Court Information
Court: Ontario Court of Justice
Date: 2016-09-09
Court File No.: Ottawa 15-A12883
Parties
Between:
Her Majesty the Queen
— And —
Mitchell C. Olive
Before the Court
Justice: Doody
Heard: August 18-19, 2016
Reasons for Judgment Released: September 9, 2016
Counsel
For the Crown: J. Neubauer
For the Defendant: A. Brylewski
Decision
Doody J.:
Overview
[1] Mitchell Olive is charged with driving with more than 80 mg of alcohol in 100 ml of his blood and impaired driving. At the conclusion of the Crown case, Crown counsel conceded that the evidence could not support a conviction of impaired driving. That charge is dismissed. The defence raises three issues:
whether the officer had a reasonable suspicion that Mr. Olive had alcohol in his body when he demanded that he provide a roadside breath sample into an approved screening device (an ASD);
whether the demand for a roadside breath sample into an ASD was made "forthwith"; and
whether the samples of breath into the Intoxilyzer were taken "as soon as reasonably practicable".
[2] If either of the first two issues are decided in favour of the defence, there then arises a subsequent issue as to whether the evidence from the Intoxilyzer should be excluded under the provisions of s. 24(2) of the Charter of Rights and Freedoms.
Basic Facts
[3] On October 26, 2015, Mr. Olive was driving his vehicle, a red SUV, westbound on Meadowlands Drive. When he approached Bayne Avenue, a street running north of Meadowlands just west of Merivale Road, he turned right. He struck a white SUV being driven by Kellon Williams, who was driving eastbound on Meadowlands. The collision forced Mr. Williams' vehicle into a yard at the corner of Meadowlands and Bayne. Mr. Olive's vehicle came to a halt nearby.
[4] The following chart sets out the times of key events. These times were all recorded by Cst. Xiao in his duty book or investigative action report:
| Time | Event |
|---|---|
| 1747 | Cst. Xiao alerted by dispatch of accident |
| 1757 | Cst. Xiao arrives on scene |
| 1810 | Cst. Xiao makes ASD demand |
| 1813 | Mr. Olive arrested for over .08 |
| 1815 | Cst. Xiao makes breathalyzer demand |
| 1822 | Cst. Xiao provides right to counsel and caution |
| 1823 | Cst. Xiao provides secondary caution and s. 524 warning |
| 1837 | Cst. Xiao and Mr. Olive leave scene to go to station |
| 1927 | First sample; 100 mg alc/100 ml blood |
| 1949 | Second sample; 100 mg alc/100 ml blood |
First Issue: Reasonable Suspicion of Alcohol in Mr. Olive's Body
The Law
[5] Requiring that a sample of a person's breath be provided is a search within the meaning of s. 8 of the Charter of Rights and Freedoms. Such a requirement is a breach of s. 8 unless it is authorized by law, the law is reasonable, and the manner of carrying out the search is reasonable. The requirement is authorized under s. 254(2) of the Criminal Code, which provides that a peace officer may demand that a person provide a sample of breath for analysis in an ASD if he or she has "reasonable grounds to suspect that a person has alcohol … in their body and that the person has, within the preceding three hours, operated a motor vehicle…". A demand made when the officer does not have reasonable grounds to suspect that a person has alcohol in their body is not authorized by the statutory provision. A breath sample provided in the absence of those reasonable grounds would be a breach of section 8 of the Charter.
[6] A "reasonable suspicion" is something more than a mere suspicion – an expectation that a person is possibly engaged in some criminal activity – and something less than a belief based upon reasonable and probable grounds. Reasonable suspicion addresses the possibility of uncovering criminality, and not a probability of doing so. In order for a court to find that a reasonable suspicion is present, the officer's suspicion must be supported by factual elements which can be adduced in evidence and permit an independent judicial assessment. When an officer is determining whether he or she has a reasonable suspicion, he or she must consider all available information, both exculpatory and inculpatory. Once an officer has sufficient information to enable him or her to form a reasonable suspicion, however, it is not necessary to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations. (R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456; R. v. Chehil, [2013] 3 S.C.R. 220, 2013 SCC 49)
[7] An odour of alcohol on a driver's breath is sufficient to ground an officer's reasonable suspicion that the driver has alcohol in his or her body, and a s. 254(2) demand. The Court of Appeal has held this twice – R. v. Lindsay, [1999] O.J. No. 870, 134 C.C.C. (3d) 159, and R. v. Carson, [2009] O.J. No. 660, 2009 ONCA 157.
