Ontario Court of Justice

Date: August 22, 2018

Court File No.: BRAMPTON 17-0678

Between:

HER MAJESTY THE QUEEN

— AND —

RESHMA SOOKDEO

Before: Justice Sandra Caponecchia

Heard on: August 1, 2018

Reasons for Judgment released on: August 22, 2018

Counsel

Mr. M. Coombes — Counsel for the Crown

Mr. C. Avery — Counsel for the defendant Reshma Sookdeo

CAPONECCHIA J.:

Introduction

[1] Ms. Sookdeo is charged with "over 80."

[2] A trial was conducted on August 1, 2018. The Crown called one witness, PC Feasby. The officer initiated a traffic stop at approximately 1:20 a.m. on January 13, 2017 after witnessing some questionable driving. Ms. Sookdeo was the driver of the motor vehicle. She had bloodshot and watery eyes. When asked to provide her driver's licence she looked through approximately 15 cards and overlooked her licence three times. There was a passenger in the vehicle who was vomiting. The smell of alcohol was coming from within the vehicle and Ms. Sookdeo was asked to step outside of the vehicle, at which time the officer detected an odor of alcohol coming from her breath. She subsequently blew a fail into a roadside screening device (ASD) at 1:24 a.m. She was arrested and provided two samples of her breath into an approved instrument at the police station. Her readings were 180 and 170 mgs of alcohol per 100ml of blood at 2:51a.m. and 3:16 a.m., respectively.

[3] Mr. Avery abandoned his s. 8 argument at the close of the Crown's case and advanced two arguments:

1. Mr. Avery asserts Ms. Sookdeo's s. 11(b) Charter rights were infringed.
2. The defence asserts that the breath samples were not taken as soon as practicable.

Issue 1: Section 11(b) Charter

[4] I declined to hear the 11(b) application at the outset of the trial because Mr. Avery failed to comply with the Rules of the Court. He did not file the 11(b) application 60 days in advance of the trial date. The reason he provided was that he was too busy and had no availability to attend court in advance of the trial. I indicated my dissatisfaction with his explanation and agreed to entertain the motion if there was time to do so after the evidence and submissions were completed. There was, and I did so.

[5] To decide this issue I must follow the framework set out in Jordan. In Jordan the Supreme Court of Canada set out a presumptive ceiling of 18 months for cases such as this being tried in the Ontario Court of Justice.

Calculate Total Delay

[6] A judge is to calculate the total delay, from the date of the charge to the end of the trial.

[7] Ms. Sookdeo was charged on January 13, 2017.

[8] The first trial date was scheduled on February 12 and 13, 2018. When it became apparent the case would not be reached a second trial date was set for August 1 and 2, 2018.

[9] There is no dispute that the total delay in this case is 18 months and 20 days.

Subtract Defence Delay

[10] Defence delay is subtracted from the total delay. Defence delay is comprised of two components.

[11] The first component is delay that is a clear and unequivocal waiver of the accused's s. 11(b) rights. In this case neither the Crown nor the defence take the position that any time should be deducted based any waiver.

[12] The second is delay caused solely by the conduct of the defence, including unavailability for trial when the court and the Crown are ready to proceed. The Crown and defence disagree on whether any deduction should be made on the second basis.

a) Position of the Parties

[13] The Crown takes the position that two time periods should be deducted from the total delay based on Mr. Avery's unavailability when the Crown and court were ready to proceed prior to both trial dates.

i. July 11, 2017 – October 23, 2017 (3 months, 12 days)

On May 26, 2017 the defence set the first trial date.

The Court and the Crown were prepared to conduct the first trial on three separate dates in July 2017, the earliest being July 11, 2017. The defence was not available.

The defence was available starting on October 23, 2017 but the Court and Crown were not.

The court and Crown were next available on February 6, 7, 2018, the defence was not.

All parties were available on the date set for the first trial: February 12, 13, 2018.

ii. February 15, 2018 – August 1, 2018 (5 months, 16 days)

The case did not proceed on the first trial date due to lack of court resources.

