Court File and Parties

Court File No.: Toronto 4817 998 15 75007770 00 Date: November 22, 2016 Ontario Court of Justice

Between: Her Majesty the Queen — AND — Nura Mazit

Before: Justice Bhabha

Heard on: April 4th and 5th; August 16th and 17th; September 30th

Rulings and Reasons for Judgment released on: November 22, 2016

Counsel:

• Alannah Grady, for the Crown
• Norm Stanford, for the defendant Nura Mazit

BHABHA, J.:

Introduction

[1] The defendant, Nura Mazit, "also known as Nora" is charged with one count of impaired driving and one count of driving with excess blood alcohol ("over 80"). She has pleaded not guilty. She also brought three Charter applications. The evidence at her trial was all heard as part of a blended voir dire. Ms. Mazit testified in her own defence and gave evidence on the voir dire and on the Charter applications as well.

[2] I will address the Charter Rulings first.

[3] Ms. Mazit alleges that her Charter rights were violated in three respects.

[4] Firstly, she says that her section 10(b) rights were violated in that her access to duty counsel was unreasonably delayed. She was brought to 32 Division just after 5:00 AM, but only put in touch with duty counsel until just after 6:15 AM. The Crown lead evidence explaining the reasons for the delay.

[5] Secondly, Ms. Mazit submits that as a result of the delay in accessing duty counsel and further delays in the breath room, her s. 8 rights were also violated since the breath samples were not taken "as soon as practicable". The Crown argues that there were reasonable grounds to make the breath demand in the first place and therefore the "as soon as practicable" requirement is not a necessary pre-condition to the admissibility of the breath readings. This is because the Crown is not relying on a certificate of analysis for the presumption of identity, but instead is relying on a toxicologist to "read back" the breath readings to the time of driving.

[6] Third and last, Ms. Mazit submits that after providing the second breath sample at 7:25 AM, her section 9 rights were violated when the police detained her at 53 Division until 2:30 PM, a period of several hours. Her complaint is that the police did not make adequate efforts to see if a friend could collect her from the station nor did they consider whether she was fit to leave on her own as soon as the breath tests were completed. As a result of this "overholding" she submits she was arbitrarily detained. The Crown submits that it was not unreasonable for the police to keep Ms. Mazit at the division given that her breath readings were more than twice the legal limit, there were efforts made to contact her friends, and the time it took to get the relevant paperwork completed and served.

[7] As a remedy for the three alleged violations considered cumulatively, Ms. Mazit seeks a stay of the proceedings under section 24(1) of the Charter, or in the alternative, the exclusion of the breath readings under section 24(2).

Overview of the Case for the Charter Applications

[8] In the early morning hours of April 5th 2015, Ms. Mazit was stopped by two police officers on patrol on Yonge Street south of Davisville, just under the Kay Gardiner Beltline overpass. They were on the lookout for a female driving a black Nissan. A concerned citizen made a 911 call reporting a suspected impaired driver and gave a description of the car and the driver that matched Ms. Mazit.

[9] The police arrested Ms. Mazit at the roadside for impaired driving. They also made an approved instrument demand. The incident occurred in 53 Division, but she was transported to 32 Division because that was the closest location where the breath tests could be administered.

[10] Firstly, once she was at the station and after she was paraded, searched and booked, there was a delay of approximately twenty-one (21) minutes before the officers placed a call to duty counsel on Ms. Mazit's behalf. The arresting officers gave an explanation for the delay: a new telephone system had just been installed at 32 Division. They and others were unfamiliar with it, specifically how to transfer calls and what extension numbers to use to facilitate consultation with duty counsel.

[11] Once that was all sorted out, a call was made for a French-speaking duty counsel to accommodate the defendant's language preference. Duty counsel did not respond for several minutes causing a further delay in administering the breath tests. The officers also testified about two others calls they made to speed up the process of facilitating access to counsel. The delay in facilitating consultation with duty counsel is the basis of the section 10(b) application.

[12] Secondly, after her consultation with duty counsel, Ms. Mazit was taken to the breath room. Events in the breath room did not unfold seamlessly causing a further delay in administering the tests: the technician needed to explain the process to Ms. Mazit several times; she dropped the mouthpiece twice; there were a few failed attempts to provide a sample, then the technician decided to demonstrate the process; and finally the machine timed out on two occasions and had to be reset. The delay in getting Ms. Mazit into the breath room on account of the difficulties with the phone system etc. and the delay once in the breath room is the basis of the section 8 application. In essence, the defence submits that the tests were not administered "as soon as practicable".

[13] Finally, within minutes of the completion of the breath tests, Officer Rousseau made three phone calls: one to Ms. Mazit's boyfriend and two to her friend Rita starting at around 7:30 AM. None of the calls were answered. Officer Rousseau could not recall whether she left a message or a phone number on each of the occasions she called. In any event, no one called back during the time that Ms. Mazit was in police custody, and she conceded that it was possible that the number she called from would have shown up as "unidentified".

[14] Officer Rousseau testified that due to the test results, it was decided that Ms. Mazit would be transported to 53 Division, her home division, while the paperwork was filled out and for Ms. Mazit to sober up. Ms. Mazit was transported to 53 Division arriving there at approximately 8:03 AM.

[15] At 53 Division she was paraded before Staff Sergeant Dennis. She was then lodged in a cell until Constable Rousseau served her with the breath certificate; Notice of Impoundment etc. at approximately 11:30 AM, a period of just under three (3) and a half hours.

[16] From the time she was lodged in the cell until 11:30 AM, Ms. Mazit appears to have slept for most of the time. She did recall making a complaint about dry eyes and asked an officer or eye drops. She also asked for a blanket. Officer Rousseau did not recall being asked for either item and testified that the police service is generally not able to accommodate a request for eye drops.

[17] Ms. Mazit testified that when she got her cell phone back there were many calls made to her phone from her friend, Rita, and her boyfriend who both ultimately came to pick her up near 53 Division just after 2:30 PM when she was released.

[18] On the evidence called by the Crown, Ms. Mazit was held in custody primarily because of her high and apparently increasing breath test results, concerns about her ability to understand the terms of release, and because the necessary paperwork needed to be completed and provided to her when she was in a condition to understand her release documents. Those documents included a Promise to Appear, Notice of Motor Vehicle Impoundment, the Certificate of Qualified Breath Technician, Notice of Licence Suspension and a document entitled "What You Need to Know".

[19] The length of time Ms. Mazit spent in police custody following the breath test procedure and the reasons given for her detention is the basis of the application under section 9 Charter.

[20] From a practical perspective, a stay of the over 80 charge under section 24(1) of the Charter or the exclusion of the readings under section 24(2) would have the same effect in so far as the "over 80" charge is concerned. A stay would mean there is no longer a charge to which she has to answer, whereas an exclusion of the readings means there would be no longer be any evidence upon which the Crown could proceed with the "over 80" charge.

[21] Given that all three Charter applications relate to the timing of certain events, it is useful to review the evidence of what happened and when starting with the defendant's arrest. Apart from the necessity and appropriateness of the reasons for some of the delays, for the most part, the evidence about the times noted by the officers for the events in question was not particularly contentious.

Chronology of Events

• At 4:25 AM two police officers on patrol receive a radio call regarding a suspected impaired driver in a black Nissan driving south on Yonge Street. The caller provides plate identification information as well as the gender, age, and hair type of driver;

• Minutes later the two officers observe the black Nissan driving north on Yonge Street south of Davisville Avenue, but then making a turn to drive southbound. The defendant, the driver of the black Nissan, is pulled over at 4:33 AM;

• At 4:40 AM the defendant is placed under arrest for impaired driving, read her rights to counsel, which she does not at first understand. Rights are reread to her and explained to her.

