Ontario Court of Justice

Central West Region Brampton, Ontario

Between:

HER MAJESTY THE QUEEN

-and-

JEAN ST. JEAN

Reasons for Judgment

Duncan J.

The Charge

[1] The defendant is charged with exceed 80, offence date January 20, 2011.

[2] The single issue in this case is whether the breath samples were taken as soon as practicable.

Timeline of Events

[3] The timeline is as follows:

• 1:40 – Defendant seen driving a heavily damaged vehicle with the driver's window smashed out. Stopped by police
• 1:43 – ASD demand made
• 1:45 – ASD test conducted – fail
• 1:47 – Arrest – right to counsel and caution
• 1:52 – Demand
• 1:53 – Second officer arrives at scene to take custody of defendant's vehicle
• 2:04 – Leave scene of arrest to 11 Div
• 2:07 – Qualified technician (QT) arrives at 11 Div – discovers problem with Intoxilizer – tries to fix it – not successful – decides to go to 12 Div
• 2:10 – Defendant arrives at 11 Div
• 2:17 – Defendant and arresting officer leave for 12 Div
• 2:18 – QT leaves for 12 Div
• 2:28 – QT arrives at 12 Div
• 2:31 – Defendant and arresting officer arrive at 12 Division
• 2:31 – QT begins to prepare the Intoxilizer
• 2:31 – Defendant begins booking procedure
• 2:41 – Intoxilizer ready to receive sample
• 2:47 – Call placed to duty counsel even though defendant had not requested it
• 2:50 – Arresting officer finishes giving grounds to QT
• 2:52 – Defendant brought into breath room
• 2:55 – Duty counsel calls back – defendant does not want to speak to him
• 2:57 – QT makes demand
• 3:04 – First sample taken – result 143
• 3:27 – Second sample taken – result 142

As Soon as Practicable – What's the Purpose?

[4] The relevant section of the Criminal Code reads:

258(1)(c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if

(i) [Repealed before coming into force, 2008, c. 20, s. 3]

(ii) each sample was 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,

(iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and

(iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician,

evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused's blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things — that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused's blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused's blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed;

[5] The phrase in question has generated an enormous amount of litigation and case law. Somewhat surprisingly however, there has been almost no discussion in the case law as to the purpose underlying the "as soon as practicable" requirement. Perhaps this is because in a sense it doesn't matter – the requirement must be applied regardless of its purpose. Still, identification of the purpose or purposes would be a helpful interpretive aid. Beyond that, determination of compliance or non-compliance, as the case may be, with the ASAP requirement may turn, as discussed below, on the question of prejudice. To assess prejudice, in my view it is necessary to identify what interests are intended to be protected by this requirement.

[6] I think there are two possible rationales for the ASAP requirement – to minimize the "myth" of the presumption of identity and to minimize the period of detention for breath testing of suspected offenders.

[7] As for the first, a few relatively recent cases in Ontario have identified a single purpose behind the requirement – a purpose related to the presumption of identity, that is, the presumption that the blood alcohol level at the time of driving is identical to the BAC at the time of testing. Due to processes of absorption and elimination, this deemed identity is in fact untrue and the greater the time between driving and testing, the more untrue it is. It is therefore said that the requirement of testing "as soon as practicable" ensures that the presumption operates fairly and produces accurate results: R v Willette; R v Davidson. Accordingly, on these authorities, the interest engaged may be considered a fairness, or fair trial interest.

[8] With respect, I think there are some weaknesses in the view that concerns about identity provide the only - or even the main - rationale for the ASAP requirement. While its inclusion as a pre-requisite to the presumption of identity in subsection (c) would favour linking its purpose to that presumption, the significance of that placement fades when one considers that neither of the other sub-paragraphs, iii or iv, have anything to do with the identity issue. Further, logically, the accuracy of the identity bridge is determined solely by the passage of time; it has nothing to do with the reasonableness of that passage of time. In other words, the BAC of a detainee who is tested 90 minutes after driving will change by the same biologically determined degree whether the delay was reasonable and "as soon as practicable" or it wasn't. Why should it be accepted as presumptively accurate and identical in the one case and not the other?

[9] I think another, and perhaps main, purpose behind the "as soon as practicable" requirement is to minimize the period of detention of breath test subjects. The scheme of the legislation as originally enacted contemplated detention by demand for testing, without necessarily placing the driver under arrest. There were no roadside testing devices that could be used to screen those detained. I think Parliament foresaw that, notwithstanding that grounds for a demand might exist, a number of subjects detained for testing would in fact prove to be under the limit and innocent. To minimize the inconvenience and infringement on liberty, Parliament provided that the period of detention be kept to the functional minimum and that it be capped at 2 hours. On this view, the interest engaged by the ASAP requirement is a liberty interest.

