Court File and Parties

Court File No.: Central East 11-4583 / 11-6002

Date: 2012-12-14

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Paul Marchildon

Before: Justice C.M. Harpur

Heard on: June 12, October 25, November 2, 2012

Ruling Concerning S. 258(1)(c) and Bolus Drinking Issues

Released on: December 14, 2012

Counsel:

S. Curry ……………………………………………………………………for the Crown

R. Jourard …………………………………………….for the accused Paul Marchildon

Harpur J.:

Overview

[1] Mr. Marchildon is charged with alcohol-impaired care or control and care or control with excess blood alcohol on July 29, 2011. The charges have been, and are, the subject of a number of defence motions and applications. They were initially scheduled for an April 12, 2012 motion by Mr. Marchildon for additional disclosure and for a one-day trial on June 12, 2012. The motion proceeded in April and some additional Crown disclosure was ordered. The trial, blended with a voir dire in respect of Mr. Marchildon's Charter applications, began on June 12, 2012 and continued on October 25 and November 2, 2012. Mr. Marchildon testified only on the voir dire. No defence trial evidence was called. The Crown called evidence from Donald Geniole, a motorist, James Stewart, a bartender, P.C. Sarah Bamford, the arresting officer, P.C. Jason Storey, the breath technician, Inger Bugyra, a toxicologist, P.C. Jason Stamp, an officer who participated in Mr. Marchildon's booking and strip search at the detachment, and Sgt. Dave Berriault, the booking Staff Sergeant and the other officer involved in Mr. Marchildon's strip search. Sgt. Berriault's testimony related only to the voir dire. The evidence of the other Crown witnesses formed, in whole or in part, the Crown's case for trial.

[2] At the conclusion of the evidence on November 2, 2012, counsel agreed initially to present for determination two issues relating to the over 80 charge. The two issues are: (i) has the Crown proven that each of Mr. Marchildon's breath samples was taken "as soon as practicable" and that the first sample was taken within two hours of the alleged offence, so as to enable the Crown to rely on the presumption of identity in s. 258(1)(c) C.C.; and (ii) if the Crown cannot rely on the presumption of identity, has the Crown proven the absence of alcohol consumption by Mr. Marchildon between approximately 5:53 p.m. – 5:57 p.m. (said by the Crown to be approximately fifteen minutes prior to the alleged offence) and the time of his breath tests at 8:09 p.m. and 8:13 p.m., which absence forms one of the underpinnings of Ms. Bugyra's opinion of an excess blood alcohol concentration at the time of care or control.

[3] The Crown accepts that, if it has failed in the proof of either of these matters, the over 80 charge is to be dismissed. Counsel are in agreement that, if the Crown has established either compliance with s.258(1)(c)(ii) C.C. or the absence of alcohol consumption after approximately 5:53 p.m., the disposition of this charge will be subject to further submissions challenging it under the Charter. The impaired charge has not yet been the subject of argument.

S. 258(1)(c)(ii) C.C.

a. "As soon as practicable"

[4] The portion of the July 29, 2011 chronology relevant to this issue is as follows:

Time	Event
18:12	P.C. Bamford receives the radio call
18:20	P.C. Bamford arrives at the bar parking lot
18:20/18:21	P.C. Rasmussen arrives on scene
18:32	P.C. Bamford arrests Mr. Marchildon
18:35	P.C. Bamford reads to Mr. Marchildon his rights to counsel
18:36	P.C. Bamford cautions Mr. Marchildon and issues a demand for samples of his breath
18:49	the Intoxilyzer is ready to receive samples
18:57	the tow truck arrives at the scene
18:58	P.C. Bamford leaves the scene with Mr. Marchildon for the detachment
19:09	P.C. Bamford and Mr. Marchildon arrive at the police detachment
19:14	P.C. Bamford and Mr. Marchildon arrive at the booking area of the detachment
19:17	Mr. Marchildon requests his Blackberry from officers at the detachment to retrieve his lawyer's phone number
19:18	the handcuffs are removed from Mr. Marchildon's wrists
19:19 – 19:22	Mr. Marchildon is questioned and searched and packages of white powder are seized from his shorts
19:23	Mr. Marchildon is given his Blackberry
19:28	police leave a telephone message for Mr. Marchildon's counsel, Mr. Jourard
19:33	Mr. Jourard calls back
19:50	Mr. Marchildon's telephone call with Mr. Jourard ends
20:09	Mr. Marchildon provides the first breath sample

[5] Mr. Jourard for Mr. Marchildon disputes proof of reasonable promptitude on the part of the police because of alleged unexplained and/or unsupportable delays from (i) the 18:36 giving of the breath demand and caution by P.C. Bamford to the 18:58 departure from the scene and (ii) the 19:09 arrival at the detachment to the 19:23 return to Mr. Marchildon of his Blackberry to obtain his lawyer's telephone number.

