Court File and Parties

COURT FILE NO.: AP-18-04 DATE: 2018-08-29 ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HER MAJESTY THE QUEEN Appellant

A. McLean, for the Crown

- and -

TOBY REEVES Respondent

Self-Represented

HEARD: August 10, 2018

A.J. Goodman J.:

REASONS FOR JUDGMENT

(On Appeal from the Honourable Justice Zivolak)

1This is an appeal against acquittals entered on October 17, 2017 by Zivolak J. of the Ontario Court of Justice at Hamilton, Ontario.

2The respondent, Toby Reeves (“Reeves”) was acquitted on charges of impaired operation and operating a motor vehicle with a blood alcohol content exceeding 80 milligrams contrary to their respective Criminal Code provisions.

3In the Notice of Appeal, the appellant raised four grounds of appeal; namely, that the trial judge misapprehended the evidence and erred in law in making findings of fact that were not available on the evidence; the judge erred in determining the samples were not taken as soon as practicable; the judge failed to properly consider the cumulative effect of the various indicia of impairment, and the judge erred in law in ruling that s. 24(2) mandated exclusion of the results of the suitable breath samples.

4The focus of the appeal is that the trial judge committed an error with respect to the “as soon as practical” requirements in s. 258(1)(c) and the failure to assess the cumulative evidence adduced by the prosecution.

5While the respondent was represented by counsel at trial, he represented himself during the course of submissions on this appeal.

The Evidence at Trial:

6Shortly after 12:45 a.m. on Tuesday, June 14th, 2016 Constable John Arcaro (“Arcaro”) was dispatched for a possible impaired driver leaving the Fool and Flagoon pub on Barton Street East in Hamilton. Dispatch provided the licence plate of the vehicle and Arcaro was able to determine the registered owner’s address. Arcaro was in the general vicinity of that address so he headed for 639 Brighton Avenue. As Arcaro approached Brighton Avenue, he observed a pickup truck reversing into the driveway of 639 Brighton Ave. The vehicle matched the description he had been provided. Arcaro parked in front of the driveway and as he approached the driver, Reeves turned off the vehicle and exited. Arcaro noted Reeves was having difficulty exiting the vehicle.

7Arcaro then approached Reeves and engaged him in conversation. He noted a heavy odour of alcohol on his breath. Reeves responded that he had just returned from Dollarama. Arcaro noted that Dollarama was obviously closed at this time (12:45 a.m.).

8When Arcaro demanded Reeves’ license and insurance, the respondent appeared extremely confused. Once Reeves retrieved his wallet from the vehicle he had difficulty picking out his driver’s licence. The officer could clearly see the driver’s license, yet Reeves repeatedly retrieved other documents from the wallet. During the conversation the officer noted Reeves’ eyes to be glassy and his speech was slurred. The officer believed he was obviously impaired by alcohol and arrested him for impaired operation of a motor vehicle.

9Reeves was placed under arrest at 12:54. Reeves had difficulty walking to the cruiser and had to be assisted by the officer. At this time Arcaro provided Reeves with his rights to counsel. Reeves did not invoke his right to counsel, nor did he request the assistance of duty counsel.

10Arcaro was operating a police paddy wagon on this evening, so Reeves was transported to the police station by P.C. Maddick (“Maddick”). When Maddick arrived, Reeves was immediately placed into the rear of her cruiser. Everyone departed Brighton Ave at 1:01 a.m. During transport Maddick noted that her entire cruiser filled with the smell of booze and Reeves was making grunting noises.

11Between 1:01 a.m. and 1:29 a.m. the respondent was transported from Brighton Ave to the Central Police station, arriving at 1:11 a.m; searched upon arrival; spoken to by the custody sergeant, and lodged in his cell. At 1:21 a.m., duty counsel is called. The respondent speaks with duty counsel at 1:24 a.m.

12During this time period, the qualified Breath Technician P.C. Vince Arriema (“Arriema”) was notified he was required at Central Station. He arrived at 1:09 a.m. and began preparing the breathalyser at 1:15 a.m. He testified he was ready for Reeves right around when he was turned over to him at 1:29 a.m. At 1:29 a.m. Arcaro turns custody of Reeves over to the breath technician.