The court and Crown were prepared to proceed to trial next on February 15, 16, March 12, 13, 21, 22, 23, April 25, 26, 30, May 1-3, 7-11, 16-17, 31, June 1, 19-22, 25-27, July 12, 13, 17, 18, 2018. Ms. Sookdeo was due to give birth in early April and Mr. Avery was not available again until August 1, 2018.

The second trial was set for August 1 and 2, 2018.

[14] The defence position is that no deductions from the total delay should be made based on defence counsel's unavailability. His argument is twofold:

i. Mr. Avery called into question the Trial Co-ordinator's motives for offering early dates. Mr. Avery took a sinister view of the Trial Co-ordinator's efforts and submitted that staff offer early dates knowing defence counsel are not available on short notice. He did not agree with the suggestion that the Trial Co-ordinator's actions are consistent with an intention to comply with Jordan, not circumvent it. Mr. Avery had no evidence to support his argument and I reject it.

ii. Mr. Avery submits that the decision of R. v. Godin, 2009 SCC 26, is still good law post Jordan. More to the point, a deduction from the total delay based on defence unavailability is unwarranted because defence counsel cannot be required to hold themselves in "a state of perpetual availability": Godin para. 23.

b) Analysis

[15] Jordan makes it clear that going forward defence caused delay will be calculated differently. The example specifically given in Jordan of "delay caused solely by the conduct of the defence" is the situation where the Crown and court are ready to proceed but the defence is not: Jordan, para. 64.

[16] In Jordan, a deduction from the total delay was applied for the period between when the Crown and court were available to continue, the defence was not, and the next mutually agreeable date: Jordan para. 123, 124. Deduction for similar reasons took place in R. v. Cody, 2017 SCC 31 para. 55, R. v. Coulter, 2016 ONCA 704 para. 73-77, R. v. Williamson, 2016 SCC 28 para. 21-22, R. v. St. Amand 2017 ONCA 913 para. 79-80.

[17] The very argument advanced by Mr. Avery was rejected most recently in R. v. Mallozzi, 2018 ONCA 312 para. 3, 6. The Ontario Court of Appeal recently confirmed that defence delay includes periods of time when the Crown and the court are ready to proceed, but the defence is not.

[3] Defence delay is defined in Jordan as including periods of time when the Crown and the court are ready to proceed, but the defence is not: Jordan, at para. 64. See also: R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 55. Although actions that are legitimately taken to respond to the charges will fall outside of defence delay, when what prevents the matter from proceeding is simply that the defence is not available when the Crown and the court are, this constitutes defence delay and will be subtracted from the total delay…

[6] The respondent maintains that his trial counsel had dates earlier than those offered by the court and, therefore, though his counsel was not available on the later dates that were offered, he should not be required to absorb this time as defence delay. We disagree. Jordan is clear that defence delay will arise where the Crown and the court are ready to proceed, but the defence is not. Read contextually, and having regard to the trial verification form, the Crown and the court were ready to proceed. Defence counsel was not. The trial judge erred in failing to consider these 87 days as defence delay.

c) Findings

[18] I conclude that the decision in Godin has been overtaken by Jordan and the previous method for calculating delay has been abandoned. In this case I find the Crown's calculation for defence caused delay based on Mr. Avery's unavailability is consistent with Jordan.

[19] Therefore the net delay after deducting defence unavailability is 9 months and 22 days.

Remaining Delay – Below Presumptive Ceiling

[20] Where the net delay is below the presumptive ceiling, the defence may demonstrate that it was nonetheless unreasonable. The onus is on the defence to establish two things on a balance of probabilities: (1) they took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have: Jordan, para. 82. The granting of stays for cases that fall below the presumptive ceilings should only be done in the clearest of cases: Jordan, para. 83.

[21] The defence has not satisfied me that they made sustained efforts to expedite the case for two reasons.

[22] First, action or inaction by the defence is something this court can consider: Jordan, para. 84. In this case the transcripts indicate the defence declined to have a resolution meeting with the Resolution Crown on April 21 and May 5, 2017. Instead Mr. Avery opted to wait for a specific Crown to return from vacation on May 19, 2017. If a resolution meeting was held with the available Resolution Crown on April 21 a trial date could have been set the same day. This was not a complicated case. It was a straightforward "over 80" that did not necessitate waiting for a specific Crown to return from vacation to have a resolution meeting with them.

