Court File and Parties

Court File No.: Kitchener 1015-12 Date: 2012-10-23 Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Sabrina Ashley Singh

Before: Justice G. F. Hearn

Heard on: August 24, 2012

Reasons for Judgment released on: October 23, 2012

Counsel:

• Mr. Vlatko Karadzic, for the Crown
• Mr. Bruce Ritter, for the accused Sabrina Ashley Singh

HEARN J.:

BACKGROUND

[1] On August 24, 2012 the accused entered a plea of not guilty to a count of operating her motor vehicle having consumed alcohol in such quantity that the concentration thereof in her blood exceeded 80 milligrams of alcohol in 100 millilitres of blood. The offence date is alleged to be February 20, 2012.

[2] The Crown has called one witness in this matter, Cst. Wise, a member of the Waterloo Regional Police Service and the investigating officer. Also filed as part of the Crown's case is a Certificate of Qualified Technician which has been marked as Exhibit #1 in this matter. The defence elected to call no evidence at the trial.

[3] Ultimately, the only issue to be determined is whether or not the samples of Ms. Singh's breath were taken as soon as practicable as contemplated by s. 258(1)(c) of the Criminal Code. This of course is relevant to whether or not the Crown can rely on the presumption set out within that section. Here, the Crown has adduced no other evidence to establish the blood alcohol level of Ms. Singh at the relevant time and relies solely on the certificate filed in evidence.

[4] The defence raises no Charter applications, admits the time and date of the offence and its location, and takes no issue with respect to Ms. Singh having received a copy properly served of the Certificate of the Qualified Technician and Notice of Intention to introduce such certificate on February 20, 2012.

EVIDENCE OF THE CROWN

Evidence of Cst. Darren Wise

[5] Notwithstanding the relatively narrow issue in this particular case, it is necessary in my view to review the evidence of Cst. Wise in some detail. Constable Wise is the investigating officer in this matter. He is an officer with some considerable experience and happened to be on duty on the evening and early morning hours of February 19 to 20, 2012.

[6] At about 1:45 a.m. on the morning of February 20, 2012 he was patrolling various licensed premises situated on Victoria Street North. He was in the parking lot of one such establishment when he observed two females running across the lot in front of his cruiser to a white SUV motor vehicle.

[7] The officer proceeded through the lot and eventually took up another position on Victoria Street. Within a short period of time he then observed a white SUV motor vehicle travelling southbound on Victoria Street past his location. He observed it to be the same motor vehicle that he had noted previously which the two females had entered. The motor vehicle was thought to be travelling in excess of the speed limit, the speed limit being 60 kilometres per hour, and the speed estimated by the officer of the vehicle was 75 kilometres per hour.

[8] He pulled out also to travel southbound on Victoria Street following the vehicle and noticed the motor vehicle drifting to the curb and back again. He followed the vehicle for a period of time and because of the observations he had made at 1:52 a.m. he conducted a traffic stop.

[9] He approached the vehicle and found the vehicle to contain the same two females he had seen earlier and also discovered the accused was the operator of the vehicle. Documentation was requested and he noted the accused's eyes being red and observed a smell of alcohol coming from the cab of the vehicle. He determined that the passenger was very talkative and was likely intoxicated. The driver showed some signs of having consumed alcohol.

[10] The officer, who presented his evidence very fairly and thoroughly, noted Ms. Singh to stumble slightly when she got out of the vehicle but he said that could be attributed to the high heels she was wearing. Still, when he was able to speak with her directly he noted an odour of an alcoholic beverage from her breath and believed that she had alcohol in her system.

[11] The officer asked Ms. Singh if she had consumed any alcohol and she stated that she had had one drink. The officer asked when that drink had been consumed as he was concerned that he would have to wait a period of time for mouth alcohol to dissipate before conducting the test and he advised Ms. Singh to be honest about the timing of the drink as it might affect the reading on the approved screening device. She indicated that the drink had been consumed a half an hour prior to being stopped.

[12] The officer read the breath demand for the approved screening device at 1:58 a.m. There is no issue taken with respect to the wording. He advised that a demand was made as a result of his suspicion that Ms. Singh was operating a motor vehicle with alcohol in her body and he explained his further concerns with respect to her condition.

[13] Ms. Singh appeared to understand the demand provided and the officer produced an approved screening device properly described. The officer was knowledgeable with respect to the instrument, its requirement for calibration and the various workings of the device as he himself is a qualified breath technician and has been since 2003.

[14] He conducted a self-test on the instrument and found it to be working properly. Ms. Singh ultimately provided a suitable sample for analysis at 2:00 a.m.

