Court File and Parties

Ontario Court of Justice

Date: 2013-07-25

Court File No.: Orangeville 121212

Between:

Her Majesty the Queen

— and —

David B. Burt-Gerrans

Before: Justice J.W. Bovard

Heard on: May 30, 2013

Reasons for Judgment released on: July 25, 2013

Counsel:

• Ms. Rodger, counsel for the Crown
• Mr. Starkman, counsel for the defendant David B. Burt-Gerrans

BOVARD J.:

[1] Introduction

These are reasons for judgment after the trial of Mr. Burt-Gerrans on a charge of 'over 80' that arose on September 15, 2012.

Background and Issues

[2] The Charge

This is a common 'over 80' case. Based on the report of a civilian witness and on his own observations Officer Mask suspected that Mr. Burt-Gerrans was drinking and driving so he pulled him over.

[3] The Breath Test Results

Mr. Burt-Gerrans failed a roadside screening device breath test and Officer Mask arrested him for 'over 80'. He took him to the police station for breath tests. At 11:10 p.m. Mr. Burt-Gerrans registered a reading of 146 mgs of alcohol in 100 ml. of blood. At 11:38 p.m. he registered a reading of 144 mgs of alcohol in 100 ml. of blood.

[4] The Central Issue

The only issue is whether the second test was administered as soon as practicable.

The Evidence

[5] Initial Observations

On September 15, 2012, Officer Mask was fueling his police cruiser at the Shell gas station on Highway 10, just south of 25 Sideroad in Mono, Dufferin County.

[6] Encounter at the Convenience Store

He saw Mr. Burt-Gerrans fueling his vehicle close to him. They both went into the convenience store to pay for their gas. Officer Mask noticed that Mr. Burt-Gerrans avoided eye contact with him. The attendant told Officer Mask that Mr. Burt-Gerrans had been drinking. He said that Mr. Burt-Gerrans was a regular and that he often smelled of alcohol.

[7] Observations While Driving

Officer Mask went outside to speak with Mr. Burt-Gerrans, but he was leaving. The officer followed him and noticed that he weaved from the centre of his lane to the centre line and that he touched the line. Mr. Burt-Gerrans immediately corrected and went over to the far right of his lane. When he did this he touched the white line on that side of the lane.

[8] The Traffic Stop

Mr. Burt-Gerrans slowed down and put his right turn signal on as though he was going to pull over onto the shoulder of the road. Officer Mask put on his emergency lights and Mr. Burt-Gerrans stopped on the right shoulder.

[9] Observations at the Stop

Officer Mask spoke to him and noticed the odour of an alcoholic beverage on his breath. His face was flushed red and his eyes were glassy and blood shot. He told Officer Mask that he had drunk one beer about 15 minutes before.

[10] Screening Device and Arrest

Officer Mask formed a reasonable suspicion that Mr. Burt-Gerrans was driving with alcohol in his body and he made a demand that he provide a breath sample into an Approved Screening Device. Mr. Burt-Gerrans did so and he failed. Officer Mask arrested him for 'over 80', and made a demand that he provide breath samples into an Intoxilyzer. Then he took him to the police station to give his breath samples.

[11] First Breath Test

Officer Mask is a qualified Intoxilyzer technician so he administered the breath tests. The Certificate of a Qualified Technician that he produced indicates that the first test was completed at 11:10 p.m. Mr. Burt-Gerrans registered 146 mgs of alcohol in 100 ml of blood.

[12] Second Breath Test

The second test was completed at 11:38 p.m. The result was 144 mgs of alcohol in 100 ml of blood.

[13] Corroboration of Times

These times coincide with his testimony.

[14] Time to Administer Sample

The Certificate also indicates that the time required to take the sample was less than 1 minute.

[15] Charging and Release

Officer Mask charged Mr. Burt-Gerrans with 'over 80'. He served him with the required documents, and released him at 1:12 a.m.

[16] Conclusion of Evidence

That was all of the evidence.

Position of the Defence

[17] Defence Argument

The Defence argues that the second breath test was not administered as soon as practicable. There is no explanation for the 28 minute delay between the tests. Therefore, the Certificate of Qualified Technician is not admissible to prove what Mr. Burt-Gerrans's blood alcohol content was at the time of driving.

Position of the Crown

[18] Crown Argument

The Crown argues that the tests were taken within the 2-hour time limit and that the normal practice is to wait between 17 – 20 minutes between breath tests. The contentious delay in the case at bar is only 8 minutes. Officer Mask acted reasonably and a detailed explanation of every minute is not required.

