Ontario Court of Justice
Between:
HER MAJESTY THE QUEEN
— AND —
EMMAD NASEER-SYED
Before: Justice William B. Horkins
Heard on: August 20 and 21, 2018
Reasons for Judgment released on: September 25, 2018
Counsel
Mr. Matthew Morley — counsel for the Crown
Mr. Michael Engle — Counsel for the defendant Emmad Naseer-Syed
W. B. HORKINS, J.:
Charge
1The accused is charged with the criminal offence of having care or control of a motor vehicle with an excessive blood alcohol level, contrary to section 253(1)(b) of the Criminal Code.
C.C. 253(1) Every one commits an offence who … has the care or control of a motor vehicle, … whether it is in motion or not, … (b) having consumed alcohol in such a quantity that the concentration in the person's blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.
Facts – Overview
2In the case before me, the accused says he was drinking earlier with his father at home in their apartment. He went out to his car, parked in a parking spot behind his high rise building just to smoke, because he is not allowed to smoke inside the apartment. He had no intent to move the car, just to hang out and smoke. However, after a short passage of time smoking in his car, he did in fact drive his car a short distance across the parking lot. The only reason that he moved his car was to get to a spot where he knew he could pick up his own Wi-Fi signal from upstairs, and so stream music to his phone as he sat and continued smoking. Once having moved that short distance across the parking area, he sat and smoked and then fell asleep. Someone called the police to report him sleeping in his car with the engine running. It seems that he was there for about an hour before the police arrived.
3The police car video shows the accused parked by the curb near the loading dock area, behind his apartment building. Significantly, he is not parked in a marked designated parking spot as he had been before moving. The accused says he did not intend to move back to the marked row parking that he moved from. He says that he has left his car parked by that curb near the loading dock in the past. He also advised us that he has received tickets for parking there.
4In this case, there are two prime issues requiring resolution:
Did the conduct of the accused amount to "care or control" as understood by s. 253(1)(b)?
Was the breath testing conducted "as soon as practicable" triggering the presumptive establishment of an excessive blood/alcohol level?
Care or Control
5The issue of what constitutes "care or control" has been the subject of much litigation. The following is my understanding of the law as it relates to the material evidence in this case.
6The Crown may prove care or control in any of three different ways:
Prove that the accused was driving.
Prove that the accused occupied the driver's seat of the vehicle thereby triggering a rebuttable presumption of "care or control" under section 258(1)(a).
Prove that the accused had care or control of the vehicle in circumstances that posed a risk of danger.
7In the case before me, the accused was found asleep in the driver's seat of his car with the engine running. This triggers a rebuttable presumption of "care or control" under s. 258(1)(a).
258(1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 …,
(a) where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle, …, the accused shall be deemed to have had the care or control of the vehicle, …, unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle, …, in motion …
8The force of this presumption is illustrated by the comments of the Supreme Court in Boudreault:
45 As I mentioned at the outset, anyone found inebriated and behind the wheel with a present ability to drive will -- and should -- almost invariably be convicted. It hardly follows, however, that a conviction in these circumstances is, or should be"automatic". A conviction will be neither appropriate nor inevitable absent a realistic risk of danger in the particular circumstances of the case.
46 The care or control offence captures a wide ambit of dangerous conduct: Anyone who is intoxicated and in a position to immediately set the vehicle in motion faces conviction on those facts alone.
47 Parliament, in its wisdom, has until now seen fit to create only one reverse onus in the context of the care and control offence. It is found in s. 258 of the Code and is not in issue on this appeal. …
9The accused may rebut this presumption by calling evidence that shows that, on a balance of probabilities, he did not occupy the drivers' seat for the purpose of putting the vehicle in motion.
10Mr. Naseer-Syed gave evidence. As outlined already, his evidence was that he initially did not intend anything more than to use the car as a place to smoke. He then changed his mind and moved the car several yards to a location closer to the Wi-Fi signal from his apartment. He fell asleep with the engine running and the lights on. He had left the car parked there before. He said he had been ticketed for parking there before. He said he would not have moved the car back.
11I am unable to accept that he would not have moved the car back to a proper parking space had one been available, once he was finished using the car simply as a smoking room. He had moved it to pick up the Wi-Fi, and I find it incredible that he would not have moved it again to park it properly in an authorized location. Why leave it there and get a ticket? I reject his evidence that he had no intention of returning the car to a proper parking spot. The accused has failed to establish, on a balance of probabilities that he had no intention of subsequently moving the car.
12It was argued that the point in time that the intent to move the car must be considered is only at that point in time that he first gets into the car. It is submitted that when he first got into the car, he did not intend to move it. That was his evidence, and I accept that he has established that on a balance of probabilities. However, he changed his mind and, he did in fact move it. I find as a fact that when he moved the car across the lot to reach his Wi-Fi signal he also, in all probability, intended to move it back when he was done. In my view, he must be taken as having still had the intent to move the car back right up until the time of the intervention of the police. I do not accept his evidence that he would have left the car parked where it was found by the police.
