New & Notable: Back Chanelling your way to Waiver

In the recent case of R v JWC, 2011 ONCA 550 the Court of Appeal considered "back channelling" in the context of the implementational component of section 10(b).  The appellant was charged with fourteen sexual offences relating to eight different complainants. The assaults occurred while the appellant was a counsellor at group homes for persons with special needs. The Crown's case depended upon the statement of the appellant as the complainants were developmentally and largely unable to communicate [para 1].
At trial the appellant sought to exclude his confession alleging there had been a violation of his right to counsel under section 10(b) of the Charter. The trial judge dismissed the application, the appellant was convicted and he appealed.
On appeal the appellant challenged the ruling on the 10(b) motion. In doing so, the appellant also advanced a new aspect to the alleged violation.
The first part of the 10(b) argument - which was advanced at trial - related to whether the appellant had "a reasonable time to consider whether he should exercise his right to counsel", something he never did do [para 19]. The Court of Appeal, accepting the trial judge's rejection of this argument, noted that the trial judge took into account that the appellant was first read his rights when he was picked up by the police from the place he was residing - a psychiatric facility - and again read them at the station prior to interview [para 19]. The trial judge held that there was "twelve minutes or so" in this time frame and that this was sufficient time for the appellant - despite the fact he was "admittedly depressed" - to consider contacting counsel; this finding was held not to be unreasonable by the Court of Appeal.
The second part of the 10(b) argument - which was not advanced at trial - focused on duty to hold off and waiver. The argument was summarized by the court as follows: "...the appellant's equivocal response, 'I don't know', required the police to obtain a clear waiver from the appellant..the circumstances known to the police compel this result" [para 21]. The circumstances included the depression and that the appellant was residing at a psychiatric facility. This argument was premised on the following exchange that took place at the police station:
BASKEY: Um now I'm gonna read a couple of things to you. I've already read them to you once but I'm gonna go over them again.
APPELLANT: Okay
BASKEY: Alright. Ah it's my duty to inform you that you have the right to obtain and instruct [counsel] without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a Legal Aid Lawyer. If you are charged with an offence you may apply to the Ontario Legal Aid Plan for legal assistance. 1-800-265-0451 is a toll free number that will put you in contact with Legal Aid Duty [Counsel] Lawyer for free legal advice right now, do you understand?
APPELLANT: Mm huh
BASKEY: Ah do you wish to call a lawyer now?
APPELLANT: Ah I don't know.
BASKEY: Okay. Um but you do understand this [is] a, a phone number for free legal advice?
APPELLANT: Mm huh
BASKEY: And that we'll provide you with an opportunity to call that number, you do understand that right?
APPELLANT: Right
BASKEY: Um do you wish to say anything in an, now you're not charged with anything right now. Um do you wish to say anything ah you're not obliged to say anything unless you wish to do so but whatever you say may be given in evidence do you understand that?
APPELLANT: Mm huh
BASKEY: We're recording this and that we can use it as evidence?
APPELLANT: Okay
BASKEY: Okay. So what I'll do is I'll, I'll get you to um, ah just tell me a little bit about yourself and tell me why you called today. Okay? [Emphasis in original].
In considering the issue Rosenberg JA noted and relied upon the recent trilogy from the Supreme Court: R v Sinclair, 2010 SCC 35, R v Willier, 2010 SCC 37 and R v McCrimmon, 2010 SCC 36. He then offered the following in rejecting this argument:
In this case, the appellant's response to the second caution was simply, "Ah, I don't know". If that phrase constituted a positive indication of uncertainty as to the content of the right to counsel, the police would be obliged to provide the appellant with further and better information. As the court said in R. v. Willier at para. 31, "should a detainee positively indicate that he or she does not understand his or her right to counsel, the police cannot rely on a mechanical recitation of that right and must facilitate that understanding". However, that is not this case. In this case, "Ah, I don't know" was not an expression of uncertainty about the content of the right, which the appellant admitted he understood. Nor was it an invocation of the right to counsel and, by itself, would not trigger an obligation on the police to obtain a clear waiver. After the appellant said "Ah, I don't know", Constable Baskey confirmed with the appellant that he understood his rights:
Baskey: Okay. Um but you do understand that this [is] a, a phone number for free legal advice?
Appellant: Mm hum
Baskey: And that we'll provide you with an opportunity to call that number, you do understand that right?
Appellant: Right
Even taking into account the appellant's psychiatric condition as was appropriate, there is nothing to indicate that the appellant did not understand that he had the right to immediately consult counsel, if he wished to do so. There is no aspect of the interview that indicates that the appellant did not understand his right to counsel or that he was in any way deprived of the opportunity to exercise that right had he chosen to do so [paras 25-26]. [Emphasis added].Even taking into account the appellant's psychiatric condition as was appropriate, there is nothing to indicate that the appellant did not understand that he had the right to immediately consult counsel, if he wished to do so. There is no aspect of the interview that indicates that the appellant did not understand his right to counsel or that he was in any way deprived of the opportunity to exercise that right had he chosen to do so [paras 25-26]. [Emphasis added].
DG Mack

