Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
James Gaven Eyre
Before: Justice Doody
Heard on: March 24, 2016
Reasons for Judgment released on: May 3, 2016
Counsel:
- J. Melo, for the Crown
- Rosalind Conway, for the defendant Eyre
DOODY J.:
Introduction
1The defendant Gavan Eyre is charged with driving having consumed alcohol in such a quantity that the concentration in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood. Ms. Conway, counsel for Mr. Eyre, has conceded that the only issue is whether the Crown has proven beyond a reasonable doubt that the tests taken by the approved technician using the Intoxilyzer 8000C, an "approved instrument" under s. 254(1) of the Criminal Code (hereafter "the Intoxilyzer") were taken "as soon as is practicable" after the time the offence was alleged to have been committed. If not, the statutory presumption that the results of those tests establish the blood alcohol level of the defendant at the time he was driving is not applicable and there would be no evidence of his blood alcohol level at the time of driving. If the Crown has established that the tests were taken as soon as is practicable, Ms. Conway concedes on behalf of Mr. Eyre that a finding of guilt would be appropriate.
2Ms. Conway's submission that the Crown has not established beyond a reasonable doubt that the tests were taken as soon as practicable has two bases:
(a) that the test was delayed by at least 22 minutes in order to allow the defendant to consult counsel even though he had waived his right to counsel immediately after he was arrested and advised of his right to counsel, and
(b) that Cst. Grison, the approved technician, was not advised that she would be required to administer a test until 3:02 am, some 28 minutes after the defendant was arrested and the demand for a sample of his breath was made to him.
The Facts
3The defendant was driving eastbound on Rideau Street at 2:27 a.m. on July 1, 2015. A RIDE program was operating on the Cummings Bridge, where Rideau Street crosses the Rideau River, monitoring traffic going eastbound. As the defendant approached the Cummings Bridge, he made a sharp right hand turn onto Rideau Place, a cul de sac which is the last street on the right hand side before the bridge. Prior to the turn, the defendant had been driving in the eastbound lane which was furthest from the curb; consequently, he had to cross one lane quickly to make the turn. Constable P. Lorentz, who was working on the RIDE program traffic stop, saw the turn. Assuming that the turn had been made in an attempt to avoid the traffic stop, he drove to Rideau Place and followed the defendant. The defendant's vehicle was stopped after turning around on the cul de sac, and was facing Rideau Street. Cst. Lorentz stopped his police vehicle in front of the defendant's vehicle and got out, walking over to the defendant's driver side window. The defendant rolled his window down and Cst. Lorentz smelled an odour of alcohol. He asked the defendant if he had been drinking, and he said that he had had one drink. As a result of the odour of alcohol and the admission from the defendant that he had been drinking, Cst. Lorentz formed a reasonable suspicion that the defendant had alcohol in his body.
4At 2:29 am Cst. Lorentz demanded, under s. 254(2) of the Criminal Code, that the defendant provide a sample of breath to enable an analysis to be made by means of an approved screening device (ASD). Defence counsel advised that there was no issue with the propriety of the demand or what was read to the defendant. Nor is there an issue that the device used was an ASD.
5Cst. Lorentz did not have an ASD with him, so he asked for it to be brought to him. This request was made "within minutes" of 2:29 am.
6Cst. Lorentz asked Mr. Eyre to step out of his vehicle and he did so. His balance was good. He was not swaying on his feet.
7Cst. Laplante of the Ottawa Police Service brought an ASD. At 2:33 am, Mr. Eyre provided a sample of his breath and the ASD registered a "fail". Having thus obtained the necessary reasonable grounds under s. 254(3), Cst. Lorentz arrested the defendant at 2:34 a.m. He was then handcuffed, subjected to a patdown search, walked to Cst. Lorentz's cruiser, and placed inside. At 2:34 a.m. he was read the usual caution in respect of anything he may say to the police and the defendant said that he understood it.
8At 2:38 a.m., Cst. Lorentz advised Mr. Eyre of his right to counsel under s. 10(b) of the Charter of Rights and Freedoms. Cst. Lorentz testified that Mr. Eyre had "no difficulty understanding" this right. He responded "No that's okay". Cst. Lorentz agreed with defence counsel's characterization of this response as an "unequivocal refusal – that he did not want to speak to a lawyer". He also agreed that Mr. Eyre was "clear in his mind" and coherent.