13The Hatfield line of cases does not assist the accused. Mr. Naseer-Syed in fact drove the car after initially intending to use it as a stationary refuge. I find as a fact that he almost certainly intended to drive it back to a proper parking spot after using the car as a smoking room. Hatfield is often cited for the simple proposition that the material point in time to consider an accused's intent to drive, or not, is the point in time when he initially occupies the driver's seat, and not the point in time when the police find him in the driver's seat.
14If someone gets into a car with no intent to drive anywhere and is found there by the police, the material point in time to consider intent would the time that he got into the car, as opposed to the time when the police arrive. If there was no intent to drive then the presumption would not apply. In the more common scenario where the driver sets out to drive home and then, en route, decides to stop and sleep it off, the rebuttable presumption does apply.
15Mr. Naseer-Syed did drive the car. He then parked it and fell asleep in the driver's seat. He has failed to rebut the statutory presumption. I find that he was in "care or control" of the car.
The Risk of Danger Analysis
16Where the presumption applies and is not rebutted, the Crown need not go further and establish any further actual risk of danger because "care or control" has been presumptively established. It is therefore unnecessary for me to consider whether there existed a "risk of danger" arising in this fact situation.
17However, in the event that I am incorrect in my analysis of the application of the presumption, I should make it clear that I would find that there also existed a real risk of danger in the circumstances of this case.
18In Smits, the Court of Appeal made clear that any conclusion of there being a "risk of danger" relevant to the analysis of "care or control" of a vehicle must be based on more than speculation or conjecture. The Court also adopted Justice Durno's "excellent, although non-exhaustive, list of factors a court might look at when engaging in a risk of danger analysis".
19To the accused's benefit, I would consider that:
The car was parked in a private lot, by the curb, out of harms' way, and did not present an unsafe obstacle for others.
From the video evidence, Mr. Naseer-Syed's level of impairment did not seem to be extreme.
There was minimal risk of the car being accidentally set in motion.
20However, as I have already stated, I am satisfied that the accused always intended to move the car back to a proper parking spot should one be available. I also find as a fact that:
the accused was asleep in the driver's seat;
the keys were in the ignition;
the engine was running and the lights were on;
he had already exercised poor judgment in moving the car across the lot, and would certainly have moved it back given the opportunity to do so.
21I therefore conclude that the Crown has established to a level beyond speculation that an actual risk of danger existed in these circumstances and so, even apart for the presumption discussed above, would have established "care or control".
As Soon as Practicable
22The submission put forward by counsel for the accused is that the blood alcohol level readings from the breath test results should not be related back to the time of the alleged offence because the tests were not taken "as soon as practicable" as required by statute.
23Section 258(1)(c)(ii) creates the "presumption of identity". That is, the presumption that the test results accurately reflect the blood alcohol level of the accused back at the time of the alleged offence. The presumption is often described simply as relating the readings back to the time of operation of the vehicle. A key condition precedent to this extraordinary presumption is that the tests be taken "as soon as practicable". That expression has been the subject of a tremendous volume of litigation over the years. In 2006, in Vanderbruggen, the Court of Appeal took a strong stand against the tide of cases where trial courts had engaged in a descent into the minutiae of every passing minute in the chronology of these investigations.
12 …, the phrase means nothing more than that the tests were taken within a reasonably prompt time under the circumstances. … There is no requirement that the tests be taken as soon as possible. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably…
13 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…
16 … these provisions, which are designed to expedite trials and aid in proof of the suspect's blood alcohol level, should not be interpreted so as to require an exact accounting of every moment in the chronology. We are now far removed from the days when the breathalyser was first introduced into Canada and there may have been some suspicion and scepticism about its accuracy and value and about the science underlying the presumption of identity. These provisions must be interpreted reasonably in a manner that is consistent with Parliament's purpose in facilitating the use of this reliable evidence.
Analysis
Timeline:
| Time | Event |
|---|---|
| 4:02 a.m. | Police on scene |
| 4:06 | Fail ASD – arrest and securing of scene and property |
| 4:18 | Clear scene to station – ½ hour drive due to DVP closure |
| 4:47 | Arrive at station – waits – told prisoner being processed |
| 5:04 | Enter station for booking |
| 5:19 | Exit booking – wait for technician |
| 5:34 | First test – 130 mg% |
| 5:59 | Second test – 120 mg% |
24In this case, it took about an hour and a half to secure the first breath test. In light of the fading reliability of the presumption of identity that magnitude of delay calls for a close critical analysis.