New & Notable: Looking for Consent in all the Wrong Places

Lay over at Pearson...good chance to blog since I haven't for a week.  The recent case of R v Dippel, 2011 ABCA 129 is worthy of note - and provides a good introduction to my next blog on the recent ruling by the Supreme Court in R v JA, 2011 SCC 28.  
Alan Dippel, the respondent, was in attendance at his daughter's party at his house.  Also in attendance was a friend of his daughter, the complainant who was 24 years old.  The complainant, who was planning on staying over, had consumed some alcohol before going to the party and had a few drinks at the party; she was tired and decided to go to bed early.  She went to a bedroom, fully clothed, and laid down to sleep. 
The respondent was drinking that night as well.  He was described by those at the party as conducting himself in a "vulgar and outrageous" manner; he was intoxicated and propositioning anyone who would listen [para 3].  The Court of Appeal noted that it was "obvious that no one at the party, still conscious and alert, had any interest in reciprocating his overtures" [para 3].
Ultimately the respondent made his way to the bedroom where the complainant was fast asleep. He testified that he entered the room, laid down on the bed and fell asleep. When he awoke he turned over and cuddled up to the person beside him. The respondent then decided to start touching her "back and buttocks" trying to get some acknowledgement.  The respondent testified that when she "kind of snuggled back into me" he decided to fondle her breasts.  The respondent then claimed that the complainant raised her arm, which he took as an indication that "[s]he was giving me the green light" - although she had not uttered a single word. Thereafter, her pants were removed and he digitally penetrated her” [para 4].
The encounter ended when the complainant awoke to find she was being penetrated; she jumped from the bed and said "who are you".  She then pulled her pants up and ran out of the room [para 5].
At trial the respondent argued that complainant had consented or, in the alternative, he was honestly mistaken that she had. The trial judge found that the testimony of the respondent, with respect to his mistaken belief as to the complainant’s consent, raised a reasonable doubt and acquitted him.  The Crown appealed.
The Court of Appeal granted the Crown appeal and substituted a verdict of guilt; the court found error with the trial judge’s “understanding and application of the defence of mistaken belief” [para 28].
In dealing with the defence of mistaken belief as to consent the CA explored the premise for the accused so-called mistaken belief, namely that his belief was based on the complainant’s body movements. In rejecting this the court held that:
…ambiguous movements by an unconscious or semi-conscious person do not constitute the clear communication that is necessary to form the basis for a mistaken belief in consent. The respondent's own evidence acknowledges that he advanced the sexual contact based solely on the complainant's passivity; in other words, her lack of resistance and failure to object [para 18].
The Court went on to explain what the nature of this particular situation required.
Further, this is one of those situations that required an unequivocal communication of consent. The fact that the individuals were complete strangers and she was asleep at the time, would require a reasonable person in the respondent's position to clearly ascertain that the complainant was consenting to engage in sexual contact with him: R. v. Crangle, 2010 ONCA 451, 266 O.A.C. 299, leave to appeal to SCC refused: 33768 (December 23, 2010). The observations of Abella J.A. (as she then was), in R. v. Osvath (1996), 46 C.R. (4th) 124 at para. 29, 87 O.A.C. 274 (C.A.), a case factually very similar to the case at bar, are also apposite:
Anyone seeking sexual activity in these circumstances could hardly fail to know that he was obliged, at a minimum, to let the person from whom permission for such activity was sought, know who was seeking the consent. Consent is not given or refused in a vacuum - it is given or refused to a particular activity with a particular individual [emphasis added by Alberta Court of Appeal].
In the circumstances of this case, the court noted, the failure to have taken any such precautions must result in the defence mistaken belief being beyond the reach of the accused. [para 25]
The Court also made some apt comments on who bears the onus with respect to ascertaining consent.
Before concluding, we wish to make one further observation. In her Reasons for Judgment, the trial judge distinguished some of the cases considered by her because the complainants in those cases had "made it clear through previous communications that they were not interested in any sexual contact." With respect, that misplaced the legal responsibilities of the parties and distorts the law. To engage the protection of the criminal law, the complainant was not obliged to make a pre-emptive announcement before retiring to sleep that she did not wish to engage in sexual activity with anyone in the house. Like everyone else, she was entitled to sleep in an unsecured bedroom without fear of molestation. The onus fell on the respondent to take real steps that met the reasonable steps threshold to ensure that the complainant voluntarily agreed to engage in sexual activity with him. He failed to do so [para 26].
Of note this decision was penned before the recent SCC case of R v JA, 2011 SCC 28.  The court acknowledged this with the following notable conclusion:
Since preparing the foregoing, the Supreme Court has released its decision in R. v. J.A., 2011 SCC 28 (CanLII), which confirms our conclusion that consent to a sexual act requires the conscious decision of an operating mind to each and every sexual act: see paras. 36 and 42 [para 27].
 

