Court File and Parties

Court File No.: Central East 12-1951 Date: 2012-12-19 Ontario Court of Justice

Between: Her Majesty the Queen — and — Jennifer Cochrane

Before: Justice C.M. Harpur

Heard on: December 4, 2012

Reasons for Judgment released on: December 19, 2012

Counsel:

• D. Chronopoulos for the Crown
• R. Morhan for the accused Jennifer Cochrane

HARPUR J.:

Overview

[1] Ms. Cochrane is charged with impaired care or control and care or control with excess blood alcohol on March 23, 2012. Her trial proceeded on December 4, 2012. The Crown called PC Blake Pyatt, the arresting officer, PC Douglas Avery, PC Pyatt's partner and training officer that evening, and Mr. Jean-Paul Palmentier, a toxicologist whom I qualified as an expert in the ingestion, absorption, distribution and elimination of alcohol in the human body, blood alcohol concentrations in the body resulting from the consumption of alcohol, the operation of the Intoxilyzer 8000 C and the effects of the consumption of alcohol on a person's ability to operate a motor vehicle. Ms. Cochrane called no witnesses.

[2] The evidence indicates that PC Pyatt and PC Avery were called to the scene of a motor vehicle accident by radio call at approximately 5:00 PM on March 23, 2012 and arrived at 5:00 PM at the scene, the shoulder of Huronia Road southwest of the traffic lights where Huronia intersects with McKay Road. As reported in the radio call, the officers observed that the lead stopped vehicle, which was occupied by driver Scott Allen and 3 passengers, appeared to have been on the receiving end of a minor rear end collision in which the trailing stopped vehicle, operated by Ms. Cochrane, had struck that of Mr. Allen. PC Avery noted a crack in Mr. Allen's rear bumper and damage simply to the plastic licence plate holder on Ms. Cochrane's car.

The Impaired Charge

a. The Expert Evidence

[3] Ms. Cochrane's case has the unusual feature of toxicological evidence concerning the charge of impaired operation. The expert, Mr. Palmentier, had no involvement with Ms. Cochrane. Rather, he had been enlisted by the Crown to undertake a "read-back" of Ms. Cochrane's Intoxilyzer readings of 113 and 103 mg of alcohol in 100 ml of blood at 6:32 PM and 6:54 PM, respectively, to the time of her collision with Mr. Allen. In the event, Mr. Morhan for Ms. Cochrane admitted the fact of a period of less than 2 hours between the time of care or control and the time of the taking of the first breath sample. Thus, Mr. Palmentier was not required for his reading-back opinion. He was, however, called by Mr. Chronopoulos for the Crown to express an opinion in support of the impaired care or control charge.

[4] In sum, Mr. Palmentier expressed the proposition that persons with blood alcohol concentrations in excess of 100 mg of alcohol in 100 ml of blood "would be expected" to be impaired in one or more of the faculties required to operate a motor vehicle properly. Mr. Palmentier based his opinion on the peer literature and hundreds of studies and tests which he had reviewed. Not having dealt with Ms. Cochrane, Mr. Palmentier necessarily referred in his testimony to hypothetical persons – "an individual", "someone", "the driver". In cross-examination, Mr. Palmentier conceded that his opinion represented "generalized propositions not necessarily applicable to the same degree to each person". He said that his opinion "would apply to the general population" and that "not everyone has been tested to see if they would be impaired". When discussing the concept of truncating, Mr. Palmentier stated that one truncates to account for the "analytical and biological variability" inherent in the process of obtaining blood alcohol concentration readings of individuals. He acknowledged that, if a given individual were tested, that would lead to "greater precision in one's ability to express an opinion regarding the individual's impairment".

[5] Given Mr. Palmentier's concession that his opinion about impairment in the general population does not necessarily apply to every individual, I retain a doubt as to whether the opinion applies to Ms. Cochrane.

b. The Indicia

[6] The Crown's evidence of impairment by Ms. Cochrane, apart from the expert's opinion, is very limited. There was a rear end collision but PC Pyatt described the roads as slippery.

[7] PC Pyatt did say that Ms. Cochrane exhibited the odour of alcohol on her breath and that she avoided eye contact. He said that her exit from her vehicle was slow, that she swayed and stumbled as she walked on the gravel roadside and that she curved to her left as she walked on the pavement of Huronia Road toward the back of her car.

[8] PC Avery said that Ms. Cochrane had a faint odour of alcohol and mint flavouring on her breath, that she resisted making eye contact and that the smell of alcohol on her breath seemed to increase as she spoke to the police en route to the detachment.

[9] This constellation of factors was largely neutralized by the additional descriptions given by the officers. PC Pyatt said that he had no grounds to arrest for impairment prior to administering the screening device. He said Ms. Cochrane had no difficulties removing her seatbelt. He acknowledged that she was wearing high heels as she walked on the gravel. He said that he himself had concerns about approaching cars on Huronia Road, the pavement on which Ms. Cochrane was walking toward traffic until she reached the rear of her car. PC Pyatt said Ms. Cochrane was cooperative, polite and rational. He said he felt somewhat overwhelmed at the scene since this was his first impaired investigation and that, as a result, he was not really paying attention to indicia. PC Avery confirmed that Ms. Cochrane was upset at the scene but was cooperative and friendly. He said that her walking showed no signs of impairment and that she had no difficulties providing her identification. He said that he does not regard an absence of eye contact alone as significant in assessing impairment.

