Court File and Parties

Court File No.: Toronto Region Ontario Court of Justice

Between:

Her Majesty the Queen

E. Rokach, for the Crown

— And —

Faheem Samad

J. Rabinovitch, for the accused

Heard: April 23, May 7, 2012

FELDMAN J.:

[1] Charge and Plea

Faheem Samad entered a not guilty plea to a charge of Blow Over 80. It is alleged he was driving his motor vehicle with more than the legal limit of alcohol in his system.

[2] Charter Challenge and Blended Hearing

In a blended hearing, Mr. Samad argued that his Charter rights under sections 8 and 9 were infringed and that as a result the Intoxilyzer results should be excluded under s. 24(2). He says that on the evidence this is so for reasons that include the officer lacking reasonable and probable grounds to arrest him, that the defendant's fail result following roadside breath testing is questionable because there is a reasonable doubt the instrument was in proper working order and finally, that the breath tests were not taken as soon as practicable.

[3] Crown Evidence and Burden of Proof

The Crown called two police officers in support of its case. In making my findings of fact, I must weigh the reliability of that evidence. I am mindful of the prosecution's onus of proof.

The Evidence

[4] Initial Police Observation

On May 9, 2011, at 2:58 a.m., P.C. Bradley Ste-Croix was operating an unmarked cruiser eastbound on Lawrence Ave. east in Scarborough in a posted 60 kmh. zone. He had just completed participation in a Ride program and was on his way back to Traffic Services. P.C. Tammy Barclay was part of that team and was driving behind him in her own police vehicle.

[5] Traffic Stop

P.C. Ste-Croix observed the accused driving in front of him at a very low rate of speed, possibly half the speed limit. He told the court that after Mr. Samad pulled sharply to his left and then immediately in the opposite direction he activated his emergency equipment indicating that the defendant should pull over. He says the defendant continued a short distance and then drove into a driveway at a housing complex east of Scarborough Golf Club Rd where he stopped. Mr. Samad did not live there.

[6] Observations by Second Officer

From her vantage point, P.C. Barclay described the defendant as having swerved erratically, not maintaining his lane and starting to slow down. She pulled over to assist her colleague as she saw there were multiple occupants in Mr. Samad's vehicle. The defence does not challenge the basis for the police stop.

[7] Initial Roadside Investigation

P.C. Ste-Croix noted four occupants in the car. At the driver's open window he demanded that the defendant produce his documents. He smelled alcohol coming from the car and asked Mr. Samad to step outside in order to isolate the smell. He testified that after the accused got out he was unsteady on his feet, as well as slow but appropriate in his answers. Although not in his notes, he said he smelled alcohol on the defendant's breath. Mr. Samad told the officer he had consumed one beer that evening.

[8] Corroborating Observations

P.C. Barclay stood beside her colleague during this initial part of the investigation and recalled that the defendant was leaning forward, was unsteady on his feet and having trouble grasping his documents from a plastic folder. As he was speaking, she, too, smelled alcohol on Mr. Samad's breath.

[9] Roadside Breath Demand

P.C. Ste-Croix testified that as a result of his observations and the defendant's admission he had suspicion that Mr. Samad had alcohol in his system. At 3 a.m., he demanded that the defendant provide a sample of his breath into a roadside instrument, one he had used earlier in the evening and found then to be in proper working order. He said he would not have made the demand without having smelled alcohol coming from the accused's breath.

[10] Roadside Breath Testing

The officer set up the machine and explained the process to his detainee. He found the defendant's first two attempts to be unsuitable, but received what he believed to be a suitable sample on the third attempt when a Fail was registered. He arrested the accused.

[11] Calibration of Roadside Instrument

P.C. Ste-Croix has no note of when the instrument was last calibrated, although he is aware that process is required every 14 days. It is his understanding that the machines are transported to Traffic Services for calibration servicing every two weeks on Fridays.

[12] Error Codes and Machine Functioning

He has also been instructed that where there is an error or E code in the test, as occurred in relation to the first two breath tests, it may indicate the provision of an insufficient air sample from the detainee that by itself would not prevent additional tests. It might also suggest a number of other causes that would require turning off the power and resetting the instrument prior to additional testing or sending it for repair. It was his view, however, that as he was able to move on to complete the third test, the fault lay not with the device but rather with the sufficiency of the sample.

[13] Rights to Counsel and Formal Demand

P.C. Ste-Croix informally told the defendant he had the right to call a lawyer or could have access to free duty counsel and that he would later be required to provide further samples of his breath into a larger instrument back at the station. Once he was placed in the back of the police cruiser, Mr. Samad was read his full rights to counsel at 3:07 a.m. and a formal breath demand made one minute later.

[14] Transport to Station

P.C. Barclay dealt with the passengers and arranged for the towing of the defendant's vehicle. As well, at 3:03 a.m., she called in to the dispatcher to determine the closest division where a breathalyzer technician was or would become available.

[15] Vehicle Search

P.C. Barclay also searched the defendant's vehicle and found 5 empty 341 ml. bottles of beer under the driver's seat. She said she told her colleague about her discovery but he has no recollection of it.

[16] Arrival at Station

At 3:11 a.m., P.C. Ste-Croix left with scene with the defendant. He had been advised that the nearest station with a breathalyzer technician was at 41 Division where he arrived at 3:21 a.m. The officer-in-charge was available to parade Mr. Samad at 3:28, after which the defendant was placed in a cell and the officer did paper work related to this investigation.