DG Mack

Quotable Quote: No Need to Speculate...

Erland Wallace Mordue was convicted by a jury of first degree murder.  He appealed that conviction.  Mordue raised three grounds of appeal.  In dismissing the appeal the court offered the following quotable quote in relation to the Crown's case:
There was a strong case of planning and deliberation based on the appellant’s handwritten notes that refer to the murder and the suicide, and the fact that the appellant went to the victim’s home, cut the phone line, and waited for her while drinking beer and smoking for some period of time. As the appellant did not testify, there is no explanation that the jury could consider to put these circumstances in another light [para 3]; [emphasis added].
 
DG Mack

News: Cold Case Websites

The Surete du Quebec has launched a new website directed at cold cases: Crimes Non Resolus (see the Montreal Gazette report on August 4, 2001 about this site).  The site reports its purpose as follows:
The development of new investigative techniques led the Sûreté du Québec to create a team whose sole mission is to solve cold cases. This website is a call for the assistance of the public in providing the police with any information that could help solve cases involving serious crimes against persons.
The Ontario Provincial Police has a similar site - as part of its main website listing numerous cold cases.
 

DG Mack

New & Notable: Choosing Between the Devil and the Deep Blue Sea

Choosing between the devil and the deep blue sea is not something one envies but it is something one must do from time to time; the longevity of this idiom is a testament to that fact.  The precise origins of this idiom seem to be the source of some debate.  The Phrase Finder canvasses some of this debate noting that CANOE (the committee to ascirbe a nautical origin to everything); that approach to the origin of the phrase is also noted by Wikipedia.  Both sites seem to reject this explanation however; The Phrase Finder favours Greek origins for the phrase:
Homer's Odyssey refers to Odysseus being caught between Scylla (a six-headed monster) and Charybdis (a whirlpool).
Whatever the origin, the phrase is well known and been used in songs (sung first by Cab Calloway in 1932), movies and plays.
In the recent case of R v Borde, 2011 ONCA 534, the appellate Crown (James Stewart) craftily made reference to this phrase in discussing the dilemma facing defence counsel at trial in response to a ground of appeal alleging ineffective assistance of counsel.
Quinn Borde was charged with several offences relating to a robbery and attempted murder.  At trial his position was that he did not commit the offences and was at home with his mother when the offences occurred [paras 1-2].
On June 29, 2006 two young women were partying together and decided to attend at another woman's residence for the purpose of buying some marijuana.  During their trip to that residence they were accosted by a male, alleged to be the appellant.  The appellant robbed them of a chain and some cash and then told them they were staying with him.  The three then attended another residence to find some marijuana and a confrontation occurred at the door of that residence during which the appellant shot the resident.  The appellant and the girls left the apartment and shortly thereafter on the street were confronted by the police.  The appellant began shooting at the officers and then fled.  During his flight he fired shots at an ambulance which was attending to help the residence who had been shot earlier.
At trial the Crown called eye-witness photo lineup including one of the females who had known the appellant.  While the appellant had apparently not planned to testify, after the female witness proved to be "formidable" he chose to testify and provide an alibi defence - which, due to his initial position, had not previously been disclosed. 
The appellant was convicted of almost all of the offences he was charged with and appealed [paras -14].
One of the grounds of appeal related to an allegation of ineffective assistance of counsel.  The allegation related to the failure to make timely disclosure of the alibi and accordingly avoid the adverse inference that could be drawn.  In rejecting this ground of appeal Juriansz JA, for the court, offered the following:
Defence counsel examined both the appellant’s mother and brother regarding his claim of alibi and concluded that the jury was unlikely to believe them. Counsel for the appellant accepts that it was reasonable for defence counsel to make this judgment initially and to advise the appellant not to testify. Counsel for the appellant points out that circumstances change, as they did in this case, and because the accused always has the right to decide to testify, defence counsel must serve a notice of alibi in all cases. The only exception this rule that counsel for the appellant would recognize is where defence counsel knows the claim of alibi is fabricated.
I find the proposition too unequivocal. Certainly, having the case go to the jury with an adverse inference instruction is always undesirable for the defence. Every effort should be made to avoid that happening. However, sometimes the defence must choose between the devil and the deep blue sea, as counsel for the Crown put it. Here, defence counsel considered that the appellant’s alibi defence would be disbelieved, and that having the police investigate the claimed alibi would harm the defence by exposing its weakness or possibly establishing it was concocted. The appellant was prepared to accept that advice. In the unlikely event that the appellant changed his mind, going to the jury with a failed or concocted alibi would have been worse for the defence in defence counsel’s judgment. This was a competent, professional tactical decision that I would not second guess [paras 20-21] [emphasis added].
Other grounds of appeal were raised and rejected including an allegation with respect to the use that could be made out of the appellant's failure to call his mother [paras 26-29]. 
In the end the appeal was dismissed.  The appellant had been sentenced by the trial judge to 25 years.
 
DG Mack

Comment: Racial Profiling...

