Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Kenneth Brezenski
Before: Justice Nathalie Gregson
Heard on: August 13, 2013
Reasons for Judgment released on: November 7, 2013
Counsel:
- B. Renaud, for the Crown
- W. Chorney, for the accused Kenneth Brezenski
GREGSON J.:
1The accused, Mr. Kenneth Brezenski was charged on the 27th day of February, 2012 with "over 80", contrary to section 253(1)(b) of the Criminal Code of Canada. On August 13, 2013, Mr. Brezenski entered a plea of not guilty.
2Mr. Brezenski brought an application alleging that his section 8, 9 and 10(b) Charter rights were violated. The Crown filed a response opposing the application. It was agreed by counsel we would first proceed with a voir dire to deal with the alleged Charter breaches.
3The burden of proof was on the Crown on a balance of probabilities with respect to the section 8 argument considering the warrantless search and seizure of Mr. Brezenski's breath samples. However, the onus of sections 9 and 10(b) violations rested with Mr. Brezenski on a balance of probabilities.
4Counsel agreed that all evidence tendered during the voir dire would be applied to the trial proper. There was no further evidence by way of witnesses presented on the trial proper. Ultimately, the Crown has the burden to prove the "over 80" charge beyond a reasonable doubt.
5The issue of identity was conceded.
SUMMARY OF EVIDENCE
Constable Jeff Tait
6Constable Tait has been employed with the Ontario Provincial Police since January 1, 2007. On February 27th, 2012, at 10:22 p.m. he was dispatched to a domestic dispute at 1467 Highway 17 in Bailloquet Township. Constable Tait was made aware there was a dispute between two parties and one of them had been drinking. Constable Evans who would have heard the same information by dispatch also arrived shortly after to assist him on the call.
7Constable Tait testified he arrived on the scene at 10:30 p.m. To reach the property, he had to turn off Highway 17 and go down the driveway which was about 50 meters. The property was about 1 acre along Catfish Lake consisting of a home and several cabins. Upon arrival, he saw a red truck plowing snow a fair distance from the home but still on the property. He exited his vehicle and waited until the truck approached him and stopped. Mr. Brezenski got out of the driver's side of his vehicle and identified himself.
8Constable Tait indicated he had a short verbal exchange with Mr. Brezenski outside. Constable Evans was a short distance away.
9Constable Tait testified that when he spoke with Mr. Brezenski outside he could smell alcohol coming from Mr. Brezenski's breath.
10A few minutes later, they all went into the home at Mr. Brezenski's invitation. Constable Tait explained that since this was a domestic call, their protocol would have been to attempt to speak with each party to determine what happened and who initiated the conflict. Their priority on any domestic call is to ensure the safety of the victim; to determine if it's a criminal situation and perhaps escort one of the parties from the residence.
11Once inside, he and Constable Evans had a conversation with Mr. Brezenski and his wife Luanne at the kitchen table. Despite the fact Mr. Brezenski alleged his wife was not allowing him to leave their home, Constable Tait recalled that when it was suggested Mr. Brezenski go stay at a hotel he refused. When Mrs. Brezenski stated she was prepared to leave the home, Mr. Brezenski did not want her to leave.
12It was at that point in time Constable Tait observed Mr. Brezenski to become argumentative. As a result, Constable Tait warned Mr. Brezenski about drinking and driving on his property and mentioned that he could arrest him for breach of the peace. According to the officer's notes, they had been inside the home for about ten minutes.
13According to Constable Tait, it was Constable Evans who read Mr. Brezenski a breath demand and led him back outside. Constable Tait remained mainly in the home thereafter to complete his domestic checklist with Mrs. Brezenski.
14Constable Tait confirmed during his evidence that Mr. Brezenski was polite when they first arrived on the scene. Once they were inside the home, Mr. Brezenski became argumentative. After the breath demand was made to Mr. Brezenski, it was Constable Tait's recollection that Mr. Brezenski was once again both polite and cooperative. In fact, he recalled dealing with Mr. Brezenski back at the detachment to complete a checklist and observed Mr. Brezenski to be polite. Constable Tait confirmed there were no police officer safety issues once Mr. Brezenski was led back outside of his home.
