Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
ā and ā
Jonathan Segal-Townsend
Before: Justice K.L. McLeod
Heard on: March 3, 2014
Reasons for Judgment released on: April 14, 2014
Counsel:
- Ms. J. Vlacic, counsel for the Crown
- Mr. R. Craig Bottomley, counsel for the defendant Jonathan Segal-Townsend
Judgment
Introduction
1At the outset of his trial Mr. Segal-Townsend faced four charges: driving with over 80 milligrams of alcohol in 100 millilitres of blood, drive disqualified, possession of a prohibited weapon and breach of a weapons prohibition. At the conclusion of the trial on these matters, I dismissed the drive disqualified, the breach and the weapons counts for reasons given at the time and reserved on the over 80 count.
2This therefore is the judgment on that count.
Facts
3In the early hours of the morning of March 5th, Mr. Segal-Townsend was stopped while driving by Constable Nicholson whose attention had been drawn to the speed of the car.
4Constable Nicholson investigated Mr. Segal-Townsend, demanded an ASD test; the result of which was a fail. Mr. Segal-Townsend subsequently provided breath samples to Constable Tyrus Darcy. The tests taken at 1.55 a.m. and 2.17 a.m. registered readings of 105 and 98 respectively.
5Mr. Bottomley on behalf of Mr. Segal-Townsend has brought an application pursuant to the Charter seeking an exclusion of the breath tests as a result of a breach of Section 8 of the Charter; namely that the breath tests were not taken as soon as practicable.
Legal Framework
6In this case the Crown has relied on what is commonly known as the presumption of identity: i.e., that the BAC readings of breathalyzer are presumed to be the BAC readings that would have existed at the time of the impugned driving.
7In order for the Crown to rely on the presumption there must be evidence that the breath tests were taken as soon as practicable.[1]
8Despite the defence application, I will deal with this issue on the basis of whether or not the prosecution had fulfilled the statutory requirements of the Code so as to rely on the presumption, rather than as a Charter application.
Timeline of Events
9I will now set out the evidence of Constable Nicholson with respect to what preceded the taking of the tests:
| Time | Event |
|---|---|
| 12:30 am | Time of Stop |
| 12:34 | Mr. Segal-Townsend in Constable Nicholson's cruiser |
| 12:35 | ASD Demand read |
| 12:38 | Time of arrest |
| 12:39-12:40 | Constable Nicholson spoke to dispatcher requiring (1) a contract tow for Mr. Segal-Townsend's car and (2) a qualified breath technician to perform the breath tests |
| 12:41 | Constable Purdy arrived to seize the vehicle: no conversation between the two officers |
| 12:42 | Rights to Counsel given |
| 12:45 | Breathalyzer demand given |
| 12:48-12:53 | Searched Car |
| 12:53-12:58 | Search and handcuffing of Mr. Segal-Townsend |
| 12:59-1:04 | Note taking |
| 1:04 | Left Scene |
| 1:11 | Arrived at 11 division |
| 1:19 | Call to counsel of choice |
| 1:25 | Call to duty counsel |
| 1:34 | Commenced r & pg to Breath tech |
| 1:35 | Further call to lawyer of choice |
| 1:38 | Mr. Segal-Townsend spoke to counsel |
| 1:41 | Advised Counsel charge of prohibited weapon being laid |
| 1:47 | Mr. Segal-Townsend finishes call |
| 1:48 | Mr. Segal-Townsend enters breath room |
| 1:55 | First breath test |
| 2:17 | Second breath test |
10Thus from the time of being stopped driving to the time of the first test 1 hour and 25 minutes had elapsed.
Analysis of Police Conduct
11The detail provided by Constable Nicholson with respect to his activities in the time frame is as follows:
12From the time of the demand to the time at 12.45 and the time of the search at 12.48 there was no evidence as to what occurred other than the recitation of the breathalyzer demand.
13With respect to the 5-minute search of the vehicle: Constable Nicholson testified as to the following:
14He went to the car to retrieve some belongings requested by Mr. Segal-Townsend. Those belongings were on the front seat of the car and in plain view. Constable Nicholson said he searched the car for documentation relating to the car: he searched the driver's compartment, the glove compartment and the centre console. He could not recall if he found the electronic devices requested before or after he found the knife that formed the substance of the weapons count in the glove box.
15Once he searched the car, Constable Nicholson returned to his vehicle and apparently spent another four minutes searching Mr. Segal-Townsend and handcuffing him: which he described involved an emptying of pockets, a feeling down of legs, the crotch area and the back belt area and the handcuffing.
16Constable Nicholson then spent a further five minutes writing his notes.
17Mr. Bottomley argues that the reasons given for the 19 minute delay between the conclusion of the rights to counsel to the leaving the scene do not pass the reasonableness test required to fulfill the "as soon as practicable" requirement.