Racial profiling is a serious allegation and if made out should be treated very seriously; our Court of Appeal has clearly recognized this: R v Brown, 2003 CarswellOnt 1312 (CA).  Conversely, it is a serious allegation that should not be made lightly and should properly be raised.  As the Court of Appeal noted, in "quickly" dispensing with a non-meritorious claim of racial profiling in  R v Clayton, 2005 CarswellOnt 1061 (CA) [overturned on other grounds]: 
There is no basis in the trial record for this submission [of racial profiling] which, as indicated above, was made for the first time on appeal. It is unfair to those who are the target of this serious allegation to raise it for the first time on appeal. In addition, advancing a claim of racial profiling where it is so obviously devoid of merit tends to trivialize a matter of serious concern within the community.  [Emphasis added].
In the recent case of R v Noel and St-Louis, Ontario Court of Justice, Ottawa, June 23, 2011, it was alleged that the arresting officer may been involved in racial profiling.  Unfortunately, these allegations were made during a preliminary hearing and absent a formal complaint or Charter motion (indeed the court had no jurisdiction to consider the validity of the stop or detention).  Respectfully, it seems equally unfair to raise such a serious allegation in the context of a judicial proceeding where the court has no jurisdiction to properly consider the allegation and without the benefit of a full and fair hearing.  
Moreover, the allegation of "racial profiling" was legally irrelevant in the proceedings.  A claim of "racial profiling", in the context of a criminal trial, has a specific meaning and consequence; it is relevant where a stop and/or detention of an accused is at issue or some other Charter remedy is being sought.  If proven its consequences may be a stay or exclusion of evidence.  However, where there is no formal claim or the court has no jurisdiction to consider it, a claim of "racial profiling is legally irrelevant.  The comments of the court in R v Humphrey, 2011ONSC 3024, 2011 CarswellOnt 3817 - where racial profiling was alleged - are instructive:
Once it is determined that the H.T.A. grounds for the stop were not a mere ruse, and that the police genuinely acted, at least in part, on the basis of the expired val tag, it becomes very difficult to establish racial profiling. As Morden J.A. put it in Brown, supra, the burden on the accused is to establish on a balance of probabilities "that there was no articulable cause for the stop" or that the H.T.A. grounds were "a pretext for a racially motivated stop", as Doherty J.A. put it in Peart, supra. On the facts of the present case, the "extra interest" that motivated the police to stop the Cadillac was the possible association of the car to criminal gang members. As in Brown v. Durham Regional Police Force, the racial make-up of the possible criminal gang associates does not appear to have been a factor. Whether they were black or white, the possibility of gang associations was a perfectly good reason to show some "extra interest" in the car. [Emphasis added]. 
Unfortunately, but not unexpectedly, these allegations and the results of the case have spurred much commentary.  For example, in a blog on "Politic?" the author offers the following critique on the comments by the court in R v Noel and St-Louis:
It's the troubling aspect of how the courts perceive their mission in weighing evidence put before them through the professional conduct of police, coming to the unwarranted conclusion that as a result of imputed behavioural misdemeanors, that evidence is to be set aside that should concern us. The police doing their professional best and the courts insisting on leniency based on political correctness.
On the other side, Dawg's Blawg seems to view the courts comments in a much more favourable light.  
Obviously this is a subject which will stir up emotion and strong opinions; before jumping to conclusions however,  it is important to consider some facts.
First, as noted at the outset, this was a preliminary hearing.  There was no formal allegation of racial profiling made, no Charter motion alleging the stop or detention was unlawful, arbitrary or based on racial profiling; nor could there be as the court was without jurisdiction to consider same.  Absent such a motion (and jurisdiction for the court to consider it) it is unfair and legally irrelevant to raise the allegation. 