9At 2:40 a.m. Cst. Lorentz read to the defendant the demand for a sample of his breath under s. 254(3). Mr. Eyre replied that he understood. At 2:45 a.m. Cst. Lorentz departed for the police station on Elgin Street, arriving there at 2:54 a.m. He testified that the booking process did not begin until 3:02 a.m., some 8 minutes after he arrived. He could not recall exactly, and had no note, as to what took place during that time period. He is required to get out of his vehicle, get a "booking sheet" to complete, and lodge his firearm. The booking process requires that the detained person be taken to the cellblock sergeant and the reason for arrest explained. The detained person is then transferred to special constables who conduct a further search of his person.
10After the booking process and the further search, Cst. Lorentz told Mr. Eyre that he should speak to a lawyer because he was in a serious situation. In cross examination, Cst. Lorentz testified that "at first" the defendant did not want to speak with counsel but he (Cst. Lorentz) "strongly suggested that he should and he agreed". There is no policy of the Ottawa Police Service requiring that persons detained in such circumstance must speak with a lawyer. Cst. Lorentz agreed that he could have accepted Mr. Eyre's original unequivocal waiver of his right to counsel but he thought that it was in Mr. Eyre's best interest that he speak to a lawyer. He was also concerned that the voluntariness of the waiver may be argued if charges and a trial were to result.
11Mr. Eyre testified that after arriving at the police station he was placed in a cell briefly. He was then asked again if he wanted counsel and he refused. He was then asked a few more times and he "gave in" and said he would call a lawyer or Legal Aid because he "felt that it was better to cooperate with the officers and do as they advised".
12I find that Mr. Eyre clearly told Cst. Lorentz, both when initially arrested and after he arrived at the police station, that he did not want to speak with a lawyer. I also find that Cst. Lorentz attempted to convince him that he should speak with counsel and that, as a result, Mr. Eyre changed his mind and told Cst. Lorentz that he did wish to speak with counsel. At all times, Cst. Lorentz was acting in good faith for the reasons to which he testified – that he thought that it was in Mr. Eyre's best interest that he receive legal counsel, and that if he did not receive counsel, there may be an issue at a subsequent trial as to the adequacy of the waiver.
13At 3:05 a.m. Cst. Grison, a qualified technician, received a call advising her that she would be needed to conduct a breath test. She was at the police station on Elgin Street when she received the call, completing a report of her own arrest of a driver for impaired operation of a motor vehicle. She was on duty that night, as was Cst. Lorentz, as part of a special RIDE program for the Canada Day holiday. She testified that it takes her about ten to fifteen minutes to prepare the instrument and get ready for a breath test. There was no evidence as to why it took until 3:05 a.m. to contact Cst. Grison and advise her that she would need to conduct a test. It was clear that the need for a technician to conduct a test was apparent at 2:38 a.m., 27 minutes earlier, when Mr. Eyre was arrested for impaired driving.
14At 3:06 a.m. Mr. Eyre was placed in a room from which detained persons can speak with counsel. He was provided with a list of lawyers to choose from. He then agreed to have Cst. Lorentz call call Legal Aid to obtain advice from Legal Aid counsel.
15At 3:08, after the defendant told him that he did want to speak with counsel, Cst. Lorentz called Legal Aid. It was necessary that he place the call because the phones in the rooms used for consultation with counsel do not allow outgoing calls to be placed. The system used by Legal Aid is that calls are answered by a voice message which asks for certain information in "prompts". Subsequently, counsel calls back. At 3:14, Legal Aid counsel called Cst. Lorentz. He spoke with the lawyer briefly and then transferred the call to Mr. Eyre in a room which had a window but was soundproof. At 3:22 a.m. Cst. Lorentz could see through the window that Mr. Eyre was no longer on the phone. He asked Mr. Eyre if he was happy with the advice, and he said that he was.
16Cst. Lorentz then spoke with Cst. Grison, the technician, and provided her with his grounds for making the s. 254(3) demand. He told her that he had seen Mr. Eyre driving eastbound on Rideau Street and make a quick right turn into Rideau Place just before the RIDE program stop which had been set up on the Cummings Bridge. He suspected that the reason for the turn was to avoid the stopcheck. He told her that he had conducted a traffic stop and smelled alcohol and administered a roadside test with an ASD, which registered a fail. He told her that he had arrested Mr. Eyre for driving with more than 80 milligrams of alcohol in 100 millilitres of blood and taken him to the central cells. He also told her that Mr. Eyre had been in contact with a lawyer. This discussion concluded at 3:27 a.m. During this discussion, Mr. Eyre remained in the room from which he had been speaking with counsel.
17At 3:28 a.m. Mr. Eyre was taken to Cst. Grison by Cst. Lorentz. His balance was good. He was walking well.
18At 3:30 a.m. Cst. Grison read Mr