• At 4:45 AM she is cautioned and the demand for a breath sample into an approved instrument is read to her. She does not understand and it is explained to her again in simpler terms to ensure that she understands;

• The officers make inquiries about the availability of the nearest breath technician and are advised to attend at 32 Division. Before leaving the scene they locate a 500 ml capacity plastic water bottle that Ms. Mazit was seen pushing under the driver's seat. The bottle, which contains approximately two ounces of a brownish milky alcoholic beverage, is seized;

• At 4:50 AM they officers and Ms. Mazit leave the scene which is in 53 Division and head to 32 Division;

• At 5:04 AM the officers and Ms. Mazit arrive at 32 Division;

• Between 5:04 AM and 5:10 AM, the car is parked at 32 Division, they are buzzed in and make their way to the booking area;

• At 5:10 AM the booking video shows that the defendant was in the booking room awaiting the booking officer, and the Staff Sergeant (Nolan);

• Between 5:12 AM and 5:17 AM the booker arrives and the defendant's personal belongings are collected and recorded:

• Between 5:17 AM and 5:22 AM the officers and Ms. Mazit wait for Staff Sergeant Nolan to arrive;

• At 5:22 AM the Staff Sergeant arrives in the booking area. The booking process is completed at 5:27 AM

• During the booking process Ms. Mazit appeared uncertain as to what she should do about consulting with counsel and asks for advice from the officers. They do not dissuade her from exercising her right to counsel;

• At 5:28 AM Officer Rousseau conducts a level two (pat down) search;

• Between 5:28 AM and 5:49 AM, a period of approximately twenty-one (21) minutes, the officers attempt unsuccessfully to use a newly-installed phone system that they are unfamiliar with;

• Finally, at 5:49 AM they are able to place the first of three calls to duty counsel. At Ms. Mazit's request, they ask for a French speaking duty counsel;

• At 6:00 AM and at 6:10 AM, the officers place a second and third call, respectively, to duty counsel;

• At 6:18 AM duty counsel calls back and Ms. Mazit is put in touch with a French speaking duty counsel;

• At 6:20 AM Ms. Mazit is turned over to qualified breath technician, police constable Ng;

• Between 6:20 AM and 6:53 AM (33 minutes) – Ms. Mazit drops the mouthpiece on two occasions, there are numerous failed attempts and the machine "timed out". It was reset and then PC Ng demonstrated how to perform the test. The machine "timed out" a second time and had to be reset again;

• At 6:53AM Ms. Mazit provides her first suitable sample (184 mg alcohol/100 ml of blood);

• At 7:15 AM Ms. Mazit provides her second suitable sample (194 mg alcohol/100 ml of blood);

• At 7:30 AM – Officer Rousseau makes three calls to Ms. Mazit's boyfriend and her friend Rita. There is no answer at either number;

• At 7:50 AM Ms. Mazit is being prepared to be transported from 32 Division to 53 Division because the officers determine that she needs to sober up in order to understand the documents she will be served with once the administrative tasks related to completing the paperwork is done;

• Staff Sergeant Nolan of 32 Division tells Ms. Mazit that she will be likely be released within the next two (2) hours;

• At 8:03 AM, Ms. Mazit arrives at 53 Division and at 8:08 AM she is paraded before Staff Sergeant Dennis; another level 2 search is completed and she is then placed in a cell;

• At 11:30 AM the arresting officers serve her with some of the relevant documents and they have no further contact with her because they go off duty soon afterwards, around noon, and leave the Division;

• At 1:15 PM Ms. Mazit's release documents are ready;

• At 2:00 PM Staff Sergeant Dennis goes off duty. He did not complete the paperwork for her release, but did review the court brief at 1:30 PM;

• At around 2:00 PM Ms. Mazit is photographed and fingerprinted;

• At 2:30 PM Ms. Mazit is released from 53 Division by a different Staff Sergeant at 53 Division. This officer did not testify on the voir dire.

Ruling Under Section 10(b) of the Charter – Right to Timely Access to Counsel

[22] The Supreme Court of Canada in R. v. Taylor 2014 SCC 50 reminds us that the right to inform a detained person of their right to counsel arises immediately upon arrest and the duty to facilitate access to a lawyer, in turn, arises immediately, upon the detainee's request to speak to counsel. Arresting officers are therefore under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonably available opportunity.

[23] The burden is on the Crown to show that a given delay in facilitating access to counsel is reasonable in the circumstances. Whether a delay in facilitating access to counsel is reasonable is a factual inquiry.

[24] The defence complains about two distinct periods of delay which is submitted resulted in the section 10(b) breach. The first period of delay complained of took place between 5:04 AM when officers Snider and Rousseau arrived at 32 Division and 5:22 AM when Staff Sergeant Nolan arrived in the booking area to process Ms. Mazit. This is a period of eighteen (18) minutes. The second period is between 5:28 AM and 5:49 AM, a period of twenty-one (21) minutes.

[25] In fact the first period of delay, I find is not eighteen minutes, but eleven (11) minutes. Steps required to complete the booking process were not entirely delayed until the arrival of the Staff Sergeant.

[26] While the arresting officers waited for the arrival of the Staff Sergeant, they did not stand idly by the entire time. They furthered the process by removing the defendant's jewellery and retrieving her other valuables. The items were then catalogued. In all of the circumstances, I cannot find that either of these two periods of delay considered alone or together lead to me conclude that they are unexplained or unreasonable such that the defendant's section 10(b) rights were violated.

[27] Firstly, the defence submits that the Crown did not lead any evidence as to why the parade was necessary before Ms. Mazit was put in touch with duty counsel. In fact, Officer Rousseau testified in cross-examination that it is police procedure that an accused person be paraded before they can be put in contact with a lawyer or duty counsel. As can be seen in the booking video – at this stage an accused person is asked questions about their health, whether they have any illnesses and the reasons for their arrest are explained and confirmed to them, their personal belongings are collected and catalogued and they are searched for their own safety as well as the safety of the officers. I find that these are all reasonable and necessary steps in any arrest process where an accused is brought into police custody and that this in an important step in the process that for good reason happens before access to counsel is facilitated.

[28] I also find that is was impractical for the arresting officer consider doing things out of order and contrary to police protocol and procedure. Constable Rousseau testified that it was not possible to afford the defendant privacy in the booking area of the station. It bears noting that many decades ago, our Court of Appeal in R. v. Playford observed that the right to consult counsel in conditions of privacy is a fundament component of section 10(b).

[29] I am satisfied that the time between the arrival of the scout car at 32 Division at 5:04 AM and 5:22 AM when the Staff Sergeant arrived has for the most part been adequately accounted for. By 5:17 AM the defendant's property was collected and the officers and Ms. Mazit were in the booking area waiting for Staff Sergeant Nolan. They waited for approximately five (5) minutes. The Staff Sergeant testified that he started his shift at 5:00 AM but could not account for why he arrived in the booking area at 5:22 AM. He thought he may have been speaking to the Staff Sergeant he was relieving. It would have been preferable had there been an explanation for this short delay, but I do not find that the five (5) minutes the parties waited for the Staff Sergeant to arrive to be so egregious that it breaches the defendant's section 10(b) Charter rights. I make this finding even as I consider the second period of delay together with the first five (5) minutes.

[30] As noted in the chronology above, once the parade and booking process was completed, there was a period of approximately twenty-one (21) minutes, [between 5:28 AM and 5:49 AM] when the two arresting officers, Rousseau and Snider attempted unsuccessfully to use a newly installed phone system that they were unfamiliar with. Officer Rousseau acknowledged that she had no specific notation that she and her partner, Officer Snider, had difficulties with the new telephone system, but she had a specific recollection of that aspect of the investigation. So did Officer Snider. He recalled that few 32 Division officers were available to help as they were being paraded. Eventually a fellow officer did assist them and the call to duty counsel was placed.

[31] Neither officer was undermined in cross-examination about what they were doing during this time frame and the reason why there was a delay in connecting Ms. Mazit with duty counsel. Staff Sergeant Nolan gave evidence that he was not aware of when the new telephone system was changed at 32 Division, but that does not cause me to doubt the evidence of Officers Rousseau and Snider. I accept their evidence as to the cause of this particular period of delay, notwithstanding that there were no notations in their respective notebooks about their difficulties with the new telephone system. I find that this was somewhat of an unusual situation; one that would very likely stick out in their minds and I am satisfied that they were making their best efforts in what must have been a frustrating exercise.

