Court File and Parties
Court File No.: Newmarket Courthouse 4911-998-11-09929 Date: 2012-07-24 Ontario Court of Justice
Between: Her Majesty the Queen — and — Mark Stephens
Before: Justice Peter N. Bourque
Heard on: June 20, 2012 & July 24, 2012
Reasons for Judgment released on: July 24, 2012
Counsel:
- B. Juriansz, for the Crown
- A. Pazuki, for the accused Mark Stephens
Judgment
Bourque J.:
[1] The defendant was stopped for dangerous driving on the southbound 400 Hwy near the King Sideroad. After the arrest for dangerous driving, the officer smelled alcohol from the breath of the defendant as he was searching him and the investigation became one of impaired driving and driving with excess alcohol.
Darrin Thompson
[2] Darrin Thompson is an O.P.P. officer and describes the defendant as driving a very large pickup truck which had been modified and raised up beyond what was normal. The defendant was proceeding south in the left lanes and he was speeding. The officer followed and while he did not clock the defendant vehicle for speed, he reached speeds of between 140 and 177 kilometres per hour. The defendant vehicle moved from the extreme left lane to the extreme right lane (there are three lanes going southbound) on at least two occasions.
[3] The officer turned on his emergency lights (there was no roof rack) and the vehicle pulled over. He went up to the driver's side and immediately arrested him.
[4] The following are the timelines as recorded by the officer:
11:37 p.m. – pulled over the defendant and arrested him immediately for dangerous driving. He took the defendant to his vehicle and began to search the defendant and put handcuffs on him.
11:43 p.m. – he smelled alcohol. In response to questions the defendant said he had a drink at Jack Astor's about one and a half hours ago. He read the defendant his rights to counsel and caution for dangerous driving.
11:46 p.m. – he read the demand for the roadside screening device.
11:49 p.m. – he demonstrated the use of the ASD.
11:51 p.m. – defendant provided a sample and registered a fail.
11:52 p.m. – he arrested the defendant for over 80 milligrams – re-read the rights to counsel for the new charge. Had a discussion with the defendant about a lawyer. He calls to dispatch for a tow truck and a breath operator. He also calls for another officer to come and assist with the removal of the defendant's vehicle. The officer did not know if his call to dispatch went through right away or whether he had to wait in line. When the officer arrived he briefed the other officer.
12:05 a.m. – he read the defendant the breath demand and then immediately left for the station.
12:21 a.m. – he arrived at the detachment of the Aurora O.P.P.
12:26 a.m. – he brought the defendant into the booking area and did a full search and documented the property seized from the defendant. There was further discussion about calling a lawyer and the defendant could not recall the lawyer's name and he refused the officer's offer to call his parents. The defendant agreed to speak with duty counsel.
12:32 a.m. – the defendant was lodged in a cell and the officer called duty counsel and left a message.
12:41 a.m. – the call to duty counsel is returned and the defendant is taken to a private room to speak to duty counsel.
12:46 a.m. – the call to duty counsel is complete and the defendant is taken to the breathalyzer technician.
Michael Ficker
[5] Michael Ficker is an O.P.P. officer and a breath technician. He was on patrol and when he heard the summons for a breath technician he returned to the station. He performed the checks on the Intoxilyzer 8000C and it was ready by 12:46 a.m. when the defendant was brought to him. He conducted two tests. At 12:51 a.m. the defendant gave a suitable sample, which was analyzed as 210 milligrams of alcohol in 100 millilitres of blood. The second sample was taken at 1:14 a.m. and had a reading of 200 milligrams of alcohol in 100 millilitres of blood.
Impaired Driving
[6] At the close of the Crown's case, the Crown invited me to dismiss the charge of impaired driving. The only evidence of impairment was fast driving and changing lanes, coupled with a smell of alcohol. The breath readings are over two times the legal limit, but without some expert evidence to relate the blood alcohol level to the issue of impairment, I doubt that there is any level of impairment, as per R. v. Stellato, 12 O.R. (3d) 90 and I find the defendant not guilty of the charge of impaired driving.
Were the breath tests taken as soon as practicable?
[7] Section 258(c)(ii) provides that if the samples have been taken pursuant to a demand under s. 254(3) and each sample is taken as soon as practicable after the time when the offence is alleged to have been committed, then the concentration of alcohol at the time of the offence is deemed to be the same concentration of alcohol at the time the breath test is taken.
[8] The last driving is 11:37 p.m. The first test was complete at 12:51 a.m., a total delay of 1 hour and 13 minutes. From the timelines noted above, the first 6 minutes were the investigation of the dangerous driving allegation. The next 8 minutes were taken up by the administering of the ASD. The next 13 minutes dealt with the rights to counsel, breath demand, seeing to the car, briefing the officer attending and then leaving for the station. It took 16 minutes to get to the station. It took 9 minutes to search the defendant, book the defendant, to put him in a cell and to contact duty counsel. It was 14 minutes to get the duty counsel's call returned and for the defendant to speak to duty counsel. It took further 5 minutes to complete the first breath test.
