R. v. Kotlyar, 2013 ONCJ 353

Court File and Parties

Court File No.: Central East - Newmarket 12-09027 Date: 2013-06-18 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Leonid Kotlyar

Before: Justice P.N. Bourque

Judgment

Released on June 18, 2013

For the Crown: Ms. J. Lee For the Accused: Mr. D. Rose

BOURQUE J.:

Overview

1In the early morning hours of October 14, 2012, the defendant was stopped by a York Regional Police officer and investigated for drinking and driving. He is facing charges of driving with excess alcohol.

The Evidence

2Derek Cadieux is a York Regional Police officer of some 6 years experience. His timeline for this investigation is as follows:

Timeline - Officer Cadieux

Time	Event
18:00 hours, October 13, 2012	Began his shift as uniformed officer on patrol.
03:41 hours, October 14, 2012	Observed a car speeding in curb lane eastbound on Rutherford Road. Vehicle was swaying from centre line to the curb two times. The vehicle slowed and then sped up and came to a red light and stopped some 3 car lengths from the intersection. The vehicle went forward on the green and the officer activated lights and siren and stopped the vehicle. The officer approached the driver's side window and there was conversation. The officer smelled an odour of alcohol from the mouth of the defendant. The defendant produced his documents without incident. The defendant's eyes were watery and had a small sway.
03:44 hours	The officer read the ASD demand to the defendant. The officer produced a Dreager Alcotest device which had been calibrated on October 7, 2012. The officer demonstrated the use of the machine by providing a sample himself and asked the defendant to provide a sample and he provided an "F" for fail.
03:47 hours	The officer felt that the defendant was over the legal limit and arrested him for driving with over 80 milligrams of alcohol in 100 millilitres of blood. The defendant was searched and placed in the cruiser and the officer spoke to another officer at scene about the tow of the defendant's car.
03:54 hours	The officer read the rights to counsel.
03:55 hours	The officer read the primary and secondary cautions.
03:57 hours	The officer read the breath demand.
03:59 hours	The officer left the scene for 4 District York Regional Police.
04:01 hours	The officer arrived at the station. The defendant was searched and placed in a holding cell. Another officer assisted this officer with duty counsel. The officer gave his grounds for arrest and breath demand to the breath technician.
05:53 hours	The officer served the defendant with the ADLS suspension and other papers.
06:00 hours	The defendant asked the officer to contact someone for him.

3Greg Handford is a York Regional Police officer and a qualified breath technician. He was re-qualified on April 10, 2012. He was at the 4 District station and was conducting another breath test when this defendant came to his attention. The summary is listed below:

Timeline - Officer Handford (Breath Technician)

Time	Event
04:04 hours	The officer began the self-test and diagnostic procedures for this test. He did all of the tests and determined that it was ready for operation. He determined the lot number of the standard solution and noted it was changed on October 9, 2012. He was satisfied with the suitability of the solution and noted certain information about it from the labels on the bottle. He put that information into his notes. He did not make note of the expiry date of the standard solution.
04:13 hours	The officer started a self check. The officer then completed all of the set up.
04:30 hours	The officer got a timesheet from Officer Cadieux and brought the defendant into the breath room.
04:32 hours	The officer read the demand to the defendant and the secondary caution. The officer got the mouthpiece from a package near the device and the defendant provided a sample directly into the machine.
04:36 hours	The first reading was 179 milligrams of alcohol in 100 millilitres of blood. The Intoxilyzer 8000C then did a further series of self-checks and the machine was ready to take the second sample at 04:58.
04:58 hours	The second sample was taken in the same manner as the first and produced a reading of 173 milligrams of alcohol in 100 millilitres of blood.

Can the Crown Rely on the Breath Results Without Evidence From the Breath Technician as to the Date of the Expiry of the Alcohol Standard Solution?

4In our case, the technician of many years experience testified that he obtained the information about the suitability of the sample from the information put into the device by the officer who calibrated it, by the information on the solution bottle, and perhaps from a notice which was attached to the wall of the breath room. He did not put into his notes the date of the expiry of the solution. He did state that he performed his regular duties and he was satisfied that the standard solution was suitable for taking the breath test. He stated that if the standard solution had an expired date upon it, then he would not have performed the breath test with that standard solution. He also testified that he was generally satisfied with the operation of the Intoxilyzer 8000C.