Second, to the extent that the stop and detention was alleged to be based on racial profiling, it should be recognized that the officer was legally authorized to make the stop.  Pursuant to section 32(1) of the Highway Traffic Act and section 3(1)(a)(i) of the Compulsory Automobile Insurance Act, combined with section 216 of the Highway Traffic Act the officer was lawfully entitled to stop the men and check their licence and insurance.  The officer testified that he did stop them for that purpose; after explaining why he ran the plate, "to see if there's stolen vehicles...if they're expired, who owns the vehicle, if the vehicle is stolen...", the officer testified as follows regarding the reasons for the stop [as reported by the Ottawa Sun]:
OFFICER FERRIE: I stated the reason for my stop, I’m just checking documents and ensuring that he’s allowed to be in the vehicle. I asked him who owned the vehicle and he stated his — his mother did.
Is it racial profiling to stop a motorist, for a valid and lawful purpose, just because they are black? It could be racial profiling, if there was any evidence to support that allegation.  On the other hand, it could be good police work to rely on a valid authority to stop two young men driving a Cadillac registered to an older female in the Market to ensure they were properly licenced and had insurance and registration for the vehicle.  The officer could have stopped any person driving through the Market that night to check on their licence.  He choose to stop these young men for that purpose; true, he did so in part because they raised suspicion in his mind, yet, he did so for a valid purpose.  That is good police work, not racial profiling. 
The recent case of R v Hopkins, 2011 ONCJ 349 makes this point in circumstances which most people will easily accept and likely agree with [see my blog: Quotable Quote: It can be Random, it Need Not be Pointless].  In Hopkins the defence argued that it was a Charter violation for an officer to select and stop motorists in the area of a bar under section 48 of the Highway Traffic Act - a section which permits officers to stop motorists to determine if they may be impaired.  The argument was essentially that the officer was "alcohol profiling".  That argument was rejected.  It would be odd to permit officers to stop motorist to check on their sobriety but not permit them to stop motorist who are more likely to be impaired, such as those who are leaving a bar.  Similarly, it would be odd that officers are permitted to stop motorist to check on their licence, registration and insurance but not to stop those who are more likely in contravention of those sections (such as two young men who are in an older female's Cadillac).   
Third, as far as it appears from all reports and reference to the case, the officer never admitted or conceded that he was racial profiling.  A finding that it was racial profiling in the absence of any evidence to support same is troubling - as noted in Humphrey, if the allegation were made in a proper Charter motion, it would be the accused who bore the onus of establishing, on a balance of probabilities, that there was no valid reason for the stop.
It is interesting to note, in this regard, one of the questions posed by the judge during the questioning of the officer [as reported by the Ottawa Sun]: "How many white women do you stop in the market just because they're driving a car?".  The officer replied "I couldn't even tell you".  Of course, the more relevant question - if you were attempting to allege racial profiling or determine if there was racial profiling is "How many young white men driving cars in the market that are registered to older females do you stop?".  This could provide relevant evidence on racial profiling.  The actual question posed is completely irrelevant, with respect.
Racial profiling is a serious allegation and must be rejected and admonished by the courts.  It must not be alleged or found, however, in the absence of a formal Charter motion and a full and fair hearing. 
Coincidentally, during the stop the officers found the following: 13 grams of pot, 5 grams of crack and $1,685 in cash.