The Law

[19] Criminal Code Requirements

The Criminal Code states in s. 258(1)(c):

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

(i) [Repealed before coming into force, 2008, c. 20, s. 3]

(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, (emphasis added).

(iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and

(iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician,

evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused's blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things — that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused's blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused's blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed;

[20] Meaning of "As Soon as Practicable"

The phrase "as soon as practicable" does not mean as soon as possible. It means "nothing more than that the tests were taken within a reasonably prompt time under the circumstances." The "touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably" (R. v. Vanderbruggen, [2006] O.J. No. 1138 at para. 12).

[21] No Requirement for Detailed Accounting

The Crown does not have to "provide a detailed explanation of what occurred during every minute that the accused is in custody" (Vanderbruggen, para. 13).

[22] Crown's Burden Where Delay is Unexplained

However, where there is no evidence to explain a significant delay the Crown has not discharged its burden to prove beyond a reasonable doubt that the tests were taken as soon as practicable.

[23] Burden to Account for Time

In R. v. Blacklock, [2008] O.J. No. 1472, E.B. Fedak J. summarized and agreed with the holding in R. v. Craig, [2007] O.J. No. 3616 that "while the Crown does not have to account for every moment of time, there is a burden on the Crown to account for the time in order to meet the evidentiary burden of proving that a test is taken 'as soon as is practicable'".

[24] Defence Cases on Similar Delays

The Defence provided the Court with three cases where courts have found that delays similar to the delay in the case at bar offended the "as soon as practicable" requirement.

[25] R. v. Jackson – 29 Minute Delay

In R. v. Jackson, [2005] O.J. No. 5764 (O.C.J.), (para. 17), McKerlie J. dealt with a total delay of 29 minutes between tests. He found that there was "no admissible evidence to explain why the interval between the two breath samples was 29 minutes, almost twice the 15 minute requirement under Section 258." Consequently, McKerlie J. found that the second test was not taken as soon as practicable.

[26] R. v. Jonasson – 29 Minute Delay

In R. v. Jonasson, [1997] A.J. No. 585, Daniel Prov. C.J. dealt with an identical delay and found that the second test was not taken as soon as practicable. He stated at paragraph 19 that "It would have been remarkably easy…for the Crown to have inquired of the officer what occasioned the twenty-nine minute delay. There may well have been a very good explanation upon which an objective finding could have been made the samples were taken as soon as practicable. However, the complete lack of explanation for the additional fourteen minute period after the required fifteen minutes expired, leaves no basis upon which a proper judicial finding could be made the second test was taken as soon as practicable."

[27] R. v. Guiao – 25 Minute Delay

The last case is R. v. Guiao, [2008] O.J. No. 5825 (O.C.J.). In this case the delay in administering both tests was in issue. Brewer J. concluded that neither test was taken as soon as practicable. With regard to the second test she stated at paragraph 12, "Apart from the mandatory period of 15 minutes between the two breath tests, no explanation was offered for the 25 minute period between Mr. Guiao's first and second tests. Significantly, both officers were present for the first breath test and Constable Pollard was in the breath room for the second test."

[28] Officer's Knowledge of the Delay

I note that in the case at bar, the only officer that testified was both the arresting officer and the Intoxilyzer technician. Therefore, he clearly knew the reason for the delay, but he did not give any evidence to explain it.

Analysis

[29] The Unexplained Delay

In the case before the Court the unexplained delay beyond the required 15 minute delay prescribed by the Criminal Code is 13 minutes. It may be that as the Crown argues there is a normal practice to wait 17–20 minutes between tests. The Court in Blacklock recognized this practice and stated that "no exception is taken to that minor period" (para. 14).

[30] Calculation of Delay

However, I do not think that this means that the "accepted" 2–5 minute delay in excess of what the Criminal Code mandates means that these minutes do not count in calculating the total delay between tests. In examining the delay between the first and second test, one does not start counting at 17–20 minutes after the first test; one starts counting at 15 minutes after the first test.

[31] Crown's Failure to Discharge Burden

In the case at bar, there is no evidence with regard to the 13 minutes of delay beyond that which the Criminal Code prescribes between the tests. In these circumstances, I find that the Crown did not discharge the onus of proving beyond a reasonable doubt that the second test was taken as soon as practicable.

[32] Verdict

Therefore, the Crown cannot rely on the Certificate to prove Mr. Burt-Gerrans's blood-alcohol level at the time that he was driving. Since there is no other evidence to prove what it was, he is found not guilty.

Released: July 25, 2013

Justice J.W. Bovard