The Evidence About the Grounds for the ASD Demand
[8] Cst. Xiao testified that he spoke with Mr. Olive in the ambulance. He described the area in the rear of the ambulance, where Mr. Olive was being checked by the paramedics, as "a very small space" in which he was very close to Mr. Olive. He testified that he could easily smell alcohol coming from his breath, and not on his body, although it was a "slight" odour. It was his evidence that when he detected an odour of alcohol coming from his breath, he had a reasonable suspicion that he had alcohol in his body. In cross examination, he said that as soon as he smelled alcohol he asked him when he had last had a drink. Mr. Olive did not answer. Cst. Xiao testified that he then "immediately" formed the requisite suspicion. In cross-examination, Cst. Xiao admitted that there was nothing in his notes about this question and Mr. Olive's failure to answer it.
[9] Cst. Xiao testified in examination in chief that he questioned the defendant in the ambulance about the circumstances of the accident but that Mr. Olive could not remember any details. In cross-examination, he testified that he asked these questions after he smelled alcohol on Mr. Olive's breath. He asked what direction he had been travelling before the accident. Mr. Olive told him that, and that he had been making a right turn at the time of the collision. Cst. Xiao testified that other than that, Mr. Olive did not recall details of the accident. It was the officer's testimony that he asked these questions in order to obtain information about the collision and to ensure that Mr. Olive's "well-being was good".
Analysis of Reasonable Suspicion Issue
[10] Defence counsel submitted that the fact that Cst. Xiao continued to ask Mr. Olive questions after smelling alcohol on his breath showed that he did not have a reasonable suspicion of alcohol in his body after observing the slight odour of alcohol. These further questions did not elicit any information upon which Cst. Xiao could have relied to form a reasonable suspicion that there was alcohol in Mr. Olive's body. Counsel submitted that if he did not have the requisite suspicion when he smelled alcohol on his breath, and did not receive any more information thereafter which could allow him to form the suspicion, he never had it.
[11] I accept Cst. Xiao's evidence that he smelled alcohol on Mr. Olive's breath as soon as he started talking to him in the rear of the ambulance, and that he then formed a reasonable suspicion that he had alcohol in his body.
[12] Cst. Xiao was not a good witness. Many of his answers were uncertain. He said a number of times that he was not prepared to testify to something that was not in his notes. Nevertheless, he testified that he asked Mr. Olive when he had last had a drink after he smelled alcohol on his breath. This was not in his notes, although the subsequent questions about the circumstances of the accident were. I cannot find that he did ask the defendant when he had last had a drink.
[13] I find that after he formed his reasonable suspicion by smelling the alcohol, he asked questions about the circumstances of the accident. I accept Cst. Xiao's evidence that he did so in order to obtain information about the collision.
[14] A smell of alcohol on a driver's breath has been accepted by the Court of Appeal as a reasonable basis to ground a suspicion that he has alcohol in his body for the purposes of s. 254(2). The ASD breath demand was authorized by law. There was no s. 8 breach associated with the grounds for that demand.
Second Issue: Whether the ASD Demand Was Made "Forthwith"
The Law
[15] As with the demand for the ASD sample, the provision of the sample must be in accordance with the statutory provisions requiring it. This is both a statutory and a constitutional requirement to a lawful search and seizure under s. 8 of the Charter (R. v. Bernshaw, [1995] 1 S.C.R. 254 at para. 51).