[23] Second, in Jordan para. 85 the Supreme Court held that the court can consider whether the defence conducted all applications (including the 11(b) application) reasonably and expeditiously. In this case I find the defence did not do so. The defence made no effort to arrange for the 11(b) application to be heard in advance of the trial as required by the Rules. This is inconsistent with a meaningful effort to keep the trial from being derailed and completed on the second trial date within the time estimated.

[24] Nor has the defence satisfied me that this case took markedly longer than it reasonably should have. Disclosure was complete on April 21, 2017. This is within a reasonable amount of time given the charge was laid on January 13, 2017. The first trial date in February 2018 was less than one year after Ms. Sookdeo was charged and could have been held sooner but for defence counsel's unavailability. A wide range of second trial dates were offered when the case did not get reached on the first trial date in February 2018, but again the defence was not available. On the second trial date on August 1, 2018 the Crown ran a streamlined case, called one witness only, proceeded by certificate, did not call the breath technician and did not play the breath room video. The trial was completed in half a day.

Issue 2: As Soon As Practicable

[25] The evidence relevant to this issue that I accept can be summarized as follows.

[26] PC Feasby began the investigation at approximately 1:22a.m. The officer formed the requisite suspicion at 1:24a.m. and Ms. Sookdeo provide a breath sample into a roadside screening device at 1:25a.m.

[27] Ms. Sookdeo was arrested at 1:25a.m. and was escorted to the rear of a cruiser. She was provided her rights and read a breath demand between 1:26a.m. and 1:32a.m. They departed the scene at 1:34a.m.

[28] PC Feasby was dispatched to 22 Division. He took the most direct route. He arrived 27 minutes later at 2:01a.m. The cells were being used and there was delay in entering the booking area until 2:06a.m. Ms. Sookdeo went through the booking procedure and was escorted into a private room to exercise her right to counsel in private at 2:12a.m. She spoke with Duty Counsel between 2:15a.m. and 2:24a.m.

[29] While Ms. Sookdeo was on the phone PC Feasby passed on the grounds for his arrest to PC Bowes, a Qualified Breath Technician. PC Feasby finished doing so at 2:30a.m. and Ms. Sookdeo was escorted into the breath room at 2:32a.m.

[30] PC Feasby stayed in the breath room while the breath samples were taken. The first sample was taken at 2:51a.m., 19 minutes after she entered the breathroom. He testified Ms. Sookdeo made numerous attempts to provide her first breath sample and at 2:45a.m. she stopped blowing and started to cry. The second test was completed 25 minutes after the first, at 3:16a.m. They left the breathroom at 3:19a.m.

[31] In cross-examination PC Feasby agreed that 11 Division was the closest division to the location where he arrested Ms. Sookdeo. While 11 Division was a five-minute drive away, it was under construction. He did not know if the breath room was operable. The next closest division was 12 Division, a 15-20 minute drive away. PC Feasby does not know how many breath technician were working that evening, he explained that he goes where dispatch tells him a breath technician is available.

a) Position of the Parties

[32] The defence takes the position that the decision to go to 22 division for testing instead of the two closer police station in Mississauga was not adequately explained. Defence also argues that based on the totality of the evidence the tests were not conducted as soon as practicable.

[33] The Crown relies on the decision of R. v. Vanerbruggen, and takes the position that there was ample evidence upon which this court can be satisfied that the police acted reasonably and the samples were taken as soon as practicable.

b) Analysis & Findings

[34] Section 258(1)(c)(ii) sets out the requirements that must be satisfied for breath test results to be admitted into evidence as conclusive proof of the concentration of alcohol in the accused's blood at the time of the offence. This section is part of the scheme to ease proof of the concentration of alcohol in the accused's blood for proving the "over 80" offence in s. 253(b). The section provides that where the breath samples were taken "as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken" then the Prosecution may rely upon the presumption of identity. This presumption simply deems the results of the breath tests to be proof of the accused's blood alcohol level at the time of the offence.