[17] Intoxilyzer Testing

At 3:49 a.m., P.C. Jason Wong, a qualified breath technician, indicated to P.C. Ste-Croix that he was ready to receive Mr. Samad who was immediately brought in. P.C. Ste-Croix provided the technician with the required information from the investigation. The first breath test was completed at 3:59 a.m. and resulted in a reading of 161 mgs, after which the defendant was returned to the cells. He was brought back in at 4:20 a.m. for his second test which at 4:26 a.m. resulted in a reading of 153 mgs.

[18] Charge and Re-Advisement of Rights

At 4:34 a.m., Mr. Samad was taken to the report room where he was advised of the charge and his potential for release. He was re-advised of his rights to counsel and legal aid. To this point he had chosen not to speak to counsel, a position he maintained.

Position of the Parties

[19] Defence Position

Mr. Rabinovitch, for the accused, submits that on the evidence, the investigating officer had an insufficient basis for suspecting Mr. Samad had alcohol in system at the relevant time that would warrant a roadside demand and that the uncertainty when the instrument was last calibrated, in addition to the lack of evidence concerning the reason for the E code, raise a doubt the machine was in proper working order. It follows, he says, that in the circumstances, the Fail result could not lawfully be relied on to found reasonable and probable grounds for Mr. Samad's arrest, leading to an s. 8 breach under the Charter in relation to the demand for and taking samples of the defendant's breath. He submits that this breach was serious and that the Intoxilyzer test results should be excluded under s. 24(2).

He says, as well, that the tests were not taken as soon as practicable, that is, within a reasonably prompt time under the circumstances, in the context of the police acting reasonably, with the result that the prosecution should be unable to rely on the presumption of identity extrapolating the results of the breath tests back to the time of driving: R. v. Vanderbruggen.

[20] Crown Position

By contrast, Ms. Rokach, for the prosecution, submits there was ample basis on this evidence for the officer's initial suspicion, that he reasonably believed the instrument to be working properly and that the breath tests were taken as soon as practicable.

Analysis

(a) Reasonable Suspicion

[22] Observations Supporting Suspicion

P.C. Ste-Croix and his colleague, independently, observed the defendant drive quite slowly and swerve his vehicle. Mr. Samad was also seen to be unsteady on his feet and to appear slow to respond to questions. Both officers smelled alcohol on his breath. Mr. Samad admitted having one beer that evening.

[23] Corroborating Evidence

There is, as well, support in the evidence for P.C. Barclay's testimony that she smelled alcohol on the accused's breath given her discovery of the empty beer bottles and their location in the car. This tends objectively to buttress the evidence of P.C. Ste Croix concerning smell despite its omission from his notes.

[24] Low Threshold for Suspicion

There is a low threshold for the suspicion a detainee has alcohol in his or her blood system. The officers say they had a reasonable suspicion the defendant had alcohol in his system. On this evidence, there is also an objectively reasonable basis for that conclusion. I am not left in reasonable doubt on this material issue of fact.

(b) Calibration and a Properly Functioning Instrument

[25] Officer's Belief in Proper Functioning

P.C. Ste-Croix testified that he believed the roadside instrument to be calibrated according to police practice and that it was in proper working order, in part because other officers had used it appropriately during the previous Ride spot-check, in addition to the fact that despite two error codes, it reset on its own in a matter of seconds, rather than shut down, and he received a suitable sample of the defendant's breath, leading him to believe, he says, that the device was functioning properly.

[26] Legal Standard from MacDonnell

In R. v. MacDonnell, [2004] O.J. No. 927 (Ont. S.C.), Hill J. wrote that a peace officer with an ASD need only have a reasonable belief that the device was properly calibrated and in working order before relying on a Fail test result to confirm his or her suspicions that a motorist may be impaired or over the legal limit as the basis for an Intoxilyzer demand. There need not be proof at trial that the ASD operator knew the calibration setting of the device, when it was last calibrated, or whether the device was in fact in proper working order.

[27] Application to This Case

In my view of the evidence, P.C. Ste Croix's belief in this regard was objectively reasonable and he was entitled to rely on the Fail result to confirm his suspicion. In the circumstances, I find no s. 8 breach.

(c) As Soon as Practicable

[28] Efficiency of Police Investigation

At the scene, the police investigation was efficient and the defendant transported in short order to the nearest division housing an available or soon-to-be available breathalyzer technician. Once paraded, the defendant was held in a cell for 21 minutes until he was called in by the breathalyzer technician who advised the officer he was then ready to receive to receive his prisoner. There is no evidence what the technician was doing in the interim, although it is open to be inferred on the evidence that there is some time to be allotted to the setting up of the equipment for breath testing. It is significant that Mr. Samad's first breath test was taken within 51 minutes after he was initially stopped.

[29] Vanderbruggen Standard

In Vanderbruggen, Rosenberg J.A. said, at para. 13, that in dealing with this issue, the trial judge should look at the whole chain of events bearing in mind that the Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The analysis must be applied with reason, but there is no requirement that the Crown provide "an exact accounting of every moment in the chronology". Rather, Justice Rosenberg suggests that Code s. 258(1)(c)(ii) be interpreted reasonably and "in a manner that is consistent with Parliament's purpose in facilitating the use of this reliable evidence".

[30] Finding on Timing

In the context of the purpose of the legislation, the efficiency of the investigating officers and the time taken here to commence the tests, I am not left in reasonable doubt on all the evidence that the police acted reasonably. I accept that the breathalyzer technician called in the defendant only when he was ready to commence the testing. I am satisfied to the requisite standard that the tests were taken as soon as practicable.

Verdict

[31] Finding of Guilt

In the circumstances, the prosecution has proven the essential elements of the offence. There will be a finding of guilt.

Released: May 7, 2012

Signed: "Justice L. Feldman"