[16] Paragraph 254(2)(b) of the Criminal Code provides that if a peace officer has reasonable grounds to suspect that a person has alcohol in his body and has driven in the preceding three hours, he or she may require the person to "provide forthwith a sample of breath" to allow analysis to be made in an ASD. This provision requires not only that the test be conducted forthwith after the demand is made, but that the demand be made forthwith after the peace officer forms the requisite reasonable suspicion. (R. v. Quansah, 2012 ONCA 123, [2012] O.J. No. 779 at paras. 25-26)
[17] In its decision in R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205, the Supreme Court of Canada defined the word "forthwith" in s. 254(2) to mean "immediately" or "without delay". As the Court held in that case, however, in the context of s. 254(2), the word "may, in unusual circumstances be given a more flexible interpretation than its ordinary meaning strictly suggests. For example, a brief and unavoidable delay of 15 minutes can thus be justified when this is in accordance with the exigencies of the use of the equipment – see Bernshaw." [emphasis added]
[18] There is, however, no "standard" or "permissible" delay. It is not the law, for example, that any delay of 15 minutes or less is permissible no matter what the reason for the delay. (Quansah at para. 15) Interpreting "forthwith" with some flexibility should only be done in "unusual circumstances", as the Supreme Court has said. (Quansah at para. 32)
[19] Since the provision of the ASD breath sample is a warrantless search, the onus is on the Crown to establish on the balance of probabilities that the statutory conditions for such a seizure – that the demand has been made "forthwith" - are met. (R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527 at para. 15; R. v. Haas, [2005] O.J. No. 3160 at paras. 24-26 (C.A.))
There are many examples in the caselaw where the Crown has failed to meet this burden:
a lapse of 6 unexplained minutes between the demonstration of how to use the ASD and the test (R. v. Jensen, [2012] O.J. No. 5237);
a delay of 5 minutes in which the officer made notes (R. v. John, [2012] O.J. No. 3567);
a delay of 6 minutes while the officer checked to make sure that his partner was having no difficulty dealing with the passengers in the stopped vehicle, when there was no basis to think that there would be any problem (R. v. Kerr, [2010] O.J. No. 2222);
a delay of 16 minutes between the reasonable suspicion and the demand because the officer "took his time and was thorough, looked inside the car and did not rush" (R. v. Vasylyev, [2009] O.J. No. 6244).
The Evidence About Whether the Demand Was Made "Forthwith"
[20] Cst. Xiao made the ASD demand in the ambulance at 1810. Consequently, the time he arrived at the ambulance is significant in determining the length of time between his formation of the reasonable suspicion and the demand.
[21] Cst. Xiao did not make a note in his duty book or his investigative action report as to the time he arrived at the ambulance.
[22] In examination in chief, he testified that when he arrived on the scene at 1757, the paramedics were on scene. He said he was looking for the drivers because his first concern was whether they were injured. He testified he spoke to the driver of the other SUV in the accident, Mr. Williams, who told him he was fine. He then tried to find the other driver (Mr. Olive) and he was told by someone that he was in the back of the ambulance, which was parked on Bayne Avenue. He went straight to the back of the ambulance and saw Mr. Olive sitting on the bench in the ambulance. The paramedics were checking Mr. Olive's vital signs. After about 30 seconds to a minute, there was a gap in the conversation between the paramedics and Mr. Olive. Cst. Xiao then spoke with Mr. Olive. As I have indicated, he immediately formed the requisite reasonable suspicion.
[23] In examination in chief, Cst. Xiao was asked what he did in the 13 minutes between 1757 and 1810. He was unable to say, other than speaking to the driver of the other SUV and that the first thing on his mind was that the defendant received reasonable medical attention.
[24] In cross-examination it was pointed out to Cst. Xiao that his conversation with the other driver is not mentioned anywhere in his duty book or his investigative action report. He agreed that that was so. He also agreed that the investigative action report indicated that he made sure that the other driver was not injured by speaking with the paramedics. His duty book notes made no reference to his having spoken with the other driver. He agreed that the conversation about the other driver's condition, whomever it was with, was brief. Furthermore, his investigative action report indicates that he went directly to the ambulance to speak with Mr. Olive. He agreed this was shortly after he arrived and that his duty book notes suggested the same thing.
[25] Cst. Xiao did concede in cross examination that he was speaking with Mr. Olive at the back of the ambulance within "a few moments" of arriving on scene.
[26] Cst. Xiao also testified in cross examination that he was only in the ambulance between 30 seconds and one minute before he began to speak to Mr. Olive. He smelled alcohol on his breath "right away". He testified that he then asked questions to obtain information about the collision. He did have a few notes about these questions.