[6] As to the first of these periods, P.C. Bamford said she was involved ensuring the availability of a tow slip for the towing company and searching Mr. Marchildon's car along with P.C. Rasmussen. She also said she was making "quick" notes concerning the occurrence.

[7] Mr. Jourard notes that P.C. Rasmussen was on scene at 18:20/18:21 and could have undertaken the tow and search matters. He also notes that P.C. Bamford said there was "no particular reason" why she did not simply delegate these things to P.C. Rasmussen.

[8] Ms. Curry for the Crown submits that there is nothing unreasonable in P.C. Bamford's participation in the search for evidence relating to her impaired arrest or in her subsequent steps until she left the scene.

[9] I agree with the Crown's position on this issue. The arrest was P.C. Bamford's. The search did not present itself as something which would be lengthy and it could be accomplished quicker with two officers than one. I also take into account the time which the search might reasonably take, bearing in mind that a partially-full bottle of rum was found in plain view in the console, examined and seized. I consider as well P.C. Bamford's evidence of making notes of the occurrence to that point, including notes of several remarks made to her by Mr. Marchildon in five to seven minutes of conversation from 18:25/18:27 until the arrest at 18:32. Even if one were to regard as unnecessary labour on P.C. Bamford's part the time consumed in her organizing the completion of a tow slip rather than leaving the task to P.C. Rasmussen, the remaining steps she described strike me as understandably consuming the bulk of the twenty-two minutes in question.

[10] Mr. Jourard has drawn my attention to several cases in support of the submission that delays such as that experienced here as a result of P.C. Bamford's failure to delegate tasks at the scene to P.C. Rasmussen resulted in a finding that the police had not proceeded as soon as practicable. The cases are R. v. Katwaru [2006] O.J. 5271 (O.C.J.), R.v. Kamyab (2003) O.J. 6011 (O.C.J.) and R.v. Claughton [1998] O.J. 3515 (O.C.J.). In them, the courts regarded as unreasonable the failure of the police to bring the defendants to the police detachments earlier than they did. The courts' reasons where, respectively (i) the arresting officer had another attending officer to whom to delegate dealing with the passenger and the arrival of a tow truck; (ii) the arresting officer was also the breath technician and waited for the arrival of a tow truck before leaving for the detachment, although another officer was available for this duty, on the basis that police policy required the arresting officer to accompany the defendant; and (iii) the arresting officer waited sixteen minutes for the tow truck and did not explore options such as having the passenger/owner drive the stopped vehicle or leaving the stopped vehicle overnight on the roadside.

[11] In my view, the appropriate question in the "as soon as practicable" analysis is not "was there a speedier alternative" but, rather, "were the actions which were adopted by the police reasonable". The former question would apply in an "as soon as possible" regime. The latter question applies in the "as soon as practicable" regime, as R. v. Vanderbruggen, [2006] O.J. No. 1138 (O.C.A.) has established.

[12] Further, from Vanderbruggen, the assessment is of the overall period of delay, not its individual components - although, where a component of the overall period requires explanation as a matter of common sense, that component may prove fatal to the Crown's position if either the explanation provided is inadequate or there is none.

[13] Thus, looking to the additional decisions in this area cited by the defence, in R.v. Schouten [2002] O.J. 4777 (S.C.J.), Durno, J. regarded the eighteen minute delay at the detachment between readiness of the Intoxilyzer and the presentation of the defendant to the breath technician for first sampling as requiring an explanation which was not forthcoming. Similarly, in R.v. Tregear [2010] O.J. 4182 (O.C.J.), Dawson, J. regarded the twelve minutes between a police officer at the scene receiving custody of the defendant and that officer's departure from the scene with the defendant as requiring but not receiving an explanation. To the same effect, in R.v. Lemarchant [2009] O.J. 4297 (S.C.J.), Van Rensburg, J. regarded a twelve minute delay beyond the usual necessary interval between breath samples as requiring but not receiving an explanation. In all of these cases, the periods of delay in question were seen by the courts as inherently problematic in the context of the descriptions which had been given by the police of their activities. Here, however, P.C. Bamford's description of her activities between 18:36 and 18:58 does not leave puzzling gaps; the activities she has described would plausibly have consumed the time in question.