[10] The Crown's evidence in support of the allegation of impairment, such as it is, does not meet the test set out in R. v. Stellato, 78 C.C.C. (3d) 380 (O.C.A.). The charge of impaired care or control is dismissed.

"As soon as practicable"

[11] Mr. Morhan submits that the Crown has not proven that the breath samples were taken "as soon as practicable" pursuant to s. 258(1)(c) C.C. so as to rely on the presumption of identity and establish Ms. Cochrane's blood alcohol concentration to be the lower reading of 103 mg. percent when she was seen in care or control by the officers at approximately 5:25 PM. The chronology is as follows:

• 4:59 PM: radio call
• 5:22 PM: police at the scene
• 5:34 PM: ASD demand and ASD sample received
• 5:39 PM: Ms. Cochrane is arrested for over 80 mg
• 5:41 PM: PC Pyatt demands breath samples
• 5:49 PM: the officers and Ms. Cochrane leave the scene
• 6:02 PM: the officers and Ms. Cochrane arrive at the detachment
• 6:10 PM: a call is placed to Mr. Morhan
• 6:15 PM: Mr. Morhan calls back and Ms. Cochrane is placed on the phone with him
• 6:32 PM: PC Pyatt takes Ms. Cochrane to breath technician PC Avery and PC Avery takes the first sample (113 mg)
• 6:54 PM: PC Avery takes a second sample (103 mg)

[12] The time from the officers' arrival at the scene until the first sample was approximately one hour and ten minutes, well within the two hour limit specified in s. 258(1)(c) C.C.. R. v. Vanderbruggen, [2006] O.J. No. 1138 (O.C.A.) commented on this section as follows:

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. 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. See R. v. Letford, (2000), 150 C.C.C. (3d) 225 (Ont. C.A.) at para. 20; R. v. Carter, supra; R. v. Cambrin, (1982), 1 C.C.C. (3d) 59 (B.C.C.A.) at 61-3, and R. v. Seed at para. 7.

[13] In instances where the police description of the steps taken in the interval from offence to first sample fails, as a matter of common sense, to explain the delay, then the Crown will not have established the "as soon as practicable" precondition to reliance on the presumption. However, the inquiry does not begin with a division of the overall delay into segments and an assessment of whether each is fully explained. That would be to engage in the very exercise Vanderbruggen has deemed inappropriate. An accounting of the delay is not required. Proof of reasonable promptitude is. Here, I regard the Crown as having provided that proof.

[14] The intervals particularly emphasized by Mr. Morhan for the defence were the delays from the officers' arrival at the scene at 5:22 PM until the ASD demand at 5:34 PM, and from the 5:34 PM taking of the ASD sample and the 5:39 PM arrest, as well as the delay at the detachment attributable to PC Avery's resetting of the Intoxilyzer.

[15] Mr. Chronopoulos conceded that the police activities at the scene may have taken a few moments longer than the norm by reason of the fact that PC Pyatt was engaged in his first drinking/driving investigation and, that evening, was being trained by PC Avery. The Crown submits, and I agree, that these few extra moments are not, nonetheless, unreasonable, given the necessity of police training. Clearly there is a limit on the extent to which the mentoring of one officer by another can interfere with the requirement of reasonable promptitude under s. 258(1)(c) C.C. without offending it, but here that limit was not reached.

[16] Even if one accepts that a few moments were added to the delay at the scene by reason of mentoring, that twenty-seven minute delay was not out of the ordinary, given the steps taken. The occupants of Mr. Allen's car were all spoken to by PC Pyatt. Ms. Cochrane was spoken to by PC Avery and her documents collected. PC Pyatt began to investigate the matter as a motor vehicle accident and to complete a motor vehicle accident report. PC Avery gave Ms. Cochrane's documents to PC Pyatt and said he should speak to her. He did (a brief repetition of PC Avery's step), with the consequent ASD demand and sampling. The five-minute interval from sampling to arrest is more than usual but was described by PC Pyatt as his showing to Ms. Cochrane the "F" result and speaking to her. It does not amount to inattention to his duties.

[17] PC Avery testified that he had anticipated receiving Ms. Cochrane in the breath room sooner than he did. He said he had gone to the Intoxilyzer to ready it at 6:02 PM as soon as he, PC Pyatt and Ms. Cochrane arrived at the detachment. He said that the instrument "timed out" when he did not begin the sampling of Ms. Cochrane's breath in a sufficiently brief period after inputting her data for her analyses. He said he did not receive Ms. Cochrane when anticipated because she was on the telephone with her counsel. He described the time involved in resetting the Intoxilyzer as three to five minutes. Again, I see nothing in this evidence suggesting unreasonable action on the part of the police.

[18] I consider the as soon as practicable precondition to be met. The Crown can rely on the presumption of identity. There being no other issue in respect of the results of the analysis, Ms. Cochrane's blood alcohol concentration at the time of her offence is deemed to be the lower sample reading of 103 mg. I find her guilty of the over 80 charge.

Released: December 19, 2012

Signed: "C.M. Harpur"

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