15Constable Tait could not quite recall if he knew Mr. Brezenski did not have a criminal record. Dispatch usually would have told him so prior to arriving at the scene but he could not recall for sure. He recalled he had been told there had been no prior domestics. (The 911 call was tendered as evidence during trial and it was clear dispatch had advised the officers Mr. Brezenski had no criminal record and had been drinking.)
16Some time was spent with Constable Tait reviewing section 254(2)(b) of the Criminal Code during cross-examination. The officer was aware of the threshold to make the breath demand. However, when the officer was asked whether he was aware the wording of section 254(2)(b) was discretionary as the officer "may" make a demand, Constable Tait stated he was not aware of this discretion. Moreover, when officer Tait was asked about the qualifier of "forthwith" in this same section, he stated he had not read section 254(2)(b) in quite some time. When the officer was then asked what he felt the word "forthwith" meant, he at first stated immediately but then stated it could be as soon as practical as there would be circumstances where the demand could not be made right away, such as in a motor vehicle collision.
17Constable Tait agreed that in the past if someone blew into the intoxilyzer and the readings were between 80 to 100 mg, there was discretion by officers not to lay an impaired charge. However, Constable Tait was quick to point out this practice had changed several years prior.
18Constable Tait testified that he did not feel Mr. Brezenski was detained while he was in his home. It was his position that Mr. Brezenski was detained only after he blew a fail, after he was arrested and after cuffs were placed on him.
19Constable Tait explained that upon arrival at the OPP detachment in Wawa, there were three cells just off their garage. The cells were on the same level as the intoxilyzer room. The room adjacent to the intoxilyzer room was an interview room. The interview room had a window which was not being used on the night in question and it could be locked from the outside.
20Constable Tait was asked if he recalled Mr. Brezenski asking him and Constable Evans to call his friend who was a lawyer, Mr. Rick Nabie when they were inside the house. Constable Tait recalled Mr. Brezenski talking about a lawyer at some point but could not recall exactly when nor the name. Constable Tait could not recall visually observing a telephone in the Brezenski home but would have been aware there was a telephone as Mr. Brezenski had called 911 from a telephone.
Constable Michael Evans
21Officer Evans has been employed with the OPP in Wawa, Ontario for five years. He was on duty on February 27, 2012 and was dispatched along with Constable Tait to a domestic dispute. He received the call at 10:22 p.m. and arrived at the property at 10:38 p.m. Upon arrival he observed Constable Tait's police cruiser and a red GMC pickup truck plowing the driveway. Eventually, the truck was parked near the residence and the driver, Mr. Brezenski exited the truck.
22Constable Evans stated Constable Tait initially spoke outside with Mr. Brezenski. He himself was beside Officer Tait but slightly behind him by about three feet.
23Constable Evans testified when Mr. Brezenski exited the vehicle he could detect an odour of alcohol. The smell of alcohol emanated from the vehicle when Mr. Brezenski opened the door. After a short conversation between Mr. Brezenski and Officer Tait, they were invited into the home. Once inside, Constable Tait continued to speak to Mr. Brezenski about the nature of the call made to 911. Constable Evans was standing about eight to ten feet away from Mr. Brezenski. One or two minutes into the conversation he could smell alcohol coming from Mr. Brezenski when he spoke. As a result, Constable Evans spoke to Constable Tait and told him he felt there was alcohol in Mr. Brezenski's body and proceeded to make an approved screening device demand at 10:50 p.m.
24After reading Mr. Brezenski the approved screening device demand from his force-issued card, Mr. Brezenski replied he understood the demand but did not want to accompany Officer Evans to provide a sample. Constable Evans advised Mr. Brezenski that if he did not go with him he could be charged with refusing to provide a breath sample. Mr. Brezenski complied and followed Officer Evans outside. Constable Evans prepared the instrument and once it was ready for use, at 10:58 p.m., Mr. Brezenski registered a fail. As a result of the test, Officer Evans formed the reasonable and probable grounds that Mr. Brezenski had been drinking over the legal limit while driving and arrested him at 11:00 p.m. He then handcuffed Mr. Brezenski, frisk searched him and placed him back into the rear of his cruiser. At 11:04 p.m. he contacted dispatch to request a breath tech and was advised Constable Morrison would be the one attending for the breath tests.
