Court Information
Ontario Court of Justice
Between: Her Majesty the Queen — and — Pui-Chung Yeung
Before: Justice Hall
Heard: February 29, 2012
Reasons for Judgment Released: March 16, 2012
Counsel:
- Leslie Zamojc, for the Crown
- Peter Lindsay, for Pui-Chung Yeung
HALL J.:
Facts
[1] Mr. Pui-Chung Yeung was arrested and charged with operating a motor vehicle with over 80 (eighty) milligrams of alcohol in 100 (one hundred) millilitres of blood contrary to section 253(1)(b) of the Criminal Code, arising out of an incident on the 15th of July 2011.
[2] The defendant appeared before me for trial on the 29th of February 2012 and pleaded not guilty to the charge.
[3] Before the trial, the defendant's counsel filed a Charter motion seeking to exclude the evidence of his intoxilyzer readings of 133 (one hundred and thirty three) and 127 (one hundred and twenty seven) milligrams of alcohol in 100 (one hundred) millilitres of blood that were taken at 32 Division by a breath technician on July 15, 2011.
[4] The right to counsel portion, i.e., 10(b), of the Charter application was abandoned. However, the section 7, 8 and 9 of the Charter applications are being held in abeyance until my ruling on this issue of whether or not the Crown has proven beyond a reasonable doubt that the breath samples were taken from the defendant "as soon as practicable" in all the circumstances.
Background
[5] On the 15th July 2011 Mr. Pui-Chung Yeung was driving north on Markham Road in the City of Toronto.
[6] Police Constable Hodgins stopped him at approximately 3:40 a.m. for speeding.
[7] While at the driver's side of the car, PC Hodgins detected an odour of alcoholic beverage emanating from the inside of the car. To determine whether or not the odour was coming from the driver, P.C Hodgins requested the driver accompany him to the rear of the Mr. Yeung's car. The defendant did as he was directed and at the rear of the car PC Hodgins confirmed that the odour was indeed coming from Mr. Yeung's breath and that his speech was also slightly slurred.
[8] At that time Mr. Yeung advised PC Hodgins that he had a cup of beer after work.
[9] Based on the suspicion that Mr. Yeung had alcohol in his body, at 3:45 a.m. PC Hodgins made a demand that Mr. Yeung provide a sample of his breath into an approved screening device. Mr. Yeung provided a sample and it registered "F", a reading indicating a fail.
[10] As a result of the fail, indicated by the approved screening device, Mr. Yeung was arrested at 3:49 a.m. and advised of his rights to counsel.
[11] At 3:52 a.m. a demand was made for Mr. Yeung to accompany PC Hodgins to the station to provide a further sample of his breath into an approved instrument operated by a qualified breath technician at 32 Division, which was the nearest station to the scene of the arrest with the required facilities for the test.
[12] PC Hodgins, with Mr. Yeung under arrest, left the scene of the arrest at 3:58 a.m. and went to 32 Division. They arrived at 32 Division 4:16 a.m.
[13] PC Hodgins had to wait until 4:30 a.m. to parade Mr. Yeung before the officer in charge of the station.
[14] The reason for the wait is not entirely clear; however, PC Hodgins suggested another person was being released from custody but he had no details about this matter.
[15] There is no evidence as to the duration of the parading of Mr. Yeung. PC Hodgins made no note of the duration of the parading; however, he agreed with the defence counsel, Mr. Lindsay that generally this process would take no more than 5-7 (five to seven) minutes, at the most, from his experience.
[16] At no time in the process did Mr. Yeung request to speak to a lawyer.
[17] Mr. Yeung was brought to the Breath Room at 5:15 a.m. and provided the first sample at 5:23 a.m. and the second sample at 5:52 a.m.