25A very useful instruction regarding the 258(1)(c) presumption is articulated in Ruck by Justice Paciocco, then of this Court:
52 One of the reasons for the "as soon as practicable" requirement is that in spite of the presumption of identity the actual blood alcohol level of accused persons at the time of the alleged offence is apt to be factually different from their blood alcohol level at the time of the test, and that the longer the delay between the alleged offence and the evidential breath test, the greater that discrepancy is apt to be. This is inevitable given that alcohol is absorbed into the blood over time and metabolized. In spite of this the presumption of identity was adopted out of necessity. At the time the legislation was passed it was not feasible to equip officers with mobile evidential breath machines that meet Canadian standards of accuracy. Delay in capturing actual blood alcohol concentrations would be inevitable. In order to facilitate the prosecution of alcohol driving offences the law had to deem the blood alcohol level to be identical at the two points in time, even though it is not in fact apt to be so. Parliament evidently sought to minimize the risk of inaccuracy raised by the presumption in two ways. First, it required that samples be taken "as soon as practicable" to encourage samples to be secured promptly. Second, Parliament provided that even if the entire delay is reasonable in the circumstances, if it takes more than two hours after the alleged offence to secure the first breath result the delay is too long to suppose fairly that the blood alcohol content of the driver would be the same at the time of the test as it was at the time of driving. Hence the presumption of identity cannot be relied upon.
53 Another reason for the "as soon as practicable" requirement is concern for the deprivation of liberty that detention to accommodate the test entails. It is exceptional to require citizens to forfeit their liberty to accommodate police investigations. While it is necessary to do so the period of deprivation should not be unreasonably long, given its purpose. The "as soon as practicable" requirement is no doubt meant to ensure that liberty deprivations caused by the need to secure breath samples are reasonable in their duration.
54 Even bearing these purposes in mind the case law is clear that in deciding whether a sample has been taken "within a reasonable prompt time under the circumstances" a judge is not to require a precise accounting of every minute between the arrest and the test. The judge must consider the overall period of delay R. v. Newton [2013] O.J. No. 428 (Ont. S.C.J.). Individual periods of delay that are not adequately explained or that are unexplained can, however, contribute to a finding that the samples were not taken "as soon as practicable": R. v. Bugler [1997] O.J. No. 2283 (C.A.). In effect, the judge should assess the overall delay, including periods of inordinate or unexplained delay, to determine whether in all of the circumstances the samples were taken "within a reasonably prompt time under the circumstances."
26In this case there are four suspicious sources of delay:
The time spent at the scene, which I find was reasonable in light of the necessary investigative steps required.
The 25-minute gap between the two tests, which is very minor and from which no significant prejudice would flow.
The fact that in this case the nearest available testing facility was a half-an-hour drive away from the scene, which is troublesome.
The unexplained delay at the entrance to the station, which is also troublesome.
27On the night in question, the Don Valley Parkway was closed for repairs. Knowing this, one has to wonder why, in a city like Toronto, would the police organize their resources so sparingly that someone arrested near Don Mills and Eglinton would need to be transported to a station on the lake front, by the CNE? There are a number of other police stations in the city, some much closer to the scene of this arrest. 41 Division is just about 10 minutes away. If the Don Valley Parkway was open, the drive to Traffic Services could have been about 15 minutes. However, the DVP was closed for maintenance this night and it became a half-an-hour drive through the city to the breath testing facility. On a very crude analysis then, 15 to 20 minutes of the hour and a half chronology was very likely avoidable if a technician had been set up in the north east part of the city, at 41 Division for instance. This delay is concerning.
28The delay of about another 15 minutes at the station entry point was based on information received that the booking facility was occupied with the release process of an existing prisoner.
29The "information received" as to the cause of the delay is clearly hearsay, and is inadmissible to prove cause of this period of delay. This delay therefore remains unexplained by admissible evidence.
30This delay took place at a point in time about 40 or 45 minutes "downstream" from the time of the alleged offence and resulted in the accused not getting into the testing site until about an hour after the fact. Occurring at that advanced stage of the chronology heightens the concern associated with it.
31These two "suspicious" periods of "wasted time" push this case to the edge of being fatally flawed. I am completely satisfied that neither source of delay is in any way the fault of the investigating officer who I find as a fact was doing everything possible to deliver the accused to the breath testing facility as soon as he was able to under all the circumstances.
32Both delays seem to reveal weaknesses in the process dictated by others higher up the organization. I am concerned that these weaknesses in the process, in this case, may reveal an organizational lack of appreciation of the very significant importance of facilitating swift testing of detainees, and the reasons for that requirement, as so clearly articulated in Ruck by Justice Paciocco.
33Having voiced those concerns, I would be ignoring the strong instruction from the Court of Appeal in Vanderbruggen that the standard is "reasonableness", not perfection and that the test is as soon as "practicable", not as soon as possible. Although the facts here do push the envelope, I am unable to agree with the submission that the delayed testing, in all the circumstances, defeats the operation of the presumption.
34The Crown has established that the accused had an excessive blood alcohol level of approximately 120 mg% at the time of being in care or control of the car, and so has proven the case against the accused beyond reasonable doubt. Mr. Naseer-Syed is guilty as charged.
Released: September 25, 2018
Signed: "Justice W.B. Horkins"