25At 11:05 p.m. Officer Evans read Mr. Brezenski his rights to counsel from his notebook card and Mr. Brezenski advised him that he did not understand so Officer Evans explained to him that he could call Legal Aid at the detachment or call a lawyer of his choice. Mr. Brezenski indicated that he wished to speak with his lawyer, Rick Nabie. Officer Evans advised Mr. Brezenski he could call him once they arrived at the detachment. At 11:07 p.m. Officer Evans read a standard caution and at 11:09 p.m. he read a breath demand. He explained to Mr. Brezenski he was not under arrest as he had not yet been charged. He was asked to provide a breath demand to determine if he had been driving over the legal limit. Constable Evans left the scene at 11:15 p.m. and at 11:28 p.m. Mr. Brezenski was lodged into the cells at the detachment. Upon their arrival, Constable Evans observed Constables Morrison and Marotta. Constable Morrison had been called in to conduct the breath tests while Constable Marotta had been asked to attend to assist with lodging Mr. Brezenski.
26Constable Evans testified he placed Mr. Brezenski in the cells as Mr. Brezenski would be under video monitoring, allowing him to continue with the investigation and to contact Mr. Brezenski's lawyer. Constable Evans indicated it was always his practice to lodge an accused in the cells even though there was no one else at the detachment that night.
27Constable Evans was able to reach Mr. Nabie at 11:30 p.m. and permitted Mr. Brezenski to privately speak to him. Mr. Brezenski continued to wait in the cells until 12:01 a.m. when he was delivered to Constable Morrison who was ready to perform the breath tests. At 12:35 a.m., Constable Morrison advised him of the results of the tests which were 100 and 110 milligrams of alcohol in 100 milliliters of blood. Mr. Brezenski was charged with over 80. Constable Evans noted that he was off duty by 3:00 a.m. and was aware Mr. Brezenski was released later by Sergeant Hardy.
28When Constable Evans was asked why he handcuffed Mr. Brezenski at the roadside he replied it was for officer safety. Constable Evans indicated he always placed handcuffs on an accused to safely conduct a search of the person. He then placed Mr. Brezenski in the back of the cruiser.
29Constable Evans did not recall seeing a telephone at the Brezenski residence however, he assumed they had one since the call to police was made from within their home.
30Constable Evans testified that when he and Officer Tait were dealing with Mr. Brezenski inside the residence, Mr. Brezenski became argumentative. Once outside and for the balance of the night, Mr. Brezenski was compliant.
31Constable Evans testified during cross-examination he was aware from the dispatcher he was attending a non-criminal domestic situation. He was aware Mr. Brezenski had been drinking and did not have a criminal record when he arrived on the scene.
32Once on the scene, he and Constable Tait began to walk towards where Mr. Brezenski parked his truck. They were about ten feet away when the driver side door swung open. He was standing only about three feet behind Officer Tait and could hear the conversation with Mr. Brezenski. He could smell the alcohol once Mr. Brezenski opened the truck door and started talking. Despite same, Constable Evans stated he was not sure if the alcohol was emanating from the vehicle or Mr. Brezenski at that point in time.
33When the officer was asked whether he would have a reasonable suspicion to make a demand if he stopped a motorist who was a lone occupant; who had admitted to having been drinking and smelled of alcohol, he replied affirmatively. He was therefore asked how that situation would be any different from his encounter with Mr. Brezenski. Constable Evans indicated the information they receive from dispatch was not always accurate.
34Constable Evans went on to state he wanted to confirm the smell of alcohol was coming from Mr. Brezenski's breath. When he was asked why he did not ask Mr. Brezenski if he had been drinking, he replied that he felt it was up to Constable Tait as it was Constable Tait who was speaking with Mr. Brezenski and he was there for back up.
