R. v. Giles, 2016 ONCJ 43

COURT FILE No.: 14-2651

CITATION: R. v. Giles, 2016 ONCJ 43

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

AIDEN GILES

Before Justice Robert S. Gee

Heard on December 7, 2015

Reasons for Judgment Released January 25, 2016

G. Orsini for the Crown

M. McArthur for the Accused

INTRODUCTION

1The accused, Aiden Giles, is facing a charge of operating a motor vehicle on December 20, 2014 while the quantity of alcohol in his blood exceeded the legal limit. This case explores the impact on the requirement that samples be taken as soon as practicable when the police have two persons in their custody at the same time, each requiring breath samples to be taken and the sampling procedures for these individuals overlap.

FACTS

2The facts in this case were not contentious; it is the legal issues arising from the facts that was the focus of this matter.

3Briefly, the accused entered a RIDE check set up by the Brant County OPP on December 20, 2014. After some investigation the accused provided a sample of his breath into an approved screening device and registered a “Fail”. He was arrested, and as the Brant County OPP did not have a qualified breath technician on duty that night, he was taken to the Brantford Police Station, which had agreed to assist the OPP in obtaining the accused’s breath samples.

4What complicated the matter was the Brantford Police had arrested another person, Brandon Rudman, at about the same time, for the same offence, and the process for obtaining samples of Mr. Rudman’s breath had already commenced by the time the accused, Aiden Giles was available to be turned over to the breath technician.

5What the police did was, after obtaining Mr. Rudman’s first sample, they returned him to a holding cell and obtained Mr. Giles’ first sample. Upon completion of Mr. Giles’ first sample he was returned to a holding cell and Mr. Rudman was brought back in to provide his second sample. After finishing with Mr. Rudman, Mr. Giles’ second sample was then obtained.

6The police rationale for proceeding in this fashion was that by the time Mr. Giles was ready to give his first sample, it had been some time since his arrest, and police were concerned if they waited until the completion of both of Mr. Rudman’s samples, they may exceed the two hour timeframe for the taking of Mr. Giles’ first sample, as set out in s.258(1)(c) of the Criminal Code.

7When asked why they proceeded in this fashion instead of taking both of Mr. Giles’ samples before returning to Mr. Rudman, the rationale as explained by the breath technician was that they were trying to remain cognizant of Mr. Rudman’s right to have his samples taken as soon as practicable, as also contemplated in s.258(1)(c) of the Code.

8This resulted in approximately 57 minutes elapsing between Mr. Giles’ first and second samples being obtained.

9The defence recognizes that it is not the entirety of this 57 minute delay that should be viewed as excessive for the purpose of the “as soon as practicable” analysis. Even absent the decision to obtain Mr. Rudman’s second sample between Mr. Giles’ samples, there would have been some period of delay between Mr. Giles’ two samples.

10At a minimum, Intoxilyzer procedures require there to be at least 17 minutes between the first and second sample. As well there is often other activity taking place that means the second sample is not obtained at the instant the 17 minute required delay has elapsed. The time it takes for the sample itself to be taken must be considered. In this particular case the breath technician made an error while inputting information into the Intoxilyzer, necessitating correction which resulted in a bit of a delay to Mr. Giles’ second sample. Defence recognizes this can happen and does not take issue with this delay.

11Keeping this in mind what the excessive delay said to be here that resulted from the police decision to overlap the sampling process, was an approximately extra 30 minute delay in taking Mr. Giles’ second sample from when it could have been reasonably been expected to have been provided if his samples were taken without interruption.

