Her Majesty the Queen v. Carey [Indexed as: R. v. Carey]

83 O.R. (3d) 49

Court of Appeal for Ontario,

Goudge, Juriansz and Rouleau JJ.A.

September 26, 2006

Criminal law -- Drinking and driving offences -- Breathalyzer -- "As soon as practicable" -- Police officer not arriving at scene of accident until more than one hour after accident reported -- 911 caller who witnessed accident did not mention possibility that alcohol was a factor in accident -- First breath sample taken one hour and 40 to 50 minutes after accident -- Crown not required to call evidence of police organization to explain delay if other evidence is sufficient -- Arresting officer's testimony that it was busy night coupled with absence of reference to alcohol in 911 call capable of supporting finding that officer's delay in arriving at scene was reasonable -- Breath samples taken as soon as practicable -- Crown appeal allowed and new trial ordered -- Criminal Code, R.S.C. 1985, c. C-46, s. 258(1)(c)(ii).

The accused was involved in a single vehicle accident, which was reported to the police by a 911 caller at 1:38 a.m. A police officer arrived at the scene at 2:37 a.m., arrested the accused for impaired driving and made a breathalyzer demand. The first breath sample was taken approximately one hour and 40 to 50 minutes after the accident. The accused was charged with driving "over .80". The trial judge rejected the accused's argument that the breath samples were not taken as soon as practicable after the accident as required by s. 258(1)(c) of the Criminal Code. He found that the delay between the accident and the taking of the first sample was explained by the fact that the police did not arrive and commence their investigation until approximately one hour and ten minutes after the accident. The accused was convicted. The summary conviction appeal judge allowed the accused's appeal, holding that the trial judge erred in law by considering only whether the Crown had shown that the breath samples were taken as soon as practicable after the police arrived at the scene, rather than as soon as practicable after the time of the offence as required by s. 258(1)(c)(ii). The summary conviction appeal judge found that there was insufficient evidence to explain the delay prior to the officer's arrival at the scene of the accident and that the Crown had a duty in the circumstances to demonstrate how the police were organized as part of the explanation for the [page50 ]passage of time. As the Crown had not done so, the summary conviction appeal judge found that the Crown had failed to prove that the breath samples were taken as soon as practicable. The Crown appealed.

Held, the appeal should be allowed.

There was no suggestion in this case that the police were not adequately organized to receive and take breath samples promptly. The delay that required explanation occurred before the police had grounds to demand a breath sample. The Crown may meet the burden of demonstrating that breath samples were taken as soon as practicable by calling evidence of police organization, but need not do so if other evidence is sufficient. The arresting officer's testimony that it was a busy night and that other calls were waiting, coupled with the fact that there had been no suggestion in the initial call that alcohol might have been involved in the accident, was capable of supporting a finding that the delayed police arrival was reasonable in the circumstances. It was unnecessary for the Crown to call a senior officer from the detachment or the dispatcher on duty to explain how the police were deployed to the various patrol areas or to provide details about what other calls occupied the police that night.

Both lower court decisions were rendered before the Supreme Court of Canada's decision in R. v. Boucher, which might have been relevant to the trial judge's rejection of the evidence tendered by the accused as evidence to the contrary. As a result, a new trial is ordered rather than reinstating the conviction.

APPEAL from an order of Glithero J. of the Superior Court of Justice, dated May 3, 2005, allowing the accused's appeal from conviction for driving "over 80".

Cases referred to R. v. Letford (2000), 2000 17024 (ON CA), 51 O.R. (3d) 737, [2000] O.J. No. 4841, 150 C.C.C. (3d) 225, 8 M.V.R. (3d) 6 (C.A.), distd Other cases referred to R. v. Boucher, [2005] 3 S.C.R. 499, [2005] S.C.J. No. 73, 259 D.L.R. (4th) 508, 342 N.R. 42, 202 C.C.C. (3d) 34, 2005 SCC 72, 33 C.R. (6th) 32, 25 M.V.R. (5th) 1; R. v. Langlois, [1999] O.J. No. 125, 89 O.T.C. 150, 40 W.C.B. (2d) 502 (Gen. Div.); R. v. Vanderbruggen, 2006 9039 (ON CA), [2006] O.J. No. 1138, 208 O.A.C. 379, 206 C.C.C. (3d) 489, 29 M.V.R. (5th) 260 (C.A.) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 254 [as am.], 255 [as am.], 256 [as am.], 257 [as am.], 258 [as am.]