35Once in the home, it was Constable Evan's opinion that Mr. Brezenski was not detained. He confirmed that he read Mr. Brezenski the breath demand at 10:50 p.m. inside the home, approximately 12 minutes after they had arrived. Constable Evans agreed that had he stayed outside with Mr. Brezenski while Constable Tait went inside to check on Mrs. Brezenski, the breath demand would have been made at about 10:43 p.m.
36Constable Evans was of the opinion, Mr. Brezenski was not detained until such time as he blew and failed the roadside and was arrested.
37When Constable Evans was asked what he believed the word "forthwith" meant, he stated he believed it was "as soon as practical" or as soon as you can.
38Constable Evans could not recall Mr. Brezenski wanting to speak to his lawyer friend Mr. Nabie while they were present in Mr. Brezenski's residence. He only recalled Mr. Brezenski asking to speak to counsel after he read him his rights to counsel. According to Constable Evans, Mr. Brezenski was arrested at 11 p.m. and read his rights to counsel at 11:05 p.m., his caution at 11:07 and breath sample demand at 11:09 p.m. They left the scene to attend at the police station at 11:15 p.m. Constable Evans was asked whether he had considered permitting Mr. Brezenski to call his lawyer from his home however, Constable Evans testified he preferred to have an accused make the call at the police station as this is how he was trained.
39Constable Evans confirmed there were about five officers in and out of the police station that night. Constable Marotta had been brought in to simply assist him. Accordingly, Constable Evans was asked why Mr. Brezenski was lodged into a cell. He responded it was because Mr. Brezenski had been over the legal limit. He also felt, it was a safe area and the phone was there for Mr. Brezenski to contact a lawyer. When Constable Evans was asked why he continued to have Mr. Brezenski lodged in the cell after he placed his call to counsel, he replied that he had to get on the computer to start his paperwork. He could not recall what Constable Marotta was doing.
40When Constable Evans was asked why he did not consider instructing Constable Marotta to just hold Mr. Brezenski in the interview room next to the intoxylizer room rather than the cells, he responded that he had not considered it, he was following protocol.
41Constable Evans testified he believed Mr. Brezenski to be brought back and forth from the cells between the breath samples. This was how it was always done at their detachment. He was also aware that at some point in time Sergeant Hardy and Constable Marotta transported Mr. Brezenski to and from the Michipicoten Township Police Office for fingerprinting and to get a photograph of Mr. Brezenski. Constable Evans left at 3:00 a.m. and Mr. Brezenski was ultimately released at 4:15 a.m. by Sergeant Hardy.
Constable Morrison
42Constable Morrison has been employed with the Ontario Provincial Police for ten years. He has been a qualified breath technician since December, 2009.
43He recalled that on the night in question he was off duty and was called at 11:05 p.m. to attend at the police detachment. He arrived at 11:20 p.m. and immediately turned on the intoxilyzer to get it ready. Mr. Brezenski was brought into his custody at 12:01 a.m. by Constable Burns. He had already spoken to Constable Evans regarding his grounds for a breath demand.
44Constable Morrison testified that when Mr. Brezenski walked into the room he was staggering, had alcohol on his breath and had slow speech. After explaining the instrument and process, he took a first sample at 12:02 a.m. Thereafter, he had Constable Burns return Mr. Brezenski to the cells to wait 17 minutes prior to taking the second sample as the intoxylizer will not permit a second sample earlier than 17 minutes.
45Sergeant Hardy brought Mr. Brezenski at 12:28 a.m. to take the second sample. During the lapse of time, he himself was doing notes. After providing a second sample, Sergeant Hardy returned Mr. Brezenski to the cell area. It was Constable Morrison's recollection that Constable Evans, Sergeant Hardy, Constable Tait and Constable Burns were all present at the police station at some point while he was present. He could not recall seeing Constable Marotta.
46Constable Morrison confirmed the truncated readings of 110 and 100 milligrams of alcohol in 100 milliliters of blood.
47During cross-examination, Constable Morrison confirmed Mr. Brezenski was polite and cooperative with him.
