Court Information

Ontario Court of Justice

Date: 2016-03-14

Court File No.: Brampton 14-6983

Parties

Between:

Her Majesty the Queen

— AND —

Nuno Nascimento-Pires

Judicial Officer and Counsel

Before: Justice Louise A. Botham

Heard on: February 22, 2016

Reasons for Judgment released on: March 14, 2016

Counsel:

• Christopher Presswood, for the Crown
• Stephen Whitzman, for the defendant Nascimento-Pires

Judgment

BOTHAM J.:

[1] Mr. Nascimento-Pires is charged with over 80. Testing of his blood alcohol level took place more than two hours after he had been driving his car. As such, the Crown cannot rely on the presumption of identity to prove his blood alcohol level at the time of driving. A toxicologist report has been filed as evidence at this trial to establish that his blood alcohol level would have been over the legal limit when he was stopped by the police.

[2] It is agreed that the breath tests on which the Crown relies as evidence of his blood alcohol level at the time of testing are the product of a warrantless search. The Crown bears the onus of establishing the lawfulness of that search.

[3] The Crown relies on s.254(3) of the Criminal Code which authorizes the seizure of breath samples where such a demand is made forthwith or so soon as practicable after the officer has formed grounds to believe that an offence under s. 253 of the Code has been committed. Failure to comply with either of these requirements has been found to render the breath seizure itself unlawful.

[4] The applicant contends that the lawfulness of the breath seizure is also contingent on the taking of those breath samples as soon as practicable. This issue does not appear to have been considered in great depth at an appellate level except to confirm that, absent a Charter challenge, readings not taken as soon as practicable are nonetheless, still admissible evidence. There are a number of trial decisions which have found the failure to comply with the "as soon as practicable" requirement to be a breach of s. 8. Recently Justice Spies, in a summary conviction appeal, acknowledged that a failure to obtain breath samples, as soon as practicably, would amount to a s. 8 breach since all of the requirements for a proper demand had not been met.

[5] In this case, Mr. Nascimento-Pires was arrested at 3:57 a.m. and the breath demand was made at 3:59 a.m. Although officers had arrived to secure the defendant's vehicle by 4:10 a.m., the arresting officer was unable to leave the scene until 4:17 a.m. when dispatch finally provided him with the location of an available breath technician. By 4:28 a.m., he and Mr. Nascimento-Pires were at 21 Division.

[6] By 4:33 a.m. the booking process was complete and when Mr Nascimento-Pires declined to speak to duty counsel, he was placed in a holding cell because the breath technician was involved with another test. He remained in the holding cell until 6:04 a.m. when he was turned over to Cst. Scobie to provide breath samples.

[7] Cst. Scobie testified that he was contacted at 5:33 a.m. by Cst. Simmons, the breath technician on duty at 21 division, and asked to come to 21 division to conduct a breath test. When he arrived at 5:53 a.m., Cst. Simmons was conducting a breath test. At 5:59 a.m., that test subject had left the breath room and at 6:04 a.m., Cst. Scobie took custody of Mr. Nascimento-Pries. The first breath test was taken at 6:14 a.m., the second concluded at 6:31 a.m. At 6:49 a.m., Mr Nascimento-Pires was served with the notice of intention and a certificate of analysis.

[8] As soon as practicable does not mean as soon as possible. There is no requirement that the Crown provide a detailed account of what occurred during each minute that a defendant is in custody, however, the breath samples are to be taken within a reasonably prompt time. Trial judges are reminded that in making that determination, the entire chain of events must be considered.

[9] There are clearly two periods of time where the delay is outside what one would normally expect. Cst. French conceded that it was unusual to have to wait as long as he did to be directed to an available detachment. He was unaware as to why that had been the case. Even more significant is the absence of any explanation for why Mr. Nascimento-Pires waited 90 minutes to provide a breath sample except for evidence that the breath technician was involved in a breath test at 4:33 a.m. and apparently also at 5:53 a.m.

[10] It may be that there was more than one accused waiting to be tested ahead of Mr. Nascimento-Pires; however, that raises the question why was it reasonable to send him to this detachment if it was so busy. Conversely, there may have been unusual circumstances causing the delay, however it is reasonable to expect that Cst. French would have been aware of them. He was present. He was responsible for the investigation of Mr. Nascimento-Pires, yet he appeared to have made no inquiries into a delay which was clearly on its face, significant.

[11] Section 254(3) of the Criminal Code which allows for the compulsory seizure of an accused's breath or blood sample, requires that the seizing officer act as soon as practicable to effect that seizure.

[12] There is a difference between not requiring the Crown to account for each and every minute of delay and the absence of an explanation for a significant period of delay. The Crown has failed to establish on a balance of probabilities that the police did in fact comply with that requirement; and therefore, failed to establish that this warrantless seizure was lawful. As such, I find that there has been a breach of the applicant's right to be secure against unreasonable search and seizure.

[13] The applicant seeks an order under s. 24(2) of the Charter excluding the results of the breath tests from this trial.

[14] In R. v. Grant, McLachlin C.J. writes:

The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.

[15] The law with respect to the 'as soon as practicable' provision in s. 254(3) is well established and was understood by the arresting officer and presumably all officers involved in this investigation. Although the evidence may not support a finding of bad faith, such an absence does not mean a positive finding of good faith. At a minimum, one can say that there appeared to be a somewhat cavalier attitude towards the need to ensure expeditious testing of the defendant, who remained in a cell for 90 minutes without any inquiry made as to why the testing had not yet occurred. In the 1992 SCC decision of Durelle, LaForest, J.A. wrote "…the breathalyzer scheme of the Code is designed to ensure that breath or blood samples are obtained as quickly as possible after the alleged impaired driving offence." In this case, I think it fair to say that little concern was displayed to ensure that that did occur.

[16] The second inquiry requires the court to evaluate the extent to which the Charter offending conduct actually undermined the interests which the Charter right seeks to protect. (See: Grant, para. 76) There is no dispute that the police had reasonable and probable grounds to demand the breath samples and to transport the applicant to a police station to ensure that occurred. However, his detention at the station was considerably lengthened by their failure to ensure that testing did occur as soon as practicable. Cst. French described the applicant as exhibiting no observable signs of impairment and was of the view that there was no reason to think he could not have been released, upon conclusion of the testing and service of documents. In this case that occurred at 6:49 a.m., almost three hours after his arrest but only 45 minutes after the testing had actually commenced. I am satisfied that this prolonged detention impacted the accused's Charter protected liberty interests.

[17] The third line of inquiry, namely society's interest in having cases adjudicated on their merits, favours the admission of the evidence of the breath tests which is real evidence and essential to the prosecution's case.

[18] In balancing all three factors as I am required to do, I cannot ignore the extraordinary power given to the state by virtue of s. 254(3) of the Code. Where grounds exist to arrest for a drinking and driving offence, the state is empowered to continue the detention of that arrestee solely for the purpose of compelling the provision of evidence to be used in his prosecution. There is a statutory requirement of immediacy not only for the making of the demand but carrying out of the seizure. There is a strong societal interest in requiring strict compliance with pre-conditions attached to the exercise of statutory powers which allow the state to over-ride an individual's security of the person.

[19] While acknowledging the seriousness of the offence and the need for the challenged evidence to prove the prosecution's case, when I balance that against the other factors which I must consider, I am satisfied that the inclusion of this evidence when viewed from a long term perspective would have a more negative effect on the reputation of the administration of justice than its exclusion. There will be an order excluding evidence of the breath tests.

Released: March 14, 2016

Justice Louise A. Botham