5The defence argues that because he cannot state definitively (and the Crown cannot then prove) the date of the expiry of the sample, then a pre-condition in section 258(c) has not been met.

6All of the existing case law R. v. Harding and cases citing it R. v. Corbett, indicates that such a requirement is not necessary and that the technician is the judge of the suitability of the alcohol standard, and his or her statement as to the suitability of the standard is sufficient proof of that issue.

7The question is, does the new provisions in section 258(1)(c) (Bill C-2) change this and is there a requirement that the Crown prove that the sample was suitable beyond a reasonable doubt. I cannot see anything in the wording of 258(1)(c) that would require this exercise. In fact, as long as the instrument is approved and is being operated by a qualified technician, then without some evidence tending to show a malfunction or that the machine was being operated improperly, the presumption remains. The fact that the technician did not put into his notes the date of the expiry of the standard solution, does not, in my opinion, constitute evidence of improper operation of the machine. My thoughts in this matter may be different if there was some evidence led that the standard solution had actually expired, but I do not have to decide that.

8I believe that I am still bound by Harding, supra, and thus being satisfied with the technician's testimony that the alcohol standard was suitable, I find that not writing down the date of the expiry of the solution does not deprive the Crown of the statutory presumption.

Were the Tests Taken as Soon as is Practicable?

9The defendant was stopped at the roadside at 03:41 hours. The first breath test was taken at 04:36. That is some 55 minutes after the stop. The second test was taken at 04:58. That is some 77 minutes after the stop. Both are within the statutory time frame of two hours.

10The time at the roadside for the investigation, the ASD test and the arrest, provision of rights and the briefing of the other officer to deal with the car is a total of 18 minutes. That seems a reasonable time to undertake the tasks which the officer did.

11From the attendance at the station (04:01) to the first breath test is some 35 minutes. With regard to the processing of the defendant, Officer Cadieux spoke of the booking of the defendant, the further search before putting him into the cells and the provision of advice to duty counsel. The officer did not in his evidence break down all of these tasks into their individual time packets. Does that mean that there has been no explanation for the time, and does the total time exceed that which is practicable? For the following reasons I don't think so.

12The time taken to deal with duty counsel is a variable one and could very well have taken upwards of 20 minutes to half-hour. In any event, we also have the time taken to bring the Intoxilyzer device into a state where a sample could be taken. The technician had completed a previous test and was starting the new diagnostic and set-up procedures for the test upon the defendant at 04:04. He was continuing those tests at 04:13 and it is unclear when he was finished this task but he got the timesheet from the investigating officer at 04:30 and brought the defendant into the breath room at that time and began the process by reading the breath demand at 04:32. The first test was finished at 04:36.

13The only possible period where it is unclear as to the purpose of the delay is between 04:13 and 04:30, some 17 minutes. Is this such that I can find that the test was not taken as soon as is practicable?

14In the leading case of R. v. Vanderbruggen, the Court of Appeal held that it is the total period of delay that must be looked at to determine its reasonableness:

The "as soon as practicable" test must be applied with reason....there is no requirement that the crown provide a detailed explanation of what occurred during every minute that the accused is in custody.

15This case has been cited by trial and appellate level judgements in over 200 cases. What is clear is that this issue is a matter of fact, and the issue is whether the tests were taken within a reasonable prompt period of time.

16I find that the tests were, in fact, taken within a reasonable prompt period of time and the evidence of the officers is sufficient to establish this. I find that they were both attentive to their duties in dealing with this investigation and while they did not assign a time stamp to every task they did, their evidence was that they were attentive to the necessary tasks of this investigation.

17With regard to the time between the first and second tests, some 22 minutes, there is a delay of 17 minutes imposed by the Intoxilyzer 8000C. The other 5 minutes or so was explained by the officer in performing a further period of self-checks.

18In sum total, I believe that the Crown has met its evidentiary burden and the tests were taken as soon as practicable as defined in section 258(1)(c)(ii).

Conclusion

19I find that the defendant's blood-alcohol concentration (after truncation) was 170 milligrams of alcohol in 100 millilitres of blood, at 03:41 hours on October 14, 2012, while he was operating a motor vehicle.

20I believe that the Crown is able to rely upon the presumptions in section 258(1) and I find the defendant guilty of the offence of operate a motor vehicle with more than 80 milligrams of alcohol in 100 millilitres of blood.

Signed: "Justice P.N. Bourque"