[15] That sample resulted in a "Fail" registering on the device. The officer properly described what a "Fail" meant to him and at 2:01 a.m. he placed Ms. Singh under arrest for operating a motor vehicle with over 80 milligrams of alcohol in 100 millilitres of blood. She was handcuffed and a cursory search was conducted. Rights to counsel were read at 2:04 a.m., the caution at 2:05 a.m. and a breath demand pursuant to s. 254(3) for further samples at 2:06 a.m. There is no issue taken with the wording of any of these items. It would appear that Ms. Singh indicated she understood the caution, declined to speak to a lawyer and the officer then provided further information to her with respect to attending at the detachment to take additional samples while reading the breath demand. At this time as well the officer requested another officer to attend to assist as the vehicle was there as well as the passenger.

[16] The second officer arrived at the scene at 2:15 a.m. Constable Wise together with Ms. Singh departed the scene at 2:18 a.m., arriving at the detachment at 2:22 a.m.

[17] The officer described upon arrival at the detachment he asked Ms. Singh again if she wished to speak to counsel and she indicated that she now wished to exercise her right to counsel. She provided the name of Tom Jutzi who apparently was the registered owner of the vehicle and some type of lawyer, although the officer was not sure what type. Efforts were made to contact Mr. Jutzi without success. Apparently the passenger that had been with Ms. Singh at the time of her arrest was in fact the daughter of Mr. Jutzi and she, too, was contacted on her cell phone but was unable to assist in arranging for contact. This took some time to attempt to contact the individual. Ms. Singh was asked if she wished to contact another lawyer and she declined.

[18] While this was taking place the officer also had completed the detain sheet, placed Ms. Singh in an interview room and made further observations concerning the presence of the smell of alcohol, the red eyes of Ms. Singh, some stumbling and some swaying when walking with her shoes off.

[19] At 2:48 a.m. this officer provided the grounds to Cst. Cooper who was the qualified breath technician and at 3:11 a.m. after further attempts apparently being made to contact a lawyer for Ms. Singh, Ms. Singh was delivered to the breath technician in order to provide samples of her breath.

[20] This officer remained during the conducting of those tests and ultimately served a Certificate of Qualified Technician on the accused. Service is not in issue and the certificate filed as Exhibit #1 notes that the first sample of breath on the approved instrument was completed at 3:22 a.m. on February 20, 2012 and resulted in a reading of 170 milligrams of alcohol in 100 millilitres of blood. The second sample was completed at 3:50 a.m. on February 20, 2012 and resulted in a reading of 160 milligrams of alcohol in 100 millilitres of blood.

[21] That concluded the evidence for the Crown. The defence elected to call no evidence.

ISSUE TO BE DETERMINED

[22] Defence counsel raises one issue with respect to the evidence led by the Crown and argues that the samples of breath were not taken as soon as practicable given what seems to be a 28-minute delay between the first and second samples, which delay has not been the subject of any evidence led by the Crown and is an unexplained delay. The issue then ultimately becomes were the tests taken as soon as practicable so as to enable the Crown to rely on the presumption, failing which the Crown's case will fail.

ANALYSIS OF THE FACTS AND LAW

[23] The facts are very straightforward in this matter dealing with the issue at hand. I should say initially I find the evidence of the officer to be very fair and straightforward. He is obviously an experienced officer and seems to have provided the accused throughout with the benefit of any doubt and with as much information as he possibly could provide to her with respect to the various steps of the investigation.

[24] That said, relevant to the determination of the issue I find the following are the appropriate times:

• 1:52 a.m. – traffic stop conducted
• 1:58 a.m. – breath demand made for a sample of breath from Ms. Singh into an approved screening device
• 2:00 a.m. – sample provided resulting in a "Fail"
• 2:01 a.m. – arrest for over 80
• 2:04 a.m. – rights to counsel read
• 2:05 a.m. – caution provided
• 2:06 a.m. – breath demand with respect to samples to be provided into the Intoxilyzer 8000-C
• 2:15 a.m. – second officer arrives on scene to take charge of the scene
• 2:18 a.m. – Cst. Wise and Ms. Singh depart the scene
• 2:22 a.m. – Cst. Wise and Ms. Singh arrive at the detachment
• 2:48 a.m. – Cst. Wise provides his grounds to Cst. Cooper, the qualified breath technician
• 3:11 a.m. – Ms. Singh is turned over to the breath technician
• 3:22 a.m. – first sample provided
• 3:50 a.m. – second sample provided

[25] Section 258(1)(c)(ii) of the Criminal Code provides basically a shortcut for the Crown with respect to proof of the concentration of alcohol in an accused's blood for the purposes of proving the offence under s. 253(b) of the Criminal Code among other issues. That section provides that where breath samples are 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 15 minutes between the times when the samples were taken" then provided certain other conditions are met, the Crown can rely on the presumption of identity. This presumption deems the results of the breath tests to be proof of an accused's blood alcohol level at the time of the offence in the absence of evidence to the contrary.