[27] Cst. Xiao also testified that he administered the ASD test sometime between 1810 and 1813, when he arrested Mr. Olive for over .08. During this three minute period, he obtained the ASD from Cst. Wiegelmann (who handed it to him in the ambulance), turned the device on, attached the plastic mouthpiece, instructed the defendant how to provide a sample and the defendant blew into the device.
Analysis of Whether the Demand Was Made "Forthwith"
[28] Cst. Xiao testified that the first thing he did upon arriving at the scene was to talk to the other driver to determine whether he needed medical attention. That conversation is not recorded in his notes. Nor could he recall where he spoke to the other driver. The other driver, Mr. Williams, testified but was not asked if he had spoken to a police officer. Cst. Xiao's investigative action indicated that he learned from the paramedics at the ambulance that the other driver was not injured. While Cst. Xiao did not adopt that entry in his evidence before me, he did acknowledge that that was what he had written. I cannot rely on the entry to conclude that it is accurate, but I can and do rely on it, and on the absence of any entry in his notes that he had spoken to the other driver, to determine the credibility and reliability of Cst. Xiao's evidence before me that he spoke to the driver at a place he cannot recall in order to learn whether he had suffered injury. I am not satisfied that he did so.
[29] Furthermore, Cst. Xiao's evidence that he was at the ambulance within "a few moments" of arriving on the scene at 1757 satisfies me that he arrived at the ambulance no later than 1800 and perhaps a minute or two earlier. He then started speaking with Mr. Olive within 30 seconds to one minute. Immediately upon speaking with him, he formed his reasonable suspicion. I therefore conclude that he had formed a reasonable suspicion by no later than 1801. He did not give the ASD demand until 1810. There is at least a nine minute gap.
[30] Crown counsel submitted that I must conclude that there was no appreciable delay between the formation of the reasonable suspicion and the demand because Cst. Xiao testified that he only asked two or three questions after he formed the reasonable suspicion, which would only have taken a minute at the most. Recognizing that the burden of persuasion is on the Crown, I am not persuaded that this has been established. Cst. Xiao was able to give estimates of the time which had passed before he formed his reasonable suspicion. He admitted in cross examination that there was a delay before the demand was made. He made no notes about the time of any of these things other than his arrival at 1757 and the demand at 1810.
[31] I accept that the ASD test was administered forthwith – completed within three minutes of the demand being made. During this period, the things described in paragraph 27 had to be done. That time period is adequately explained. This period of delay, however, is not irrelevant in terms of calculating the period of time between the officer forming the requisite suspicion and the administering of the tests. That time period is at least 12 minutes. Of that time, only three minutes are adequately explained.
[32] The question, then, is whether the demand was made immediately, as the Supreme Court of Canada has defined "forthwith". I conclude that it was not. A wait of at least nine minutes is not immediate.
[33] Nor is this a case where there were "unusual circumstances" to justify a delay. The circumstances in which Cst. Xiao found himself, of investigating a potential over .08 offence when there had been a collision with possible injuries, were not unusual. I conclude, from the nature of at least some of the questions that Cst. Xiao posed to Mr. Olive after he had formed his reasonable suspicion, that Cst. Xiao was seeking information about the collision for some purpose other than to determine whether there were objective bases for him to form the requisite suspicion. Nor is there evidence upon which I can rely to be satisfied that Cst. Xiao was attempting to determine whether Mr. Olive needed medical attention. The paramedics, who are trained in such things, were already doing that.
[34] I conclude that Cst. Xiao's demand that Mr. Olive provide a sample of his breath for analysis by an ASD was not forthwith. There was a breach of Mr. Olive's section 8 rights. This led to a breach of his s. 9 rights to not be detained arbitrarily, because the arrest was the result of the unconstitutional seizure of his breath. Had he been properly detained for an ASD test, his right to counsel would have been suspended, and the suspension would have been justified by s. 1, until the ASD could be administered. Not having been properly detained for an ASD test, his right to be informed of and contact counsel, as guaranteed by s. 10(b), was breached.