[10] Accordingly, while I agree with the statement from Davidson supra that the ASAP requirement was enacted for the benefit of the accused, I think it is not solely because prompt testing will benefit him by yielding results more accurately corresponding to the time of driving. In fact, the opposite will usually be the case; he will benefit from delay. In my view the requirement was enacted primarily to benefit the accused and all detainees by minimizing the period of detention to which they may be subject. The main interest at stake is a liberty interest with the fair trial interest playing a lesser role.

The Law

[11] The case law makes it clear that the test is "as soon as practicable" and not "as soon as possible". The tests must be taken within a reasonably prompt time under the circumstances. The question is whether the police acted reasonably. The Crown does not have to account for every moment of time. Rather, the Court should be concerned with the whole chain of events and the over-all passage of time: R v Vanderbruggen.

[12] The history of application of these principles has shown that Courts have been quite forgiving and have granted considerable leeway to the police in carrying out their duties under these sections. Comment was made thirty years ago that there were few cases in which a finding of non-compliance survived appeal: see J. Pearson: The "As Soon As Practicable Requirement in sections 235 and 237" (1982) 12 MVR 149 at 161. Not much has changed since. Over the whole fifty or sixty years of existence of these provisions, there have been only a very few reported appellate cases in Ontario decided in favour of the accused on this issue - and even those turned narrowly on error in the lower court's handling of the issue: R v Lightfoot; R v Dzaja. In fact, remarkably, although the ASAP issue is a question of law open to determination by an appellate Court, the relevant authoritative legal texts and compilations digest not a single case from any Court of Appeal in Canada where the Court has actually found that a set of circumstances amounted to an ASAP violation!

[13] So when, if ever, will a defendant succeed on an ASAP argument or, to put it more properly, when will the Crown be found to have failed in its burden to show compliance? In R v Carter, the Court held that the ASAP requirement will be satisfied unless there is a significant delay not satisfactorily explained (as in Lightfoot supra) OR the accused has been prejudiced (para 9):

The requirement that the samples be taken as soon as practicable is one which must be applied with reason. As I read the section, as long as the delay, if there is one, is explained to the satisfaction of the judge, there may be reliance on the presumption in paragraph (iv) as long as the samples are taken within the two hour limit. It would only be when the learned trial judge concluded there was a delay not satisfactorily explained, or such delay prejudiced the accused that the court would deny the prosecution the right to rely on the presumption in paragraph (iv).

Application of Law to Facts

[14] Taking the holistic approach as directed in Vanderbruggen, the over-all period is concerning. The defendant was stopped (1:40) and arrested at a location 6 minutes away from the police station yet the first breath sample was not taken until (3:04), an hour and 24 minutes later. This is a time period that requires further examination and scrutiny of its individual periods and then again, the whole.

[15] Dealing with the time periods chronologically; defence counsel first points to the time (11 minutes) at the scene of arrest between arrival of a second officer (1:53) and departure to the station (2:04). This time was said to be taken up in the "briefing" of the second officer. While this seems somewhat excessive, I think it is only marginally so and at worst, falls within the rubric of failure to move as quickly as possible.

[16] Counsel for the defendant focuses on the delay caused by the problem with the machine at 11 Div. He argues that the burden on the Crown on this issue includes the duty to provide some evidence to demonstrate that the problem was unknown and unforeseeable. For all we know, it is argued, the machine may have shown itself to be inoperable earlier that evening or even earlier that week yet no one took steps to "take it off the board" as being an available functioning breath testing device.

[17] I can't accept that argument on the evidence in this case. The only evidence before me is that the malfunction was unknown before its discovery by the qualified technician in this case, P.C. Nicholson. I think it would be highly speculative to imagine that an earlier QT was aware of the problem but failed to share the information.

[18] Delay occasioned by malfunctioning equipment necessitating relocation has invariably been held to be delay that has been reasonably explained: see cases cited in Kenkel; Impaired Driving Law in Canada at P 172. I note as well that in this case the delay was not excessive, given the circumstances. Counsel agreed that the defendant was stopped at a spot equidistant between the two Divisions. Had he gone first directly to 12 Division he would have arrived at the same time as he arrived at 11 Division, 2:10. As matters unfolded, he actually arrived at 12 Division at 2:31, a relatively modest extra delay of 21 minutes.