[32] This was not a situation where they were in full control of the situation and simply chose to ignore the defendant's right to counsel while they occupied themselves with other tasks. In this regard this case can be distinguished from R. v. Egeli, [2015] O.J. 2702 where there was a forty-five (45) minute unexplained delay at the roadside. Justice Cleghorn in Egeli noted that "there is no reasonable explanation from either officer //...// as to why no efforts were made to facilitate contact with counsel during the forty five minute delay at the roadside". She found that the officers in that case were either negligent or wilfully blind to the defendant's Charter rights. On that basis, she found a breach of section 10(b), but ultimately declined to exclude the evidence under section 24(2).

[33] Nor is this case remotely similar to R. v. Taylor, supra. Justice Abella noted that the case was "about the police informing an individual about his right to counsel as soon as he was arrested, then promptly forgetting to implement it throughout his detention, including his stay in a hospital. While the accused was in hospital, blood samples were taken which were used in evidence at trial to convict him of impaired driving causing bodily harm". (Emphasis added)

[34] In the delay period complained of by Ms. Mazit the police did not attempt to further their investigation, nor was any additional incriminating evidence otherwise obtained.

[35] In the present circumstances, I find that the defendant's rights under section 10(b) were not infringed. Once the problem with the new telephone system was sorted out, Officer Rousseau made her best efforts to contact a French-speaking duty counsel and acted with dispatch. In fact, when duty counsel did not respond after the first call, she placed not one but two (2) additional calls to duty counsel in a short time span because, as she testified, she appreciated that "time was of the essence". This signifies to me that the arresting officers were not laggards when it came to ensuring Ms. Mazit's right to counsel was respected. They were mindful of what needed to be done and that it needed to be done in as timely a fashion as possible. Ms. Mazit's request to speak to duty counsel was afforded her at "the first reasonably available opportunity": See R. v. Taylor, supra, at para 24.

[36] Lastly, I note that on the evidence it appears that Ms. Mazit was ultimately satisfied with her consultation with duty counsel. She made no complaint.

[37] In the result, I find no breach of section 10(b) of the Charter and it is not necessary therefore for me to consider the application of section 24(2).

Ruling Under Section 8 of the Charter – Unlawful Seizure of Breath Samples

[38] For the purposes of this application, the defendant effectively relies on the same factual background as the section 10(b) application.

[39] The defendant argues that the delay in implementing the breath tests means that the samples of breath were not collected "as soon as practicable" contrary to the provisions of section 254(3) of the Code. Since the defendant has a right to be free from unreasonable search and seizure under section 8 of the Charter, any breath samples collected in such a manner should be excluded under section 24(2) of the Charter.

[40] With the exception of R. v. Newton, 2013 ONSC 644, there are few other clear and binding authorities directly on point. Instead there are a number of decisions from the Ontario Court of Justice that decide the issue differently.

[41] The defence relies on the decisions of this court in R. v. Egeli, supra, R. v. Jeyabalasingam 2015 O.J. No. 4168, and R. v. Nascimento-Pires (unreported judgement of Botham, J released March 14th 2016), and R. v. Shortell (unreported judgement of Pringle, J released on April 17th 2014) in support of the argument that breath samples must be collected "as soon as practicable" even where the Crown is not relying on a certificate for the presumption of identity.

[42] The narrow issue therefore is whether the requirement under section 254(3) that breath samples be provided "as soon as practicable" applies where the Crown is not relying on the statutory presumption.

[43] If it does apply, then a section 8 argument could arise depending on the timing of the collection of the samples. If it does not apply, then there is no section 8 argument that arises due to any delay in collection the breath samples. This is because the reasonableness of the seizure of the breath samples is already addressed by the requirement that there be reasonable grounds to make the approved instrument demand under section 254(3).

[44] The defence does not argue that there were insufficient grounds to make the approved instrument demand and I find that there were ample grounds in that regard.

[45] I will deal first with the cases cited to me in support of a finding that there was a breach of section 8 in this case. In R. v. Nasciemento-Pires, supra, Justice Botham found that there were two periods of delay for which there were no satisfactory explanations. The first was a delay at the roadside waiting to be directed to an available detachment. The second was the largely unexplained delay ninety (90) minute during which the defendant waited in a cell until a breath technician could deal with his case. Justice Botham therefore found that the Crown failed to establish on a balance of probabilities that the police did in fact comply with the "as soon as practicable" requirement. As a result she found a breach of section 8 and excluded the breath readings.

[46] In R. v. Jeyabalasingham, Justice Crewe addressed the same complaint. There were several unexplained delays. Firstly, the officer forgot to make the approved instrument demand after the ASD test and only did so nineteen (19) minutes later. There was a second unexplained delay of further nineteen (19) minutes in booking the defendant. Then there was another twenty three (23) minute period of delay that was also largely unexplained. Lastly, there was a gap of twenty seven (27) minutes during which the defendant spoke to duty counsel for part of that time before he entered the breath room. The Crown conceded that some of the more than one hour's delay was "unaccounted for".

[47] Justice Crewe found that even though the Crown was not relying on the statutory presumption of identity, the Crown was still required to comply with the "as soon as practicable requirement". Failure to do so constitutes a breach of section of the Charter. He found a section 8 breach but ultimately did not exclude the readings under section 24(2) of the Charter.

[48] In R. v. Egeli, supra, there were delays at the scene and at Traffic Services that were found to be unreasonable and a direct result of negligent actions on the part of the officers. Justice Cleghorn arrived at a similar conclusion as Justices Botham and Crewe: that because breath samples were not taken "as soon as practicable, it resulted in a breach of section 8, even though the Crown was not relying on the presumption of identity. Like Justice Crewe, she too declined to exclude the samples under section 24(2) of the Charter.

[49] The decision in R. v. Shortell, supra, relied on by the defence, is in my view more appropriately reviewed as supportive of the Crown's position and for that reason is dealt with below.

[50] Turning now to the cases relied on by the Crown: the decisions of Justice MacDonnell in R. v. Newton, supra, and Justice Kenkel in R. v. Vallipugam [2014] O.J. No. 4512, and the decision of Justice Pringle in R. v. Shortell, supra.

[51] In Vallipugam, supra, a very similar argument was raised before Justice Kenkel in circumstances where there was a delay in reading the right to counsel and in making the breath demand which resulted in complaints of violations of both sections 8 and 10(b). As in this case, in Vallipugam the Crown was not relying on the presumption of identity.

[52] Justice Kenkel quoting Justice MacDonnell in R. v. Newton, noted that:

The requirement set forth in ss. 258(1) (c) (ii) of the Code that the tests be conducted "as soon as practicable" //…// is not a precondition to the admissibility of the results of breath testing generally, nor to the admissibility of a certificate of a qualified breath technician… rather it is a precondition to the availability of the presumption of identity." (Emphasis added)

[53] As Justice Kenkel explains, section 258(1) (c) is a shortcut to deeming the readings at the station to be the accused's blood alcohol level at the time of driving. "The defence position isolates each component of section 254(3) as a separate requirement the failing of which renders the demand invalid. However, when the section 254(3) ASAP terms are considered in the overall statutory context, I disagree that … delay in testing pursuant to an otherwise lawful demand necessarily renders the search illegal and contrary to s. 8 of the Charter." (Emphasis added)

[54] In R. v. Christopher Shortell, supra, the Crown relied on the presumption of identity by seeking to admit the Certificate of Qualified Breath Technician into evidence. The Crown was therefore required to satisfy the court that there was no unreasonable delay in obtaining the breath samples; that they were collected "as soon as practicable". Justice Pringle after reviewing the entire chain of events, calculated the total unexplained time in the case to be a period of fifteen (15) minutes and concluded that she was not satisfied that the delay was reasonable. She found that: "[h]ere, the failure to show that the samples were not taken in accordance with the section [258(1) (c) (ii)] is fatal for the Crown, since no expert evidence was called on this issue." (Emphasis added) In the result, the test results were excluded under section 24(2) because of the section 8 breach.

[55] Justice Pringle's conclusion that "the failure to show that the samples were not taken [as soon as practicable] is fatal for the Crown, since no expert evidence was called on this issue", I find, implicitly supports the decisions of Justice MacDonnell in Newton and Justice Kenkel's in Vallipugam. Otherwise, the reference to expert evidence is entirely redundant and unnecessary.