 
DG Mack

Quotable Quote: A Car is no Place to Hang When you're Drunk!

Chelsea Kelly was convicted by Justice Adams of one count of impaired care and control of a motor vehicle; Kelly appealed her conviction.  In dismissing the appeal, Kane J provides a quotable quote in relation to care or control cases: R v Kelly, 2011 ONSC 2258.
Kane J outlined the salient facts as follows:
The appellant drove her automobile and her girlfriend to a bar on the evening of May 3, 2009. The appellant parked her car at the bar. She and her friend went into the bar and consumed some alcohol. They stayed at this bar for some 3 to 4 hours. The appellant and this friend then left the bar and went with others to a house party where they stayed for between one-half to one hour. The appellant's car had been left at the bar and not driven to the house party. The appellant and her girlfriend left the house party with the intention to walk to the girlfriend's home. The girlfriend, wearing shorts and a tank top, became cold as they walked. It was decided to stop at the appellant's car to warm up. The appellant testified that, after warming up in the car, it was her intention to then walk to the girlfriend's home some ten minutes away from the car.
The appellant used her keys and unlocked her car. The appellant sat in the driver's seat. Her girlfriend sat in the front passenger seat. The appellant placed the keys into the ignition and started the motor. Neither woman wore a seat belt. The two women remained in the vehicle with the motor running for approximately ten minutes whereupon two police officers at 04:08 hours noticed the stationary car with running lights on. Police detected the smell of alcohol from the appellant. The physical actions by the appellant during questioning by police suggested to the officers that she was impaired from alcohol. The appellant was arrested and taken to the police station. The breath analy-sis of the appellant conducted at approximately 05:15 hours were 113 milligrams and 108 milligrams of alcohol in 100 millilitres of blood. A charge under s. 253(a) of care or control of a vehicle was thereupon issued [paras 2-3] [emphasis added].
In convicting the appellant, Adams J accepted the appellant's evidence that she did not intend to drive, but noted that "her intention to drive is not an element of the charge...and not therefore determinative of guilt" [para 35].  The trial judge concluded, as summarized by Kane J on appeal, as follows:
She was in the driver's seat, the car motor was running and the girlfriend's house was merely a few blocks away. The capacity to do so was just a gear shift away. The judge further held that the car could easily have been set in motion unintentionally [para 14].
On appeal the appellant argued, inter alia, that (i) there was no evidence to conclude that there existed a realistic risk that she would change her mind and drive and (ii) that the trial judge’s conclusion that the vehicle could have accidentally or unintentionally been put in drive was unreasonable.
In rejecting these grounds, Kane J, offered the following quotable quote:
Parliament could have limited s. 253(1) to prohibit care or control of a motor vehicle to acts sufficient to create risk to persons or property. This is in response to the appellant's argument that the appellant's actions constituted no such risk as only an intentional or accidental shifting of the gear out of Park would have created such vehicle movement and resulting risk. In fact, movement of this car and the resulting risk to person or property increased with every action of the appellant as she unlocked the car, sat in the driver's seat, inserted the key in the ignition, started the motor and intentionally left the motor running. The risk to person and property increased with these actions. The realization of the risk was but "a gear shift away," whether that shift occurred by accident, mechanical fault or a decision to drive home.
Regardless of risk, the appellant was exercising control of and operating the mechanical, electrical and motor system of the vehicle [emphasis added] [paras 72-73].
 