Philip Perlmutter, for appellant. Richard Prendiville, for respondent.

The judgment of the court was delivered by

JURIANSZ J.A.: --

Introduction

[1] The Attorney General of Ontario seeks to appeal the order of Glithero J. dated May 3, 2005, that allowed the respondent's [page51 ]summary conviction appeal and quashed his conviction on September 9, 2004, for operating a motor vehicle with a blood alcohol concentration "over 80".

[2] Early in the morning of October 10, 2003, the respondent was involved in a motor vehicle collision when the car he was operating left the roadway and struck a light standard. The trial judge found that the accident occurred shortly before 1:38 a.m. when a witness telephoned 911 to report the accident.

[3] During the 911 call, the caller did not mention that alcohol might have been involved. At 2:37 a.m. a police officer on duty in a different patrol area noticed that the call was still outstanding and volunteered to investigate. He arrived on the scene at 2:40 a.m. He arrested the respondent for impaired driving at 2:47 a.m. and took him to the detachment, arriving there at 2:58 a.m. At 3:10 a.m. a qualified technician took breath samples with readings of 180 and 190 mg of alcohol in 100 ml of blood, respectively.

[4] As noted, the trial judge convicted the respondent on the "over 80" charge. The summary conviction appeal judge set aside this conviction and entered an acquittal.

Trial Decision

[5] At trial the respondent submitted that the prosecution had failed to prove that the breath samples were taken as soon as practicable after the accident as required by s. 258(1)(c) (ii) [of the Criminal Code, R.S.C. 1985, c. C-46], and therefore, the Crown could not rely on the breathalyzer results. The trial judge found that the explanation for the delay of approximately one hour and 40 to 50 minutes between the accident and the taking of the first sample was explained by the fact that the police did not arrive and commence their investigation until approximately one hour and ten minutes after the accident. He said:

It is my opinion that the Crown should not be required to go behind the facts indicating when the investigation began, in order to provide a history of the activity at the precinct or the police station which might cover the period of time in question.

[6] The trial judge also rejected evidence proffered by the respondent to rebut the presumption of accuracy of the breathalyzer results and found him guilty of driving "over 80". He dismissed the impaired driving charge.

Decision of the Summary Conviction Appeal Judge

[7] The appeal judge held that the trial judge erred in law by considering only whether the prosecution had shown that the [page52 ]breath samples were taken as soon as practicable after the police arrived on the scene, rather than as soon as practicable after the time of the offence as required by s. 258(1)(c)(ii).

[8] The appeal judge found there was insufficient evidence to explain the delay prior to the police officer's arrival at the scene of the accident. In doing so, he relied on this court's decision in R. v. Letford (2000), 2000 17024 (ON CA), 51 O.R. (3d) 737, [2000] O.J. No. 4841, 150 C.C.C. (3d) 225 (C.A.) for the proposition, which he paraphrased as follows: "in appropriate circumstances the [court] must demonstrate, 'The way the police are organized and why', as part of the explanation for any passage of time within which arguably the breath tests could have been taken more promptly". He said:

If, as, [was] held by the Court of Appeal in Letford, the real reason behind the delay lies in police unavailability then the Crown has to show the way in which the police are organized and why they are organized that way as part of an obligation to explain why the delay is reasonable.

(Underlining added)

[9] Applying this proposition, the appeal judge said:

In my respectful analysis the statement by the responding officer, that we were busy that night, is not sufficient. . . . . .

In my respectful view I am not prepared, allowed or permitted in the circumstances of this case to draw a legal inference that the police had a reasonable explanation available to them for the admittedly sufficient period of time that elapsed so as to require some explanation.