[56] In contrast to Shortell, in this case the Crown did not rely on the shortcut ["the Certificate of Analysis"] permitted under the Criminal Code to establish the presumption that the breath readings at the time of seizure were the same as at the time of driving. Instead, the Crown called expert evidence on this issue: the toxicologist, Ms. Tse, who was able to "read back" the readings to the time of driving.

[57] Leaving aside for the moment that Justice MacDonnell's decision in R. v. Newton, supra, is binding, having carefully considered the competing authorities cited above, I find that Justice Kenkel's decision in R. v. Vallipugam, supra, supported by Justice Pringle in R. v. Shortell, supra, to be more persuasive. Any concerns about the lawfulness of the seizure of the breath samples is adequately addressed by the requirement that the breath demand be made upon reasonable grounds under section 254(3) of the Code. To find otherwise is to impose a second layer of Charter compliance when only one is required in the circumstances.

[58] In any event, even if the court's conclusion is wrong in that regard, in considering whether the testing was conducted "as soon as practicable", a trial judge is required to assess the reasons or explanations for any delay: See R. v. Vanderbruggen.

[59] As Justice Botham observed in Nasciemento-Pires, (supra) "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 the defendant is in custody… judges are reminded that in making that determination, the entire chain of event must be considered." In my Ruling on section 10(b) I found that the delay in implementing Ms. Mazit's right to counsel was explained. It was not unreasonable or due to a blatant disregard of her Charter-protected rights.

[60] When I consider the entire chain of events leading up to the actual testing, I find that the delay in the breath room was not attributable to any police (or breath technician's) conduct. It was Ms. Mazit who dropped the mouth piece on the floor. It was Ms. Mazit who required additional and repeated explanations and then a demonstration by the technician of how to provide a suitable breath sample. It was Ms. Mazit who made several failed attempts before the first suitable sample was provided. Finally, it was as a result of accommodating Ms. Mazit's "pace" that the machine timed out not once but twice.

[61] In the result, since no issue was taken with the lawfulness of the breath demand, and the Crown was not relying on the presumption of identity, I find that the "as soon as practicable" requirement was not a precondition to the admissibility of the breath readings: See R. v. Newton, supra. Even if it were, the delay was not entirely or inadequately unexplained, nor were the police acting unreasonably. As such, there was no breach of section 8 and there is no need for me to consider the application of section 24(2) of the Charter.

Ruling Regarding the Application Under Section 9: Arbitrary Detention

[62] As this application focuses on what happened after the defendant was taken into police custody, it is useful to review the evidence relating to Ms. Mazit's time spent under arrest and in detention.

[63] The defendant was arrested for impaired driving around 4:40 AM and the arresting officer made a valid and constitutionally sound approved instrument demand at 4:45 PM. Before she was arrested, one of the arresting officers noticed Ms. Mazit attempting to hide a water bottle containing approximately two ounces of an alcoholic beverage.

[64] The defendant was transported to 32 Division, the location of the nearest qualified breath technician. After she was paraded and booked, she consulted with duty counsel before she eventually provided two suitable samples of her breath. The second sample was provided at 7:28 AM. It was 194 mg of alcohol in 100 ml of blood and was 10 mg higher than the first sample collected at 6:53 AM.

[65] The two arresting officers were 53 Division officers. After the tests were completed, they transported the defendant to 53 Division where they completed notes, paperwork related to the investigation and release papers. The Staff Sergeant at 32 Division who saw Ms. Mazit at approximately 7:30 AM advised Ms. Mazit that she would be released in approximately two hours later. While still at 32 Division, one of the arresting officers made three phone calls on the defendant's behalf. The calls were to her boyfriend and to her friend. Neither person answered their phones, nor did they called back.

[66] Ms. Mazit was paraded and booked at 53 Division just after 8:10 AM. Officer Rousseau announced to the Staff Sergeant on duty, Staff Sergeant Dennis, that Ms. Mazit was there to sober up, for her own safety. As the officer in charge, Staff Sergeant Dennis bore the responsibility for determining when Ms. Mazit would be released. He did not recall receiving any information about Ms. Mazit before her arrival. He was aware of information available on the computer that the charge was an "over 80" and the readings which appeared to be going up.

[67] 80 mg of alcohol is a benchmark he uses because it is the legal limit for driving. He testified about safety concerns as a basis for detention at or above the legal limit. He specified that these concerns are about a person's ability to walk, carry herself and not get lost. Apart from the high readings which he understood to be rising, he also made note of Ms. Mazit's blurry blood shot eyes, vacant look, a bit of an unsteady stance, and the smell of alcohol. He could not say what impact her high heels may have had on her stance. He did not actually speak with Ms. Mazit or address her directly during the booking process.

[68] Relying on his experience, Staff Sergeant Dennis used a 15 mg elimination rate to calculate that she would be at or around 80 mg in six (6) hours. By that calculation, Ms. Mazit would have reached that blood alcohol level at approximately 10:40 AM. Staff Sergeant Dennis agreed that he did not assess Ms. Mazit's suitability for release at that time, although he noted that she was constantly being monitored by video. He recalled that Ms. Mazit was sleeping or lying on the bench. For her part, Ms. Mazit admitted that she was lying down or sleeping because there was nothing else to do. She acknowledged starting to feel the effects of alcohol at 32 Division.

[69] Sergeant Dennis did not recall if any officers went to speak to Ms. Mazit, nor did he direct anyone to speak to her to assess her condition.

[70] Officer Rousseau testified that she served the defendant with relevant documents at 11:30 AM. The defendant refused to sign them to confirm receipt. Soon thereafter the arresting officers went off duty and had no further involvement with Ms. Mazit. There is no evidence that they communicated with Staff Sergeant Dennis to advise him that they had seen Ms. Mazit or that they spoke to him about their opinion as to her condition at that time.

[71] According to Ms. Mazit, she understood that she was being transported to 53 Division so paperwork could be completed and so that photos and fingerprints could be taken. She recalled that Officer Rousseau advised her at 11:30 AM that she likely would be released in an hour's time. Instead it took three (3) more hours.

[72] Ms. Mazit testified that she was photographed and fingerprinted about one half hour before her eventual release from 53 Division at 2:30 PM. There was some evidence that she may in fact have been fingerprinted twice, once at 32 Division at 7:52 AM and again between 2:23PM and 2:28PM. There was no explanation for this.

Analysis

[73] Section 498 if the Criminal Code requires that the police release a person arrested and detained without warrant "as soon as practicable" except where an officer has an appropriate belief, based on reasonable grounds, for not doing so.

[74] The defence submits that immediately after the second breath sample was provided at 7:15 AM the police ought to have given consideration to releasing Ms. Mazit from 32 Division. The defence submits even if there were concerns about her high blood alcohol count (more than twice the legal limit), they were required to take into account other factors in their decision to continue to detain her for many hours after the investigation was complete, and also to check from time to time whether her detention was still necessary.

[75] The Crown argues that the investigation was not complete until the paperwork was completed and served which in this case was around 11:30 AM some four (4) hours later. On the evidence, the arresting officers were satisfied that Ms. Mazit was capable of understanding the documents they served her with otherwise they would not have done so.

[76] The issue on this application is whether the officers in charge of her release from the station had reasonable grounds justifying the continued detention of Ms. Mazit. Specifically, did they consider whether her continued detention was necessary in the public interest or for her own safety having regard to the totality of the circumstances? In assessing the merits of the application it will be necessary to assess what specific criteria the police used in deciding that her detention was necessary, and for how long.

[77] The court will need to consider when, on the evidence, the defendant was "releasable".

[78] If I accept the defence contention that the section 9 clock started running at 7:30 AM when second sample of breath was provided, then the "overhold" lasted six (6) hours. If the time in detention is calculated starting from approximately 11:30 AM, when she was served with the certificate and Notice of Impound document related to her car, then the "overhold" may be reduced to three (3) hours.

