Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Prabhupkar Soor
Before: Justice Patrice F. Band
Reasons for Judgment
Released September 26, 2017
Counsel:
- Ms. K. Holmes, counsel for the Crown
- Mr. R. Posner, counsel for the defendant Mr. Soor
I. Introduction
1As a result of events that took place late on the evening of November 19, 2016, Mr. Soor was charged with operating a motor vehicle while impaired and with over 80 ml of alcohol per 100 ml of blood ("Over 80").
2Shortly before 10:30 p.m., PC Jaime Orbegoso saw a black Honda Civic pass by his cruiser with no lights on. The Civic turned into a nearby gas station and parked next to the pumps. After a brief investigation, PC Orbegoso formed the suspicion that the driver, Mr. Soor, had alcohol in his body and made a demand that he provide a sample of his breath into an approved screening device ("ASD"). Rather than blow into the ASD, Mr. Soor inhaled during both of PC Orbegoso's attempts to receive a breath sample. This additional behaviour caused PC Orbegoso to arrive at the opinion that Mr. Soor's ability to operate a motor vehicle was impaired by alcohol. Mr. Soor later provided two suitable samples of his breath into an approved instrument. The results were well above the legal limit.
II. The Issues
3This was a short trial in which the Crown called PC Orbegoso and relied on the Certificate of a Qualified Technician. Mr. Soor did not testify. The issues are as follows.
Has the Crown proved that Mr. Soor's ability to operate a motor vehicle was impaired?
(a) Did the breath demand and ensuing events violate Mr. Soor's ss. 8 and 9 Charter rights?
(b) If so, should the breath samples be excluded pursuant to s. 24(2) of the Charter?
Has the Crown proved beyond a reasonable doubt that the breath samples were obtained from Mr. Soor as soon as practicable, as required by s. 258(1)(c)(ii) of the Criminal Code?
III. Brief Summary of PC Orbegoso's Evidence
In-chief
4At the time of this investigation, PC Orbegoso had been an officer for approximately 3 years. He had been responsible for approximately 5 impaired driving investigations.
5While there was nothing remarkable about how Mr. Soor turned into the gas station and parked near the pumps, PC Orbegoso testified that he saw him stagger when he exited the car. Mr. Soor then walked the three or so meters to the convenience store without difficulty. PC Orbegoso went inside and the two crossed paths. He smelled an odour of an alcoholic beverage and turned around to follow Mr. Soor. He told him that his headlights were off and Mr. Soor responded that he was just "gassing up the company car." From that exchange, PC Orbegoso was able to identify Mr. Soor's breath as the source of a strong odour of alcohol. When he told Mr. Soor that he believed he had been drinking, Mr. Soor responded "two beers tonight, that's all." PC Orbegoso made the ASD demand. PC Orbegoso noticed that Mr. Soor had "slurred speech." As Mr. Soor accompanied him to his cruiser, PC Orbegoso saw a "slight sway" in his gait.
6In the car, the strong odour emanating from Mr. Soor continued. PC Orbegoso prepared the ASD, which was in good working order. When he explained how to provide a sample, Mr. Soor told him that he had done it before. Then, on the first opportunity, Mr. Soor inhaled on the straw rather than blowing. PC Orbegoso showed him once more how to complete the test, using a new straw. On his next turn, Mr. Soor inhaled again. PC Orbegoso did not believe that Mr. Soor was refusing or failing to provide a sample. Rather, he believed that Mr. Soor's behaviour was evidence that he was impaired by alcohol and unable to understand the instructions. Based on the totality of the circumstances, including Mr. Soor's apparent "difficulty" with the ASD, PC Orbegoso arrested Mr. Soor.
7Next, PC Orbegoso made a nine minute phone call to PC Passmore, a Regional Breath Technician. When he first testified about doing so, he explained that he made the call because he "didn't have that much experience with these kinds of things to confirm [his] grounds and seek advice." When the Crown revisited the issue at the end of her examination-in-chief, PC Orbegoso explained that he had wanted guidance because he did not know if, having already made an ASD demand, he could then switch to an impaired driving arrest. He "wanted some clarifications."