13Reeves provided the first suitable breath sample at 1:34 a.m. The reading was 181 milligrams of alcohol in 100 millimeters of blood. The second suitable sample was received at 1:58 a.m. and the reading was 184 milligrams of alcohol in 100 millimeters of blood.

14The trial judge found the following facts at pp. 1-2 of her judgment:

So, dealing first with the issue as soon as practicable. The factual background that relates to this issue is largely not in dispute. Officer Arcaro (ph) received or heard a dispatch at approximately 12:45 a.m. on the day in question, regarding a possibly impaired driver leaving the Fool & Flagon bar. He then observed the defendant before the court operating a motor vehicle at the same time, 12:45 or perhaps 12:46, he indicated, backing into a driveway. It was a Chevy Silverado. His subsequent observations, conversation, identification of the defendant led him to arrest him at 12:54 a.m.; providing Charter rights and cautions to follow, and at 12:57, he gave him the breath demand. At 1:01, according to Officer Arcaro, but according to Officer Maddock (ph), who did the actual transport at 1:04 a.m., he was taken from that location to the Central Station, arriving at 1:11. At 1:21, a call was placed to duty counsel by Officer Maddock. At 1:24, the defendant spoke directly to duty counsel and upon completing the call was taken directly to the breathalyzer room at 1:29. There was an indication that Officer Arriama (ph) was ready at that time.

As it relates to Officer Arriama, the breath technician’s evidence on that point, he had heard he was required at 12:56 a.m. to conduct the breath test and arrived at Central Station at 1:09 a.m. At 1:15 a.m., he commenced the preparation in the breathalyzer room. At 1:29, he received the defendant who was turned over to him. His evidence as to when he was ready was, “I would have been ready around 1:29 a.m.” The first reading was taken at 1:34 and the second at 1:58 a.m. So the first reading was taken some five minutes after the defendant was received by the breathalyzer technician.

Positions of the Parties:

15Mr. McLean, for the Crown submits that the question becomes one of an error in law in arriving at the conclusion that the Crown did not establish the facts related to the respondent’s ability to operate a motor vehicle was impaired. The appellant is advancing his position on this latter point from a standpoint of a misapprehension of the evidence for a finding of impairment.

16The trial judge failed to consider the overwhelming evidence of impairment. The respondent had an “enormous” smell of alcohol, he had difficulty exiting his vehicle and walking to the cruiser, he had difficulty finding his licence and appeared confused, his speech was slurred and his eyes were glossy. The trial judge improperly applied the legal and factual test for impairment as the evidence amply supports the conclusion that the appellant’s ability to operate a motor vehicle was impaired by alcohol. Second, the trial judge did not evaluate the evidence in its totality, rather took a piecemeal approach to distinct signs of indicia of impairment.

17In respect of the driver with blood alcohol over 80 mg count, the appellant submits that the trial judge made several palpable and overriding errors in her assessment of the facts in deciding that the Crown failed to show that the tests were taken as soon as practicable. The Crown submits that the trial judge’s analysis of the relevant law runs contrary to binding appellate jurisprudence. The appellant submits that this court can and ought to substitute its finding for that of the trial judge as there was an error of law and her verdicts are unreasonable.

18The respondent submits that the trial judge did not err and that the breath tests were not taken as soon as practicable. The respondent adds that he believes that he should have been offered breath testing at the scene. The respondent submits that the trial judge properly assessed the evidence and did not make any error in regards to the lack of evidence supporting impairment.

Discussion:

19Here, there are two areas of complaint under consideration. The appellant frames the issues regarding the driving over 80 mg charge as an error of law. With regards to the count of impaired driving, the Crown submits that this is an unreasonable verdict from a misapplication of the facts.

20It is settled law that when considering unreasonable verdict or an error in the trial judge’s overall assessment of the evidence, an appellate court is not entitled to re-try the case and substitute its view of the evidence. Rather, the court must thoroughly re-examine and to an extent at least, conduct a limited re-weighing and consider the effect of the evidence: R. v. W.(R.), [1992] 2 S.C.R. 122.