DG Mack

New & Notable: When is a Refusal Really a Refusal

In the recent case of R v Degiorgio, 2011 ONCA 527 the Ontario Court of Appeal upheld the conviction as found by Justice David Cole. In doing so, the court shed some light on when a refusal is really just that, a refusal.
At 7:32 am a passerby noticed that there was a female slumped over the steering wheel of a car which was running and parked in front of driveway; the passerby alerted the police and officer Fielding attended. Upon arrival the officer found Tammy Degiorgio in the driver’s seat of the vehicle alert; upon speaking with the appellant the officer noted glassy eyes and a strong odour of alcoholic beverage coming from the area of her mouth [para 4].
The appellant denied have consumed any alcohol that day but was confused about where she was [para 5]. At 7:39 am Officer Fielding concluded he had a reasonable suspicion that the appellant had alcohol in her body and made a demand under section 254(2). The appellant responded, indicating she understood but that she was “not blowing into anything” [paras 6-7]. The officer asked the appellant if she understood and she again indicated she did and again indicated that she was “not blowing into anything” [para 7]. After advising the appellant of the circumstances of failing to provide a sample the officer again made the demand and a third time the appellant indicated she understood and was “not blowing into anything” [para 9]. The appellant was then arrested for refusal.
At trial the central issue became whether or not the Crown had to prove that sample could have been obtained “forthwith”. The trial judge convicted the appellant and an appeal was launched, ultimately reaching the Court of Appeal.
LaForme JA, on behalf of a unanimous court began by noting that the trial judge did not make any findings surrounding the issue of the unavailability of the ASD, however, the evidentiary record “supports a finding that an ASD was never available at the scene” [para 15]. The appellant argued, LaForme JA noted, that a section 254(2) demand is not valid where there is no evidence that an ASD could be available “forthwith” [para 22].
Turning to consider this position, LaForme JA noted that the appellant clearly understood the demand yet “immediately” and “unequivocally” refused on three occasions to provide a sample [para 45]. LaForme JA held that if the “demand is otherwise proper and the outright refusal occurs during the ‘forthwith’ timeframe, the accused’s 10(b) rights are not engaged and cannot affect the accused’s liability under s. 254(5)” [para 50]. In so holding, LaForme JA noted a distinction between the present case and R v Grant, 1991 CanLII 38 (SCC) and R v Cote, 1992 CanLII 2778 (SCC) as in those cases the “refusals did not immediately follow the demand; instead, the drivers refused only when presented with the ASD” [para 51].
Put simply, LaForme JA held that there is no requirement that an officer have a “reasonable belief that he or she could ‘make the demand good’ at the time it is made” nor is the Crown required to prove same where the refusal is immediate and unequivocal [para 54].
DG Mack

Quotable Quote: It can be Random; it need not be Pointless

In the recent case of R v Hopkins, 2011 ONCJ 349 Schwarzl J disposed of a peculiar section 9 argument in a quotable manner.
David Hopkins had attended the Midway Invader tavern in the middle of the afternoon on December 30, 2009.  Unfortunately for him, PC Paul Haramis had decided to set up outside the tavern in the hopes of capturing impaired drivers; the officer was not part of an organized RIDE program but rather, was purposely set up outside the bar for the purpose of capturing impaired drivers [para 5].  At about 3:20 pm the officer observed Hopkins drive his car out of the bar parking lot.  Ultimately Hopkins failed a roadside screening test and was charged with "over 80" after providing breath samples at the police station.
At trial Hopkins argued, inter alia, that his rights under section 9 of the Charter had been violated. In particular, he argued that although RIDE programs are constitutionally valid, the "stopping of people coming out of a bar, as opposed to all motorists at some intersection or other length of road, is too narrow a focus and is therefore a violation of section 9 of the Charter" [para 6].  In other words, Hopkins argued that random stops are permissible but "focussed" random stops are not. 
In disposing of this argument Schwarzl J noted that the Highway Traffic Act provides an officer may stop any motorist to determine if there are grounds to make a demand under section 254(2) of the Code: see sections 48(1) and 216(1) HTA. It follows, Schwarzl J held, that the stop was not arbitrary as it was expressly provided for by law.  Moreover, Schwarzl J held, the decision to focus police resources on an area or group of people more likely to be involved in drinking and driving did not make the stop arbitrary; he concluded with the following quotable quote:
The targeting of the driving population coming out of bars over the holiday season is entirely consistent with the purpose of RIDE programs, which is to detect, deter, and reduce drunk driving.  By concentrating on a location such as a bar where there is a higher probability of detecting drunk drivers, P.C. Haramis was not only performing his lawful duty but he was also minimizing the inconvenience to the general motoring public.  In other words, by zeroing in on those leaving drinking establishments, the officer's conduct was far less random than setting up at an intersection and stopping all drivers [para 9] [emphasis added].
 
DG Mack