ONTARIO COURT OF JUSTICE

CITATION: R. v. Nath, 2019 ONCJ 202

DATE: 2019 04 03

COURT FILE No.: Central East - Newmarket 4911-998-17-08597-00

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

IVY SONAL NATH

Before Justice P.N. Bourque

Heard on February 26, 2019

Reasons for Judgment released on April 3, 2019

R. De Chellis counsel for the Crown

A. Ross counsel for the defendant Ivy Sonal Nath

BOURQUE J.:

OVERVIEW

Overview

1The defendant was driving home from an evening out with her girlfriends on her birthday. She was stopped by an officer at 03:27 on October 14, 2017, who wished to check her for sobriety. She is facing a charge of operating a motor vehicle with excess alcohol.

CROWN EVIDENCE

I. MEGHAN CROOKE

Crown Evidence

2…is a YRP officer and had 1 ½ years’ experience and was alone on general patrol in a marked YRP cruiser. The following are her timelines:

303:27 – she saw the defendant’s vehicle come out of a plaza and came up behind her. She saw that the vehicle was travelling very slowly and she believed the vehicle may have been avoiding her. She decided to check for sobriety and did a traffic stop. She went up to the driver and there were two other people in the car. There was a strong smell of alcohol from the car and from the driver’s mouth.

403:29 – the officer read the ASD demand.

503:31 – the defendant came out of the car and the officer did a self-test and it resulted in a 0. The defendant made two failed attempts before providing a suitable sample and it resulted in a fail. The officer stated that she had noted the serial number of the device but did not put in her notes the date of calibration. She testified that she was satisfied that the device was working properly and would provide accurate results as she stated that the device would not even function if it had not been calibrated at the proper interval. The officer admitted that she was trained to put the name of the calibrating officer and the time of the calibration in her notes but did not do so. She stated that she only does a breath test on herself and does not do a breath test with a person with alcohol in her system.

603:36 – the defendant was placed under arrest, searched and placed in the rear of the cruiser.

703:38 – the officer read the RTC and CAUTION. The officer did not read the BREATH DEMAND. The defendant did not wish to call a lawyer and she repeated this back at the station.

803:40 – began transport to 4 Division.

903:50 – arrived at 4 Division but had to wait in sally port while Sergeant booked a person ahead of them.

1004:11 – paraded before Duty Sergeant – defendant placed in cell #2 – officer gave grounds to the breath tech.

1104:24 – defendant taken to breath tech.

II. EON LAM

II. Eon Lam

12…is the breath technician. His timelines are as follows:

1303:42 – notified that he will be required for this breath testing. He was already completing another test. The officer did all of the necessary checks and the machine ran various self-tests which are programmed into the device.

1404:20 – he received the grounds from Officer CROOKE.

1504:25 – he read the breath demand and a secondary caution to the defendant.

1604:35 – she, after 25 attempts, provided a sample which was 125 mgs of alcohol in 100 mls of blood.

1704:56 – she provided a second sample which was 150 mgs of alcohol in 100 mls of blood. As it was more than 20 mgs greater than the first sample it was necessary to take a third sample. The officer began to take the third sample at 05:04 but by 05:10 the defendant had still not produced a sample. During this procedure the officer stated that he saw a read out of 115 mgs on the device but it was not a sufficient sample to be reflected in the test record. The officer felt that he had to pause this investigation to do a breath test of another person at the station so he returned her to the cells.

1805:30 – after returning her to the breath room the officer obtained a suitable sample of 120 mgs of alcohol in 100 mls of blood. Before starting this last test the officer noticed that the defendant had a piece of gum in her mouth. He told her to take it out and she did so. He had not noticed the gum before and did not know if it had been in her mouth during the first sample.

ISSUES

I. WERE THE TESTS TAKEN AS SOON AS PRACTICABLE

Issues

19The defendant was stopped at approximately 03:27. The first breath test was administered at 04:34, a delay of 1 hour and 7 minutes. The entire time is accounted for. The only possible issue in this period is the delay to get into the booking room because of another booking taking place when the defendant arrived. That delay was between 10 and 20 minutes. I do not find that offensive as the time is accounted for and while it is unfortunate, the duty sergeant could only do one booking at a time. I do not find that it offends the requirement and I find that the first test was taken as soon as practicable.

20With regard to the second test, the total time between the completion of the first test and the taking of the second (by second I mean the third and final test) was a total of 56 minutes. In my opinion the delays between the second test and the first attempt at the final test (at 05:04), a time of 30 minutes can be explained by the fact that the middle test was more than 20 mgs different from the first test, and also the fact that the defendant, either by desire or happenstance, did not provide samples until many tries. I need not assign any blame to her for this, only that it did not appear that the officer could be blamed for this issue.

21Then there is the time from 05:04 until 05:30. That is some 26 minutes. In that time the defendant was still having difficulty blowing into the device. The officer had another defendant waiting and he felt that it would be improper to continue efforts which he believed were fruitless when there was another defendant waiting. As I view all of the evidence, that appears to be a reasonable thing to do. By his evidence he believed that he could have charged the defendant with a refusal at this point, but he believed that if she had this time to reflect, she would provide the necessary sample. It turned out that he was correct.

22In my opinion the total time lost because of the delay for the other breath test was some 19 minutes (05:11 to 05:30).

23In R. v. Coulter, [2000] O.J. No. 4599, Duncan J. made the following statement where there was a delay because a breath tech had to deal with two breath tests: “Similarly, the delay in item 5 caused by the testing of a second subject is not unreasonable. Again it is a matter of degree. To hold otherwise would be tantamount to requiring that a separate technician be available for each subject arrested.”

24I agree that a delay to deal with another defendant is not unreasonable. I also find in this case there would have been no delay if the defendant had provided her samples when she had the opportunity. Again I need not find anything intentional on her part, but it does not render the officer’s decision to proceed with another defendant rather than spend what may have been further fruitless time with this defendant as incorrect.

25I therefore find that the tests were indeed taken “as soon as is practical” as defined in R. v. Vanderbruggen, 2006 9039 (ON CA), [2006] O.J. No. 1138.

II. DOES THE PRESENCE OR OTHERWISE OF GUM IN THE DEFENDANT’S MOUTH AFFECT THE PROOF BY THE CROWN OF THE RESULTS OF THE BREATH SAMPLES?

II. Does the Presence or Otherwise of Gum in the Defendant's Mouth Affect the Proof by the Crown of the Results of the Breath Samples?

26The evidence of the breath tech was that before he did the final test, he noted that the defendant had gum in her mouth and she removed it before the final test. The officer did not know whether the defendant had gum in her mouth for the first and middle tests.

27During his testimony, the officer indicated that it could change the breath test results but not enough to result in the discrepancy greater than 20 mgs of alcohol in 100 mls of blood. The defendant did not call any expert evidence to discuss this issue.

28The officer did state in re-examination that he had no reason to doubt the breath test results of the first and last tests.

29In my opinion, the defendant must call more evidence than that, to lead me to have a reasonable doubt as to the correctness of the breath test results. I find there is not sufficient evidence to raise a doubt.

30As a further matter, the new section 320.31 (1) (as proclaimed on Dec. 17, 2018) states that as long as the three conditions contained in a, b, and c, are met, then there is “conclusive proof” as to the accuracy of the test results at the time of the analysis. None of that has been shaken.

CONCLUSION

Conclusion

31I find that the tests were indeed taken as soon as practicable and I also find that I am satisfied beyond a reasonable doubt about the accuracy of the test results and therefore I find the defendant guilty of the offence of operating a motor vehicle with a blood alcohol reading of 120 mgs of alcohol in 100 milliliters of blood.