21The question is not whether the evidence is capable of raising a reasonable doubt or whether another judge might have convicted the respondent. The question is whether the verdict was one that a properly instructed jury or judge acting reasonably could have reached: R. v. Biniaris, [2000] 1 S.C.R. 381, R. v. Yebes, [1987] 2 S.C.R. 168.

22An appeal court ought to afford deference to findings of fact made by a trial judge who has had the opportunity to see the witnesses and assess their credibility. An appellate review takes the facts as found by the trial judge and upon a limited review can reject those findings only where it can be shown that the trial judge committed a palpable and overriding error, or made findings of fact that are clearly wrong, unreasonable and unsupported by the evidence.

Legal Principles:

23For the first segment of the appeal, the meaning of “as soon as practicable” is germane to the analysis.

24Section 258(1)(c)(ii) 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, provided certain other conditions are fulfilled, 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 in the absence of evidence to the contrary.

25The preponderance of authorities provide that the phrase “as soon as practicable” means nothing more than that the tests were taken within a reasonably prompt time under the circumstances: 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; R. v. Carter (1980), 55 C.C.C. (2d) 405 (B.C.C.A.).

26The Crown does not have to account for every minute between the time of the arrest and the time the samples were taken. The question is whether the conduct of the police between the time of the arrest and the time of the test was reasonable having regard to all the circumstances: R. v. Phillips; R. v. Payne (1990), 56 C.C.C. (3d) 548 (Ont. C.A.); R. v. Seed, [1998] O.J. No. 4362 (Ont. C.A.); R. v. McCarthy (1981), 64 C.C.C. (2d) 280 (Nfld. C.A.); R. v. Carter (1981), 59 C.C.C. (2d) 450 (Sask. C.A.); R. v. Rassmussen (1981), 64 C.C.C. (2d) 304 (B.C.C.A.); R. v. Cambrin (1982), 1 C.C.C. (3d) 59 (B.C.C.A.). There is "no need to explain every incident which occurred from the time the offence is alleged to have been committed until the samples were taken unless the trial judge on the evidence before him is not satisfied the samples were taken as soon as practicable ": R. v. Carter (1981), at 453; As soon as practicable does not mean as soon as possible: R. v. Phillips; R. v. Altseimer (1982), 1 C.C.C. (3d) 7 (Ont. C.A.); R. v. Payne.

27The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably: R. v. Payne, at 552; R. v. Carter (1981), at 453; R. v. Van Der Veen (1988), 44 C.C.C. (3d) 38 (Alta. C.A.) at 47; R. v. Seed; R. v. Clarke, [1991] O.J. No. 3065 (C.A.).

28If the Crown has not established that the tests were taken as soon as practicable then it cannot rely on the presumption in s. 258(1)(c).

Application of the Legal Principles to this Case:

Drive Over 80 mg:

As soon as practicable – s. 258(1)(c)(ii)

29Did the trial judge err in relying on the call to duty counsel as an unreasonable delay, without considering it in the context of the entire investigation? Did the trial judge err in finding the police did not obtain the breath samples as soon as practicable?

30The phrase as soon as practicable in s. 258 means that the test must be taken within a reasonably prompt time under the circumstances. There is no requirement for the tests to be taken as soon as possible. The question is whether the police acted reasonably: R. v. Vanderbruggen (2006), 206 C.C.C. (3d) 489 (Ont. C.A.) at para. 12.

31A trial judge is required to look at the whole chain of events, while bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence and the taking of the first test. The Crown need only prove, in all the circumstances, the samples were taken within a reasonably prompt time, there does not need to be a detailed explanation of what occurred during every minute the accused was in custody: Vanderbruggen at para. 13.