12The timing of the events that took place in this matter are as follows:

• 9:42 p.m. – Mr. Giles enters RIDE check
• 9:44 p.m. – ASD demand made for sample of Mr. Giles’ breath
• 9:48 p.m. – Officer Rob Hall of Brantford Police, the qualified breath technician, advised of the need for samples of Mr. Rudman’s breath be obtained
• 9:50 p.m. – Mr. Giles’ sample of breath into ASD results in a Fail
• 9:51 p.m. – Mr. Giles arrested, provided rights to counsel, cautioned and breath demand made. Mr. Giles advises he wishes to speak with Duty Counsel
• 10:10 p.m. – Officer Hall advised of need to obtain breath samples from Mr. Giles
• 10:28 p.m. – OPP arrive at Brantford Police station with Mr. Giles
• 11:10 p.m. – Mr. Giles on phone with Duty Counsel
• 11:16 p.m. – Mr. Giles off phone with Duty Counsel
• 11:19 p.m. – Mr. Rudman’s first sample obtained
• 11:20 p.m. – Mr. Giles brought into breath room
• 11:31 p.m. – Mr. Giles’ first sample obtained – result 118 mg alcohol/100 ml blood
• 11:40 p.m. – Mr. Giles returned to holding cell – between completion of first sample and 11:40 p.m. when he was returned to holding cell, Officer Hall completed the alcohol influence report with Mr Giles
• 11:50 p.m. – Mr. Rudman returns to breath room
• 12:05 a.m. – Mr. Rudman’s second sample obtained
• 12:14 a.m. – Mr. Rudman turned back over to arresting officer – between completion of second sample and 12:14 a.m., documents being prepared by Officer Hall and served on Mr. Rudman
• 12:20 a.m. – Mr. Giles returns to breath room
• 12:27 a.m. – Mr. Giles’ second sample obtained – result 114 mg alcohol/100 ml blood

ISSUES

13In addition to the delay as noted above, the defence pointed out another aspect of the police investigation that led to a delay they say may have resulted in the samples of Mr. Giles’ breath not being obtained as soon as practicable. That had to do with the decision of the OPP to set up and conduct a RIDE check knowing they did not have a breath technician on duty. They knew in doing so that if they arrested someone as a result of the RIDE check, the detained person would have to be transported to the Brantford Police Station for samples to be obtained

14These two issues can be articulated as follows:

1. Did the decision by the OPP to set up the RIDE check when they had no breath technician on duty at their detachment, result in Mr. Giles’ samples not being taken as soon as practicable due to the fact he had to be taken to the Brantford Police Station to provide his samples?

2. Was the second sample of Mr. Giles’ breath obtained as soon as practicable in the circumstances, given the delay that resulted from obtaining Mr. Rudman’s sample?

15If I answer “yes” to either of these questions, the Crown would not be entitled to rely on the presumption of identity afforded it by s. 258(1)(c) of the Code that Mr. Giles’ blood alcohol concentration was the same at the time he provided his breath samples for analysis as it was when the offence was alleged to have been committed. This would result in there being no admissible evidence before the court of Mr. Giles’ blood alcohol concentration at the time of his driving, which would necessarily result in an acquittal.

THE LAW

16Until the Court of Appeal case of R. v. Vanderbruggen, 2006 CanLII 9039 (ON CA), [2006] O.J. No. 1138, cases examining whether samples were obtained as soon as practicable often involved a minute examination of every minute the accused was in police custody, from time of detention until the obtaining of the samples.

17The Court of Appeal in Vanderbruggen specifically rejected this approach. The test now is whether the samples were taken in a reasonably prompt time considering all of the circumstances. The Crown is not required to give a detailed accounting of every minute. I am to review the entire chain of events and determine if, in all the circumstances, the police acted reasonably. (See: Vanderbruggen, par. 12-14)

18I have been provided with two cases that also were confronted with the situation of two detainees requiring samples of their breath be obtained, and how the overlapping of those sampling procedures, affected the as soon as practicable analysis. Those cases are R. v. Beharry, [2014] ONSC 848 and R. v. Esson, 2014 ONCJ 7. On the facts as found in both these cases the court found the accused’s samples were not taken as soon as practicable.

ANALYSIS

19Dealing with the first issue as noted above, I find that any delay that may have resulted from the OPP not having a qualified breath technician on duty when conducting the RIDE check was reasonable in the circumstances, and does not result in a finding that Mr. Giles’ samples were not taken as soon as practicable.

20It is not uncommon, especially in smaller or rural jurisdictions, for police services to not have a qualified breath technician on duty at all times.