Section 24(2) Analysis
[35] Defence counsel submits that I should exclude the results of the ASD, and the breathalyzer results, under s. 24(2) of the Charter. The test is that established by R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. As the Court held, in determining whether to exclude evidence under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to:
(a) the seriousness of the Charter-infringing state conduct,
(b) the impact of the breach on the Charter-protected interests of the defendant, and
(c) society's interest in the adjudication of the case on its merits.
The Seriousness of the Charter-Infringing State Conduct
[36] The first inquiry is fact-specific. It focuses on the gravity of the state's infringements of the defendant's rights.
[37] As Fish J. wrote at paragraphs 15 and 29 of Woods:
But for its requirement of immediacy, s. 254(2) would not pass constitutional muster.
The "forthwith" requirement of s. 254(2) of the Criminal Code is inextricably linked to its constitutional integrity. It addresses the issues of unreasonable search and seizure, arbitrary detention and the infringement of the right to counsel, notwithstanding ss. 8, 9 and 10 of the Charter.
[38] The failure to immediately make the ASD demand, and instead pursue inquiries in respect of the circumstances of the collision, was inconsistent with well-settled law. Cst. Xiao's continuation of questioning in respect of the circumstances of the collision after he formed the requisite suspicion, contrary to a well established constitutional and statutory requirement that he demand a breath sample immediately, shows at best a lack of understanding of the requirements of s. 8 of the Charter. He knew or should have known that delaying the demand in order to conduct an investigation into the collision was not Charter-compliant. Yet that is what he did. He did nothing to ensure that the demand was made immediately. This exacerbates the seriousness of the conduct. (Grant, supra, at paras. 22 and 75; Kerr, supra, at para. 33.)
[39] My concern about Cst. Xiao's apparent disregard of the constitutional requirement that the demand be issued forthwith is heightened by his lack of understanding or compliance with the constitutional and statutory obligation that the Intoxilyzer tests be taken as soon as practicable, as outlined in paragraphs 53 to 78 of these reasons.
[40] The first inquiry from Grant favours the exclusion of the evidence.
The Impact of the Infringement on the Defendant's Charter-Protected Rights
[41] The second inquiry – the impact of the constitutional infringements on a defendant's Charter-protected rights – is also fact specific. The impact may run from trivial to egregious. As the Supreme Court held in Grant, the more serious the impact on the defendant's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute. (para. 76)
[42] The Supreme Court wrote in Grant that the taking of a breath sample is "relatively non-intrusive". The Crown relies on this passage to submit that the impact of the failure to demand an ASD sample forthwith had only a minimal impact on Mr. Olive's rights. As Paciocco J. noted in R. v. Steele, 2014 ONCJ 583, [2014] O.J. No. 5269, 319 C.C.C. (3d) 254 at para. 53, the Supreme Court was concerned, in the passage in question, solely with the impact that compelled breath samples have on privacy interests and human dignity and offered this as an illustration of the varying ways in which breaches can intrude on Charter protected interests. I agree with Paciocco J. that Justice Charron was not, in this passage in Grant, purporting to provide a comprehensive catalogue of all "breach impact considerations" in breath sample cases.
[43] I note that Justice Charron did not say that she was doing so. If it had been her intent to suggest that the second factor in Grant always or almost always favoured admission in breath sample cases, I would have expected that the reasons would have been more explicit and explanatory. This is particularly so when one considers that the third factor in Grant, society's interest in adjudication of the case on its merits, almost always favours the admission of the evidence. (R. v. McGuffie, 2016 ONCA 365, [2016] O.J. No. 2504 at paras. 62-3) If the second factor also almost always favoured admission of the evidence in breath sample cases, the result would be that it would be almost impossible for breath samples obtained in circumstances arising from a Charter breach to be excluded. This would effectively remove the protection of Charter rights in over .08 investigations, in which the police most frequently detain, arrest, and search individuals.
[44] The taking of the sample itself is minimally intrusive in a physical sense. As I have indicated, however, failure to comply with s. 254(2) engendered multiple breaches of the defendant's Charter-protected rights – under sections 8, 9, and 10.