32The factual record provides the following timeline:

• 12:54 a.m. arrest made (demand made, rights to counsel provided, searched);
• 1:01 a.m. Respondent lodged in Maddick’s cruiser;
• 1:04 a.m. P.C. Maddick departs scene;
• 1:11 a.m. arrive at Central station (speak to custody sergeant, searched again, lodged in cell);
• 1:09 a.m. P.C. Ariemma arrives at Central station;
• 1:15 a.m. P.C. Ariemma begins preparing for breath samples;
• 1:21 a.m. call to duty counsel is made;
• 1:24 a.m. Respondent speaks to duty counsel (although he did not request to do so and waived his s. 10(b) rights);
• 1:29 a.m. P.C. Ariemma ready for breath tests and at 1:29 a.m. Respondent turned over to breath technician.
• 1:34 a.m. first sample is taken, followed by the second sample at 1:58 a.m.

33The trial judge stated the relevant legal principles at page 6:

H ow does that impact the time that was taken? So, pursuant to the factual summary, between 1:21 when the officer made the call and 1:29 when Mr. Reeves was off the call was 8 minutes. That’s the record, although it’s not the clearest. There were two police officers it would appear, handling Mr. Reeves, both the arresting officer, Officer Arcaro and Officer Maddock, who did the transport. But whatever economies may have been presented by more than one police officer dealing with the defendant, these should not be credited against the defendant or, conversely, they should not be added back as extra time into the equation. The responsibility remains with the police and that is to act as soon as practicable in the circumstances. Everything needs to be analyzed to determine if it’s reasonable.

As a matter of law, as discussed by Justice Hill in his adoption of the Davidson analysis, the police must act reasonably, given the totality of the circumstances. And as referenced in Vanderbruggen, the 2-hour clock, in essence, is ticking; that the tests, the first one sample needs to be taken within 2 hours. That’s the outside window. But it is also, “to be taken as soon as practicable.” Vanderbruggen is specific and clear that it’s not as soon as possible and therefore all of the circumstances need to be analyzed to determine the police were acting reasonably.

Vanderbruggen makes it clear the touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably. It’s clear this is not a situation that the police said, oh, the breath technician is not ready, perhaps we should use this time and give the defendant an opportunity to talk to duty counsel, even though he said he didn’t want to, we have lots of time to spare. This is not the situation and this is not the process. Certainly, the analysis would be different had that been the factual background.

34At trial, the respondent relied on R. v. MacCoubrey, 2015 ONSC 3339, in arguing that calling duty counsel in the face of an express waiver constituted an unreasonable delay in the context of obtaining the samples as soon as practicable.

35In MacCoubrey, Hill J. sitting as a summary conviction appeal judge, opined at paras. 33 and 34:

The legal test for determining whether the breath tests were administered "as soon as practicable" is well established: R. v. Vanderbruggen (2006), 206 C.C.C. (3d) 489 (Ont. C.A.): R. v. Crewson, 2015 ONCA 264, at para. 1; R. v. Singh, 2014 ONCA 293, at para. 13.

At paras. 12 and 13 of the Vanderbruggen decision, the court determined that the obligation on the police is to take the samples "within a reasonably prompt time under the circumstances" which is not the equivalent of administering the tests as soon as possible. In deciding whether the tests were taken as soon as practicable, a trial court must look to the entire chain of events of a motorist's custody for the purpose of intoxilyzer tests (Vanderbruggen, at para. 13; Crewson, at para. 3, Singh, at paras. 14-15)"bearing in mind that the Criminal Code describes an outside limit of two hours for administration of the first test": Vanderbruggen, at para. 13.

36In this case, the trial judge found that the police acted unreasonably in contacting duty counsel in the face of the respondent’s express waiver. Zivolak J., at page 8, stated that the eight minutes was “not insignificant in the total time of the analysis, and therefore, in my mind, applying the appropriate law, it is not reasonable in the circumstances and accordingly the tests were not taken as soon as practicable”.