21The lack of an on-duty breath technician ought not to preclude the investigation of drinking and driving offences in these communities. When the need for a breath technician arises in these situations, nearby police services will cooperate to ensure a detainee’s samples can be obtained in a reasonable amount of time in the circumstances.

22That is what happened here. That the OPP decided to investigate possible drinking and driving offences by utilizing a RIDE check is also reasonable.

23There are any number of investigative avenues available to police, to detect and investigate persons they may suspect to be drinking and driving. To expect the police to curtail what they view as an effective investigative tool available to them due to the lack of an on duty breath technician at their police service when they are aware a nearby jurisdiction has one, would be unreasonable.

24In this case, notwithstanding that Mr. Giles’ samples could have perhaps been obtained quicker if the OPP had a breath technician on duty, any delay that resulted from their decision to use the RIDE check on this night was reasonable, and does not mean by this fact, his samples were not obtained as soon as practicable.

25Turning now to the second issue, that is, how the overlapping samples of Mr. Giles and Mr. Rudman affected the as soon as practicable requirement. Although in both the Beharry and Esson cases, referred to above, the as soon as practicable requirement was found to not be met, that does not necessarily lead to the same finding here. It is trite to point out all cases need to be decided on their own set of particular circumstances. This case is no different.

26One significant difference between the Beharry and Esson cases and this case is that in those cases the accused was the first person in line, so to speak, to have their samples taken. Both of those accused were the ones who had their sampling procedures interrupted and delayed by the introduction of a later detainee. In the case before me, Mr. Giles is the person doing the interrupting; not that that is necessarily a determining factor, it is a significant distinguishing feature between the cases.

27In this case, the police were confronted with a difficult situation. They were trying to find a means by which they could carry out the sampling procedures in a manner that was fair to both accused and that was also consistent with the parameters imposed upon them by the Criminal Code.

28Given the time that elapsed from the arrest of both Mr. Giles and Mr. Rudman, to when their sampling procedures started, I find it was reasonable for the police to interrupt Mr. Rudman’s samples to commence taking Mr. Giles’ samples.

29Also, I find it was reasonable for Officer Hall to be concerned about the need to return to Mr. Rudman’s second sample in order to comply with the requirement to take his samples as soon as practicable, given the time that had elapsed since he was notified of the need to obtain samples from him.

30The defence has recognized the difficult spot the police were in but points out that Mr. Giles’ first sample was obtained by 11:31 p.m., and Mr. Rudman did not re-enter the breath room until 11:50 p.m. The defence contends that given this is more than the minimum 17 minute gap required between samples, if Officer Hall had waited and completed Mr. Giles’ second sample then, instead of Mr. Rudman’s, Mr. Giles’ second sample would not have been delayed as it was.

31I find the court ought not to engage in this type of second guessing the decision of Officer Hall. What I must ask is, given the decision he made in the circumstances he was faced with, was his decision a reasonable one.

32I find that it was. Given the circumstances, Officer Hall was in a difficult situation. Had he proceeded to take Mr. Giles’ second sample as suggested by the defence it could very well have resulted in the delay between Mr. Rudman’s samples being as long if not longer, than the delay that resulted for Mr. Giles.

33Keeping all these circumstances in mind I am satisfied that Officer Hall’s decision to proceed as he did was reasonable. That there may have been other decisions available to him, that also may have been reasonable in the circumstances, does not mean the decision he did make was not reasonable.

34As such, applying the test as set out in Vanderbruggen to this matter, I find the police acted reasonably and Mr. Giles’ samples in the circumstances were obtained as soon as practicable.

CONCLUSION

35Given the above findings, I am satisfied that Mr. Giles’ first breath sample was obtained within two hours of his operation of his motor vehicle, and that in all the circumstances his breath samples were obtained as soon as practicable.

36As such, the evidence of the results of the analysis of the samples of his breath are admissible to prove his blood alcohol content at the time of driving. Given that the lower of his two readings was 114 milligrams of alcohol in 100 millilitres of blood, Mr. Giles will be found guilty of the charge.