[9] As stated in R. v. Vanderbruggen, [2006] O.J. No. 1138, as soon as practicable is not the same as, as soon as possible. The tests must be taken "within a reasonable prompt time under the circumstances". The question is whether the police acted reasonably. In this case, I believe the times are accounted for and the police acted with due attention to their duties. I find the tests were taken as soon as practicable, as per the section.
Was the demand for the breath sample taken as soon as practicable?
[10] Section 254(3) provides that the demand for the breath sample be made as soon as practicable. In the circumstances of this case, the officer arrested the defendant for driving with excess alcohol (and having formed his grounds for the demand at the same time after the failure of the ASD).
[11] The officer undertook several tasks after the arrest, including reading the defendant his rights to counsel and having a discussion with him about exercising that right. He called dispatch to notify the need for a breath technician; he called a tow truck to deal with the vehicle and requested backup to deal with the car. He also, at some point, spoke to the officer who attended as backup.
[12] The grounds were formed and the arrest was made at 11:52 p.m. All the tasks noted above were completed and then the officer made the breath demand. Immediately thereafter, at 12:05 a.m., he left for the station.
[13] The maximum delay between the forming of the grounds and the making of the demand is between 12 and 13 minutes. It is clear that the officer was dealing with certain necessary tasks, which for the most part, also had their own time limits. In that regard, it could be said that many of these things were all in a tie for first place on the officer's list of priorities. The rights to counsel had to be given immediately upon the arrest or the defendant's Charter rights would have been infringed. Is it for this court to decide that the officer could not also, as part of giving of these important rights to the defendant, take the time to discuss whether the defendant wished to consult with his own counsel? Was it not also important to immediately notify dispatch so a breath technician could be made available as soon as possible so that the tests could ultimately be taken as soon as practicable? Was it not important for the officer to brief the attending officer so the defendant's truck and the four people in it were dealt with on the side of 400 Hwy so the other officer could deal with that issue and not burden the arresting officer with it?
[14] I believe it is important to note, the wording of s. 254(3) was amended in 2006 to delete the word "forthwith" from the practicability requirement. I think therefore that the cases decided, before this amendment, must be looked upon with caution. In R. v. Squires, [2002] O.J. No. 2314, the Court of Appeal under the old wording found a delay of almost an hour did satisfy the requirement in the circumstances where the defendant's health was an important issue. In the more recent cases of R. v. Rosien, [2011] No. 5411, Justice Blouin held that the context of a Charter challenge under s. 8, where there was a delay in making the breath demand of 11 minutes, coupled with at least four other significant errors in providing the rights to the defendant, all lead to a finding of a breach of the Charter rights and the exclusion of the breath test results from evidence.
[15] I think Justice Blouin's case is significantly different and therefore distinguishable.
[16] After reviewing all the evidence in this matter, I find that the arrest and the other acts, up to the reading of the demand and leaving the scene, were continuum of actions all of which were necessary to perform in the course of this investigation. Based on the new wording of the section, I believe that the officer did comply with the requirement to make the demand as soon as practicable after the forming of the grounds.
[17] Having made this determination, it is not necessary for me to decide whether it was necessary for the defendant to deal with this issue in the context of a Charter challenge. I would think that in future counsel would be advised (that while the issue has not been conclusively decided by the Ontario Court of Appeal) to include an application under s. 8 where this is an issue.
[18] By agreement of counsel the matter proceeded as a Charter challenge and even though I have not found a Charter breach, if I am not correct in that finding I will go further and do a s. 24(2) analysis.
[19] Applying the R. v. Grant analysis I would first deal with the seriousness of the breach. I have found, as a matter of fact, that the officer was attending to many important duties at the side of the 400 Hwy, not the least of which was explaining the rights to counsel. He did not lose track of time and all of the tasks flowed from one to the other. I would not find this an egregious breach.
[20] I believe the impacts on the Charter protected rights of the defendant are not insignificant. It involved a trip to the police station and several hours of time.
[21] Society's wish to have this case adjudicated on the merits is strong.
[22] Ultimately under s. 24(2) I must weigh all of these factors to determine if the admission (or inclusion) of the evidence would bring the administration of justice into disrepute.
[23] I find that to admit the evidence would not bring the administration of justice into disrepute and I would admit the breath test evidence.
Conclusion
[24] I therefore find that the Crown can rely upon the presumption of identity and thus at the time of the last driving (11:37 p.m.) the defendant's blood alcohol level was 200 milligrams of alcohol in 100 millilitres of blood. The defendant will be found guilty of the offence under s. 253(1)(b) of the Criminal Code of Canada.
Note: The official version of these reasons for judgment is the transcript in the court file. In the event that there is a question about the content, the original in the court file takes precedence. These reasons may have undergone editing changes.