[18] For ease of reference this chart outlines the relevant times in this matter:
| Time | Event |
|---|---|
| 3:30 a.m. | PC Hodgins set up speed enforcement on Markham Road in City of Toronto |
| 3:40 a.m. | Observed speeding vehicle and stopped Mr. Yeung |
| 3:45 a.m. | PC Hodgins made a demand for the roadside-screening test |
| 3:48 a.m. | Mr. Yeung registered an 'F' (Fail) |
| 3:49 a.m. | Mr. Yeung was arrested by PC Hodgins |
| 3:51 a.m. | PC Hodgins made a second demand to provide a breath sample into an approved instrument test |
| 3:52 a.m. | Contacted police dispatch to determine nearest available facility for taking breath samples |
| 3:58 a.m. | PC Hodgins and Mr. Yeung left the scene for 32 Division |
| 4:16 a.m. | Arrived at 32 Division |
| 4:30 a.m. | Paraded Mr. Yeung |
| 4:30-5:15 a.m. | Reason for delay unknown |
| 5:15 a.m. | Mr. Yeung was taken to the Breath Room |
| 5:23 a.m. | First test was taken |
| Gap of 29 minutes | |
| 5:52 a.m. | Second test taken |
Issue
[19] The sole issue in this matter is whether or not the Crown has proven beyond a reasonable doubt that Mr. Yeung's breath samples were taken "as soon as practicable" as is required by section 258(1)(c)(ii) of the Criminal Code. That would entitle the Crown to rely on the presumption without calling expert witness to prove what the reading would be at the time the defendant was driving the car.
Witnesses Called
[20] I am only reviewing the evidence on the contentious point as outlined above.
[21] The Crown called two witnesses: PC Hodgins (the arresting officer) and PC Stradza (the breath technician).
[22] The first witness was PC Hodgins who was not able to provide details as to the duration of parading, however, he agrees with defence counsel it took not more than seven minutes.
[23] PC Hodgins agreed it took about two minutes to provide the grounds for the arrest to the breath technician, PC Stradza.
[24] However, in cross-examination, PC Hodgins, in an attempt to explain the delay, asserted that some of the time was spent on preparing paperwork. He agreed with defence counsel his evidence on this issue lacked specificity (details).
[25] PC Hodgins offered what he described as a vague recollection that the breath technician, PC Stradza, needed time to set up the machinery for analyzing the breath samples.
[26] The second witness, PC Stradza, the breath technician, testified that the defendant was turned over to him at 5:15 am and he conducted the first test at 5:23 a.m. and the reading was 133 (one hundred thirty three) milligrams in 100(one hundred) millilitres of blood.
[27] The second test was conducted at 5:52 a.m., and the reading was 127 (one hundred twenty seven) milligrams in 100 (one hundred) millilitres of blood.
[28] PC Stradza testified that it is likely that he was performing tests on other persons in custody during the interval between the first and second test of Mr. Yeung. He testified that evening he performed 8 (eight) tests on persons in custody between 11:00 p.m. and 6:00 a.m.
[29] He offered no specific explanation for the delay from the time of arrival at the station to when he received the defendant. In his evidence he was clear that the machine was set up and tested and ready prior to midnight. He had conducted the diagnostic test, the self-test, and the calibration tests before midnight.
Position of the Defence
[30] The defence takes the position that the Crown has failed to prove beyond a reasonable doubt that the tests were done "as soon as practicable" pursuant to the Criminal Code.
[31] Because there is no reasonable explanation for the delay between the arrival at the station and administration of the tests, the Crown is not entitled to rely on the "presumption" that would prove the level of alcohol in the defendant's blood at the time of driving, as would be required by the Criminal Code.
Position of the Crown
[32] The Crown takes the view it needs not provide a minute-by-minute explanation and that the police acted reasonably and that the tests were indeed taken as soon as practicable in the total circumstances of this case.
Analysis
[33] The Crown has two options in this case.
[34] As Justice Moore indicated in the case of R. v. Him, [2011] O.J. No. 1568, the Crown has an option as to how it wishes to prove the readings of the defendant at the time of the alleged offense.
[35] It can call viva voce and expert evidence to relate the readings back to the time of the offence or it can rely on a shortcut provided in section 258(1)(c)(ii) of the Criminal Code.
[36] As long as certain statutory conditions are met, the Crown can rely on the presumption that the readings as analyzed at the time they were taken are the same as they would be at the time of the offence: see R. v. Him, para. 14.
