Ontario Court of Justice

Date: 2013-07-19

Court File No.: Toronto 4817 998 12 70017595 00

Between:

Her Majesty the Queen

— AND —

Clifford Allan Fletcher

Before: Justice Richard Blouin

Heard on: May 1, 2013

Reasons for Judgment released on: July 19, 2013

Counsel:

• D. Lerner, counsel for the Crown
• A. Pazuki, for the defendant Clifford Allan Fletcher

BLOUIN J.:

[1] Clifford Fletcher stands charged that he committed the offence of Operate Motor Vehicle Over 80 on March 27, 2012. The Crown called the arresting officer, PC Baird, and the qualified technician, PC Kell. The defendant testified.

[2] Ultimately, the trial reduced to the defendant putting forth three arguments:

• the defendant's rights were breached because the officer relied on the Approved Screening Device results without adverting to the issue of residual mouth alcohol as he should have;
• the defendant's s. 9 rights were breached when he was held at the police station, without cause, after his breath samples were taken;
• the Crown is not entitled to the presumption of identity in s. 258(1)(c) (that allows the readings at the time of testing to be the same as at the time of driving) because the breath samples were not taken as soon as practicable.

Witnesses

[3] Constable Mark Baird was conducting a RIDE spot check on Donlands Avenue in Toronto. He was using an approved screening device. The defendant's vehicle was stopped at 12:52 a.m. The defendant was asked if he had consumed any alcoholic beverages that day to which he replied either one or none. Baird asked him where he was coming from. The defendant answered that he was participating in a pool tournament at Happy Days Bar. When the officer pressed him, the defendant admitted that he had a couple.

[4] At that point, Baird formed a suspicion that the defendant had been driving with alcohol in his body and read him an approved screening device demand at 12:53 a.m. He registered a fail at 12:54 a.m. The officer then concluded he had the grounds to arrest the defendant on the charge of Over 80 and did so at 12:55 a.m. Rights to counsel were then read to the defendant who understood and declined. Dispatch was contacted to determine the closest breath technician, which turned out to be 41 Division. As the officer was leaving the scene with the defendant, a breath demand was read around 1:03 a.m. After arriving at the police station at 1:16 a.m., the defendant was paraded before a Sergeant Chow at 1:23 a.m. The booking procedure finished at 1:31 a.m. After that the defendant was taken to a report room to await a breath technician, where he was handcuffed. A call was made to duty counsel at 1:46 a.m. Duty counsel returned the call at 1:51 a.m. and that call ended at 1:55 a.m., wherein the defendant was taken immediately to PC Kell, the breath technician.

[5] The breath test readings obtained were 129 mg and 120 mg.

[6] In cross-examination, the officer conceded that he should have asked when the defendant's last drink was so as to ensure he would not conduct a test when the defendant had residual mouth alcohol. He now employs that question in his investigations. Constable Baird conceded that he could not account for all the time between the arrival at the police station at 1:16 a.m. and the time the defendant was paraded at 1:23 a.m. Baird also contended that he "erred on the side of caution" by calling duty counsel even though the defendant did not want to speak to counsel initially, and had no notes of him changing his mind later at the station. He cannot say what happened between 1:31 a.m. (when the booking was complete) and 1:46 a.m. (when he called duty counsel). Nor can Baird provide a reason why he waited eight minutes after the defendant's arrest for Over 80 to read the breath demand.

[7] Constable Jeffrey Kell, the qualified technician, received a call from the front desk at Traffic Services at 1:05 a.m. He was told that 41 Division needed a breath technician, and he arrived there at 1:28 a.m. He attended the breath room, signed on to the Intoxilyzer computer to begin the set-up procedure. He performed a diagnostic check, calibration test, and a self breath test. At 1:42 a.m. the instrument was ready to accept breath samples. Mr. Fletcher was turned over to him at 1:55 a.m., and both breath samples were obtained thereafter.

