Court File and Parties

Court File No.: 44

Date: 2013-03-07

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Hugo Mena

Before: Justice Lucia Favret

Heard on: July 12 and September 27, 2012

Written Submissions delivered: October 4, 2012

Charge dismissed: December 17, 2012

Written Judgment released: March 7, 2013

Counsel:

• K. Canton, for the Crown
• Mr. Bassi, for the Accused

Judgment

Favret, J.:

1. Overview

[1] Mr. Hugo Mena was charged that on January 22, 2012 he operated a motor vehicle with more than 80 mg. of alcohol in 100 ml. of his blood contrary to the Criminal Code. The defendant made an Application asking that evidence of intoxilyzer readings of breath samples he provided be excluded because the police breached his section 8 Charter Right by failing to make a demand he provide a breath sample into the intoxilyzer 8000 c. and or because the breath samples were not obtained as soon as practicable.

[2] The trial and application evidence was blended on consent. The arresting officers and the qualified breath technician testified.

[3] The defendant admitted that on January 22, 2012 he was stopped by the police while he was operating a motor vehicle. He also admitted that he was served with the certificate of a qualified breath technician.

[4] The result of the analysis of the first sample at 1:53 a.m. was 140 mg. of alcohol in 100 ml. of blood. The second sample of his breath was analyzed at 2:16 a.m., and result of that analysis, indicated 130 mg. of alcohol in 100 ml. of his blood.[1]

[5] On January 22, 2012, Officers Gough and Porter were working together. At about 12:19 a.m., Officer Gough saw the defendant operating a motor vehicle southbound on Northcliffe Blvd., fail to stop at the red light controlling the north and south bound traffic and turn right on St. Clair Avenue West in Toronto. Officer Gough pulled up behind the defendant and activated his roof lights. At the time he intended to issue a ticket for disobeying a red light contrary to s. 118 of the Highway Traffic Act. The defendant brought his vehicle to an abrupt stop.

[6] Officer Gough went to the driver window. The defendant rolled the driver window down. Officer Gough immediately noted an odour of alcohol from inside the motor vehicle. Officer Gough confirmed the defendant's identification after looking at his photo driver's licence. When he first asked if the defendant had consumed alcohol, the defendant pointed to a male in the rear seat and explained he was driving that man home. Officer Gough noted there was a woman in the front passenger seat. When he repeated the question, the defendant said he had two beers. Officer Gough said, as the conversation proceeded, he noticed an odour of alcohol from the defendant's breath and told the defendant to leave the car and come with him. At that point Officer Gough developed a suspicion the defendant operated a motor vehicle with alcohol in his body.

[7] As Officer Gough did not have an approved screening device, he requested one over the radio. At 12:53 a.m. a Dragger Alcotest 7410 GLC approved screening device was delivered to him. At 12:54 a.m. Officer Gough read a demand that the defendant provide a sample of breath forthwith into the approved screening device. The defendant said he understood the demand. Officer Gough demonstrated how to provide a sample of breath into the device. His sample registered 000. At 12:55 a.m. the defendant provided a breath sample into the approved screening device. The device screen showed EO, an error reading, which Officer Gough explained meant the breath sample provided did not have sufficient intensity. The defendant provided a second sample. The device screen indicated the sample failed which the Officer understood meant the defendant was operating the motor vehicle with more than 80 mg. of alcohol in 100 ml. of his blood. At 12:55 a.m. Officer Gough arrested the defendant.

[8] Officer Gough said he made a demand the defendant accompany him to provide a sample of his breath into a intoxilyzer following which he read the defendant his rights to counsel.

[9] Officer Gough put the defendant into his police car and turned on the in-car camera. At 12:58 a.m. he read the defendant his rights to counsel and caution. He recalled the defendant said he understood both. At 12:59 a.m. Officer Gough said he drove the defendant to Traffic Services. They arrived there at 1:13 a.m.