[37] As Mr. Justice Hill of the Ontario Superior Court stated in R. v. Walker, [2006] O.J. No. 2679:
"Compliance with the statutory scheme must be strictly construed where the prosecution is relived of the obligation of adducing expert evidence on the subject." (R. v. Walker, para. 2)
[38] Justice Fedak, in the case of R. v. Blacklock, [2008] O.J. No. 1472, notes that section 258(1)(c)(ii) of the Criminal Code requires that in order for the Crown to have the benefit of the presumption that the accused was operating a vehicle with over 80 (eighty) milligrams of alcohol in 100 (one hundred) millilitres of blood, each breath test must be taken "as soon as practicable" after the time when the offense is alleged to have been committed. The first sample is not to be taken later than 2 (two) hours after that time and there must be an interval of at least 15 (fifteen) minutes between a first and second sample.
[39] Rosenberg J.A., in R. v. Vanderbruggen, [2006] O.J. No. 1138 (C.A.), at paras. 12-14, reviewed the meaning of "as soon as practicable". The trial judge is required to look at the whole chain of events in deciding whether the tests are taken "as soon as practicable".
[40] The "as soon as practicable" requirement must be applied with reason. According to the court, "the touchstone for determining whether the tests were taken 'as soon as practicable' is whether the police acted reasonably."
[41] The Crown bears the onus of proving that the police indeed acted reasonably and performed the breath tests "as soon as practicable."
Where the breath tests are not taken as soon as practicable, the Crown must provide a satisfactory explanation for the delay.
[42] In R. v. Craig, [2007] O.J. No. 3616 (O.C.J.), Justice Bourque explained the principle of "as soon as practicable" as applied in Vanderbruggen, at paras. 15 and 16:
"I believe that the distinction between this case and Vanderbruggen is that I have no evidence (as opposed to mere speculation) upon which I can make finding of fact that I am satisfied that the interval was 'reasonable'. (para. 15)
The Crown does not have to account for every moment of time, I believe that is implicit in the wording of the jurisprudence that as times widen, there is an increasing burden on the Crown to account for the time in order to meet the evidentiary burden of proving that a test is taken 'as soon as practicable'. A space of minimum of (40) forty minutes with no evidence in my opinion, does not meet the burden." (para. 16)
The Gap Between the First and Second Test
[43] In the case of R. v. Kunsenhauser, [2006] O.J. No. 4092 (C.J.) the Code requires a minimum of a 15 (fifteen) minute gap; however, when the gap exceeds 20 (twenty) minutes an explanation for the delay is required: see para. 31.
[44] In the case at bar, with respect to the question of delay between the first and second breath tests in the station, while I would prefer an explanation with more specific details, I find PC Stradza's explanation that he was performing tests on another person is reasonable in these circumstances and represents a satisfactory explanation for the gap of 29 minutes between the first and second test.
[45] However, there is no evidence before me to lead me to make a finding that the delay between arrival at the station and the administration of the tests was reasonable, or that the police acted reasonably in all of the circumstances of this case.
[46] Even if we make allowance for the parade being no more than 7 minutes and provision for the grounds to the breath technician as 2 minutes, there is still no reasonable explanation for the remaining 36 minutes of delay.
[47] In the evidence of PC Hodgins, i.e., doing paperwork, there is no detail of this paperwork or the duration and the tasks associated.
[48] I am left to engage in impermissible speculation.
[49] PC Hodgins offered what he himself described as a "vague recollection" that the breath technician, PC Stradza, required time to set up, therefore contributed to the delay before the first breath sample was taken.
[50] However, this evidence was contradicted by PC Stradza's own testimony. PC Stradza said he had set up and tested the intoxilyzer 8000 prior to midnight.
[51] In examining the evidence in its totality, I find there is no reasonable explanation for the delay between the time of the parade of the defendant in the station and when the first breath test is taken.
[52] There is no evidence that would allow me to conclude that the tests were taken "as soon as practicable" in this case. Therefore the Crown cannot rely on the presumption as is required in section 258(1)(c)(ii) of the Criminal Code.
[53] In other words, the Crown has failed to prove beyond a reasonable doubt that the tests were taken "as soon as practicable" and the charge is therefore dismissed.
Released: March 16, 2012
Signed: "Justice Hall"