[14] As to the second time segment, there is, similarly, nothing inherently questionable about the few minutes of delay between P.C. Bamford's arriving at the sally port of the detachment and her arrival with Mr. Marchildon in the booking area. Following that interval, the transcript of the booking procedure made Exhibit 4 at trial does show some hesitation by P.C. Storey, P.C. Stamp and Sgt. Berriault in complying with Mr. Marchildon's request to consult his Blackberry to obtain his lawyer's telephone number. The request is made by Mr. Marchildon at the detachment at 19:17. From 19:19 until 19:22 Mr. Marchildon is being questioned by the booking officers, is searched, and the packages of white powder are found. The Blackberry is given to Mr. Marchildon at 19:23. Mr. Jourard's telephone number is retrieved by Mr. Marchildon at 19:24. I agree with Mr. Jourard on the basis of Exhibit 4 that the police were, on occasion in this period from 19:17 until 19:23, gratuitously peremptory and scornful in their dealings with Mr. Marchildon. However, I consider their hesitation in providing Mr. Marchildon's Blackberry to him as attributable both to the time taken to search and question him and to scepticism about his reason for wanting the phone, not to their discourtesy; since Mr. Marchildon had not been able to provide Mr. Jourard's name to the officers when he was asked for it, their doubts about his finding the telephone number in the smart-phone were not unreasonable.

[15] For these reasons, I regard the "as soon as practicable" pre-condition as having been satisfied.

b. The "two hour window"

[16] It is common ground that P.C. Storey took the first suitable sample of Mr. Marchildon's breath at the detachment at 8:09 p.m. according to the Intoxilyzer clock. Has the Crown proven care or control by Mr. Marchildon at 6:09 p.m. or later? Mr. Geniole was the witness who first saw Mr. Marchildon. He said Mr. Marchildon was "crawling" north on Highway 400 toward Barrie on this holiday weekend Friday and that his own pick-up truck was, for the most part, directly behind Mr. Marchildon's car. He said he noted erratic driving by Mr. Marchildon and, at about 5:50 p.m., called 911. He said he followed Mr. Marchildon's car in his own vehicle into a bar parking lot off Highway 400 still talking to the 911 operator, arriving one to two minutes after Mr. Marchildon did, that he watched Mr. Marchildon stagger into the bar, that he talked with P.C. Bamford and a second officer when they arrived in the lot, and that he then saw Mr. Marchildon exit the bar. Mr. Geniole said Mr. Marchildon was in the bar for fifteen minutes, plus or minus "a few minutes".

[17] P.C. Bamford testified that she received a radio call about a possibly-impaired driver having exited Highway 400 at 6:12 p.m.. She said she arrived at the bar parking lot at 6:20 p.m. and that Mr. Marchildon exited the bar approximately five to seven minutes later.

[18] Ms. Curry has tracked the times of certain events as recorded by, respectively, P.C. Bamford, the breath room video, the breath technician, and the Intoxilyzer, in an effort to establish that the timepiece used by P.C. Bamford to record her arrival at the bar is one minute slower than the Intoxilyzer time and to establish that Mr. Marchildon was seen by Mr. Geniole in care or control at 6:08 p.m. or later according to P.C. Bamford's time.

[19] In my view, the effort to correlate these times does not assist the Crown in light of the totality of the timing evidence. Mr. Geniole conceded that Mr. Marchildon was in the bar for fifteen minutes, plus or minus "a few". A few can denote more than two. If Mr. Marchildon was in the bar for, for example, eighteen minutes and emerged as early as 6:25 p.m. as P.C. Bamford said he may have done, then he must have left his car and entered the bar at 6:07 p.m. according to P.C. Bamford's timepiece (which Ms. Curry established would be 6:08 p.m. according to the Intoxilyzer). This would exceed the two hour limit by one minute. Further, P.C. Bamford was, like Mr. Geniole, imprecise as to how long after her 6:20 p.m. arrival at the lot Mr. Marchildon exited the bar. She said "it would just be an estimate, probably about, you know, five, seven minutes or so". This description seems to me to leave open the prospect of a period of less than five minutes, a prospect which, combined with Mr. Geniole's approximate fifteen minute estimate of Mr. Marchildon's time in the bar, could again place Mr. Marchildon's last observed care or control by Mr. Geniole earlier than 6:09 p.m. by the Intoxilyzer clock.