[35] The leading cases on "tests taken as soon practicable" are R. v. Letford (2000), 150 C.C.C.(3d) 225 (C.A.), Vanderbruggen, [2006] O.J. No. 1138 (C.A.), and R. v. Singh, 2014 ONCA 293.

[36] In R. v. Vanderbruggen, [2006] O.J. No. 1138 (C.A.), there was an approximate delay of one hour and fifteen minutes from the time of the offence to the taking of the first sample. There was a 46-minute gap between the time Mr. Vanderbruggen was placed in a cell and the first breath sample. The trial judge was satisfied that the Crown adduced sufficient evidence from which he could conclude that the police acted reasonably and that the breath samples were taken as soon as practicable in all the circumstances. The evidence offered as an explanation for the delay was the time taken to arrest the appellant, reading him his rights, transporting him to the station, waiting for the technician to arrive, searching the appellant, conveying the grounds for the breath demand and waiting for the technician to prepare the breathalyzer. There was no evidence that either the arresting officer or the technician acted unreasonably. The record only showed that they were attentive to their duties and to the need to administer the tests to the appellant as soon as practicable. There was no evidence that the officers gave unreasonable priority to any other task. In dismissing the appeal the Court reviewed the following law at para. 11-14:

1. Decisions of this and other courts indicate that the phrase "as soon as practical" means nothing more than that the tests were taken within a reasonably prompt time under the circumstances. See R. v. Phillips (1988), 42 C.C.C. (3d) 150 (Ont. C.A.) at 156; R. v. Ashby (1980), 57 C.C.C. (2d) 348 (Ont. C.A.) at 351; and R. v. Mudry, R. v. Coverly (1979), 1979 ABCA 286, 50 C.C.C. (2d) 518 (Alta. C.A.) at 522.

2. There is no requirement that the tests be taken as soon as possible. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably. See R. v. Payne (1990), 56 C.C.C. (3d) 548 (Ont. C.A.) at 552; R. v. Carter (1981), 59 C.C.C. (2d) 450 (Sask. C.A.) at 453; R. v. Van Der Veen (1988), 1988 ABCA 277, 44 C.C.C. (3d) 38 (Alta. C.A.) at 47; R. v. Clarke, [1991] O.J. No. 3065 (C.A.); and R. v. Seed, [1998] O.J. No. 4362 (C.A.).

3. When 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.

4. The "as soon as practicable" requirement must be applied with reason. In particular, while the Crown is obligated to demonstrate that -- in all the circumstances -- the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody. See R. v. Letford (2000), 150 C.C.C. (3d) 225 (Ont. C.A.) at para. 20; R. v. Carter, supra; R. v. Cambrin (1982), 1 C.C.C. (3d) 59 (B.C.C.A.) at 61-3, and R. v. Seed at para. 7.

[37] More recently in R. v. Singh, 2014 ONCA 293, the respondent argued that the Crown had failed to prove the second test was taken "as soon as practicable" because it had not called evidence to specifically explain the 28-minute delay between the first and second breath samples. The trial judge rejected that position. The trial judge considered the entire time frame and the whole chain of events. He commented that the Crown need not provide an explanation for every minute that the accused was in police custody. He concluded that all of the times were reasonable and that the police had acted "as soon as practicable". The summary conviction appeal judge allowed the respondent's appeal. It acknowledged the statutory requirement that there be an interval of at least 15 minutes between the taking of the two samples, leaving an unexplained delay of 8-to-11 minutes between tests. In assessing that eight-to-11-minute delay, the summary conviction appeal judge declined to apply this court's decision in R. v. Vanderbruggen, [2006] O.J. No. 1138, 206 C.C.C. (3d) 489 (C.A.), because it [at para. 7] "was not a case about unexplained delay between samples." The Ontario Court of Appeal disagreed. In so doing they held:

[14] The requirement that the samples be taken "as soon as practicable" does not mean "as soon as possible". It means nothing more than that the tests should be administered within a reasonably prompt time in the overall circumstances. A trial judge should look at the whole chain of events, keeping 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.