[10] As the Crown had not called evidence of the way the police were organized he found that the prosecution had failed to prove that the breath samples had been taken as soon as was practicable. The appeal judge found that therefore the Crown could not rely on the presumption of their accuracy, allowed the appeal and quashed the conviction.

Analysis

[11] I agree with the appeal judge that the trial judge applied the incorrect legal standard by considering only the time between the officer's arrival on the scene and the taking of the breath samples. However, with respect, I am of the view the principle stated in Letford does not apply to this case. The misapplication of Letford raises a question of law.

[12] In Letford, the taking of the breath samples was delayed because, at the time of the accused's arrest, there was no qualified breathalyzer technician on duty at the arresting officer's [page53 ]O.P.P. detachment. It was necessary to request a breathalyzer technician to attend from another detachment. The trial judge acquitted the accused on the charge of "over 80" because he considered himself bound by the decision in R. v. Langlois, [1999] O.J. No. 125, 40 W.C.B. (2d) 502 (Gen. Div.), which he understood as requiring the Crown to have a breathalyzer available at every detachment at all times or otherwise organize themselves to have breath samples taken as soon as possible. Consequently, he found the breath samples had not been taken as soon as practicable and acquitted the accused. The summary conviction appeal judge dismissed the Crown's appeal.

[13] The Crown's appeal in Letford to this court was allowed. Goudge J.A. observed 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.

[14] It is worth noting that the delay in Letford occurred after the driver had been detained and the breath demand had already been made. As I understand it, the way the police were organized in Letford appeared relevant because they were not prepared to receive and take breath samples promptly after becoming possessed of grounds sufficient to make a demand. The facts of this case are different from those in Letford. Here, the delay that requires explanation occurred before the police had the grounds to demand a breath sample. There is no suggestion in this case that the police were not adequately organized to receive and take breath samples promptly.

[15] More importantly, the basic question for the court in this case, as it was in Letford, is whether, in all the circumstances, the Crown has demonstrated that the breath samples were taken as soon as practicable. Letford stands for the proposition that the Crown may meet the burden by calling evidence of police organization but need not do so if other evidence is sufficient. [page54 ]

[16] In my view, the arresting officer's testimony that it was a busy night and that other calls were waiting coupled with the fact that there had been no suggestion in the initial call that alcohol might have been involved in the accident was capable of supporting a finding that the delayed police arrival was reasonable in the circumstances. It was unnecessary for the Crown to call a senior officer from the detachment or the dispatcher on duty to explain how the police were deployed to the various patrol areas or to provide details about what other calls occupied the police that night. In my respectful view, the other possible inferences suggested by the appeal judge, for example that there might have been 14 murders in town that night, were speculative.

[17] The comments of Rosenberg J.A. that Parliament enacted ss. 254 and 258 [of the Criminal Code] to expedite trials should be kept in mind when applying these sections. In R. v. Vanderbruggen, 2006 9039 (ON CA), [2006] O.J. No. 1138, 206 C.C.C. (3d) 489 (C.A.), he said at para. 16:

To conclude, these provisions, which are designed to expedite trials and aid in proof of the suspect's blood alcohol level, should not be interpreted so as to require an exact accounting of every moment in the chronology. We are now far removed from the days when the breathalyzer was first introduced into Canada and there may have been some suspicion and scepticism about its accuracy and value and about the science underlying the presumption of identity. These provisions must be interpreted reasonably in a manner that is consistent with Parliament's purpose in facilitating the use of this reliable evidence.

(Emphasis added)

Conclusion

[18] For these reasons, I would grant leave to appeal, allow the Crown's appeal and order a new trial.

[19] I note that the decisions of both courts below were rendered before the Supreme Court of Canada released its judgment in R. v. Boucher, 2005 SCC 72, [2005] 3 S.C.R. 499, [2005] S.C.J. No. 73, 202 C.C.C. (3d) 34. The Crown recognizes that objection could be taken to the trial judge having considered the breath test results in rejecting the evidence to the contrary proffered by the respondent. For this reason as well, I would order a new trial.

Appeal allowed. [page55 ]