[79] Why does this matter? The length of the overhold, the particular circumstances of the defendant, the reasons for the overhold, the absence or presence of other Charter violations, could impact on the available findings and possible remedies, such as:

a) There is no breach of the Charter at all and therefore no remedial considerations arise; or

b) Where a breach is found, then applying the considerations under section 24(2) of the Charter, it is open to the court to find that the breach is not so serious and that on balance of the other factors in a section 24(2) analysis the exclusion of evidence is not mandated; or

c) That the breach is serious and having regard to the other factors in assessing section 24(2) of the Charter that an exclusion of the evidence is necessary in all the circumstances; or

d) If the breach is serious and/or there are multiple breaches, then the court may consider if the totality of the circumstances amount to "the clearest of cases" mandating a stay of proceedings.

[80] I find that:

a) Ms. Mazit was not arbitrarily detained from the moment the second breath test was completed as the defence contends. The police need to provide basic and important documents to any arrestee before their release from custody. Absent safety concerns related to impairment, this administrative process should not take an inordinate, unreasonable or unjustifiable amount of time. If it does, then only is section 9 engaged;

b) The defendant was not arbitrarily detained while at 32 Division. Sergeant Nolan had an opportunity to observe Ms. Mazit's demeanor first-hand – the fact that she kept repeating questions that had already been answered could give rise to a reasonable observer that her level of comprehension was impaired by alcohol, even though there may have been another or additional reason for her asking the same questions repeatedly. Staff Sergeant Nolan was informed by the arresting officers that they believed she was not fit to be released. All of this is captured on the 32 Division booking video. In the circumstances, it was not unreasonable or arbitrary to authorize Ms. Mazit's continued detention and transfer to 53 Division where the necessary paperwork could be completed and her suitability for release reassessed as her sobriety improved;

c) The defendant was not arbitrarily detained for the entire time she remained at 53 Division. I am satisfied that based on the considerations set out in R. v. Price, 2010 ONSC 1898, that is: Staff Sergeant Dennis' understanding that Ms. Mazit's high breath readings were rising, and the indicia of impairment he observed, that the concerns about her safety, if released, were justified and not unreasonable;

d) While primary weight was given to the apparently rising breath readings, they were not the "sole determinant", at least not when the initial decision was made to continue her detention;

e) That there was a failure to monitor her condition around the time Staff Sergeant Dennis estimated that Ms. Mazit's blood alcohol level would be reduced sufficiently to reconsider her release;

f) After 11:30 AM, the Staff Sergeant appears to have forgotten about Ms. Mazit or was negligent in failing to reassess when she might releasable based on his own, albeit erroneous estimation of when that might be. He testified that he calculated that her BAC would reach 80 by 10:30 AM based on an elimination rate of 15 mg per hour, when in fact based on that calculation it would have taken 7.5 hours to reduce a BAC of 194 to around 82 mg. Ironically, the correct calculation more closely approximates the time of Ms. Mazit's release at 2:30 PM;

g) No one was sent to see her and there is no indication that the arresting officer spoke to the Staff Sergeant to let him know that as of 11:30 AM, some four (4) hours after the second breath reading, that she felt comfortable enough to serve her with a number of documents. This is significant in that her ability to understand documents was given as one of the main reasons for her continued detention;

h) It was incumbent on the police to make further efforts at 53 Division to see if there was someone to collect Ms. Mazit or failing that to inquire if she was fine to get home by cab. The three calls at 7:30 AM made from 32 Division on a Sunday morning were not, in my view, sufficient in all of the circumstances;

i) I find that it was not reasonable to hold Ms. Mazit until such time that photographs and fingerprints could be taken. On the evidence those procedures are not strictly required for the release of a detainee. It may well be convenient for the police service to conduct these procedures on arrest, but Ms. Mazit should have been given a choice either to remain in detention, or at the police station after her formal release, in order to have those necessary procedures completed on that day or to return at a later date to complete those procedures;

j) It is unacceptable that it took from around 8:00 AM when the arresting officers arrived at 53 Division until 1:15 PM – a period of over five (5) hours to prepare Ms. Mazit's release documents. That period of delay is on its face unreasonable and called out for an explanation, assuming there was an acceptable one. Staff Sergeant Nolan's estimate of around two(2) hours for release is some indication of what is an acceptable delay in processing a detainee who is going to be released from custody;

k) It appears on my assessment of the evidence that Ms. Mazit's case fell through the cracks at 53 Division as various shifts ended and new ones began without any regard to any reassessment of her fitness to be released and the length of time she remained in custody. In this regard I find that there was a cavalier attitude to her continued detention;

l) Even allowing for over three (3) hours to prepare the necessary documentation, which is generous, I find that starting at 11:30 AM, Ms. Mazit was arbitrarily detained until her eventual release at 2:30 PM, a period of three (3) hours.

[81] In light of my Rulings on the applications under sections 10(b) and 8, I will focus my assessment of possible outcomes as set out in a-c of paragraph 79.

Remedy

[82] Having found a breach of section 9 what is the appropriate remedy?

[83] A stay under section 24(1) is not an appropriate remedy. In R. v. Waisanen, [2015] O.J. No. 4835, Justice Campbell sitting as a summary conviction appeal court upheld the trial judge's finding that a 10 hour period of overholding was a serious breach of section 9 of the Charter, but found that a stay of the impaired charge was the wrong remedy. It was simply not one of the "clearest of cases" where that "drastic remedy" of a stay of proceedings was warranted in all the circumstances.

[84] For all of the reasons articulated by Campbell, J in Waisanen, supra, at paragraphs 33-38, I also conclude that a stay is inappropriate and that a lesser remedy is the more appropriate remedy, should there be a finding of guilt on that charge.

[85] As for the "over 80 charge", should the court exclude the breath readings under section 24(2)?

[86] The defence relies on the decisions of R. v. Shortell, supra and R. v. Lorenzo, supra. Both decisions can be distinguished from the case at bar.

[87] Firstly, in Lorenzo, the only charge was an over 80 charge. It came after a sobriety check at 1:40 AM. Secondly, the readings were 145 mg and 135 mg respectively. Thirdly, there was no impaired driving charge and hence no concerns about the accused's driving. Fourth, Justice Hawke found that there was a six (6) hour period of unlawful detention. Fifth, in Lorenzo, the defendant was placed in a cell, after all of the necessary paperwork was served on the defendant at 3:08 AM, including the release documents. Sixth, Justice Hawke found that neither of the Staff Sergeants authorized to release the defendant presented credible evidence showing he or she subjectively had the requisite reasonable grounds at the relevant time.

[88] Justice Hawke, citing Justice Laskin's reasons in R. v. Pino, 2016 ONCA 389, found a nexus between the evidence and the breach. In concluding that the breach was a serious one Justice Hawke considered a number of factors highlighting the absence of reasonable grounds to detain:

a) that Ms. Lorenzo's readings were going down – [not the case here];

b) that Ms. Lorenzo did not display any signs of impairment – [not the case here];

c) that there was an absence of any grounds for an impaired operation charge – [not the case here];

d) that Ms. Lorenzo had no difficulty communicating – [not the case here, Ms. Mazit kept repeating herself]; and

e) that objectively it was unlikely that Ms. Lorenzo would exhibit poor judgement after her release by finding another vehicle and driving it. Also, objectively she posed no risk to herself. [Ms. Mazit showed extremely poor judgement in having an open bottle containing alcohol in the car and consuming the most of the contents].

[89] Justice Hawke found that both Staff Sergeants displayed a lack of attention to their duties and a lack of preparedness to be accountable for their decisions. She made findings of credibility against both witnesses. I have not done so. Significantly, Justice Hawke heard evidence of a systemic problem in Peel region regarding the lack of enquiry by Staff Sergeants in drinking and driving cases in Peel and cited an overholding case decided by her colleague, Justice Schreck in R. v. Cheema, [2016] O.J. 1787. I heard no such evidence.

[90] An especially aggravating feature in Lorenzo was the fact that the defendant's boyfriend came to the Division and enquired about her release. He was sent away. I agree that this is a seriously aggravating feature of the case. That is not the case here.

[91] In assessing the impact of the breach on the interests of the accused, Justice Hawke considered the length of time in detention, the absence of anything extraordinary about the conditions of imprisonment, but placed emphasis on the fact that there were no indicia of impairment and only an over 80 charge was laid to conclude that this factor favoured exclusion.

