge said he had found “significant Charter violations over a not insignificant time” and concluded that the “long-term interests of the administration of justice are better served” by excluding the evidence.

Kelly said none of the trial judge’s findings were unreasonable and that his decision merited deference. According to Thorning, the appeal shows that s. 24(2) of the Charter hasn’t lost its vitality.

“Having found the breach, the judge excluded the evidence. That has been happening less frequently since R. v. Grant. I think this case and a few others confirm that evidence will still be excluded, even when it’s reliable, where police breach their statutory obligations under the Charter.”

In another recent case at the Court of Appeal for Ontario, the province’s top court clarified the definition of “forthwith” in roadside cases and at the same time shot down a Crown version that could have dramatically increased the length of an acceptable detention.

In R. v. Quansah, a police officer spotted Peter Quansah’s car at 3:03 a.m. while stationary at a green light.

The officer arrived at the car to find a sleeping Quansah at the wheel and tried to wake him up. Quansah promptly drove off, and the officer gave chase.

A couple of minutes later, he had Quansah out of the car and in handcuffs.

The officer conducted a search of the car before making a request for a breath sample at 3:17 a.m., 14 minutes after forming his reasonable suspicion that Quansah had consumed alcohol. Quansah provided two insufficient breath samples before he failed the test at 3:22 a.m.

Eventually, Quansah was convicted of over 80 despite claiming that police had failed to make the roadside demand forthwith.

The trial judge dismissed that argument, but Quansah won a fresh trial on appeal after a Superior Court judge found the trial judge had applied the wrong test for forthwith.

At the Court of Appeal, the Crown argued that forthwith only requires compliance with a valid demand before the detainee could realistically consult with counsel.

“That would mean however long the delay is between the reasonable grounds and the sample being given, it could only be interpreted as being unreasonable if the person has been prevented from calling their lawyer during that time,” says Thorning.

Writing for a unanimous three-judge panel, Appeal Court Justice Harry LaForme rejected the Crown submission.

“While it is true that if the sample is not obtained before there is a realistic opportunity to consult counsel that was not provided, the immediacy requirement is not met, the reverse is not true.

If the sample is obtained before that but only after a delay longer than is reasonably necessary for the purposes of s. 254(2), it will also fail the immediacy requirement,” he wrote, adding five factors for judges to consider in deciding whether police have met the forthwith requirement:

— They must analyze the forthwith requirement contextually, bearing in mind the balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.

— Police must make the demand promptly once they form a reasonable suspicion that the driver has alcohol in the body.

— Forthwith connotes a prompt demand and immediate response, but unusual circumstances may allow for a more flexible interpretation. In the end, the time from reasonable suspicion to the demand and to the detainee’s response must be no more than is reasonably necessary.

— The immediacy requirement must take into account all of the circumstances, including reasonably necessary delays for the officers to discharge their duty, as in situations where screening devices aren’t immediately available, the need to ensure an accurate result, and instances in which there are legitimate safety concerns.

— If the police could realistically have fulfilled their obligation to implement the detainee’s right to counsel before requiring the sample, the forthwith criterion isn’t met.

Ottawa lawyer Lawrence Greenspon, who represented Quansah on the appeal, says he was glad to see the court reject the Crown’s “attempt to dilute the forthwith requirement.” However, it wasn’t all good news for his client.

Applying the factors to Quansah’s case, LaForme reinstated the conviction after finding the 17-minute delay was reasonably necessary for the officer to carry out his duty given the accused’s actions in speeding away and the reasonableness of the limited search for weapons.

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