[8] The defendant testified that he was at Happy Days Bar on Danforth Avenue for close to six hours that night playing pool, and throughout that period drank four beers. When stopped at the RIDE spot check he remembered telling the officer that he had his last drink five minutes ago. When arrested and told of his right to contact a lawyer, he refused because he wanted to shorten the interaction with police so he could return home to allow him to work the next day. He never asked to speak to duty counsel or a lawyer when he was at the police station. In cross-examination, Mr. Fletcher agreed that it was possible that he may not have told Constable Baird that his last drink was five minutes ago.

As Soon as Practicable

[9] Dawson, J, in R. v. Davidson 2005 OJ No. 3474, at paragraph 19, succinctly articulates the reasons s. 258(1)(c) was enacted.

It must be remembered, however, that the "as soon as practicable" requirement in s. 258(1)(c)(ii) of the Criminal Code was enacted as a protection for accused persons which goes hand in hand with the presumption that the results of the breath tests are, in the absence of evidence to the contrary, deemed to represent the blood alcohol level of the accused at the time of driving. This presumption, often referred to as the presumption of identity, benefits the prosecution by eliminating the need to call additional evidence to relate the breath test results back to the time of driving. The as soon as practicable requirement assists in ensuring that the presumption operates fairly and leads to accurate results. Consequently, any delay impinges on a protection Parliament has enacted for the benefit of the accused.

[10] It has been clear since R. v. Vanderbruggen, [2006] OJ No. 1183, that the prosecution is not required to account for every minute the defendant is in police custody but only to demonstrate that the police acted reasonably promptly.

[11] Here, I cannot conclude that the police acted so as to acquire the breath samples as soon as practicable. It is not just one time period that PC Baird does not seem to be cognizant of the passage of time, but a series of them. He gave the impression that time was not that important when, in fact, it is. Included time periods are:

• grounds for arrest at 12:55 a.m., but no breath demand under s. 254(3) until 1:03 a.m.;
• no explanation for why seven minutes was required to parade the defendant before the Staff Sergeant, after arrival at 41 Division;
• no knowledge as to the reason the defendant was handcuffed and waiting between 1:31 a.m. and 1:46 a.m.;
• the delay required to contact duty counsel from 1:46 a.m. to 1:55 a.m., when the defendant had waived the right to counsel.

[12] PC Kell's evidence provides the reason why the defendant was waiting until 1:42 a.m., but Baird seemed to think it was other tests. He just did not know.

[13] Again, I am not to parse every minute, and it is the whole chain of events and the overall passage of time that is determinative when I look at the defendant's interaction with PC Baird. I cannot conclude the police acted promptly as required by law. As a result, the Crown eliciting no expert extrapolation evidence, the test readings cannot be related back to the time of driving, and the defendant must be found not guilty.

[14] While not necessary to the determination of this case, I will deal briefly with the two Charter issues advanced by defence.

Mouth Alcohol

[15] Constable Baird testified that he did not ask about when the defendant last consumed alcohol. Baird is now of the view that in situations, like this one, where mouth alcohol might be an issue, he will ask questions regarding the timing of the subject's last drink. However, on March 27, 2012, he was of the view that he had reasonable suspicion that the defendant had alcohol in his body, and that the Approved Screening Device would provide accurate results. I see nothing unreasonable about that conclusion. He did not have notes, or remember, the defendant mentioning drinking within the last five minutes. Even Mr. Fletcher was not sure that he had told the officer that. Accordingly, the application regarding the s. 8 violation must fail.

Overhold

[16] The evidence tendered at this trial regarding the reasons for the continued detention of the defendant for 1.5 hours after the breath samples were taken does not provide a satisfactory record for me to conclude a breach of the defendant's s. 9 rights. In other words, I cannot conclude that the police acted unreasonably in holding the defendant. In any event, a stay of proceedings would not be appropriate, as this is not the clearest of cases, should I have found a breach. Accordingly, the application regarding the section 9 violation also must fail.

Released: July 19, 2013

Signed: Justice Richard Blouin