[10] Once at the station, at 1:18 a.m. the defendant was paraded before Sgt. George.

[11] At 1:25 a.m., Officer Gough took the defendant to the bathroom. Two minutes later he placed the defendant in cell number 5, following which at 1:31 a.m. Officer Gough contacted duty counsel who called back in 10 minutes. At 1:41 a.m., the defendant spoke with duty counsel for 7 minutes. The telephone call ended at 1:48 a.m.

[12] Officer Porter took the defendant to the qualified breath technician, Officer Spencer, at 1:48 a.m. The first reading breath was analyzed at 1:53 a.m. The second was at 2:16 a.m.

2. Analysis

(i) The Qualified Breath Technician

[13] Officer Spencer was the qualified breath technician who interacted with the defendant January 22, 2012. He prepared the Certificate of Qualified Breath Technician, Exhibit 3.

[14] At 1:15 a.m. he arrived at Traffic Services in order to prepare to conduct analysis of breath samples. After preparing the intoxilyzer 8000 C at 1:27 a.m., he was ready to receive custody of the defendant.

[15] The defendant was brought to him at 1:48 a.m. so the first test could be conducted and again at 2:13 a.m. so the second breath test could be conducted. He did not know why he had to wait 21 minutes before the defendant was brought to him.

[16] There are no inconsistencies in this Officer's evidence. He was objective while testifying. I accept his evidence. He was not asked if he made a demand that the defendant provide a breath sample into the intoxilyzer or if he determined if that demand had been made by either Officer Gough or Porter.

(ii) Officer Porter

[17] Officer Porter was partnered with Officer Gough on January 22, 2012. He testified although he had been an officer for six years, on January 22, 2012 he did not have a lot of experience with drinking and driving investigations.

[18] Officer Porter agreed timing was important in these investigations. He was cross-examined about when the defendant arrived at Traffic Services and paraded before Sergeant George. He recalled that at 1:13 a.m. he and Officer Gough drove into the sally port, the defendant got out of the cruiser and was escorted into the parading hall before the Sergeant. The Sergeant arrived at 1:18 a.m. He did not initially agree that he recorded that latter time incorrectly. When asked a second time, he agreed the time was recorded in error as of 00:18 a.m. and should have been 01:18 a.m.

[19] Officer Porter said he and his partner prepared their notes at the same table in the same work area. He denied he copied the entry, 00:18 a.m., from his partner's notes which also indicated the Sergeant arrived at 00:18 a.m. Officer Gough acknowledged he made the same entry in his memo book.

[20] It is not uncommon for police officers to share the time events occurred when preparing their notes. For some events, such as the time a shift starts, this is not significant issue. When the time events occurred is important, as here, making the same error when recording the time the Sergeant arrived demonstrates the state of mind of the officers at the time notes were prepared. Based on this entry, I conclude Officer Porter was not paying attention to detail. Given he knew timing was important in this investigation, the error causes me to conclude his evidence has some diminished reliability.

[21] Officer Porter was cross-examined about why the defendant spoke with duty counsel. He said he did not recall making a call to duty counsel. This answer was not responsive. He was not asked who called duty counsel for the defendant or if duty counsel was called. He agreed if he had contacted duty counsel he would have recorded having done so. He agreed that as he made no note of this he did not call duty counsel for the defendant. I accept this evidence.

[22] Officer Porter could not recall if he heard Officer Gough make a demand that the defendant provide a breath sample into the approved screening device, a breath demand for the intoxilyzer or if he heard Officer Gough read the defendant his rights to counsel and caution. He was guarding the vehicle for officer safety. I accept this evidence.

(iii) Officer Gough

[23] Officer Gough was the lead investigator in this case. He was an experienced officer who had been with the Toronto Police Service since 1999 having first worked for approximately ten years with the Peel Regional Police Force. He had conducted approximately six drinking and driving investigations per year and knew timing was important in such matters. I find both he and Officer Porter knew that in such investigations time should not be wasted.