[26] In this particular case it is important to note that the defence takes absolutely no issue with respect to the time period from the time of the stopping of Ms. Singh's vehicle by Cst. Wise to the time they arrive at the detachment and then to the time of turnover to Cst. Cooper at 3:11 a.m. Further, the defence takes absolutely no issue with respect to the timeframe from 3:11 a.m. until 3:22 a.m. when the taking of the first sample of Ms. Singh's breath has been completed.

[27] The only time period that the defence raises with respect to the issue before the court is the timeframe between the first and second samples. That is a period of approximately 28 minutes. The defence takes no issue with respect to any other timeframe in determining the reasonableness of the passage of time for the purposes of [s. 258(1)(c)(ii)].

[28] The defence here simply argues that even accepting that the samples have to be taken at least 15 minutes apart and the case law would seem to support that a timeframe of 17 to 20 minutes between the taking of the first and second samples does not require any explanation, there is an additional 8-minute period here that is virtually unexplained. The Crown reasonably concedes there is no evidence other than the fact that Cst. Wise happened to be in the breath room at the time of the taking of the samples to explain this 8-minute period. There is simply no evidence before the court with respect to that additional timeframe and, as a result, the period is "unexplained".

[29] Counsel have provided case law and it is clear that the leading case with respect to this particular issue is Regina v. Vanderbruggen, a decision of the Ontario Court of Appeal. In that case there was a delay of approximately an hour and 15 minutes from the time of the offence to the taking of the first sample. During that period of time there was an unexplained 46-minute gap. The Court of Appeal ultimately found that the Crown had adduced sufficient evidence before the trial court from which the trial judge could conclude that the police acted reasonably in the circumstances and that the breath samples were ultimately taken as soon as practicable.

[30] The Court of Appeal indicated that the requirement that the samples be taken as soon as practicable does not mean as soon as possible. It means nothing more than that the tests were taken within a reasonably prompt time under the circumstances. The court also stated that a trial judge should look at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test and that the "as soon as practicable" requirement must be applied with reason. At para. 13 of the judgment the court noted as follows:

"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] Further, in para. 16 the court stated as follows:

"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 breathalyser 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."

[32] In Vanderbruggen as well the Court of Appeal at para. 12 noted:

"The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably."

[33] The case law then requires that the tests be taken within a reasonably prompt time.

[34] In Regina v. Price at para. 16 the court noted:

"It must also be remembered that focusing on one aspect of the total time is not the appropriate way to determine if the tests were taken as soon as practicable. Rather, it is the entire time period that must be examined."

[35] The court has had an opportunity of reviewing cases provided by counsel as well as additional cases. With respect to the defence position, I note the case of Regina v. Jonasson, a decision of the Alberta Provincial Court where the time between the first and second readings was 29 minutes without explanation and the charge of over 80 was dismissed as the Crown had failed to prove the tests were taken as soon as practicable. Regina v. Kunsenhauser, when considering the same issue, i.e. the time between the two tests and the delay was 28 minutes or what the court found was "13 minutes over the minimum" without explanation the court held the tests were not taken as soon as practicable. With respect to that particular case there is no reference to Regina v. Vanderbruggen, supra, although that case post-dates Vanderbruggen by several months. See also Regina v. Konyk, where there was a delay of 28 minutes between the two breath samples without explanation and the presumption was found not to apply, which case again pre-dates Vanderbruggen.

[36] See also, Regina v. Lemarchant, which deals with a delay in conducting a third test of some 12 minutes without explanation and as a result the presumption did not apply. That case is of limited assistance as the facts are not necessarily clear from the judgment and seem to relate to the taking of a third sample without reference to any gap between the first and second samples. I adopt the reasoning of the court in Regina v. Malenfant, which indicated that the Lemarchant case seems to be a case of mistaken accounting as opposed to inadequate accounting.

[37] In Regina v. Malenfant, supra, the court took the position:

"in the absence of any gap in the demand-to-sampling chronology of a duration beyond what one could reasonably expect as a matter of common sense, proof of reasonable promptitude will not be defeated by the absence of an accounting for all of the elapsed time."

(See para. 18.)