[92] In assessing society's interest in adjudication of the case on the merits, Justice Hawke noted that breath readings are reliable evidence and the exclusion of the evidence means the Crown has no ability to prove the charge. Yet, she also noted that: "It is paradoxical that the most positive aspect of Ms. Lorenzo's case, that being that there is no impaired charge and associated evidence, in effect, significantly increases the impact of exclusion". She concluded that the paradox requires "some tempering" of the societal interest in adjudication on the merits in a case like that.

[93] Justice Hawke ultimately excluded the breath readings in the final balancing of the Grant factors and found that the court's need to disassociate itself from the police conduct was greater than society's interest in prosecuting the defendant. She did not need to address section 24(1).

[94] In Shortell, supra, which also involved a single count of "over 80", Justice Pringle found that Mr. Shortell had no idea why he was being held in custody. He acknowledged that he officer may have mentioned his readings. The Crown called no evidence at all about the decision to hold Mr. Shortell or to release him. Mr. Shortell also testified that while in detention was cold and he tried unsuccessfully to gesture to someone to get their attention. The delay from the time he gave his last breath sample and the time of release around noon was over eight (8) hours. Given the absence of any evidence called by the Crown, Justice Pringle, not surprisingly, found that Mr. Shortell had satisfied her that he was arbitrarily detained. The section 9 breach was one of multiple Charter breaches, which when considered cumulatively necessitated the exclusion of the breath readings.

[95] As well, in that case the accused appears to have been ignored for hours and similar to Ms. Lorenzo, there was no explanation as to why the defendant was not released at an earlier point in time.

[96] I find that Ms. Mazit's situation to be easily distinguishable from the circumstances in Lorenzo and Shortell.

[97] Like Justices Hawke and Pringle, I also find that there is a temporal and contextual nexus between the collection of the breath samples and the defendant's detention, even though the breath samples were already seized when the overholding began.

[98] Granted that nexus is more remote in impaired driving cases such as these as opposed to other factual scenarios. However, I am satisfied that the evidence sought to be excluded was in fact "obtained in a manner" that breached the defendant's right not to be arbitrarily detained. Applying the Grant factors, I find, firstly that the arbitrary detention of an arrestee is a serious matter. However, in the circumstances and on the findings I have made, the period of the overhold – approximately three hours – mitigates the seriousness of the offence in these circumstances. When I consider the factors Justice Hawke found persuasive in finding a serious breach in Lorenzo, I come to a different conclusion because the factors she considered to be absent in that case are very present in Ms. Mazit's. Those factors are:

a) that Ms. Mazit's second reading was 10 mg higher than the first, giving rise to a reasonable inference that her blood alcohol was rising not dropping;

b) that Ms. Mazit displayed some signs of impairment when she was being booked, as both Staff Sergeants Dennis and Nolan testified;

c) in addition to the "over 80" charge, there was an impaired operation charge;

d) that there were concerns about Ms. Mazit's ability to understand and communicate because she repeatedly asked questions, the answers to which she had just been given; and

e) that objectively Ms. Mazit showed extremely poor judgement in having an open bottle containing alcohol in the car. It was likely that Ms. Mazit would continue to exhibit poor judgement after her release posing a threat to herself or the public.

[99] The diminished seriousness of the breach favours inclusion.

[100] Secondly, when I consider the impact of the breach on the defendant's Charter protected rights, this factor also favours inclusion. Ms. Mazit slept for most of the time she was in custody. [This is not surprising given that she, on her own evidence, consumed over fifteen ounces of alcohol while driving.]

[101] Apart from her unsubstantiated evidence that she was cold and needed eye drops, there is nothing extraordinary about her detention. She did not need medical attention, nor was she in any distress.

[102] Third, I find that society has an interest in adjudicating the case on the merits. The breath readings, while not as crucial to the Crown's case where there is an impaired driving charge, are important in this case where the readings are said to be elevated and potentially aggravating and where the proffered explanation is that the defendant was consuming alcohol while she was driving.

[103] Lastly, when all of the Grant factors are considered and balanced, I find that they weigh in favour of admission of the evidence and a trial on the merits.

[104] The breath readings are therefore admitted into evidence. Following the reasoning in Waisanen, supra, in the event of a finding of guilt on the "over 80" charge, the appropriate remedy in light of the breach is an appropriate reduction in sentence.

[105] I will now address the evidence as it relates to the two (2) counts before the court beginning with Count 1 - Impaired Driving.

Impaired Driving

[106] Ms. Mazit described herself in her evidence as an occasional driver. At the time of trial Ms. Mazit was 39 years old. She is now forty (40) years old. She is not native to Toronto. She is from France, but has lived and worked in Toronto since 2007; approximately nine (9) years. She lives in downtown Toronto on St. George Street near Bloor Street. She testified that she is not very familiar with the city as she drives approximately once a month and then only to get heavy groceries. She otherwise walks or takes the TTC, cabs and Uber cars to get around for work or socially. Even when she does use her car, often her friend or her boyfriend drives.

[107] She denies that when she was stopped by police that her ability to drive was impaired by alcohol. Firstly, she recalls exactly how much she drank before the alleged bolus drinking began approximately twenty (20) minutes before the stop because the bottle was full.

[108] Secondly, she can explain the entire sequence of the unusual driving pattern the civilian witness and the police officers observed and were concerned about.

The Pattern of Consumption

[109] Ms. Mazit testified that even though she had open alcohol in her car and engaged in bolus drinking, she is not someone who normally drinks and drives. On the night in question she started out by exercising caution in bringing an overnight bag and restraint in moderating her consumption so that she was not in a situation where she would be driving with more than the legal limit of alcohol.

[110] By her account, the total amount of alcohol she consumed between 8:30-9:00 PM and 4:00 AM, a period of seven hours, consisted of one glass of red wine at the beginning of the evening and a half glass of red wine sometime later. On her evidence her pattern of consumption over the evening preceding the stop was as follows:

• At around 8:30 or 9:00 PM the night before the incident she had a glass of red wine at her friend Rita's home. She brought the bottle of red wine to Rita's and the rest of the guests at the party shared it;

• Before she left for Rita's place, she filled a 500 ml plastic water bottle with an alcoholic drink called O'Casey's. It is similar to Bailey's. Ms. Mazit testified that she had the bottle in her overnight bag. She intended to share the O'Casey's with her friend Rita once she returned to Rita's place where she was supposed to spend the night, hence the overnight bag. She did not take the entire bottle of O'Casey's with her as she did not think it would be finished and this way she did not have to feel judged by Rita for taking her bottle of alcohol back home with her;

• As it turned out, although she went from her place to Rita's with her overnight bag, she did not take her overnight bag out of her car when she got to Rita's;

• After Rita's place, she drove a friend to Pickering to a party at a club. She followed her friend Rita who drove in her own car. Once at the club in Pickering she and her friend Rita shared a single glass of red wine. She was uncertain as to the timeframe within which she consumed the partial glass of red wine, but she was certain that is all the alcohol she consumed while at the club;

• While at the club in Pickering, it appears the water bottle filled with O'Casey's remained in the overnight bag in the car;

• After the club closed, Ms. Mazit and her friends socialized in the parking lot for about forty five (45) minutes, but she consumed no alcohol at this time;

• It was while she was in the parking lot that Ms. Mazit decided not to spend the night at Rita's, but to return to her own home;

• Ms. Mazit did not consume any alcohol at all en route from Pickering to Toronto, although the overnight bag was accessible to her inside the car. She was driving alone and had no passengers with her. She was following her friend Rita.

• Ms. Mazit's caution and restraint came to an abrupt end when she and Rita parted ways with Rita giving her simple and easy directions to get home.

The Driving Pattern and the Decision to Engage in Bolus Drinking

[111] After Rita told her to go straight and turn right onto Bloor, Ms. Mazit somehow got lost. Mr. Henry, the civilian who called 911 and the two arresting officers observed her less than perfect driving. This included:

• Travelling southbound on Mount Pleasant and then suddenly going north after an unsafe U-turn;

• Weaving within a lane and between lanes, on Mount Pleasant Blvd.;

• Making a left turn onto Lawrence Avenue from Mount Pleasant and pulling into the lanes for traffic in the opposite direction;

• Turning left onto Yonge street from Lawrence from the center lane;

• Travelling south on Yonge and weaving between lanes and within her lane;

• Making a U-turn when travelling north on Yonge Street by pulling into a "TTC Vehicles Only" lane and completing the turn by first driving across Yonge street thereby blocking traffic in the opposite direction. She did this ostensibly to get a better look at a street sign posted on the east side of Yonge street;

• Completing the turn and eventually traveling southbound on Yonge Street at a very slow rate of speed before stopping for police who had motioned for her to stop before she completed the U-turn; and finally

• Mounting the curb as she pulled over and righting herself before coming to a stop with the engine still running.