48Constable Morrison was asked if he had to wait 17 minutes in between administering the two breath samples why it took 27 minutes between the two samples. Constable Morrison explained that he cannot use the intoxilyzer for 17 minutes as this was how the instrument was designed. Once the 17 minutes lapsed he then does further tests which takes about five minutes for a total of 22 minutes. Constable Morrison stated his independent memory of this particular occurrence was poor and had to go by his written notes. He could not recall why there were a few more minutes which had lapsed. Constable Morrison acknowledged he had not completed an alcohol influence report.
49Constable Morrison was asked why Mr. Brezenski was lodged and kept waiting in the cells and not in the interview room considering there were a number of officers on duty; Mr. Brezenski was the only accused and Mr. Brezenski was an older man who had been cooperative. Constable Morrison replied the procedure was to always lodge arrested accused into the cells. He believed this to be OPP policy. He indicated this was the protocol they always followed and felt it was acceptable.
50Constable Morrison agreed that having Mr. Brezenski wait in a cell for 27 minutes while he waited to do the second breath sample would have taken a psychological toll on him and it may have been less severe had Mr. Brezenski waited in the adjacent interview room.
Sergeant Hardy
51The will say statement of Sergeant Hardy dated May 3, 2012 was tendered as evidence on consent of counsel. Sergeant Hardy is a 25 year veteran with the police force.
52The evidence of interest from his statement was that at 3:30 a.m. Sergeant Hardy went out for coffee and released Mr. Brezenski after his coffee break, 40 minutes later at 4:15 a.m. He drove Mr. Brezenski home.
Kenneth Brezenski
53Mr. Brezenski is a 57 year old man who has been married to his wife Luanne for 31 years. He has no criminal record.
54As of February 2012, he and his wife had owned Camp Michi-Wawa for 19 years. Mr. Brezenski explained he and his wife were under marital stress as they were worried about losing their lodge. In fact, on September 21, 2012 they had to declare bankruptcy. Shortly thereafter, Mr. Brezenski became ill and he and his wife moved to Levack, Ontario to be closer to his health practitioners in Sudbury, Ontario. As a result of the decline in his health, he was not working.
55Mr. Brezenski recalled that on February 27, 2012 he had been drinking beer from about 8 p.m. to 10:00 p.m. when he called 911. By that time he believed to have consumed four drinks. He called 911 as he and his wife were arguing. His wife refused to let him go out of the house or leave so he wanted police to mediate their dispute. Once he placed the call, he was aware police were being dispatched to his residence so he went out to plow the snow in his driveway so he could cool off and get away from his wife.
56Mr. Brezenski stated that although he was under the influence of alcohol, he believed he could snow plow his property. He was not aware that it was against the law to operate his vehicle having consumed alcohol if it was on his private property.
57Mr. Brezenski recalled the officers following him into his home. He felt that police immediately viewed him as the "bad guy" although he was the one who had called for help. For this reason, he acknowledged that he became testy with the officers once inside his home. He recalled being asked by an officer to provide a breath sample and being led out to the police cruiser. Once they reached the cruiser he was handcuffed prior to providing a breath sample.
58It was Mr. Brezenski's recollection that on their way outside to the cruiser he advised the officer that his friend Mr. Nabie was his lawyer and asked to call him. Mr. Brezenski recalled asking the officer once, perhaps twice that he wanted to speak to a lawyer however he was told he could do that once they arrived at the jail. He described the entire experience as scary considering he had never been in a jail cell previously. He recalled being provided the right to speak to a lawyer so he contacted his friend Rick Nabbie in Fort Erie, Ontario and relied on his advice.
59Mr. Brezenski recalled providing a first sample of his breath into the intoxylizer device and being placed in the cells while waiting to provide a second sample. He was not provided the readings of the first sample and while he waited in the cells, he was worried about his wife. After the second sample was provided, he was returned to the cells and was released nearly four hours later at 4:15 a.m.
60During Mr. Brezenski's ordeal, he was also transported from the OPP detachment to the Wawa Police detachment downtown to be fingerprinted and photographed. Constable Marotta escorted Mr. Brezenski and chose not to place the cuffs on him. Once he was returned to the OPP detachment, Mr. Brezenski stated he was placed back into his cell and spent a few hours there although he felt sober. He was aware the police officers went for coffee and he was released upon their return.