[24] Like Officer Porter, Officer Gough prepared notes in his memo book of the investigation conducted herein. He said he was fairly certain the notes he prepared contained most of the relevant events. He had an independent recollection of this investigation and believed he recalled the incident "fairly well".

[25] There are several difficulties with his evidence which diminish its reliability. First there is an important inconsistency. Officer Gough said he assumed the defendant wanted to exercise his right to counsel, recalled the defendant asked to speak with counsel, had no independent recollection if the defendant wanted to speak with counsel after his rights to counsel were read to him and did not remember what the defendant said after his rights to counsel were read to him. Although he made a note that he read the defendant his rights to counsel, he made no note of the defendant's response to whether he wished to exercise that right or not. In cross-examination, Officer Gough agreed that the defendant did not indicate he wanted to speak with counsel.

[26] Secondly, there are difficulties with the reliability of Officer Gough's evidence because his memory is frail. For example, although Officer Gough knew duty counsel was called, at best his evidence is he "believed" he facilitated the defendant speaking with duty counsel. He did not know whether he or Officer Porter called duty counsel. Because he read the defendant his rights to counsel and a caution, he believed he called duty counsel. Officer Gough said he was not sure of the "mechanics" of how the defendant's communication with duty counsel was organized.

[27] Officer Gough also believed he read the breath demand that the defendant accompany him to provide a sample of his breath into the intoxilyzer to be analyzed to determine the quantity of alcohol if any in his blood after reading the defendant his rights to counsel and before placing the defendant in the rear of his scout car when the defendant was either beside the police cruiser or on the sidewalk. This is inconsistent with the in-car video which provides the defendant was arrested, read his rights, given a caution and Officer Gough then communicated he had someone under arrest, following which the defendant asked whether his wife would be alright. Before his arrest, the audio recording indicates Officer Gough instructed the defendant to provide a sample of his breath into the approved screening device following which he arrested him.

[28] Officer Gough explained the audio and video recording had a twenty-second gap during which he made the intoxilyzer demand. He explained the cruiser audio equipment freezes when the vehicle shakes when a door is opened or when a defendant is seated in the rear. There was no expert or other evidence concerning the mechanics of the cruiser audio equipment or limitations, if any.

[29] Officer Gough made a note he made the breath demand, lodged the defendant in the cruiser and turned on the in-car video within the twenty-second period. He did not say this entry in his memo book refreshed his memory that the demand was made. He candidly acknowledged he had no independent recollection of making the breath demand.

[30] I have considered the quality of Officer Gough's memory in relation to this matter and find it frail. For example, he could not recall who contacted duty counsel. When asked if he recalled stating to Officer Porter, while at the driver door the defendant was drunk, he said he needed to look at the video and could not recall if he said this or not. After the video was played, he agreed he said this. As well, when asked if he could recall what the defendant said, when asked to get out of the car, and if the defendant said "I'm good", Officer Gough said he could not recall. Later, after reviewing the in-car video, Exhibit 1, in cross-examination he agreed the defendant said "I'm good" and then twice said, "I'm okay." Officer Gough agreed in cross-examination, these answers meant the defendant did not wish to speak with a lawyer. He also agreed that the defendant shook his head in the negative when asked if he wished to speak with counsel when paraded before Sergeant George.

[31] Officer Gough said he called duty counsel because he wanted to adhere to the defendant's wishes. This is inconsistent with his acknowledgement in cross-examination that the defendant had not indicated he wanted to do so.