[112] I find that there was more than ample evidence of bad and even bizarre driving in this case. The civilian witness, Cornel Henry, was so concerned that he followed the defendant, then videotaped some of her driving before calling the police to report her as a suspected drunk driver. The two officers who stopped Ms. Mazit also made their observations of bad driving including making a U-turn using a TTC laneway, and then blocking traffic in the opposite direction and driving very slowly before responding to their activated lights, but not before mounting the curb and eventually righting the vehicle. When they stopped her, they made further observations of Ms. Mazit consistent with impairment: the smell of alcohol; fumbling with the door handle, hesitating between the brake and the gear shift when asked to put the car in park, stumbling out of the car, leaning as she walked, providing the officers with a credit card instead of her driver's licence. The police also found a water bottle Ms. Mazit was seen trying to hide under the driver's side car seat that contained a brown milky substance that we now know was an alcoholic beverage known as O'Casey's.

[113] The reliability or credibility of the witnesses' observations of Ms. Mazit and her driving was not seriously challenged or undermined by the defence. In fact, the defence concedes that there was evidence of "poor driving". Instead, Ms. Mazit explained that her poor driving was not the result of her excessive consumption of alcohol much earlier in the evening, but was entirely due to a constellation of very unfortunate circumstances she fell victim to which include the following:

a) she was driving with a broken contact lens, and had difficulty seeing properly, especially road signs. It was unclear from her evidence exactly when the lens broke and how she was able to drive from Pickering without incident;

b) she did not have the option of using her glasses because they too happened to be broken;

c) she described herself as an infrequent driver who is unfamiliar with Toronto, especially in the area she was driving which is why she followed her friend from Pickering to Toronto;

d) although she has a perfect driving record, she also described herself and "not a good driver";

e) soon after she and Rita separated, she realized she was getting very close to home. At the same time she recalled a bad argument she had with her boyfriend and some unpleasant text messages. Knowing she was so close to home and the stress of her conflict with her boyfriend caused her to make the regrettable decision to reach into the overnight bag and retrieve the bottle filled with O'Casey's. The bag happened to be behind the passenger seat and was within easy reach;

f) she then got lost and as a result made many U-turns;

g) to compound the problem, as already noted, she has a very bad sense of direction;

h) she still chose to take a short-cut she remembered; that decision did not pan out and she found herself on Yonge street going northbound;

[114] As for how she presented after the stop and the observations the police made of her she explained that:

a) she engaged only the handbrake when she was stopped by the police who had to tell her to put the car in park. She explained that she is from France and accustomed to driving a stick shift. Pulling on the handbrake (instead of putting the car in park) is simply a reflex or habit, and not an indication of impairment;

b) when she gave the officers a credit card instead of her driver's licence she explained that her licence and her credit cards were kept together and it was a simple mistake;

c) her lack of focus when she was stopped she explained was the result of efforts to conceal the bottle of alcohol;

d) that she fumbled with the door because it was dark, not because of impairment;

e) the unsteadiness on her feet when she emerged from the car was because of her wearing high heels compounded by blisters on her feet that she sustained while dancing at the club earlier in the evening;

f) that when she was in police custody she repeated questions that were already answered because she was anxious and unfamiliar with the situation and not because she had difficulty understanding the officers or retaining information.

[115] I wholly reject Ms. Mazit's litany of explanations for her driving and how she presented when stopped by the police. None of it has the ring of truth and much of it defies common sense.

[116] If she broke her lens and had such great difficulty seeing before separating from Rita, a clear-headed person would leave the car somewhere and take a ride with Rita. If she broke her lens right after leaving Rita, a clear-headed person would call her friend who was already up and about to ask for help.

[117] Ms. Mazit had her cell phone with her, but never stopped to call or text Rita to ask for help or directions. This defies common sense, especially since Rita was apparently expecting a text from her to say she arrived home. If she did not want to disturb her friend, she also never stopped anywhere to ask for directions as Rita had apparently done earlier in the evening in Pickering.

[118] Who drives across Yonge going from west to east to better see a road sign on the east side of Yonge street? This behaviour boggles the mind and defies common sense.

[119] Ms. Mazit testified that she was unfamiliar with driving in Toronto, yet acknowledged taking the TTC frequently. For a period of time, she was driving up and down Yonge Street, one of the major thoroughfares in Toronto. Yonge Street is also the street along which one of the main subway lines runs. Judicial notice can be taken that most people familiar with riding the TTC would be familiar with major stops such as Eglinton and Davisville. In fact, Ms. Mazit used a lane reserved for TTC vehicles only. It is difficult to fathom that if she was sober she did not know she was on Yonge Street and what direction she needed to be travelling in to get home.

[120] Given her testimony that she has a very bad sense of direction, is unaccustomed to driving in the city, and is not familiar with city streets, it is difficult to understand why she would risk to taking a shortcut she thought she knew rather than stay on a major street and simply turn right on Bloor Street as her friend Rita instructed her to do, unless her judgement was impaired.

[121] It also makes no sense to me that Ms. Mazit would decide to drink a copious amount of alcohol because she was so close to home when she had been so cautious all night long. Applying common sense and logic, it makes no sense that someone having difficulty seeing because of a broken contact lens would then choose to compound the problem by reaching back into a bag in the backseat, uncap a bottle, and drink from it while driving. Precisely because she thought she was so close to home, it makes more sense to wait to get home, especially for someone who is normally so cautious, takes precautions and exercises restraint.

[122] Ms. Mazit testified her poor decision to drink and drive is explained by her anxiety over her relationship with her boyfriend. I cannot accept that her emotional distress suddenly coincided with her separation from Rita.

[123] Ms. Mazit's evidence about her use of the hand brake when asked to put the car in park was contradicted by Officer Snider who recalled that Ms. Mazit seemed to hesitate and her hand passed back and forth between the handbrake and the gear shift at least twice. Such hesitation belies the defendant's evidence that pulling on the handbrake instead of using the gear shift to put the car in park was an instinctive action because she was accustomed to a manual transmission. I reject her explanation. It does not make much sense especially in light of the officer's testimony which I accept. He observed Ms. Mazit and relayed his concerns that the car was not in park to his partner, Officer Rousseau. I find that this hesitation, when considered in the totality of the evidence is attributable to Ms. Mazit's impairment.

[124] I can accept that she panicked when stopped and was focused on hiding the alcohol. Beyond that, I cannot accept that she simply made a mistake in handing over a credit card instead of her driver's licence, or that when she was observed leaning, she was simply coping with blisters and high heels.

[125] Put simply, I reject Ms. Mazit's evidence about why she drove the way she did. Her many and various explanations make no sense, are contrived, and simply strain credulity.

[126] It is not surprising then that her evidence does not leave me in a reasonable doubt.

[127] The cumulative effect of the overwhelming evidence of bad driving observed by Mr. Henry combined with the police officer's observations of Ms. Mazit at the scene, evidence that I accept, does not give rise to any reasonable doubt in my mind. I am satisfied that the Crown has proven beyond a reasonable doubt that Ms. Mazit's ability to operate a motor vehicle was impaired by alcohol. As, such there will be a finding of guilt.

Count #2 - Over 80 Charge and Bolus Drinking

[128] The defence does not take issue with the reliability of the breath samples per se: 184 mg and 194 mg in 100 ml of blood at 6:00 AM and at 7:28AM, "read back" by the toxicologist to the time of driving as being within a range of between 180 to 230 mg of alcohol in 100 ml of blood.

[129] Instead, Ms. Mazit submits, the readings are explained, by her poor decision to engage in bolus drinking shortly before the police stop. If her evidence as to her drinking pattern and the timing thereof is accepted it means that that at the time of driving she was not over the legal limit. Alternatively, her evidence could also raise a reasonable doubt as to her blood alcohol count at the time of the stop.

