R. v. Landolt

Court File No.: Central East - Newmarket 4911-998-12-02560-00

Date: 2012-09-06

Ontario Court of Justice

Parties

Between:

Her Majesty the Queen

— AND —

Mark Landolt

Before

Justice K.P. Wright

Heard on: July 9 and July 20, 2012

Reasons for Judgment released on: September 6, 2012

Counsel

For the Crown: D. Moull

For the accused Mark Landolt: J. Frost

WRIGHT J.:

[1] Charge

[1] Mark Landolt comes before this court charged with the offence of having operated a motor vehicle with a blood alcohol concentration in excess of 80 milligrams of alcohol per 100 millilitres of blood on March 15, 2012.

[2] Nature of Proceedings

[2] The evidence in this case was adduced by way of a combined Charter voir dire and trial. The Charter application alleges that Mr. Landolt's s. 8 rights were breached; the s. 9 component of the application was abandoned at the conclusion of the trial.

[3] Evidence and Witnesses

[3] All the evidence was heard over the course of two days, July 9 and July 20, 2012. The Crown called two witnesses: Constable Molodyko, who was both the arresting officer and the Intoxilyzer technician; and Constable Hammond, who assisted with the tow and search of the vehicle. Mr. Landolt elected to call no evidence on the voir dire or the trial proper.

[4] Issues

[4] The issues can be defined as follows:

1. Were there reasonable grounds for the demand of breath samples (the s. 8 Charter application);
2. Were the samples obtained as soon as practicable; and
3. Is a Charter application required to argue that the breath results were not obtained as soon as practicable and are therefore not admissible.

The Applicable Principles

[5] Presumption of Innocence

[5] In this case Mr. Landolt is presumed to be innocent, unless and until the Crown has proven each essential element of this case beyond a reasonable doubt.

[6] Reasonable Doubt Standard

[6] Reasonable doubt is based on reason and common sense. It is logically connected to the evidence or the lack of evidence.

[7] Standard of Proof

[7] It is not enough for me to believe that Mr. Landolt is possibly or even probably guilty. Reasonable doubt requires more. As a standard, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities. At the same time, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty.

Overview of the Evidence

[8] Initial Observations

[8] On March 15, 2012, at approximately 2:30 a.m., Constable Molodyko of the York Regional Police observed Mark Landolt exit the King Henry's Bar in Richmond Hill, Ontario. He observed Mr. Landolt walking quickly through the parking lot towards his Nissan Pathfinder. He initially walked past his vehicle then turned around and went back to it. Mr. Landolt entered his vehicle and drove out of the parking lot. Once on 16th Avenue the officer activated his emergency equipment in an effort to signal the driver to pull over.

[9] Traffic Stop

[9] Once pulled over the officer approached Mr. Landolt, who was the lone occupant and driver of the vehicle. The officer immediately noticed a strong odour of alcohol inside the vehicle. He also observed Mr. Landolt's eyes to be bloodshot and glassy. When the officer inquired as to whether Mr. Landolt had been drinking, he responded that he had two pints of beer two hours ago.

[10] Approved Screening Device Demand

[10] Constable Molodyko formed the suspicion that Mr. Landolt had alcohol in his body and demanded he provide a sample of his breath into the approved screening device.

[11] Screening Device Results

[11] Mr. Landolt twice attempted to provide a suitable sample. On his second attempt he registered a fail.

[12] Timeline of Events

[12] The relevant time periods are as follows:

• At 2:59 a.m. Mr. Landolt was arrested for impaired driving
• At 3:08 a.m. Mr. Landolt was given his rights to counsel
• At 3:09 a.m. Mr. Landolt was given the breath demand
• At 3:10 a.m. Mr. Landolt was transported to 2 District
• At 3:14 a.m. Mr. Landolt arrives at 2 District
• At 3:20 a.m. Mr. Landolt is paraded
• At 3:25 a.m. Mr. Landolt is lodged in cells

[13] Contact with Counsel

[13] Between 3:41 a.m. and 3:43 a.m., the officer contacted Mr. Landolt's brother in Geneva, Switzerland. He is a lawyer and Mr. Landolt has requested to speak to him.

• At 3:34 a.m. Mr. Landolt speaks with brother/lawyer
• At 4:01 a.m. Mr. Landolt is taken to the breath room
• At 4:02 a.m. second breath demand and caution were given
• At 4:04 a.m. the officer completed further diagnostic tests
• At 4:12 a.m. first sample provided, 192/100
• At 4:34 a.m. second sample provided, 184/100

Issue 1 – Charter Application

[14] Section 8 Charter Application

[14] I will first turn to the s. 8 Charter application attached to this matter.