[32] Officer Gough explained he acted in good faith and assumed the defendant wanted to exercise his right. I reject this because there was no basis for this assumption. I also reject Officer Gough's assessed the defendant's ability to exercise judgment on January 27 regarding whether or not he should speak with a lawyer. For example, Officer Gough stated the defendant understood his rights, that he was under arrest as well the directions given him to provide a sample of his breath into the approved roadside screening device. Officer Gough explained he also "felt" he had to contact duty counsel because he had a duty of care to the defendant to ensure the defendant did not abdicate his rights. There is no evidence Officer Gough's conduct on January 22 was motivated by such a concern. For example, he made no note the defendant did not wish to speak with duty counsel and any conversation he had with the defendant, in relation to the defendant's decision or the defendant's ability to make a decision. I reject this motivated his conduct.

[33] As well I have considered when assessing the evidence of Officer Gough, when asked several direct questions, Officer Gough was evasive. For example, when asked in cross-examination if the recording equipment was on or off when the cruiser stopped, he explained his normal practice and did not state what occurred January 22, 2012. He gave a similar answer when asked if he turned this equipment off, stating it was his practice to keep the equipment on when with any member of the public.

[34] Given the above difficulties, I find Officer Gough's evidence lacks necessary reliability. I cannot conclude, based on his evidence, that he made the breath demand to the defendant, as noted in his notebook.

3. Conclusions

[35] The Crown must prove the criminal charge beyond a reasonable doubt, which means "a doubt based on reason and common sense, which must be logically based upon the evidence or lack of evidence."[2] This standard does not require that the Crown "prove its case to an absolute certainty since such an unrealistically high standard could seldom be achieved."[3] "A probability of guilt is not sufficient to establish guilt beyond a reasonable doubt."[4]

[36] Where credibility is important to the determination of a case, as here, the standard of proof at a criminal trial, beyond a reasonable doubt, applies to that issue as well.

[37] I have reviewed the evidence of the trial as a whole and assessed the credibility of the witnesses in the context of the circumstances and all of the evidence. Each witness testified about the events. I must consider if the witness are interested in the proceeding as well as each witness' perception, memory, communication and sincerity. The witnesses in this trial are not interested in the proceeding. Cross-examination may best expose defects in a witness' evidence. Evidence that offends common sense requires closer examination. Inconsistencies on minor matters or matters of detail are normal but where there are inconsistencies on a material matter about which an honest witness would unlikely be mistaken the inconsistency can demonstrate a carelessness with the truth. See R. v. G.M., 93 C.C.C. (3d) 347 (Ont. C.A.).

[38] The defendant has the burden of establishing, on a balance of probability, that his section 8 Charter Right was infringed. If he does the crown must demonstrate that the sample of his breath taken at the station and then analyzed was lawful. If the crown does not do so, I must consider if breath samples analyzed and the result of that analysis should be excluded.

[39] Section 253 of the Criminal Code provides in part:

"(1) Every one commits an offence who operates a motor vehicle …whether it is in motion or not,

(b) having consumed alcohol in such a quantity that the concentration in the person's blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood."

Based on the evidence I find the defendant was operating a motor vehicle on January 22, 2012 when stopped by the police.

[40] Section 254 of the Criminal Code provides in part:

"(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person,

(a) to provide, as soon as practicable,

(i) samples of breath that, in a qualified technician's opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person's blood, or

and,

(b) if necessary, to accompany the peace officer for that purpose." (emphasis added)

I find Officer Gough had reasonable grounds to believe the defendant had committed an offence contrary to section 255 of the Criminal Code because he saw him operating a motor vehicle, smelled alcohol on the defendant's breath and then noted the defendant's breath sample analyzed by into the approved screening device registered a fail. The defendant's position herein is that the police did not make the above statutory demand. Based on my assessment of the evidence, set out above, I agree Officer Gough did not make that demand. There is no evidence either Officers Porter or Spencer made that demand at any time.

[41] Section 258 of the Criminal Code provides in part:

"(1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) ….