8At the Division, there was a 13 minute gap between the time Mr. Soor finished speaking to duty counsel and the time he was turned over to the Qualified Breath Technician. PC Orbegoso had no explanation as to what took place during that time. He had not noted the time at which he shared his grounds for arrest with the Qualified Breath Technician and could not say whether that took place before, during or after Mr. Soor spoke to Duty Counsel.
9There was no evidence as to the Qualified Breath Technician's arrival time at the Division, his activities in relation to the approved instrument or when that instrument was ready to accept a breath sample from Mr. Soor.
Cross-examination
10The cross-examination generated the following important points.
11PC Orbegoso explained that Mr. Soor's "stagger" was like a "misstep" or a "stutter in your step." But he could not say whether it happened just once or several times, or which foot was involved, as he had not noted those details. He agreed that he could not help with a "visual picture" of it, and that it was a "complete and utter blank right now."
12On the way out of the store, Mr. Soor's gait was normal. (If he had staggered, PC Orbegoso would have noted it.)
13The "slight sway" on the way to the cruiser was from side to side. However, he could not say if it happened once, five or six times, or in which direction. It happened at least once; beyond that, he could not "remember right now" or "help [counsel] with that."
14PC Orbegoso had looked at Mr. Soor's face for signs of impairment. He noted that his face, eyes and pupils were normal.
15PC Orbegoso agreed that he did not believe Mr. Soor that he had only had "two beers." That is a "standard line" that "everybody says." While he had heard of people "messing around" with the ASD rather than providing a suitable sample, this was the first time that anyone had done so with him. He did not believe that Mr. Soor was "messing around" and he did not caution him about failing to provide a sample.
16The parties agreed that in PC Orbegoso's presence, Mr. Soor told the Qualified Breath Technician that his speech was poor because of a broken tooth. PC Orbegoso could not remember that, and having it put to him did not refresh his memory. However, he agreed that Mr. Soor's heavy Punjabi accent could be confused with a slur.
17PC Orbegoso agreed that he did not have reasonable and probable grounds to believe that Mr. Soor's ability to operate a motor vehicle was impaired by alcohol until he arrested him for that offence. That is, immediately after the two opportunities with the ASD.
18Shortly after arresting Mr. Soor, PC Orbegoso called PC Passmore to seek "advice" about switching from the ASD demand to an impaired arrest. It was not to seek advice as to his grounds. He was confident about those. He was also confident that he could arrest Mr. Orbegoso despite having cut short the ASD process. He just wanted PC Passmore's "advice" to "confirm" that what he had done was correct.
19PC Passmore's answer "wasn't going to change anything."
20PC Orbegoso did not make any notes relating to this call to PC Passmore and could not explain why he failed to do so.
IV. Analysis
1. Was Mr. Soor's ability to operate a motor vehicle impaired by alcohol?
21As I discuss below, PC Orbegoso had the requisite grounds to make the arrest in this case. However, I remind myself that the Crown must prove beyond a reasonable doubt that Mr. Soor's ability to operate a motor vehicle was at least slightly impaired by the consumption of alcohol. I also remind myself that it was not until the ASD attempts that PC Orbegoso formed his grounds for arrest.
22For the reasons I have listed above, I found PC Orbegoso's evidence on this issue to be incomplete, lacking in detail and hampered by poor recall. A finding of guilt beyond a reasonable doubt in these circumstances would be unsafe.
2. Did the arrest violate Mr. Soor's s. 8 and 9 Charter rights?
23Mr. Soor does not argue that PC Orbegoso's grounds were unreasonable, viewed objectively. Rather, he argues that they were not held subjectively. His argument has two bases. First, he argues that PC Orbegoso did not believe that Mr. Soor's false efforts at providing breath samples into the ASD were evidence of impairment. He believed that Mr. Soor was "messing around;" this irritated him and he decided to arrest Mr. Soor as a result. Second, Mr. Soor argues that PC Orbegoso was unsure of his grounds and called PC Passmore to get his opinion as to their strength; if this was to be done at all, it should have been done prior to the arrest.