37In Vanderbruggen, there was a delay of one hour and 15 minutes from the time of the offence to the taking of the first breath sample. Evidence was offered to explain the delay. The defence alleged there was a 46 minute gap for which the Crown failed to account. The court held at para. 14, that "the Crown adduced sufficient evidence before the trial judge on which he could conclude the police had acted reasonably and that the breath samples were taken as soon as practicable in all the circumstances." There was evidence from another officer that she informed the technician of her grounds, watched the breath technician playing around with the equipment, he told her it should be just a short time before he was ready to do the first test, and she did not see him engaged in any other duties. At paras. 12 to 14, Rosenberg J. stated:

That leaves the question that is the heart of this appeal - the meaning of as soon as practicable. Decisions of this and other courts indicate that the phrase means nothing more than 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, [1979] A.J. No. 613, R. v. Coverly (1979), 50 C.C.C. (2d) 518 (Alta. C.A.) at 522. 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), 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 (Ont. C.A.).

In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The "as soon as practicable" requirement must be applied with reason. 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.

Whether the samples were taken as soon as practicable in this case was an issue of fact for the trial judge. See R. v. Lightfoot (1980), 4 M.V.R. 238 (Ont. C.A.) and R. v. Renda, [2005] O.J. No. 1453 (C.A.).

38In R. v. Belfiore, [2007] O.J. No. 2614 (Sup. Ct.) as an appeal court, the trial judge was held to have erred and failed to consider the extent of the evidence in concluding there was no explanation for a 14 to 15 minute gap in the time line. The trial judge erred by placing a burden on the Crown to explain each minute of elapsed time rather than focusing on whether the police had acted reasonably and expeditiously in all the circumstances. The trial judge also failed to consider the officer’s testimony of what they did during that time frame. The Summary Conviction Appeal Court held that there was sufficient evidence from which the trial judge could have concluded the police acted reasonably and that the samples were taken as soon as practicable in all the circumstances.

39In R. v. Bugler, [1997] O.J. No. 2283 (C.A.) there was no explanation for a forty minute delay between the tests. The presumption was not available. In R. v. Blacklock, [2008] O.J. No. 1472 (Sup. Ct.) where there was an unexplained 32 minute delay between samples, Fedak J. recognized that in Vanderbruggen the Court of Appeal found there was some reasonable and satisfactory evidence upon which the trial judge found the delay was explained. "Absent such explanation, there is no evidentiary basis upon which to support a statement that the test was taken as soon as practicable and therefore the Crown should not be able to rely on the presumption”: at para. 28.

40In R. v. Chung, [2009] O.J. No. 1546 (Sup. Ct.) as an appeal court, upheld the trial judge’s finding that the samples were not taken as soon as practicable as there was an 18 minute delay in inquiring as to the location of a qualified technician. In that case, there was no explanation offered.

41In R. v. Williams, [2000] O.J. No. 4740 (Sup. Ct.) the conviction was quashed as it had not been established that the tests were taken as soon as practicable. Twenty-five minutes of the timeline were lost while two officers waited for each other. There was no evidence accounting for that delay. The summary conviction court referenced R. v. McInnis, [1989] O.J. No. 1867 (Dist. Ct.): "Delays will inevitably occur in the course of administering these tests. Some of these will be reasonable and may be explained in light of the many duties imposed on police officers. Other delays may be totally unnecessary. It is incumbent on the Crown to put forward an explanation where the delay is significant."

42Recognizing it is the total time frame that must be examined, not whether each discrete portion is reasonable in and of itself, the main area of concern here is the 8 minutes when the respondent was in contact with duty counsel, against his desire and waiver.

43While the question does not become one of whether the officer acted reasonably or not, the Crown does not have to account for every minute. In the case at bar, there is information about what was occurring in the impugned eight minute delay.

44Is there evidence explaining the delay and in the context of the entirety of the circumstances. Did the delay impact on the as soon as practicable test?

45The question is whether the conduct of the police between the time of the arrest and the time of the test was reasonable having regard to all the circumstances.

46While the trial judge quoted from the appropriate jurisprudence, the trial judge fell into error here in her analysis and conclusion in deciding whether the tests were taken as soon as practicable.

47Indeed, 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: R. v. Letford (2000), 150 C.C.C. (3d) 225 (Ont. C.A.) at para. 20.

48Respectfully, the judgment appears to place an unreasonable onus on the police to march an accused to the breath room with absolutely no time delay. Essentially adopting the “as soon as possible” standard that was clearly rejected in Vanderbruggen, and Singh. Again, reasonableness applies to the entire chain of events, not just periods of delay.