[20] Mr. Jourard has submitted that the Crown's analysis falters as well in that not all of P.C. Bamford's times can be attributed to her cruiser computer clock which, alone, was correlated to the Intoxilyzer. I have reservations about this submission since the time of P.C. Bamford from which Ms. Curry attempted to construct the two-hours-or-less scenario was 6:20 p.m. and that time was taken from P.C. Bamford's cruiser clock. However, since I do not accept Ms. Curry's scenario as proven beyond reasonable doubt because of the lack of specificity in Mr. Geniole's and P.C. Bamford's times, the issue is moot.

[21] I am not satisfied that the Crown has proven that the first sample of Mr. Marchildon's breath was taken no later than two hours after he was last seen in care or control by Mr. Geniole. Since proof of this pre-condition, as well as a taking as soon as practicable, is required in order for the Crown to rely on the presumption of identity, I do not regard the lower truncated Intoxilyzer reading of 210 mg of alcohol in 100 ml of blood as evidence of Mr. Marchildon's blood alcohol concentration at the moment of his last observed care or control.

Bolus Drinking

[22] Ms. Bugyra based her opinion of Mr. Marchildon's blood alcohol concentration at approximately 6:12 p.m. (210 to 215 mg of alcohol per 100 ml of blood) on the assumption, among others, that Mr. Marchildon had consumed no alcohol from approximately fifteen minutes prior to 6:12 p.m. until he provided his breath samples at 8:09 and 8:32 p.m., respectively. Her evidence indicated no material variation in the "relating back" even if the time of care or control were as early as 6:08 p.m.. If the assumption of Ms. Bugyra has not been proven by the Crown, Ms. Bugyra's opinion does not have probative value and, given the Crown's inability to rely on the Intoxilyzer readings and the presumption of identity, the over 80 charge fails.

[23] The combination of Mr. Geniole's and P.C. Bamford's testimonies as to the times of their dealings with Mr. Marchildon in the bar parking lot, as previously described, establishes Mr. Marchildon's care or control of his vehicle immediately prior to exiting it at approximately 6:08 – 6:12 p.m..

[24] Mr. Geniole testified that he arrived at the parking lot within one or two minutes of Mr. Marchildon's arrival and that, by the time he arrived, Mr. Marchildon had exited his car and begun to stagger toward the door of the bar. He said he did not see Mr. Marchildon drink anything throughout the time he observed Mr. Marchildon, a time which began shortly before 5:50 p.m. and extended to Mr. Marchildon's entering the bar. He said he had a clear view of Mr. Marchildon as the two of them drove on Highway 400 and that he was, throughout his observation, focused on Mr. Marchildon. He did concede, however, that it was possible Mr. Marchildon ate or drank during his period of observation and that he did not see it.

[25] Mr. Stewart, the bartender, testified that Mr. Marchildon had nothing to drink while he was in the bar.

[26] P.C. Bamford testified that Mr. Marchildon drank nothing from the time she first saw him exiting the bar until she placed him in P.C. Storey's custody. I have inferred from Mr. Marchildon's custody by the breath technician and his custody in the detachment cells between samples that he consumed no alcohol from the time he was in P.C. Storey's custody until the provision of the second sample at 8:32 p.m.

[27] Thus, the only interval in the chronology of this incident concerning which there might be doubt about bolus drinking is the approximate fifteen minutes preceding 6:08 p.m. – 6:12 p.m. on July 29, 2011.

[28] Mr. Geniole testified that he called 911 at approximately 5:50 p.m. after having observed Mr. Marchildon "drift" from the fast lane to the center lane of Highway 400, re-enter the fast lane, almost hit the center-line barrier, re-enter the fast lane, and then repeat the action, all at the traffic's very slow speed. I conclude from this evidence that, for some brief period prior to approximately 5:50 p.m., Mr. Geniole was observing Mr. Marchildon in his car.