(a) where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle, …;

(b) the result of an analysis of a sample of the accused's breath, … may be admitted in evidence even if the accused was not warned before they gave the sample that they need not give the sample or that the result of the analysis of the sample might be used in evidence;

(c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if

(ii) ... each sample was 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 fifteen minutes between the times when the samples were taken, …;

(e) a certificate of an analyst stating that the analyst has made an analysis of a sample of …breath…and stating the result of that analysis is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate;

(f) a certificate of an analyst stating that the analyst has made an analysis of a sample of an alcohol standard that is identified in the certificate and intended for use with an approved instrument and that the sample of the standard analyzed by the analyst was found to be suitable for use with an approved instrument, is evidence that the alcohol standard so identified is suitable for use with an approved instrument without proof of the signature or the official with an approved instrument without proof of the signature or the official character of the person appearing to have signed the certificate;

(g) where sample of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), a certificate of a qualified technician stating

(i) that the analysis of each of the samples has been made by means of an approved instrument operated by the technician and ascertained by the technician to be in proper working order by means of an alcohol standard, identified in the certificate, that is suitable for use with an approved instrument,

(ii) the result of the analyses so made, and,

(iii) if the same were taken by the technician,

(B) the time when and place where each sample and any specimen described in Clause (A) was taken, and

(C) that each sample was received from the accused directly into an … approved instrument operated by the technician,

is evidence of the facts alleged in the certificate without proof of the signature …of the person appearing to have signed the certificate; …" (emphasis added)

The crown relied on the statutory presumption in section 258(1)(g) to prove the quantity of alcohol in the defendant's blood. The above section states the preconditions that must be satisfied before the crown may do so. In general these relate to the following issues: (1) was the defendant sitting in the driver's seat; (2) was a demand for a breath sample made; and, (3) were the time requirements in the section satisfied. The focus in this case is on issues (2) and (3). The crown relied on the evidence of the police witnesses and the certificate of analyst prepared by Officer Spencer to prove the preconditions and then rely on the certificate of analyst.

[42] Although Officer Gough had reasonable and probable grounds to arrest the defendant and to make a breath demand pursuant to section 254(3) of the Criminal Code, I have concluded he did not make the demand. Although I agree with the crown's written submission at paragraph 12 of its factum that a warrant is not required if the requirements of section 254(3) of the Criminal Code have been satisfied, this is not such a case. The samples of breath taken from Mr. Mena, at the station, are a warrantless search breaching Mr. Mena's section 8 Charter Right.

[43] The defendant submits that as a result of the police conduct, requiring he be in contact with duty counsel, a right he chose not to exercise, taking the breath samples was delayed by 21 minutes. He submits the explanation for this delay, allowing the defendant to speak with duty counsel, is not reasonable in the circumstances. He did not wish to exercise his right to counsel and expressly waived that right. I accept this submission. Based on the evidence I have concluded the breath samples were not taken as soon as practicable as required by section 254(3) of the Criminal Code.

[44] Officer Gough said he wanted to ensure Mr. Mena had an opportunity to speak with counsel and stated he was concerned that Mr. Mena lacked the necessary judgment to determine if he should speak with counsel. He stated he did this as a matter of routine to ensure there was no submission at trial that the defendant wanted to speak with counsel but was not allowed to do so. He testified he acted in good faith believing he had a duty to assist the defendant to exercise his right to counsel.

[45] I have considered the case law provided by counsel as well as the facta filed. Pursuant to section 258(1)(c), to relate the breath samples obtained at the station to the time of driving, the crown must establish beyond a reasonable doubt that the tests were taken as soon as practicable: R. v. Bacchus, [2011] O.J. No. 4126, para 9.

[46] As soon as practicable does not mean as soon as possible: R. v. Vanderbruggen, [2006] O.J. No. 1138 (C.A.). In that case the court said at para. 12 "that the touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably." In R. v. Price, 2010 ONSC 1898 (S.C.O.), at para. 16 Justice Durno said the tests must be taken within a reasonably prompt time. The entire time must be examined to determine if the tests were taken "as soon as practicable."