49The trial judge referenced the MacCoubrey and Davidson line of cases. At trial, defence counsel submitted that MacCoubrey stands for the proposition that when police ignore an informed waiver and still delay by calling duty counsel, any delay arising from this conduct all but negates the legal test that the samples are not taken as soon as practicable. In my view, that assertion, apparently adopted by the trial judge, overstates the case.

50At para. 25 of MacCoubrey, Hill J. references the trial judge’s decision:

… Speaking to duty counsel did not on the facts here, involving custody and control by the police, evidence a change of mind -- the appropriate characterization was that the respondent simply ended up "acquiescing to the police requirement that he speak to counsel" before the intoxilyzer testing. The delay to unnecessarily contact duty counsel was significant enough in duration to have caused the tests not to be taken as soon as practicable, a conclusion fatal to the admissibility of the prosecution's certificate evidence as to the blood/alcohol readings.

51At para 42, Hill J. goes on to state:

Unless a detainee, having been fully informed of his or her s. 10(b) Charter right, invokes the right there is no correlative duty upon the police to have the detainee exercise the right of contacting counsel: Bartle, at paras. 18, 21. While, in an ordinary case, the police might voluntarily provide an arrestee access to consult counsel without criticism despite not being requested to do so, that option is not reasonably available in a drinking/driving investigation where the state intends to rely on the s. 258(1)(c)(ii) evidentiary process at trial. In other words, a detour by the police to implement unrequested access to counsel has serious ramifications as to whether it can reasonably be said that breath samples were taken as soon as practicable.

52Hill J. adopted the trial judge’s analysis and conclusion at para. 46. The concepts of “significant enough in duration” and “serious ramifications” must be considered in the context of the each case.

53While these cases address the issue of an accused’s waiver to speak with counsel and the concomitant obligations of the police; with respect they do not stand for the proposition that any time a call to counsel is made in the face of a waiver it will result in the samples not being taken as soon as practicable. It does not follow that the test is mechanically vitiated by virtue of the police actions causing a brief delay in contacting duty counsel. The totality of the circumstances must be considered.

54Recall that in Davidson the delay was 35 minutes and it MacCoubrey it was 33 minutes. In each of those cases that delay was significant in the context of the two hour upper limit.

55As mentioned, in deciding whether the tests were taken as soon as practicable, a trial court must look to the entire chain of events of a motorist's custody for the purpose of intoxilyzer tests: Singh, at paras. 14-15. While this cannot be interpreted as an invitation to the police to delay the taking of the samples to a point just inside the two-hour temporal limit, s. 258(1)(c)(ii) must be interpreted in a manner consistent with Charter principles and reasonableness, not exactitude.

56While it is true that delay occasioned by a call to duty counsel after an explicit or informed waiver could and would likely accrue as unjustified delay, that is not what occurred in this case.

57With respect, the trial judge failed to consider the call to counsel in context of the entire chain of events. Had she considered it in that manner she would have found that the unnecessary call to duty counsel caused no actual delay in the taking of the breath samples.

58In the context of this investigation that makes eminent sense. The respondent was only arrested 35 minutes earlier. Ariemma testified that he was ready for the respondent right around 1:29 a.m. It is hard to imagine a more prompt investigation taking place. The call to duty counsel amounted to no additional delay because Ariemma was preparing the instrument as was necessary between 1:15 a.m. and 1:29 a.m. It is reasonable to account for some necessary time to allow the breath tech to set up and test the breathalyzer.

59I agree with the Crown that it appears the trial judge penalized the police for being very efficient. Indeed, from start to finish is about one hour. The first sample in this case was taken 40 minutes after the respondent was arrested. This was not a case where the breath tech was waiting for the respondent to finish his call with counsel before administering the test and thereby causing delay in receiving the samples. Even if it did cause some delay, the call to counsel was not fatal to the “as soon as practicable” test, as it took only eight minutes in the course of an extremely prompt investigation.