ANALYSIS
Voir Dire
Section 8 Charter / Search and Seizure
61The Criminal Code states in section 254(2) if a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding 3 hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:
(b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.
62In order for a police officer to make a roadside breath demand they only require a reasonable suspicion that the driver has alcohol in his or her body. This threshold is low. The word "forthwith" suggests an almost immediate demand.
63In the case at bar, the officers were aware from the OPP dispatch that Mr. Brezenski had been drinking. Upon their arrival, they immediately observed Mr. Brezenski driving his vehicle. Both of them testified that Mr. Brezenski was the sole occupant in his vehicle. They both detected an odour of alcohol. In my view based on those factors alone, the "reasonable suspicion" crystallized within one to two minutes of the officers interacting with Mr. Brezenski. The officers had an obligation at that time to make the roadside breath demand. Considering there were two officers on the scene, one officer could have easily made the breath demand while the other went into the home to check on the status of Mrs. Brezenski.
64Accordingly, there was a period of at least 12 minutes which lapsed before Mr. Brezenski was asked to provide a breath sample. In my view, Mr. Brezenski did not provide a sample of his breath on a "forthwith" basis. Mr. Brezenski's section 8 Charter rights have been violated.
Section 9 / Arbitrary Detention and Section 10(b) / Rights to Counsel
65The "forthwith" requirement of section 254(2) of the Criminal Code is inextricably linked to its constitutional integrity. It addresses the issues of unreasonable search and seizure, arbitrary detention and the infringement of the right to counsel, notwithstanding sections 8, 9 and 10 of the Charter.
66Where a roadside breath demand is made a driver is detained and his or her section 10 rights under the Charter are triggered. However, if the demand is validly made pursuant to section 254(2) of the Criminal Code in that it is made "forthwith", the police officer need not advise the detainee of his or her section 10(b) rights because, although section 254(2) violates section 10(b) it is a reasonable limit under section 1 of the Charter. If a roadside demand is made and a sample is not provided "forthwith" because the approved screening device is not readily available, the demand is not valid and does not justify a failure to provide section 10(b) right. To be "forthwith", the demand must be that the detainee provide a sample after "a brief" period of detention, if not "immediately". See R. v. George, [2004] O.J. No. 3287 (C.A.) at paras 29, 32-39.
67In some cases, if there was a delay between the demand being made and the sample being provided in the ASD, the court has held an obligation of the police to facilitate the detainee's right to counsel. For example in R. v. Boutamine, [2004] O.J. No. 4527, the delay was eight minutes.
68Considering the time lapsed in Mr. Brezenski's case was 12 minutes, in my view the police officers should have provided Mr. Brezenski with his rights to counsel when they chose not to make the ASD demand outside. They were also aware there was a telephone accessible for Mr. Brezenski in his home since he had called 911 from that same telephone. Obviously, Mr. Brezenski could have contacted his counsel of choice from within his home.
69The officers should have made the breath demand when they formed the reasonable suspicion that Mr. Brezenski had been operating his vehicle after having consumed alcohol. I deemed this time frame to have crystalized when the officers initially met with Mr. Brezenski, within one to two minutes. As such, he was detained without authority for a minimum of 12 minutes, not including the time it took for Mr. Brezenski to blow into the ASD. There was a temporal and causal connection between the breath sample and the unlawful detention of Mr. Brezenski.
70In my view, there was a breach of Mr. Brezenski's section 9 and 10(b) rights.
Section 24(2) Charter / Exclusion of Evidence
71In R. v. Grant, the Supreme Court of Canada set out the following framework for the application of section 24(2) to be considered when a court has determine a Charter breach:
(1) The seriousness of the Charter infringing state conduct (admission may send the message the justice system condones serious state misconduct),
(2) The impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and
(3) Society's interest in the adjudication of the case on its merits.
72In my view, the Charter breaches in this case are of a serious nature and the breath test results must be excluded in accordance with section 24(2) of the Charter.