[47] The crown seeks to rely on the statutory presumption in section 258. In that section "The requirement that the accused's breath samples be taken as soon as practicable is part of a legislative scheme designed to assist the Crown and ease proof of an accused's blood alcohol concentration at the time of the alleged offence of driving over 80 mgs contrary to s.253 of the Criminal Code .": Bacchus, supra, para. 12.

[48] The rationale for the "as soon as practicable requirement' was explained in R. v. Willette, [2011] O.J. No. 504 (S.C.J.), at paras 46-49 that:

"(46) … This requirement mandates that the breath test be conducted as soon after the time of driving as reasonably possible in order to ensure that the presumption operates fairly and that the breath testing leads to accurate results: R. v. Davidson, [2005] O.J. No. 3474, at para. 12 (S.C.J.); R. v. Phillips, [1988] O.J. No. 415 (C.A.).

(47) In enacting the "as soon as practicable" requirement, Parliament was concerned that it protect against the manipulation of the results by delaying testing to allow for increased absorption of alcohol into the accused's blood: R. v. MacMillan, [2004] O.J. No. 4523, at para. 37 (O.C.J.)

(48) Accordingly, any delay encroaches on a protection that Parliament has enacted for the benefit of the accused: Davidson, supra, at para. 19.

(49) It is also necessary that compliance with this statutory scheme to be strictly construed, since it relieves the Crown of the obligation to adduce additional extrapolation evidence and the necessity of calling an expert: R. v. Noble, [1977] S.C.J. No. 68, at pages 7 and 8 (S.C.C.); R. v. Walker, [2006] O.J. No. 2679, at para. 2 (S.C.J.); R. v. Wolff, [1976] O.J. No. 694 (H.C.J.)"

[49] In R. v. Davidson, [2005] O.J. No. 3474 (Ont. S.C.J.) Dawson, J. held:

"The decisional law builds in some flexibility in determining whether breath tests were administered as soon as practice, in terms of permitting periods of delay that are found to be justified as reasonable in the circumstances. However a delay will not be reasonable where there is no legitimate basis to support the delay. If the circumstances of a particular case do not show that it was reasonable to take the time to contact duty counsel, then provided the delay is of more than a very minor nature, the tests will not have been administered as soon as practicable."

[50] At para. 21 in Davidson, supra, Justice Dawson referred to the conclusions of Justice Quinn in R. v. Barrick, (1998) O.J. No. 4230 (Ont. Gen. Div.) which he summarized as follows:

"(1) The first question is whether there has been a clear and unequivocal waiver by the accused of the right to counsel;

(2) If the waiver was not clear and unequivocal it is reasonable for the police to contact duty counsel in order to avoid later being confronted with the argument that the accused's right to counsel was infringed;

(3) If the degree of the accused's intoxication is such as to create a reasonable basis for the police to conclude that the right to counsel was not fully comprehended it would be reasonable for the police to contact duty counsel to avoid a subsequent allegation of a breath of the right to counsel;

(4) If the waiver is clear and unequivocal it is not reasonable, as a matter of law, for the police to contact duty counsel thereby delaying the administration of the breath tests. Where the delay occasioned by the call to duty counsel is unreasonable it is effectively unexplained;

(5) The innocence of the police motive in placing the call to duty counsel is irrelevant, as an accused should not be forced to speak to counsel where he or she clearly wishes to waive that right;

(6) There is no requirement that an accused repeat or persist in a waiver or express the waiver in strong terms. As in other areas of the law, "no means no";

(7) The fact that an accused ultimately takes a call from duty counsel does not, by itself, operate as an estoppel of the waiver. All the surrounding circumstances must be examined to discern if the waiver has been withdrawn."

The above principles apply in this case.