[38] In Regina v. Blacklock, there was a gap of some 32 minutes between the two samples which was unexplained and on appeal the court found that absent such an explanation no evidentiary basis existed to suggest that the test was taken as soon as practicable. There, the Superior Court overturned the trial judge who had in fact found that such a period of 32 minutes did not require an explanation and relied on the reasoning in Regina v. Vanderbruggen, supra.

[39] There are cases to the contrary. See Regina v. Sequin, where the court found that a 28-minute unexplained delay between samples did not foreclose the Crown relying on the presumption set out in the Code. Further, Regina v. Williams, a decision of the Nova Scotia Provincial Court, a delay of some 28 minutes again between the first and second samples which was unexplained did not preclude the Crown from relying on the presumption. Indeed, in that particular case the court found that only a delay between the two samples in excess of 30 minutes would be prima facie unreasonable. The court further indicated in that case a delay of less than 15 minutes beyond the 15-minute minimum did not offend the practicality requirement in s. 258 of the Code.

[40] In Regina v. Kunaratnam, the court dealt with a similar situation where the timeframe between the two breath tests was 31 minutes. There, the court found there was no explanation for the 31-minute period and that as a result the breath tests were not taken as soon as practicable as contemplated by the Code.

[41] However, notwithstanding that finding the court articulated what is, as I understand it, the proper test. That is, the court should look at the whole chain of events bearing in mind that the prosecution is not required to provide a detailed explanation of what occurred every minute the accused was in police custody as stated in Vanderbruggen itself. The statutory two-hour limit from the time of the offence to the taking of the first test serves to encourage prompt police investigations and importantly to preserve the scientific integrity of the intoxilyzer process. Any unexplained or unnecessary delay must be seen in that context.

[42] In the case before the court defence counsel takes no issue whatsoever with any timeframe other than the timeframe between the first and second samples. That is, the defence effectively concedes that throughout his dealings with Ms. Singh Cst. Wise acted appropriately and provided explanations for any timeframes that were involved. As the court indicated earlier, Cst. Wise appears to be very efficient and very thorough but also a very fair officer and that fairness is demonstrated clearly on the evidence with respect to Cst. Wise's dealings with Ms. Singh.

[43] Constable Wise provided Ms. Singh with additional information at the roadside with respect to the screening device, he took steps to make sure that the screening device would be used appropriately and upon arrival at the detachment he took steps to attempt to contact counsel on her behalf. All of the time subsumed in such efforts is not in issue. What basically is the issue here is an additional eight minutes over and above the 17 to 20 minutes between the two samples which appears to be an appropriate timeframe as set out in the case law, which eight-minute period is unexplained. The only explanation, and it is really not an explanation at all, is that Cst. Wise was in the intoxilyzer room at the time.

[44] The case law sets out that the requirement the tests be taken "as soon as practicable" must be applied with reason. As noted in Regina v. Willett, paras. 45 to 50, the "as soon as practicable" criterion was enacted to ensure that the presumption operates fairly and that the breath testing leads to accurate results. In enacting this criterion Parliament was concerned with protecting against the manipulation of the results by delaying testing to allow for the absorption of alcohol into the accused's blood.

[45] Here, in this case there is no explanation effectively for an eight-minute period of approximately a 28-minute delay between the tests. All of the remainder of the period between the time of the tests is explained either by statutory requirement, i.e. at least 15 minutes and by supporting case law. There is absolutely no issue taken in this particular case with any other delay leading to an argument that the tests were not taken as soon as practicable. Applying reason and looking at the entire timeframe involved from the time of the offence to the time of the taking of the first sample the court is ultimately satisfied that the first test was taken as soon as practicable within the meaning of the legislation. In arriving at that decision the court has looked at the whole chain of events as suggested in Regina v. Vanderbruggen bearing in mind that the Crown is not required to provide a detailed explanation of what occurred during every minute the accused was in police custody. Ms. Singh was in police custody from approximately 2:00 a.m. and throughout the testing procedure (as well as thereafter prior to release) until the completion of the testing procedure for something just less than two hours as the second test was completed at 3:50 a.m. All of the times ultimately are reasonable and the statutory requirements are met to allow the presumption to be in place. Constable Wise acted reasonably throughout and as noted in the case law it is inappropriate to focus on one aspect of the total time in determining whether or not the tests were taken as soon as practicable. It is the entire timeframe that must be considered. There is no other issue taken and the defence readily concedes that all such elements have now been proven to the degree required.

[46] As a result, there will be a finding of guilt and a conviction registered on the charge of over 80.

Released: October 23, 2012

Signed: "Justice G. F. Hearn"