Court Information

Ontario Court of Justice

Between: Her Majesty the Queen T. Monteiro for the Crown

— And —

Themis Katis S. Nassar and M. Montes for the defendant

Before: Lipson J.

Reasons for Judgment

Overview of the Evidence

[1] Themis Katis pleaded not guilty to a charge of drive over 80 mgs.

[2] On December 16, 2011 Mr. Katis was driving his car on northbound Markham Road in Scarborough. Shortly before 1 a.m. he stopped for police operating a RIDE program. The investigating officer, P.C. Dearborn, observed that despite the cool temperature outside, the driver's side window was open as the car approached the officer. There were at least two other persons in the accused's vehicle. The officer asked Mr. Katis if he had consumed alcohol. Mr. Katis replied "No, nothing. I am the designated driver. These guys had been drinking." He also said that they were coming from a bar down the street. Mr. Katis' eyes were glazed and an obvious smell of alcohol came in the officer's direction when the accused spoke. P.C. Dearborn determined that the accused had recently consumed alcohol. He testified that he had a suspicion that Mr. Katis had consumed alcohol because of his glazed eyes and the smell of alcohol when he spoke and the accused's statement that he and the other occupants of the vehicle had come from a bar down the street. At 12:59 a.m. the officer gave Mr. Katis the approved screening device demand. The device had been last calibrated on December 9 and P.C. Dearborn believed that it was in proper working order. Mr. Katis registered a fail on the ASD testing which meant that he had over the legal limit of alcohol in his system. The officer arrested the accused for drive over 80 mgs. and gave him the Intoxilyzer demand. At 1:15 a.m. he read the accused his right to counsel. Mr. Katis was transported from the scene at 1:16 a.m. and arrived at 41 Division at 1:27 a.m. By 1:41 a.m. the booking process was completed. Mr. Katis declined to telephone duty counsel or private counsel. At 1:58 a.m. he provided his first breath sample which resulted in a reading of 161 milligrams in 100 millilitres of blood. The second test, taken 2:24 a.m., resulted in a reading of 163 mgs.

The Issues

[3] Counsel for Mr. Katis submitted that his client's section 8 Charter right was violated in that the arresting officer did not have the requisite grounds to make either the ASD or Intoxilyser demands and that the evidence should be excluded pursuant to section 24(2) of the Charter.

[4] It was also submitted that the breath test results are inadmissible because they were not taken as soon as practicable. In particular, the 17 minute delay between the booking and the first sample was never explained in the evidence.

The Section 8 Charter Argument

[5] I am satisfied that P.C. Dearborn formed a reasonable suspicion within the meaning of s. 254(2) that Mr. Katis had alcohol in his system at the time he was stopped and investigated. I accept that he smelled alcohol coming from the accused's mouth. That, in combination with his observation that the accused's eyes were glazed and Mr. Katis' admission that he and the other occupants of the vehicle had just come from a bar provided the requisite basis to make the ASD demand.

[6] It was submitted that the officer should not have made the ASD demand until he had addressed his mind to the issue of whether or not he could obtain a reliable reading by administering the ASD without a brief delay. It was argued that since P.C. Dearborn had information from Mr. Katis that had just come from a bar, the officer should have determined when the accused had his last drink in order to determine whether a short delay in testing was necessary to rule out the presence of any mouth alcohol and thereby ensure a reliable ASD test result. It was further submitted that there is no evidence that the officer turned his mind to this issue.

[7] I am unable to agree with this submission. First, the timing of the decision of P.C. Dearborn to administer the ASD was never challenged in cross-examination by defence counsel. As well, Mr. Katis told the officer that he had nothing to drink that night and was the designated driver. As was the case in R. v. Enniarson, the arresting officer had no information as to the timing or drinking pattern of the accused's drinking because Mr. Katis had denied drinking. There was no credible evidence which would have caused P.C. Dearborn to doubt the accuracy of the test result unless the test was briefly delayed.

[8] There is no legal obligation upon an officer to query an accused about mouth alcohol prior to administering a test: R. v. Aulakh, [2006] O.J. No. 5034 (C.J.). In R. v. Mastromartino at para. 23, Durno J. provides a useful summary of the principles relating to the issue of mouth alcohol and refers to the Supreme Court of Canada decisions in R. v. Bernshaw and Enniarson. One of those principles is that officers are not required to wait before administering the test in every case where a driver may have been in a bar before being stopped. The mere possibility that a driver has consumed alcohol within 15 minutes before taking the test does not preclude an officer from relying on the accuracy of the screening device. In the end, I am satisfied that the officer honestly and reasonably believed that he could rely on the test result if the ASD sample was taken without delay.

[9] Mr. Katis' ASD "fail" result along with other indicia such as the smell of alcohol and glazed eyes provided the necessary reasonable and probable grounds for P.C. Dearborn to have made the s. 254(3) Intoxilyser demand.

[10] I conclude there was no section 8 Charter breach in this case and, as a result, there is no need to go on to consider whether the evidence should be excluded pursuant to section 24(2). The application is dismissed.

The "As Soon as Practicable" Argument

[11] Counsel rightly submits that there is a significant and unexplained 17 minute delay at the police station before the first test was administered. The leading case on this issue is R. v. Vanderbruggen where the court stated at para. 13 that in deciding whether the tests were taken as soon as practicable, the 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. The "as soon as practicable" requirement must be applied with reason. There is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in police custody.

[12] Here, Mr. Katis was stopped just before 1 a.m. and provided his first breath sample approximately one hour later. In all the circumstances, I am satisfied that the samples were taken within a reasonably prompt amount of time despite the fact that the police evidence does not contain an exact accounting of every moment in the chronology of the accused's activities from the time of arrest to the time of the taking of the first sample. I am satisfied that the breath samples were taken as soon as practicable and are therefore admissible.

[13] I am satisfied that the Crown has proven the offence charged beyond a reasonable doubt and the accused will be convicted.

Released: October 29, 2012 Justice T. Lipson