[29] In chief, Mr. Geniole said he lost sight of Mr. Marchildon's car for "two seconds" as Mr. Marchildon's car preceded his truck westbound over the Highway 400 bridge on Dunlop Street and "a second" as Mr. Marchildon's car pulled into and immediately out of a commercial building driveway on Dunlop Street before proceeding to the bar parking lot. In cross, Mr. Geniole acknowledged that he did not see Mr. Marchildon exit his vehicle at the bar parking lot but, rather, saw him after he had exited the car and was approaching the bar.

[30] P.C. Bamford seized a 350 ml. bottle of 40 proof white rum from the console of Mr. Marchildon's car following his arrest. She described the bottle as three-quarters empty of its contents. Mr. Geniole saw the bottle and estimated it was three-quarters to four-fifths empty. At trial, Ms. Bugyra examined the bottle (made Exhibit 2) and described it as two-thirds empty. She testified that consumption by Mr. Marchildon of as little as two-thirds of a 350 ml. bottle of 40 proof white rum in the fifteen minutes preceding 6:08 p.m. - 6:12 p.m. could result in the excessive blood alcohol readings recorded at 8:09 p.m. and 8:32 p.m. despite Mr. Marchildon's not having an excessive blood alcohol concentration at 6:08 p.m. – 6:12 p.m..

[31] On this evidence, Mr. Jourard submits that reasonable doubt as to bolus drinking remains. I do not agree. I have taken into account (i) Mr. Geniole's evidence that Mr. Marchildon was exhibiting signs of impaired ability to operate his motor vehicle prior to the approximate fifteen minute interval preceding Mr. Marchildon's exiting his car in the bar lot; (ii) Mr. Geniole's, Mr. Stewart's and P.C. Bamford's evidence that Mr. Marchildon exhibited signs of intoxication while entering, while in and while exiting the bar; (iii) the unlikelihood of Mr. Marchildon drinking alcohol from the bottle in his car as he inched north on Highway 400 approaching Dunlop Street surrounded by other cars and motorists; (iv) the unlikelihood of Mr. Marchildon having consumed approximately one-quarter of a litre of white rum in his car as he exited his vehicle, a brief period during which he was not seen by Mr. Geniole; (v) Mr. Geniole's evidence that he did not see Mr. Marchildon drink anything from shortly before 5:50 p.m. until Mr. Marchildon arrived at the bar parking lot and that his observation of Mr. Marchildon was consistent and clear, apart from a few seconds; and (vi) the absence of evidence from Mr. Marchildon's observers that his apparent level of intoxication was rising appreciably after the time he was observed by Mr. Geniole approaching the bar.

[32] Mr. Jourard also submits that the discovery on Mr. Marchildon's person of seemingly-opened packages of what appeared to the police to be cocaine following his arrest neutralizes the non-bolus-drinking probative force of any intoxicated behaviour by Mr. Marchildon prior to or when he entered the bar; Mr. Marchildon may, Mr. Jourard says, have consumed cocaine earlier in the evening and this would account for any "drunken" conduct at that stage. On this submission, I regard the "evidential onus" described in R. v. Pazczenko, 2010 ONCA 615, [2010] O.J. No. 3974 (O.C.A.) as Mr. Marchildon's. These are facts uniquely within his knowledge. The Crown evidence did not address whether the white powder seized was indeed cocaine, nor whether or when the substance was ingested by Mr. Marchildon. Mr. Marchildon did not testify. There is no basis on the record as it stands to infer that Mr. Marchildon had ingested cocaine prior to being seen by Mr. Geniole on July 29, 2011.

[33] I accept that the partly-emptied rum bottle in the car initially "puts in play" the possibility of bolus drinking, in the language of the Ontario Court of Appeal in Pazczenko. However, in my view, the enumerated factors set out at paragraph thirty-one above overwhelm the presence of that bottle alone as an impediment to the Crown's circumstantial case that Mr. Marchildon did not engage in bolus drinking.

[34] I consider the non-bolus-drinking assumption made by Ms. Bugyra as proven and would not refrain from giving weight to her opinion on this basis.

Released: December 14, 2012

"C.M. Harpur"

Justice C.M. Harpur, O.C.J.