[19] It is argued that, having incurred a delay of approximately ½ hour due to the malfunction problem, there was some obligation on the police to pick up the pace with the balance of their procedures. But once at 12 Division another 33 minutes elapsed before taking the first sample – even though the machine was ready within 10 minutes. Some points argued:

• There is no explanation why the booking procedure could not have been completed in the 10 minutes that the machine was being prepared.
• The call to duty counsel was unwanted and unnecessary. While usually not a bad idea, R v Litwin, it may have been inappropriate under the circumstances given the delay that had been occasioned to that point. It is conceded however that the time that elapsed waiting for the call back was minimal and the police proceeded with other steps in the interim.
• The giving of grounds, re-reading of demand, caution and secondary caution are not legally required and are all quite unnecessary: R v Chavez. Again it is argued that while going through these steps may not be objectionable in most cases, this was a situation where these steps could have and should have been by-passed.

[20] I have considered these points individually, collectively and in the context of the over-all delay. In the final analysis it seems to me that they reveal a failure to take the samples as soon as possible, not as soon as practicable. Each step was in furtherance of a valid activity or objective in the investigation and processing of the detained person. While it all could have been done more quickly, that is not the test. It is not a foot race. Here, despite the problems encountered, the first sample was taken 84 minutes after the offence; both samples were completed within the two hours. This was a reasonably prompt time under the circumstances.

[21] Turning back to the tests cited above from Carter - explanation and prejudice. The delay has been explained – and in greater detail than the law requires. The only remaining question is that of prejudice. This comes back to the discussion above concerning the interests at stake, being fairness and liberty.

[22] With respect to fairness, this is not a case of readings that are close to the line of legality. The defendant's BAC as tested approached twice the legal limit. There could be no unfairness from the operation of the presumption of identity. With respect to liberty, the defendant was not just stopped randomly but was driving a car that appeared to have been in a recent accident. He was screened with an ASD and a preliminary reading in excess of the legal limit was registered. At that point, much of the underlying rationale about potential detention of the innocent fell away. Thereafter, the length of the defendant's detention following arrest would be largely determined by his blood alcohol reading, not the speed with which that reading was obtained. His liberty interest was not affected by the delay that occurred in this case.

[23] In summary, I conclude that the defendant suffered no prejudice to the interests intended to be protected by the ASAP requirement. The samples were taken promptly and as soon as practicable.

[24] The defendant is found guilty as charged.

June 13, 2012

B Duncan J

T Sarantis for the defendant

F McCracken for the Crown

Footnotes

[1] The times are taken from the respective officers' watches, the Intoxilizer and the video clock. They were not in synch with each other. Variance could be as much as 6 minutes.

[2] The identity point is taken further and given a bit of a sinister twist in R v MacMillan where the Court suggested that Parliament's major concern was to prevent unscrupulous police officers from intentionally putting the accused "on ice" and waiting for his blood alcohol to rise before testing (see para 37). I think this is pretty unlikely. It is well known that the passage of time in most cases is accompanied by declining B.A.C. – the only exception being where bolus drinking has occurred: R v Phillips. The police would rarely be aware of the pre-arrest drinking pattern and would not know whether delay will help or hurt the subject – the likelihood being the former. Putting the suspect "on ice" would rarely advance an unscrupulous police agenda.

[3] See for example the facts in Lightfoot infra. That this practice was prevalent is exemplified by the early Charter debate, settled in R v Therens, as to whether breath test subjects who were not arrested were nevertheless detained within meaning of 10(b).

[4] Other provisions of the overall breathalyzer scheme - both as originally enacted and now - are to the same effect and demonstrate the same concern that the process move along smartly: For example: "Forthwith" provision of roadside samples or conduct of roadside sobriety tests: s. 254(2); "As soon as practicable" demand for breathalyzer test or demand for other samples: s. 254(3), (3.1), (3.3), (3.4).

[5] R v Letford, 150 CCC3d 225 (Ont CA) at para 15

[6] Martins Criminal Code; Tremeear's Criminal Code; Mcleod Takach Segal; Breathalyser Law in Canada; Kenkel; Impaired driving in Canada

[7] Carter cited with approval by OCA in Vanderbruggen supra and R v Seed

[8] The problem was said to be an "unstable reference". The machine printed out a test card announcing that it had this problem. The QT tried to re-set the machine but it didn't fix the problem.