[45] Furthermore, as Ducharme J. held in R. v. Au-Yeung, 2010 ONSC 2292, [2010] O.J. No. 1579 (S.C.J.), the demands placed on a driver to facilitate the tests are often not minimally intrusive. In this case, as in that case, the defendant was arrested, handcuffed, placed in the rear of a police car and taken to a police station where he was held in custody. Mr. Olive was detained for a total time period of over two hours. As Ducharme J. held, to condone or excuse the behaviour in this case would send a message to the public that, despite their Charter rights under s. 8 of the Charter, and the intention of Parliament to use the immediacy requirement in s. 254(2) to balance the competing interests in protection of the public from the danger of drunk driving and the rights of citizens to be free from arbitrary state action to deprive them of their liberty, the police can ignore all of these and detain any driver.
[46] The second inquiry weighs in favour of exclusion of the evidence.
Society's Interests in Adjudication on the Merits
[47] The third inquiry – society's interest in adjudication on the merits – favours, as it almost always does, the inclusion of the evidence. Mr. Olive is seeking to exclude the breath samples that are at the heart of this prosecution. Without that evidence, the result will be an acquittal.
[48] I am mindful, however, that this argument could apply to almost every case in which the evidence sought to be excluded is key to the Crown's case. That is why the Court of Appeal has recently held that if the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the scales in favour of admissibility. (McGuffie at para. 63)
Section 24(2) Conclusion
[49] The first inquiry does not result in a finding of grievous state conduct. Combined with my findings in paragraphs 69 through 71 of these reasons in respect of Cst. Xiao's lack of knowledge of the requirement that breathalyzer results be taken as soon as practicable, however, it does result in a finding of inadequate training in or understanding of constitutional and statutory requirements by a police officer who regularly comes in contact with the public. The result is that the first inquiry favours exclusion. While this is not the strongest case for exclusion on this factor, it is towards the higher end of the scale.
[50] In my view, the second inquiry tends strongly in favour of exclusion, as I have explained.
[51] Furthermore, if delays in the range of what occurred in this case, together with the serious impacts on a defendant's rights, are held to be not sufficiently serious to justify exclusion, the result will be that police will be given a zone of delay in which they will be free to be lax about the necessity for a forthwith demand and accused persons will be left without an effective remedy. This would result in a situation similar to the "fifteen minute grace period" decried in Quansah.
[52] There is no doubt that many would hold that the exclusion of the evidence would bring the administration of justice into disrepute. In my view, however, reasonably informed persons who understand the importance of Charter rights would agree with my conclusion that the long-term reputation of the administration of justice, and the necessity to ensure that the rights given by s. 8 and s. 254(2) are not hollow, leads me to conclude that the admission of the evidence in this case flowing from the ASD demand would bring the administration of justice into disrepute. The certificate of analysis will be excluded.
Third Issue: Whether the Intoxilyzer Tests Were Taken "As Soon as Practicable"
The Law
[53] Paragraph 258(1)(c) of the Criminal Code provides that evidence of the results of the analyses by an Intoxilyzer of samples of breath of a defendant are proof of the concentration of alcohol in his or her blood at the time of the alleged offence if each breath sample was taken "as soon as practicable after the time the offence was committed".
[54] In order to take advantage of this statutory presumption the Crown must prove beyond a reasonable doubt that each of its requirements have been met. As Justice Hill held in R. v. Walker, [2006] O.J. No. 2679:
Compliance with the statutory scheme must be strictly construed where the prosecution is relieved of the obligation of adducing expert evidence on the subject.
[55] The requirement that a breath sample be given arises from s. 254(3) of the Criminal Code which authorizes a peace officer to demand "as soon as practicable" a sample of breath to be provided "as soon as practicable". Since this provision authorizes a warrantless search, failure to comply with its provisions is a breach of s. 8 of the Charter.
[56] As the Court of Appeal has held in R. v. Vanderbruggen, [2006] O.J. No. 1138, 206 C.C.C. (3d) 489, there is no requirement that the tests be taken as soon as possible. Nor does the provision require an exact accounting of every moment in the chronology. As the Court held:
The provisions of s. 254(2) should not be interpreted to require an exact accounting of every moment in the chronology.
The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably.
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.