60I also agree with the Crown that it is unreasonable to conclude an eight minute period of unjustified delay in the context of an investigation that lasted 64 minutes as failing to meet the as soon as practicable standard. Again, this was an extremely prompt and expeditious impaired investigation – keeping in mind the outside limit for the first sample is two hours.

61Because the test invokes reasonableness, and not adherence to any precise mathematically-controlled timeframe to the taking of samples, some flexibility is essential having regard to the totality of the circumstances of any particular case.

62Here, there is an explanation about the delay in reference to the entire timeframe and the totality of the circumstances. Therefore, in my opinion, the trial judge failed to consider the call to counsel, the entire time period, which on the evidence, did not delay the taking of the samples and did not occasion any delay.

63In my view, the Crown adduced sufficient evidence before the trial judge from which the only reasonable conclusion is that the police acted reasonably and that the breath samples were taken as soon as practicable in all the circumstances. Even if there is some criticism with the police conduct in having the respondent contact duty counsel, in the context of the two hour limit that is provided in the Code, the trial judge’s finding is unreasonable.

64As I have found an overriding and palpable error based on misapplication of the relevant legal principles with a misapprehension of the evidence, the Crown requests that a conviction be substituted.

65In addressing the appropriate remedy, I am mindful of R. v. Morin, [1992] 3 S.C.R. 286, where the Supreme Court of Canada stated at para. 16:

If a trial judge finds all the facts necessary to reach a conclusion in law and in order to reach that conclusion the facts can simply be accepted as found, a Court of Appeal can disagree with the conclusion reached without trespassing on the fact-finding function of the trial judge. The disagreement is with respect to the law and not the facts nor inferences to be drawn from the facts. The same reasoning applies if the facts are accepted or not in dispute. In this situation, the court can arrive at the correct conclusion in law without ordering a new trial because factual issues have been settled. Examples of this type of error of law can be found in Belyea v. The King, [1932] S.C.R. 279, Ciglen v. The Queen, [1970] S.C.R. 804, Poitras v. The Queen, [1974] S.C.R. 649, Johnson v. The Queen, [1975] 2 S.C.R. 160, and Fotti v. The Queen, [1980] 1 S.C.R. 589.

66I am unable to conclude that the error falls under the correctness standard of a mistake in law. I accept that the question of whether samples were taken as soon as practicable remains an issue of fact for the trial judge: Vanderbruggen, at para. 14, Singh, at para. 16, R. v. Renda, [2005] O.J. No. 1453 (C.A.). I must decline the Crown’s remedy of substituting a conviction for the acquittal.

Impaired Driving

67Did the trial judge fail to consider the cumulative effect of all of the evidence as it relates to the issue of impairment by alcohol?

68The determination of impairment from the totality of the evidence is not a question of law. It is a question of fact derived from the totality of the evidence adduced at trial: R. v. Andrews, 1996 ABCA 23 at para. 23, 104 C.C.C (3d) 392. The appellant’s reference to cases wherein appellate courts have found a dearth of signs of impairment leading to an acquittal cannot change the scope of the analysis and review from one of question of fact to a question of law.

69Before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out: R. v. Stellato, 1993 ONCA 3375 at para. 14, 12 O.R. (3d) 90.

70As my colleague stated in R. v. Goolcharan, 2011 ONSC 3442 at paras. 4-5, the “issue to be decided on this appeal is not whether, in the appellate court’s view, the evidence at trial led exclusively to the conclusion that the appellant’s ability to drive was impaired by alcohol but whether it was open to the trial judge to come to that conclusion on the whole of the evidence”.

71As such, an appellate court is entitled to review, re-examine and re-weigh the evidence for the purpose of determining if it is reasonably capable of supporting the trial judge’s conclusion. The Criminal Code prohibits a de novo assessment of the evidence in which the appellant court substitutes its own view for that of the trier of fact: R. v. Biniaris, [2000] 1 S.C.R. 381 at paras. 19-24.

72The trial judge decides a question of fact based on the totality of the evidence. A trial judge’s findings of fact and inferences from facts can only be overturned if the judge committed a palpable and overriding error. With respect, I find that to be the case here.