[15] Statutory Requirement

[15] Section 254(3) of the Criminal Code requires that an officer have reasonable grounds to believe that within the preceding three hours the accused has committed, or is committing, an offence under s. 253 of the Criminal Code.

[16] Defence Argument

[16] In this case Mr. Landolt argues that his breath samples were obtained in breach of his s. 8 Charter rights.

[17] Defence Position on Approved Screening Device

[17] He argues the approved screening device sample of his breath that was obtained cannot be relied upon because the device from which it came was not proven to be in proper working order. Without said sample, the officer had no reasonable grounds to make a breath demand pursuant to s. 253(4) of the Criminal Code.

[18] Officer's Testimony on Device Operation

[18] Constable Molodyko testified that it took Mr. Landolt two tries to a get a suitable sample of his breath in the approved screening device. He said that on the first sample he stopped short, which meant he didn't provide enough air into the device to register a sample. The officer said this is a common mistake and he was alerted to it because the machine made a beeping sound and provided a digital error message of "EO". The "EO" message means there was not enough air to provide a suitable sample. The officer testified that there are seven different error readings that can come up on the device and each one means something different. He testified that although he has no specific memory of the digital reading in this case, nor did he make a note of it, it is his practice that if any other error reading, other than "EO", had been displayed he would have asked for another device.

[19] Defence Argument on Officer's Note-Taking

[19] Defence argues that the deficiencies in the officer's memory, and more importantly his note taking, are so significant that they should undermine the courts ability to have confidence that the device was working properly, rendering the validity of the second sample unreliable.

[20] Court's Finding

[20] I disagree.

[21] Officer's Notes

[21] This is not a situation where the officer had no notes. He did make a note that there were two attempts and that on the first attempt Mr. Landolt stopped short.

[22] Credibility of Officer

[22] He is an experienced officer who was very familiar with the workings of the approved screening device. I find that the officer is a credible and reliable witness. I accept his testimony in its entirety.

[23] Officer's Practice

[23] He explained that it is his practice to look at the digital reading and make a determination from there as to what to do next. He testified that if any other error message had appeared on the screen he would have asked for another device.

[24] Court's Assessment of Officer's Conduct

[24] Again, I accept the officer's testimony in this regard. His note in his notebook, albeit brief, tells me that he followed his usual practice. This is not a case where he did not turn his mind to the cause for the first failed sample. I am satisfied that he was alerted to the first failed attempted, that he looked at the device and read the digital reading and satisfied himself that it was nothing more than Mr. Landolt not providing enough air. It makes sense that this is a common mistake when people first provide a sample. I am satisfied that if there had been any indication that this machine was not functioning properly this officer would not have used it.

[25] Validity of Approved Screening Device

[25] I am satisfied that the approved screening device was in good and proper working order and that the second sample was valid.

[26] Reasonable Grounds for Breath Demand

[26] I am satisfied that the officer did have reasonable grounds to make the breath demand.

[27] Dismissal of Charter Application

[27] Accordingly, the application for Charter relief is dismissed.

Issue 2 – Were the samples taken as soon as practicable?

[28] Defence Argument on Timing

[28] Defence counsel argues that the as soon as practicable requirement set out in s. 258(1)(c)(ii) of the Criminal Code was not made out because of a 33-minute gap in time that is not adequately explained by the officer or on the evidence.

[29] Crown Argument on Timing

[29] Crown counsel argues that the officer acted with more than satisfactory dispatch and provided his first sample within 73 minutes of being stopped. Moreover, any gap times that do exist are sufficiently explained by the officer.

[30] Legal Principle from R. v. Vanderbruggen

[30] The Ontario Court of Appeal in R. v. Vanderbruggen, [2006] O.J. No. 1138, dealt with this issue and made the following helpful comments that have guided me in analysis:

Decisions of this and other courts indicate that the phrase means nothing more than that the tests were taken within a reasonably prompt time under the circumstances. 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.

In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events... 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.

[31] Three Distinct Time Periods

[31] Defence counsel directs me to three distinct time periods that he argues create the delay in this matter.