[15] It is worth repeating that the Crown is not required to call evidence to provide a detailed explanation of what occurred during every minute that the accused is in custody. These provisions of the Criminal Code were enacted to expedite the trial process by facilitating the introduction of reliable evidence to prove an accused's blood-alcohol level. Interpreting these provisions to require an exact accounting of every moment in the chronology from the time of the offence to the second test runs counter to their purpose. As Rosenberg J.A. said in Vanderbruggen, at para. 12, "The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably."

[38] The case of R. v. Letford (2000), 150 C.C.C.(3d) 225 (C.A.), deals with the choice of police detachments. Two police officers working out of the OPP detachment in Espanola arrested the accused near Espanola and demanded a sample of his breath. Although three qualified technicians were on staff at the Espanola detachment, none were on duty at 1:45 a.m. on the day in question. Consequently, a technician from another detachment had to be dispatched to Espanola. He arrived at 2:35 a.m., finished preparing the detachment's breathalyzer machine at 3:15 a.m. (40 minutes later) and at 3:31 a.m. obtained breath samples from the accused, a timespan barely within the two-hour limit. The accused failed the test and was charged with having committed a .08 offence. The trial judge acquitted the accused on the ground that the delay in arranging for a qualified technician was unreasonable and did not meet the "as soon as practicable" standard in the absence of the Crown providing a reasonable explanation as to why a qualified technician was not on duty at the Espanola detachment. The Crown provided no explanation beyond the testimony of the police officers and the technician regarding what had transpired. The summary conviction appeal judge dismissed the Crown's appeal. The Court of Appeal allowed the Crown's appeal.

[39] In Letford Goudge J.A. held that to meet the soon as practicable requirement, the police did not have to organize themselves to have a breathalyzer technician available at every detachment at all times or to otherwise organize themselves to have breath samples taken as soon as possible. He stated at para. 17 that the task of the trial judge was "to assess all the circumstances of this case to determine if the breath samples were taken as soon as practicable, that is, within a reasonably prompt time, under the circumstances". Goudge J.A. went on to comment at para. 19: "Where, as here, the way in which the police organized their staff and equipment appears relevant to the time taken until the first breathalyzer test, it and any reason offered for it are matters for the court to consider in determining" whether the samples were taken as soon as practicable. He ordered a new trial so that a proper assessment could be performed.

[40] In this case, the readings were both taken within two hours and I am satisfied that the police acted consistent with their obligation to take the tests as soon as practicable. The fact that Ms. Sookdeo was not taken to the closest police division, which was under construction, is not fatal. Nor is it fatal that the officer was dispatched to 22 Div in Brampton, which was a 27 minute drive away, as opposed to 12 Division in Mississauga, an estimated 12-15 minute drive away. As Letford established, police do not have to organize themselves to have a breathalyzer technician available at every detachment at all times or organize themselves to have breath samples taken as soon as possible.

[41] The delay between arriving at the station and entering the breath room was also accounted for. After a 6 minutes delay upon arrival to 22 Division, Ms. Sookdeo was booked, provided the opportunity to speak to counsel in private and then escorted into the breathroom. As in the case of Vanderbruggen I am satisfied that there was no evidence that the officers gave unreasonable priority to other tasks.

[42] I am also satisfied that there is an explanation for the delay between the time when Ms. Sookdeo entered the breathroom at 2:31am and her first test at 2:51a.m. I am referring to the fact that Ms. Sookdeo made numerous unsuccessful attempts to blow into the instrument and became emotional at 2:45am. In other words, I am satisfied that the delay in taking the first sample was not as a result of police action or inaction.

[43] There was a 25-minute delay between the first and second breath test. The Criminal Code requires police to wait 15 minutes between each blow, leaving an unexplained delay of 10 minutes. In Singh there was an 8-to-11 minute unexplained delay between both samples and the Ontario Court of Appeal upheld the conviction and found that the Crown was not required to call evidence to provide a detailed explanation of what occurred during every minute that the accused is in custody. Similarly, I do not find the unexplained 10-minute delay to be fatal in this case.

Conclusion

[44] In the result, I find there was no s. 11(b) Charter breach in this case. I also find the tests were taken as soon as practicable in the circumstance of this case and therefore Ms. Sookdeo is found guilty of one count of "Over 80".

Released: August 22, 2018

Signed: Justice S. Caponecchia