73Proof of impaired driving does not require evidence of gross physical symptoms. The trier of fact must be satisfied that accused’s ability to operate a motor vehicle was impaired by alcohol to some degree. In this case, Zivolak J. properly identified the legal test for impaired operation of a motor vehicle. Whether the indicia of impairment were sufficient to support a conviction for impaired driving was an issue at trial. The trial judge heard the evidence and submissions of counsel on this issue.

74As I have found an error with respect to the first ground of appeal, I need not spend much time on this segment.

75Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road: R. v. Bush, 2010 ONCA 554 at para. 47, 101 O.R. (3d) 641.

76While Bush was a case about reasonable and probable grounds, its approach to the assessment of indicia of impairment is equally applicable to the question of impairment. In Bush, the Court of Appeal cautioned dissecting the individual indicia of impairment in isolation. The test does not involve a scorecard noting which indicia are present and which are absent. It is the totality of the circumstances which must be considered: at paras. 54-58.

77I tend to agree with the Crown that the trial judge took a piecemeal approach to the evidence. It appears that the trial judge fell into error by reviewing each of Arcaro’s individual observations and then having them dissected. In this exercise, the trial judge then ultimately discounted these and other indicia before considering the cumulative effect each of these observations had on the issue of impairment. On this record, there appears to be an abundance of signs of impairment that must be considered cumulatively based on a proper assessment of the constellation of factors.

78No doubt, Zivolak J. was in the best position to determine if the evidence presented met the legal test for impairment as set out in Stellato and its progeny. As observed in her judgment at pages 12-13:

The response that he was coming from Dollarama. Was it sarcastic or was it the ramblings of someone who was intoxicated by alcohol? There’s no other evidence of confusion. The arresting officer did use the word confusion but didn’t explain it any further. There’s no suggestion that the defendant didn’t understand his rights to counsel, the officer conducted himself on the basis of responses that he received.

So, what am I left with? Totality of the circumstances. Yes, it would appear there was an overwhelming smell of alcohol. It was noted by at least two of the three officers. The third noting it as moderate. Evidence of consumption only, not impairment. Glossy or glassy eyes. Again, two out....

79After subjecting the many indicia of impairment adduced in evidence to individual and isolated dissection, the trial judge stated that she is left with only an overwhelming smell of alcohol and glossy eyes to consider as the “totality of the circumstances”.

80With respect, the trial judge referred to the “totality of circumstances” but failed to apply the evidence to the appropriate test. Had the trial judge considered the various indicia collectively, and given weight to their cumulative effect, the alternative explanations would have had no air of reality in a case where the police evidence was challenged. Absent some evidence to the contrary, the indicia of impairment such as glossy eyes and an odour of alcohol can be relied upon when married to other indicia of impairment.

81I am persuaded that the trial judge engaged in the exact impermissible reasoning cautioned against in the jurisprudence. The judge failed to address the constellation of factors in her assessment, rather, employed a piecemeal approach and then considered what remained to arrive at her decision.

82To paraphrase the discussion in Villaroman, while not every trier of fact would inevitably have reached the same conclusion as did the trial judge, as long as the conclusion reached was a reasonable one. Indeed, this review is not whether I might have come to a different determination. However, I am not satisfied that the trial judge considered the evidence cumulatively, rather she evaluated individual components on a piecemeal basis: R. v. Censoni, [2001] O.J. No. 5189 at para 44-47; R. v. Randall, 2015 ONSC 5892.

Conclusion:

83In addressing the drive with blood alcohol over 80 mg count, the learned trial judge erred in regards to the application of the facts to the relevant legal principles in addressing the issue of whether the breath samples were taken as soon as practicable.

84With respect to the impaired driving count, I find that the trial judge committed an overriding and palpable error by misapprehending the totality of evidence on this pivotal issue. Both errors warrant appellate intervention.

85Therefore, the appeal is allowed and the acquittals on both counts are set aside.

86The matter is remitted back to the Ontario Court of Justice for a new trial. The Crown attorney shall make the appropriate arrangements to have the respondent re-attend at the Ontario Court of Justice to set a date for trial as soon as possible.

A.J. Goodman, J.