24I disagree. I accept PC Orbegoso's testimony that he believed that Mr. Soor's false attempts were the tipping point for his grounds. Had it been otherwise, I have no doubt that he would have cautioned Mr. Soor about the consequences of failing or refusing to provide a sample. He did not do so.
25While his evidence about his reason for calling PC Passmore was inconsistent, I believe PC Orbegoso's ultimate explanation. He found himself in an unusual situation and wanted to know if, having begun the ASD process, he was bound to complete it.
26Mr. Soor's arrest was Charter-compliant.
3. Were the breath samples obtained as soon as practicable?
27To benefit from the "presumption of identity" found in s. 258(1)(c)(ii), the Crown must prove beyond a reasonable doubt that the breath samples were obtained "as soon as practicable." The question is, based on the evidence, whether the police acted reasonably. I must look at the entire chain of events and bear in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the first test. "An exact accounting of every moment in the chronology" is not required.[1]
28The relevant chain of events is as follows:
- 10:24 p.m. – PC Orbegoso first saw Mr. Soor driving;
- 10:26–10:31 p.m. – ASD demand; PC Orbegoso demonstrates ASD process; Mr. Soor makes false attempts;
- 10:31 p.m. – PC Orbegoso places Mr. Soor under arrest;
- 10:31–10:40 p.m. – PC Orbegoso calls PC Passmore (9 minutes);
- 10:40–10:45 p.m. – Right to counsel and caution;
- 10:48–10:52 p.m. – Transport to Division;
- 10:56–11:05 p.m. – Call to Duty counsel is facilitated;
- 11:05–11:18 p.m. – Not explained (13 minutes);
- 11:18 p.m. – Custody of Mr. Soor turned over to the Qualified Breath Technician;
- 11:29 p.m. – First breath sample is obtained.
PC Orbegoso's call to PC Passmore
29In some circumstances, it might be reasonable for an officer to delay taking certain steps in an investigation of this type in order to seek the advice of a more experienced officer. But an officer should not delay steps that must be taken expeditiously, as in this case, when the advice sought "won't change anything." To do so in this context is unreasonable even if, as the Crown argues, PC Orbegoso was not being "cavalier."[2]
The Delay at the Division
30There is no evidence to account for the 13 minute delay at the Division. The parties agreed that Mr. Soor would most likely have been booked prior to speaking to duty counsel.
31The Crown invites me to take judicial notice of the actions that a Qualified Breath Technician must perform in order to prepare the approved instrument to receive samples from a new subject. She does so by pointing out that, unlike the facts in Schouten, supra, there is no evidence that the instrument was ready to accept a sample prior to 11:18 p.m.
32I am being asked to make a positive finding, in the absence of evidence, that the instrument was not ready so that I can then fill in the remaining gap with my understanding of the time it takes to prepare the approved instrument. In my view, to do so in the absence of actual evidence providing certain temporal parameters – such as the Qualified Breath Technician's arrival time at the station, for instance – would stretch the doctrine of judicial notice beyond its limits. I refuse to do so in this case.
33In this evidentiary vacuum, the 13 minute gap cannot be said to be explained or reasonable.
Mr. Soor's breath samples were not obtained as soon as practicable
34The time gaps at issue in this case amount to over 20 minutes. The police acted unreasonably for a portion of that time and there was no evidence to reasonably explain or account for the remainder.
35In these circumstances, I cannot find beyond a reasonable doubt that the breath samples were taken within a reasonably prompt time.
36There being no other evidence capable of relating the breath readings back to the time of driving, the Crown has failed to prove the Over 80 count beyond a reasonable doubt.
V. Conclusion
37Mr. Soor is entitled to findings of not guilty on both counts.
Released: September 26, 2017
Justice Patrice F. Band
Footnotes
1See R. v. Vanderbruggen, [2006] O.J. No. 1138, at paras. 12–16 (C.A.).
2See R. v. Schouten, [2002] O.J. No. 4777, at para. 13 (S.C.A.C.).