[130] The onus is on the Crown to satisfy the court beyond a reasonable doubt that there was no bolus drinking.

[131] Bolus drinking is not a commonplace occurrence, but rather a rare one. It is largely a matter of common knowledge and common sense that most people do not ingest large amounts of alcohol just prior to or while driving: see R. v. Paszczenko and Lima 2010 ONCA 615 at paras. 28-29

[132] As Borenstein, J. noted in R. v. Gallant [2016] O.J. 4610 the presence of open alcohol in car operated by the accused driver is a potential indication of abnormal drinking.

[133] I find that for the following reasons the defence of bolus drinking has an air of reality and is a live issue in this trial:

a) a plastic water bottle containing approximately two (2) ounces of an alcoholic beverage was found in Ms. Mazit's car;

b) she was the sole occupant of the car at the time of the stop;

c) she tried to hide the bottle from the officers who stopped her vehicle;

d) she testified that she drank the approximately fifteen (15) ounces of alcohol missing from the bottle and that she did that in the period of time approximately twenty (20) minutes before she was stopped, and

e) her second breath reading was higher than her first which may suggest that her blood alcohol was rising not dropping or remaining consistent.

[134] The law is clear that where the bolus drinking defence has an air of reality, it is the Crown who must disprove it beyond a reasonable doubt. If there a realistic possibility that Ms. Mazit drank the entire amount of alcohol she says she did in the twenty (20) minutes or so before she was stopped, then she deserves the benefit of any reasonable doubt the court may have.

[135] I find that when I consider the totality of the evidence, I cannot accept Ms. Mazit's evidence about when she consumed the missing contents of the bottle, or what she had to drink over the course of the evening and into the night for that matter. There are several reasons for rejecting Ms. Mazit's evidence on this issue.

[136] Firstly, her testimony about when and how she retrieved the bottle before she started her bolus drinking was seriously undermined by the evidence of Officer Garner whom the Crown called as a reply witness.

[137] Ms. Mazit gave a detailed explanation about how she packed an overnight bag planning to stay at her friend Rita's place. Among the contents of the bag, she had a 500 ml water bottle filled with an alcoholic beverage known as "O'Casey's". She explained that she did not want to take a full bottle in the original container and then be judged by her friend if she asked for or brought the unfinished alcohol back. To avoid that situation, she instead filled the water bottle with the alcohol. She intended to share with her friends.

[138] Although Ms. Mazit planned to stay overnight at her friend's place because she is not one to drink and drive, it appears that the overnight bag never made it into the friend's home and appears to have remained, on her evidence, on the floor in rear passenger area of the car even while she spent hours at the club in Pickering. Granted this is a suspicious circumstance and not conclusive of anything more than perhaps carelessness, but it is a small factor in the constellation of factors I have considered.

[139] Officer Garner testified that he did not find any overnight bag in the rear passenger area of Ms. Mazit's car. I do not accept that it could have been jammed under the seat after Ms. Mazit removed the bottle. In any event, she did not testify that that is what she did after the stop when she retrieved the bottle. Instead, she said she was focused on hiding it in and her chosen hiding place was under the driver's seat. It defies and goes against common sense that she could have retrieved the bottle from a bag jammed under the seat or retrieved the bottle and then jammed the bag under the passenger seat all while driving. In any case nowhere in her testimony did she describe jamming the overnight bag under the passenger seat after retrieving the bottle. Why would she when she believed she was so close to home?

[140] I reject Ms. Mazit's evidence about the existence of the bag as a complete fabrication. I find that there was no bag, period. Not under the seat, nor in the trunk, as counsel suggested it might be. I note that there was no time to put a bag in the trunk after the stop and Ms. Mazit never testified that before the stop she stopped her car to place the bag from which she retrieved the bottle into the trunk. Why would she – it makes no sense if she truly believed she was so close to home. Had there been a bag and if Ms. Mazit was trying to hide the bottle, wouldn't the best place to remove it from sight be to put it into a bag along with her other personal belongings?

[141] Instead, I find that she fabricated the idea of the overnight bag to portray herself as someone who is a responsible drinker; someone who would not drink to excess and then drive. Certainly not someone who would drive with a bottle of alcohol close at hand. I find that Ms. Mazit concocted the story about grabbing a bottle from her bag as she lamented how badly things had gone for her earlier in the evening to give the court of a more favourable impression of her.

[142] I find that she likely did have the open alcohol readily available to her as she described. She may well have been drinking from it over the course of the evening. Why else would it be so close at hand? I specifically reject her evidence that she consumed fifteen (15) ounces of the contents in the twenty (20) minutes or so preceding the stop because she was so close to home. That explanation makes no sense and is inconsistent with her own evidence. She testified that she was lost for some time before the police stop. Approximately thirteen (13) minutes passed between the time Mr. Hendry first saw her and the police stop. When he first spotted Ms. Mazit, she made an unsafe U-turn on Mount Pleasant then travelled northbound. She was lost because her home is at Bloor and St. George, in the opposite direction. After that incident and after Mr. Henry was instructed to stop following her, Ms. Mazit apparently tried, unsuccessfully, to take a shortcut even though she was lost and has a bad sense of direction. This was all happening in the timeframe, Ms. Mazit claims to have consumed fifteen (15) ounces of alcohol.

[143] It is significant that Ms. Mazit never offered as an explanation for her bad driving that she was distracted by her "chugging" the alcohol. Mr. Hendry observed her for a period of time. He was close enough at one point to see that she was a woman in her forties with curly hair, yet he made no mention in his evidence of having seen her drinking anything from a bottle, nor was that ever put to him in cross-examination.

[144] I also find Ms. Mazit's inability to recall when she consumed the half glass of wine while at the club curious and not worthy of belief. This is the only alcohol she supposedly consumed while at the club and while socializing outside the club in the parking lot for forty five (45) minutes. Common sense dictates that it should not have been that difficult for her to remember whether it was at the beginning of the evening, in the middle or towards the end. I reject her evidence that all she consumed at the bar was that half glass of wine, shared with Rita and find that she drank considerably more alcohol over the course of the evening than she testified to. Her evidence about her pattern of consumption did not ring true on that score.

[145] I note that officer Snider only detected a slight odour of alcohol when he arrested Ms. Mazit. Applying common sense, one would expect a stronger and still lingering odour after consuming fifteen ounces in the approximately twenty (20) minutes immediately prior to the stop

[146] Finally, I consider the evidence of the toxicologist, Ms. Tse that the two (2) breath samples were "in good agreement" and she could not conclude that blood alcohol count was in fact rising even though the second result was 10 mg higher than the first. Ms. Tse's evidence was not undermined on this point. This evidence has some support from the observations of the police officers who observed Ms. Mazit at 32 Division. They did not see a drastic or notable change in her condition arriving or leaving 32 Division. This is some evidence that there was not a sharp or significant rise in Ms. Mazit's blood alcohol level.

[147] Where there are signs of impairment at the time of driving and immediately afterwards, there is some circumstantial evidence of no bolus drinking. In this respect, Ms. Mazit's case is unlike the case of Gallant, supra, where there were no signs of impairment and the defendant did not testify in his own defence leaving Justice Borenstein with a reasonable doubt.

[148] When I consider the totality of the evidence I do accept, notably the bizarre and abysmal manner of driving and the litany of convenient, elaborate, non-sensical and incredible reasons offered to explain all of the unusual driving and other behaviour, I wholly reject the defendant's evidence and am compelled to find that her evidence about her pattern of consumption of alcohol on the night of the incident does not leave me in a reasonable doubt. The Crown has satisfied me beyond a reasonable doubt that Ms. Mazit did not engage in bolus drinking and that her blood alcohol at the time of driving was as the toxicologist testified in a range between 180 mg and 230 mg of alcohol in 100 ml of blood.

[149] As such there will be a finding of guilt on count #2.

Released: November 22, 2016

Signed: "Justice Bhabha"

[1] Even if I am wrong and it favours exclusion, consideration of the other factors, in my view, would still favour inclusion, as would the final balancing.