The "As Soon as Practicable" Standard
18The law surrounding "as soon as practicable" was clarified in [R. v. Vanderbruggen][1]. The lens through which an examination of this issue must be focused is one of reasonableness:
In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The "as soon as practicable" requirement must be applied with reason. In particular, while the Crown is obligated to demonstrate that -- in all the circumstances -- the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody. See [R. v. Letford][2], 150 C.C.C. (3d) 225 (Ont. C.A.) at para. 20; R. v. Carter, supra; [R. v. Cambrin][3], 1 C.C.C. (3d) 59 (B.C.C.A.) at 61-3, and R. v. Seed at para. 7.
19In Vanderbruggen Justice Rosenberg relied on [R. v. Seed][4] an earlier decision of the Court when he stated: "the touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably". In Seed the Court stated the focus should be on whether the police acted reasonably and expeditiously. By relying on Seed, it appears that "reasonableness" in the context of "as soon as practicable" includes the concept of "expedition". Of course this does not mean that it is a no-holds barred race against time, however the actions of the police in bringing a detainee to the breath tests, when ultimately the prosecution is seeking to rely on an evidentiary shortcut, must be focused on completing the necessary tasks required to bring a person safely to the police division and to the breath tests with expedition.
20Added to that focus must also be cognizance and compliance with the spirit of the implementational requirement of Section 10(b) of the Charter of Rights when a detainee has not waived his right to counsel. The right to counsel not only includes the words: "You have the right to retain and instruct counsel without delay", but also "You have the right to call a lawyer now" when a detainee chooses to exercise his right to counsel: the obligation of the officer is to permit that to happen without delay.
21Additionally where as in Mr. Segal-Townsend's case, there was no evidence of any signs of impairment from Mr. Segal-Townsend (the question of whether his blood alcohol level was over 80 was the only issue) there has to be a greater focus on expedition in such circumstances.
22While most of the cases provided refer to fact situations where there has been no explanation of activity during a certain time period in which a Court can determine reasonableness, any explanation given is still subject to the requirement of reasonableness and expedition.
Application to the Facts
23Turning to Mr. Segal-Townsend's case therefore at 12.42 or shortly thereafter Mr. Segal-Townsend asked to contact his lawyer.
24Despite the presence of a second officer who was tasked with securing Mr. Segal-Townsend's motor vehicle and dealing with the tow, Constable Nicholson who went to the car to get the electronics requested by Mr. Segal-Townsend, which were sitting on the car seat in full view, then chose to search the car.
25Once he returned to the police car he said he then spent four minutes searching and handcuffing Mr. Segal-Townsend: given the officer's description of the intrusiveness or lack thereof of the search, four minutes does seem to allow for a very leisurely pace.
26Constable Nicholson then spent a further five minutes to compile his notes. At this time it is seventeen minutes from the time Mr. Segal-Townsend indicated his choice to contact counsel and twenty-one minutes from the time of the arrest.
27The compilation of notes is an interesting issue. In Peel Region officers use a form (colloquially known as the yellow form) much of which permits for a "fill in the blanks" approach to many of the details, including responses to rights to counsel which, given the verbatim nature of Constable Nicholson's testimony about Mr. Segal-Townsend's responses, assumes a verbatim note taken as the responses were given.
28There was no explanation proffered as to why the note taking in the car could not be completed, as it is so often in a vast majority of cases, back at the Division.
29When Constable Nicholson returned to the division he had from 1.38 to 1.47 while Mr. Segal-Townsend was on the phone and from 1.48 to 2.19 to complete his notes when the tests were being conducted where the officer was unencumbered by any statutory restraints of time.
30Given the imprimatur of expedition and the facilitation of access to counsel "without delay" and "now" the concept of reasonableness is severely tested by Constable Nicholson's choice of activities.
31It is also important to note that during this period of time, Mr. Segal-Townsend is sitting in the back of a car, handcuffed for a considerable period of time, as yet not charged with a criminal offence and isolated from any legal assistance, which is his right.
Conclusion
32Ultimately this decision comes down to where the onus lies. The onus is on the Crown to prove "as soon as practicable". While the breath tests were taken within the two-hour period; that does not mean that Constable Nicholson has the luxury of performing non-essential tasks within that time limit. There was another officer present able to conduct a search of the vehicle, there was an unaccounted period of time after the demand, there was a leisurely search and time spent writing notes at the scene. In combination I find the choice to perform these activities did not permit for the breath tests to be taken "as soon as practicable" within the meaning of the Criminal Code.
33Thus the Crown is unable to rely on the presumption in the Criminal Code; there being no evidence of the BAC at the time of driving, the charge must be dismissed.
Released: April 14, 2014
Signed: "Justice K. L. McLeod"
Footnotes
1Section 258(1)(c)(ii) Criminal Code of Canada
[2], [2006] O.J. No. 1138
3R. v. Vanderbruggen (infra) at para. 13
[4], [1998] O.J. No. 4362
5R. v. Vanderbruggen (infra) at para. 12