[51] In Willette, supra, the court said "I agree with the position of the defense with respect to the law in this area. Specifically, the law is crystal clear that the relevant issue is the reasonableness of the delay and police actions in the circumstances, not the presence or absence of police bad faith; R. v. Schouten, [2002] O.J. No. 4777, at para. 13 (Ont. S.C.J.)." In that case, at para. 42, the court agreed with the defense that 18 minute delay was a significant period of time requiring a reasonable explanation.

[52] At para. 55 of Willette, supra, Justice McMunagle stated that the defense need not rely on a Charter application and seek exclusion of breath samples. He said "What is in issue is whether the Crown is permitted to rely on the 'evidentiary assist' provided to them."

[53] At the scene Mr. Mena did not state he wished to exercise his right to speak with counsel. Officer Gough acknowledged:

(a) in cross-examination, that the defendant did not indicate he wanted to speak with counsel;

(b) after reviewing the in-car video, Exhibit 1, in cross-examination, he agreed the defendant said "I'm good" and then twice said, "I'm okay." Officer Gough agreed in cross-examination these answers meant the defendant did not wish to speak with a lawyer; and,

(c) the defendant shook his head in the negative when asked if he wished to speak with counsel when paraded before Sergeant George.

At the roadside, after Officer Gough told Mr. Mena he was being recorded, when asked if he understood his rights to counsel, Mr. Mena said yes. When asked if he wished to call the Ontario Legal Aid plan number at the station, Mr. Mena said "I'm okay, sir." Before he was taken to the station he asked if his wife, who was in the car, would be okay. I have reviewed Exhibit 2 the video of Mr. Mena when he arrived at the station, when Officer Gough read his rights to counsel before Mr. Mena was paraded and while being paraded before Sergeant George. Mr. Mena answered all questions posed. His answers were responsive to the questions asked. He appeared calm and complied with directions given to him. For example he was directed by Officer Gough not to rest his arms on the desk and quickly moved away and complied with requests that he remove his belt. I find the answers he gave at the scene were responsive and he was compliant with directions given. Based on my review of all the evidence I find Mr. Mena understood questions posed and provided appropriate answers. I reject that he lacked judgment as Officer Gough testified. At the station, when Officer Gough asked if he wished to speak with counsel, Mr. Mena nodded his head negatively which Officer Gough acknowledged in cross-examination. Based on the evidence I find Mr. Mena expressly waived his right to speak with counsel.

[54] As a result of Officer Gough's conduct, although Officer Spencer was available and had prepared the instrument so that the defendant could have provided a sample of his breath into the intoxilzyer at 1:27 a.m., obtaining the samples was delayed 21 minutes. During this time, although he did not wish to speak with duty counsel, Mr. Mena was taken to a phone to speak with duty counsel. Officer Gough had contacted duty counsel, although Mr. Mena made no request to do so. Indeed Mr. Mena had expressly waived his right to do so.

[55] I considered the defendant's Charter application. Although referred to briefly during submissions and although a factum was filed in support of the Charter application, the defendant's submissions focussed on the crown's failure to prove the statutory preconditions and therefore rely on the certificate of analyst. No submissions were made by the defendant in support of the Charter application request that the evidence should be excluded. The crown's position is that the officer had reasonable and probable grounds to arrest the defendant and grounds to make the demand. I agree he did. In view of my finding, that the demand was not made and the "as soon as practicable" requirement was not satisfied, there is no need to conclude whether or not the evidence of breath samples and the certificate of analyst should be excluded, because the crown cannot rely on the certificate of analyst.

[56] The crown has not proved either the statutory demand or that the breath samples were taken as soon as practicable as required by the statute and therefore cannot rely on the certificate of analyst, Exhibit 3. On this basis I conclude the crown has not met its onus of proving the charge beyond a reasonable doubt. The charge is dismissed.

Signed: "Justice Lucia Favret"

Footnotes

[1] Exhibit 3 Certificate Qualified Breath Technician.

[2] R. v. Lifchus, 118 C.C.C. (3d) 1 (S.C.C.)

[3] supra

[4] supra