[57] In R. v. Singh, 2014 ONCA 293, [2014] O.J. No. 1851, the Court of Appeal reiterated the Vanderbruggen decision, holding that the requirement that the samples be taken as soon as practicable means "nothing more than that the tests should be administered within a reasonably prompt time in the overall circumstances."
[58] These notes of caution by the Court of Appeal do not, however, diminish the requirement of s. 254(2). The analysis which trial courts are required to undertake is not one in which every unjustified minute of delay is totted up, with the resulting sum being analyzed to determine whether the requirement has been met. At the same time, however, the analysis is not whether the total delay seems reasonable without analysis of the reasons therefor. The inquiry is fact-specific. Just as the Court of Appeal held in Quansah that there is not a rule of a standard 15 minute allowable period of delay in administering the ASD test, there is not a rule of a standard permissible period of delay in administering the Intoxilyzer test. A fact-specific inquiry requires that significant periods of delay be identified and the Crown be required to justify them.
[59] As Durno J. held in R. v. Schouten, [2002] O.J. No. 4777:
… each case must be examined on its own facts. One hour and forty-six minutes could be "as soon as practicable": R. v. Letford (2001), 150 C.C.C. (3d) 225 (Ont. C.A.). One hour and thirty minutes might not be "as soon as practicable" in another: R. v. Lightfoot, (1980), 4 M.V.R. 238 (Ont. C.A.).
The Evidence About Whether the Intoxilyzer Tests Were Taken "As Soon as Practicable"
[60] Cst. Xiao was notified by dispatch of the accident at 1747. The first test was administered at 1927; the second at 1949. We are thus dealing with a delay of one hour and 40 minutes before the first test and two hours and two minutes before the second.
[61] Defence counsel has conceded that there is no unjustified period of delay after Cst. Xiao left the scene for the police station at 1837. What, then, of the 50 minutes between Cst. Xiao's arrival at 1747 and his departure at 1837?
[62] I have already indicated that there was an unjustified delay of at least 9 minutes between Cst. Xiao's determination that he had the requisite suspicion to make the ASD demand and the time he made the demand.
[63] After the test was administered and the defendant was arrested at 1813, Cst. Xiao read the Intoxilyzer demand at 1815. Between 1815 and 1822, Cst. Xiao did not interact with the defendant. He allowed the paramedics to continue to deal with the defendant. Defence counsel has properly conceded that this was reasonable.
[64] At 1822 Cst. Xiao read the defendant his rights to counsel and the primary caution. At 1823 he read the secondary caution. He testified that this took approximately one minute. He then walked the defendant to his cruiser and placed him in the rear. He testified that within a minute or two of 1824 he was in the cruiser.
[65] He testified that he then spoke with the other officers on scene, Cst. Wiegelmann and Cst. O'Connor, to coordinate with them, to make sure the intersection was clear, make sure all the documents for the defendant's vehicle were in place, determine who was going to prepare the accident report, determine who would be the breath technician and to ensure that there was proper coordination for the defendant's vehicle.
[66] In cross-examination, Cst. Xiao testified that by the time the defendant was in his cruiser, the cars were off the roadway but the debris was still on the road. He testified that he still had to talk to the fire department about that and to ensure that the fire department's own record keeping was appropriate. He said he also had to talk to the other police officers to make sure that the vehicle was towed. He also testified that when he went inside his cruiser, he was catching up on his notes.
[67] Cst. Xiao testified that an impaired driving scene where there has been a collision requires three officers – an investigating officer, an officer to look after the scene, including the towing and the accident report, and a breathalyzer technician. He agreed that those three officers were in place. He was the investigating officer. Cst. O'Connor was looking after the scene. Cst. O'Connor was on scene and had been delegated those tasks. Cst. O'Connor has significant experience in carrying out such matters. Cst. Xiao testified that he was capable of clearing the scene of debris, completing an accident report, and arranging a tow truck. Cst. Wiegelmann was the breathalyzer technician.
[68] Cst. Xiao testified that he was not supervising these officers. He was just making sure that all was looked after. He agreed that doing that should not take much time. He testified, however, that he would not rush it "in a serious collision and impaired case like this." Instead, as he put it, he took his time. He testified that he did these things personally because "that is just my personality. I like to see that everything is done properly so that down the road I don't have to look for those documents when I need those."