First Time Period: 2:59 – 3:09

[32] Analysis of First Time Period

[32] The first time period is the 10 minutes from the time of arrest at 2:59 until the breath demand is made at 3:09. A whole host of activity takes place between 2:59 and 3:09. At 2:59 Mr. Landolt provides two breath samples into the approved screening device; the second one registers a fail and he is then placed under arrest. That is followed by a cursory search and handcuffing, after which Mr. Landolt is taken back to the police car. Constable Molodyko then contacts dispatch and requests assistance for vehicle search and towing. At 3:03 Constable Hammond receives that dispatch and arrives on scene at 3:06. Once on scene she was briefed and given direction by Constable Molodyko. At 3:09 Constable Molodyko makes the breath demand. In my view there has been a very exact accounting of time by Constable Molodyko. There is one increment of two to three minutes between the dispatched call for assistance and Constable Hammond arriving on scene that is not accounted. I am not troubled by this. The officer said he wanted to wait for Constable Hammond to arrive before he gave the breath demand. He explained that he organized the investigation in such a way that he would first deal with the scene and then the breath demand. The officer cannot be faulted for wanting to stay focused. In my view he was conducting himself in a very methodical fashion and was well aware of the overriding time constraints that attach to this type of investigation.

[33] Briefing and Rights to Counsel

[33] There is another two to three minute increment between Constable Hammond's arrival and the breath demand being made. However, some of this time was spent briefing Constable Hammond and giving Mr. Landolt his rights to counsel. Surely whatever time remained after those tasks were complete cannot by any stretch be considered unreasonable.

Second Time Period: 3:25 – 4:41

[34] Introduction to Second Time Period

[34] I will now turn to the second time period that is of concern.

[35] Defence Argument on Second Time Period

[35] Defence argues that the 16 minutes from 3:25 when Mr. Landolt is lodged in a cell until 4:41 when he speaks to his lawyer/brother is unreasonable.

[36] Court's Disagreement

[36] I disagree, and here is why.

[37] Unusual Circumstances – International Call

[37] This was a highly unusual circumstance. Mr. Landolt had requested to speak with his brother, who was also a lawyer. His brother, at the time of his arrest, was in Geneva, Switzerland. The facilitation of an international call required the officer to make a number of additional steps. He had to first ascertain the correct number and area codes to make this international call. He had to get permission from the Staff Sergeant on duty to make the call, and he testified that it took several attempts to get through. In my view that alone could easily have taken 16 minutes.

[38] Officer's Multi-Tasking

[38] However, this officer was also the breath technician and was simultaneously preparing the Intoxilyzer to receive a breath sample. I find that the officer's entire focus was on this investigation. The multi-tasking undertaken by the officer further demonstrates his awareness of the requirement to proceed in a prompt fashion.

[39] Officer's Engagement

[39] I am more than satisfied that Constable Molodyko was actively involved in his duties that attached to this investigation.

Third Time Period: 4:12 – 4:34

[40] Introduction to Third Time Period

[40] I will now turn to the third time frame.

[41] Defence Argument on Third Time Period

[41] Defence argues that the 22 minutes between the first and second breath test is unreasonable and unaccounted for. Defence argues that there should only be 15 minutes between the tests. In this case the extra seven minutes is an unnecessary and unreasonable delay.

[42] Court's Disagreement

[42] Again, I disagree.

[43] Intoxilyzer Design and Officer's Activities

[43] The officer testified that the Intoxilyzer is designed to ensure that there are 17 minutes between tests. The officer said in the minutes between tests he was completing the alcohol influence report and talking with Mr. Landolt. The officer and Mr. Landolt remained in the breath room between the tests. I am satisfied that the officer was focused on and engaged in this investigation for that entire time frame. I find that speaking with Mr. Landolt, while completing the alcohol influence report and preparing the device for a second breath sample, to be a normal part of the investigation. I do not find the seven-minute delay to be unreasonable.

Conclusion

[44] Samples Taken as Soon as Practicable

[44] In conclusion I find that the samples were taken as soon as practicable.

[45] Third Issue Becomes Moot

[45] In light of such a finding, the third issue of whether this argument should have been framed as a Charter application becomes moot.

[46] Admissibility of Breath Samples

[46] The breath samples are admissible.

[47] Guilt Beyond Reasonable Doubt

[47] I find that the Crown has proven the case beyond a reasonable doubt.

[48] Verdict

[48] Accordingly, Mr. Landolt, I find you guilty as charged.

Released: September 6, 2012

Signed: Justice K.P. Wright