73It appears from the evidence, the police officers chose not to make an immediate breath demand despite the fact they had all the required factors to do so. Perhaps it was because Mr. Brezenski was polite and had been driving on his private property. It was only when the officers felt Mr. Brezenski was becoming argumentative with them did they invoke their authority in making a breath demand. In fact, Constable Tait suggested in his evidence he warned Mr. Brezenski about drinking and driving on his property yet within short order, Constable Evans in consultation with Constable Tait went ahead and made the breath demand. Unfortunately, in having waited to make the breath demand a series of Charter breaches occurred.
74Since the section 8, 9 and 10(b) Charter rights all flow from making a breath demand "forthwith", not making an immediate demand resulted not only in one Charter breach but in three breaches.
75Considering the breath demand was not validly made by the officers, the evidence which flowed after Mr. Brezenski's arrest also demonstrated an abuse of their authority. This evidence included the fact Mr. Brezenski was placed in a cell prior to, during and after his breath tests. Considering Mr. Brezenski's personal circumstances, the number of officers on duty that night and the lack of other accused individuals at the police station, I agree with my colleague Justice Fraser in R. v. Bouchard, 2011 ONCJ 610 that police officers become de-sensitized to the humanity of the prisoner and public support for the police is undermined where there is unjustified, heavy handed exercise of police powers (see paras. 22 and 49 of Justice Fraser's decision).
Trial Proper
76The Criminal Code states in section 258(1)(c):
where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if
(ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and in the case of the first same, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken.
77Pursuant to R. v. Vanderbruggen, [2006] O.J. No. 1138 at para. 12, the words "as soon as practicable" does not mean as soon as possible. It means "nothing more than that the tests were taken within a reasonably prompt time under the circumstances". The "touchtone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably".
78Despite the above, the Crown does not have to "provide a detailed explanation of what occurred during every minute that the accused is in custody" (see Vanderbruggen, supra, para. 13). However, as noted in R. v. Craig [2007] O.J. No. 3616 there is a burden on the Crown to account for the time in order to meet the evidentiary burden of proving that a test is taken "as soon as is practicable".
79In the decision of R. v. Burt-Gerrans [2013] O.J. No. 3452, the court had to review whether the second breath test was administered as soon as practicable. There was no explanation for the 28 minute delay between the tests. The Crown in this matter argued that the normal practice was to wait between 17 – 20 minutes between breath tests. The contentious delay was only eight minutes. The officer had acted reasonably and a detailed explanation of every minute was not required.
80Justice Bovard reviewed a number of decisions such as R. v. Guiao [2008] O.J. No. 5825 (O.C.J.). In this case the delay in administering both tests was in issue. Brewer J. concluded that neither test was taken as soon as practicable. With regard to the second test she stated at paragraph 12:
"Apart from the mandatory period of 15 minutes between the two breath tests, no explanation was offered for the 25 minute period between Mr. Guiao's first and second tests. Significantly, both officers were present for the first breath test and Constable Pollard was in the breath room for the second test".
81In R. v. Burt-Gerrans, supra, Justice Bovard noted that the unexplained delay beyond the required 15 minute delay prescribed by the Criminal Code was 13 minutes. He was cognizant that the normal practice was to wait 17 to 20 minutes between tests. However, he did not think that this meant that the "accepted" two to five minute delay in excess of what the Criminal Code mandates meant that these minutes do not count in calculating the total delay between tests. There had been a period of 13 minutes of delay beyond which the Criminal Code prescribed. As such, Justice Bovard held the Crown did not discharge the onus of proving beyond a reasonable doubt that the second test was taken as soon as practicable. As such the Crown could not rely on the certificate to provide Mr. Burt-Gerran's blood-alcohol level at the time he was driving. As such the accused was found not guilty.
82In the circumstances of the case at bar, the Crown has failed to meet its burden on this issue and the accused is entitled to the benefit of the doubt. The Crown's case fails on grounds unrelated to the breach of Mr. Brezenski's Charter rights.
83Accordingly, regardless of the Charter breaches, the Crown has not proven their case beyond a reasonable doubt. As such, I find the accused is entitled to be found not guilty.
Released: November 7, 2013
Justice Nathalie Gregson, Ontario Court of Justice