[69] He was asked in cross-examination for his understanding of the time period set out in the Criminal Code regarding the time within which breath samples had to be taken. He replied "within three hours". Defence counsel responded "so you are working with the assumption that you have three hours to get him to the station and get him to blow, right?" Crown counsel then interjected, before Cst. Xiao could respond, saying "excuse me, that is not what the witness said". This was an improper objection. Defence counsel was not asking the officer if that is what he said. Nor did her question assume a fact not in evidence. It was simply a leading question, as she was entitled to ask in cross-examination. Furthermore, it was a leading question that flowed directly and logically from the witness' last answer.
[70] The effect of the improper objection by Crown counsel was that Cst. Xiao was alerted to the fact that his previous answer was, somehow, not helpful to the Crown. He then responded "so my assumption was that I should get the accused to the cell block as soon as possible." This answer was clearly influenced by the improper objection which served as a warning to him. As a result, I place more weight on the witness' first answer. I find that he believed that he had three hours to get the defendant to the cell block and have a breathalyzer test taken.
[71] In any event, neither answer was correct. The obligation was to ensure that the tests were taken as soon as practicable. Cst. Xiao did not know that.
[72] Cst. Xiao testified that he kept in mind that there was a time limit (although he was mistaken as to what that limit was) and tried to get the defendant to the cell block as soon as possible. He admitted that the scene of the collision was in the west end of Ottawa and the cell blocks were on Elgin Street downtown, a distance which would take some time to travel at that time of day. When it was put to him that if he had left the scene earlier, it would have provided for more prompt attendance at the station, he disagreed. He testified that leaving earlier would not have changed the result. This answer is nonsensical.
Analysis of Whether the Intoxilyzer Tests Were Taken "As Soon as Practicable"
[73] The first test was conducted at 1927, one hour and 40 minutes after Cst. Xiao was dispatched to the scene and therefore, on the evidence I heard, about one hour and 41 minutes or one hour and 42 minutes after the last driving (since the 911 call had to occur after the collision and before the dispatch call went out). The second test was conducted at 1949, 2 hours and three minutes or 2 hours and 4 minutes after the offence.
[74] There are two periods for which little or no evidence has been led to explain what happened that led to a delay in leaving the scene. The first is the nine minutes between Cst. Xiao's forming of the requisite suspicion to make the ASD demand and the formulation of that demand. The second is the 12 minute delay between 1825 when the defendant was in the back of Cst. Xiao's police cruiser and 1837 when they left the scene.
[75] As Justice Durno held in R. v. Schouten, [2002] O.J. No. 4777, the Crown is under an obligation to prove by way of evidence that the tests were taken as soon as practicable.
[76] With respect to the latter period of time, Cst. Xiao has testified that he was speaking to officers about matters relating to the collision. It is apparent from the evidence that he did not need to do these things – the issues about which he spoke to them were already being looked after by Cst. O'Connor and Cst. Wiegelmann. Cst. Xiao did these things, as he put it, because of his personality – he wanted to make sure that everything was done properly. In any event, he could have done these things between 1815 and 1822, when he was standing in the back of the ambulance waiting for the paramedics to finish dealing with Mr. Olive. There was no need for him to have left the area of the ambulance to have spoken to the other two officers about these things – the vehicles and the ambulance were in close proximity to each other.
[77] I conclude that Cst. Xiao took his time, as he put it, because he was not alive to the necessity to have the breath tests administered as soon as practicable. He believed that he had three hours to get that done. Consequently, he was in no hurry. As he put it, he did not want to rush it. This was not reasonable.
[78] I cannot conclude that, on all of the evidence, the Crown has proven beyond a reasonable doubt that the tests were conducted as soon as practicable. The presumption of identity does not apply. Even if I had not excluded the certificate of analysis under s. 24(2) because of the breach of section 8, there would be no evidence of the blood alcohol level of the defendant at the time of driving.
Final Judgment
[79] Both charges are dismissed.
Released: September 9, 2016
Signed: "Justice Doody"
