Law Times

Law Times • may 28, 2012 Court clarifies forthwith requirement in impaired cases Creedon drives home police duty to act with dispatch during roadside detentions FOCUS BY MICHAEL McKIERNAN Law Times Superior Court Justice Jane Kelly upheld a provincial court judge' patch during roadside detentions, according to a Toronto criminal defence lawyer. In R. v. Creedon, Ontario A under ss. 8 and 9 of the Charter of Rights and Freedoms follow- ing a 17-minute delay between the initial roadside breath sample request and the results. Peter Thorning, a partner at decision to exclude breath samples given by Conaire Creedon and acquit him. The trial judge found a violation of Creedon' s s rights 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, fere 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' living in a very different society." Section 254(2) of the Criminal " he says. "Police inter- d be Code allows police to demand a suspect provide a breath sample "forthwith" screening device. In Creedon' who saw him driving in a lane marked for streetcars pulled him over just after midnight. The offi- cer made a breath demand after smelling alcohol on Creedon' into an approved s case, an officer breath but didn't have a screening device in his car. About eight min- utes later, the approved screening device arrived, but it was another nine minutes before Creedon failed the test. "Even though the officer was s n Ontario Superior Court decision drives home police officers' duty to act with dis- of the delay related to the prepara- tion of the machine were reason- able and had failed to consider the good faith of the officers involved. But Kelly found the judge' 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 s found "significant Charter viola- tions over a not insignificant time" and concluded that the "long- term interests of the administra- tion of justice are better served" by excluding the evidence. Kelly said none of the trial judge' ings were unreasonable and that his decision merited defer- ence. According to Thorning, the appeal shows that s. 24(2) of the Charter hasn't lost its vitality. "Having found the breach, s find- the judge excluded the evidence. That has been happening less fre- quently since R. v. Grant. I think this case and a few others confirm that evidence will still be exclud- ed, even when it' police breach their statutory obli- gations under the Charter. Court of Appeal the province's top court clarified In another recent case at the for Ontario, s reliable, where " the definition of "forthwith" in roadside cases and at the same time shot down a Crown ver- sion that could have dramati- cally increased the length of an acceptable detention. In R. v. Quansah, a police offi- cer 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 sus- picion that Quansah had consumed alcohol. Quansah provided two insufficient breath samples before he failed the test at 3:22 a.m. Eventually, Quansah was a reasonable suspicion that the driver has alcohol in the body. — Forthwith connotes a prompt demand and imme- diate response, but unusual circumstances may allow for a more flexible interpretation. In the end, the time from reason- able suspicion to the demand and to the detainee' 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 forth- with. 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 rea- sonable grounds and the sample being given, it could only be inter- preted as being unreasonable if the person has been prevented from calling their lawyer during that time, three-judge panel, Appeal Court Justice Harry LaForme rejected the Crown submission. Writing for a unanimous " says Thorning. 'The law in relation to roadside detention has got to be strictly construed,' says Peter Thorning. ple 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 pur- poses of s. 254(2), it will also fail the immediacy requirement," he wrote, adding five factors for judg- es to consider in deciding wheth- er police have met the forthwith requirement: — They must analyze the "While it is true that if the sam- forthwith requirement contex- tually, bearing in mind the bal- ance between the public interest in eradicating driver impairment and the need to safeguard indi- vidual Charter rights. — Police must make the demand promptly once they form A DAILY BLOGOF CANADIAN LEGAL NEWS WWW.CANADIANLAWYERMAG.COM/LEGALFEEDS 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, 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 " says Thorning. "If they really 17-minute delay "vitiates the forthwith trial excluded the breath results pur- suant to s. 24(2) of the Charter. Although there was also a ques- tion about a possible breach of Creedon' 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 s rights to counsel, the POWERED BY CANADIAN LAWYER & LAW TIMES LegalFeeds-1/2-LT-Apr23-12 2.indd 1 www.lawtimesnews.com 12-04-24 12:17 PM judge found the requirement" and cally have fulfilled their obliga- tion to implement the detainee' right to counsel before requiring the sample, the forthwith crite- rion isn't met. Ottawa lawyer Lawrence s However, it wasn't all good news for his client. Applying the factors to Quansah's case, LaForme reinstat- forthwith requirement." to dilute actions in speeding away and the reasonableness of the limited search for weapons. LT s s "attempt ment 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 imme- diately available, the need to ensure an accurate result, and instances in which there are legitimate safety concerns. — If the police could realisti- must be no more than is rea- sonably necessary. — The immediacy require- s response PAGE 11 Greenspon, who represented Quansah on the appeal, says he was glad to see the court reject the Crown' the ed the conviction after finding the 17-minute delay was reasonably necessary for the officer to carry out his duty given the accused'

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