Court Information
Ontario Court of Justice (East Region)
Her Majesty the Queen v. Lionel Albert Ruck
Before: Justice David M. Paciocco – Ottawa, ON
Counsel:
- Ms. K. McVey for the Crown
- Mr. Lionel Albert Ruck on his own behalf
Released: September 26, 2013
Reasons for Decision
I. Introduction
[1] Shortly after midnight on 5 May 2012 Mr. Lionel Albert Ruck drove a motor vehicle from the Whale Bone restaurant, eastbound on Somerset St., to Elgin Street in the City of Ottawa. His long-time partner, Ms. Diane Cassar was his passenger. As a result of events that evening Mr. Ruck was ultimately arrested, and at 2:02 and 2:27 a.m. respectively, Mr. Ruck provided two breath sample readings of 127 milligrams of alcohol in 100 millilitres of blood. If the breath samples results secured from him can be relied upon by the Crown to establish his actual blood alcohol level, Mr. Ruck is guilty of the offence he is charged with committing, having operated a motor vehicle with more than the legal limit of alcohol in his blood, contrary to section 253(1)(b) and 255 of the Criminal Code of Canada.
[2] Mr. Ruck is unrepresented. He does not contest that he drove his vehicle or that the breathalyzer recorded the readings described. Instead he defended himself on the footing that his civil rights were violated by what he alleges was the racist treatment he and Ms. Cassar received from Officer Greg Brown. Mr. Ruck is black and Ms. Cassar is white, and it is Mr. Ruck's position that Officer Brown must have been disapproving of their relationship, causing Officer Brown to act rudely and to engage in what Mr. Ruck suggested was an arbitrary detention and an unlawful search of the vehicle.
[3] What Mr. Ruck is effectively arguing is that his Charter rights were violated by abusive police conduct and that I should find such a breach and either exclude the subsequently obtained breath samples from evidence, or stay the proceedings by way of remedy. Since this is a Charter claim, Mr. Ruck bears the burden of proving his allegation of an arbitrary detention and the attendant illegal search on the balance of probabilities. Mr. Ruck has not done so. I am not satisfied that he was arbitrarily selected by Officer Brown and then detained for twenty minutes.
II. Mr. Ruck's Attempted Defence
[4] The scenario proposed by Mr. Ruck is too unlikely to be probable. In all of the circumstances I am not persuaded that Officer Brown would have taken time from his supervisory responsibilities over 50-60 police officers on a busy May evening in the downtown core to selectively harass Mr. Ruck and Ms. Cassar for up to 25 minutes before Cst. Fong arrived. It is implausible that Cst. Fong would conjure up a 911 suspected impaired driving call and create an entire story about how he came to engage Mr. Ruck. I accept the evidence of Cst. Fong that at 12:22 a broadcast was indeed given to duty officers that a vehicle bearing the same licence plate as the one driven by Mr. Ruck was eastbound on Somerset St., heading towards Elgin, the very location where Mr. Ruck's confrontation with the police occurred. This finding alone makes the time frame required to accommodate Mr. Ruck's theory impossible.
[5] The testimony of Ms. Cassar of a lengthy "25 minute" detention before Mr. Ruck was taken away is unhelpful in establishing an arbitrary racist detention before the impaired driving investigation commenced. I agree with the Crown, Ms. McVey, that this is the approximate period the police were on the scene processing Mr. Ruck for the impaired driving arrest before Mr. Ruck was transported to the station. I have no doubt that Ms. Cassar found Officer Brown to be rude. Officer Brown's demeanour when dealing with a suspected impaired driver may well have been curt and non-cordial. I think, however, that Ms. Cassar misperceived events. She did not fully understand why Mr. Ruck was detained and mistook Officer Brown's brisk manner as racist abuse.
[6] Ultimately I have no credible or reliable basis for accepting the serious speculation that Officer Brown's conduct was motivated by racism. Officer Brown denied harbouring any ill-will to mixed race couples, saying he has dated black women. I believe him about this. Mr. Ruck has not proved the alleged mistreatment he alleges on the balance of probabilities. He was not arbitrarily detained or subjected to racial abuse.
III. The Evidence and the Real Issues
[7] This does not end the matter. Mr. Ruck is unrepresented and I am bound as a trial judge to ensure that he receives the benefit of the law. I have to apply the law correctly to the facts of his case, even if he does not invoke relevant legal doctrine. I am also bound when there is strong prima facie evidence that there may have been Charter breaches to consider whether those breaches have occurred. I am to do this even in the absence of a proper Charter notice and even if those Charter issues are not raised directly by the accused: R. v. Arbour; R. v. Travers 2001 NSCA 71.
[8] The prosecuting Assistant Crown Attorney, Ms. McVey, appropriately and professionally identified and sought to address potential issues that she identified with her case, apart from the one raised by Mr. Ruck. First, she noticed that there were periods of delay that might be used to argue that the samples were not taken "as soon as practicable," although she urged me to find to the contrary. Second, she identified a possible violation of section 10(b) arising from the R. v. George decision. During argument, I raised with the Crown the possibility that I may have to consider a reasonable grounds/section 8 issue given potential reliability problems with Cst. David Fong's evidence. I wanted the Crown's input into the implications should I reject Cst. Fong's recollection that he observed Mr. Ruck driving his car before making a roadside and then an evidential breath demand. Before analysing these issues I will recount the salient evidence in more detail.
[9] The Crown and Mr. Ruck differ significantly on what happened. The Crown called Cst. David Fong who testified that he received a dispatch alert about a suspected impaired driver heading westbound on Somerset Street in the City of Ottawa. This occurred at 12:22 a.m. Cst. Fong was in the area. He said that he drove northbound on Elgin and as he stopped at the Somerset intersection the vehicle, whose licence number had been provided, turned right off of Somerset onto Elgin. He activated his roof lights but also observed that a police vehicle operated by his supervisor, Officer Greg Brown, was behind the vehicle with its lights activated. The vehicle was being operated by Mr. Ruck and it pulled over in apparent response to one or both of the signalling police vehicles.
[10] Constable Fong testified that he walked over to the vehicle but Officer Brown made it to the Ruck vehicle first. Cst. Fong testified that it took him about three minutes to get to the Ruck vehicle. He had an exchange with Mr. Ruck, who was still in the driver's seat, in which he observed the odour of alcohol and received an admission by Mr. Ruck that he had consumed alcohol with his last drink at about 11:45. Cst. Fong testified that he was then under the belief that Mr. Ruck had consumed alcohol and resolved to secure an Approved Screening Device so that he could receive a breath sample from Mr. Ruck. Cst. Fong returned to his car and put out a dispatch over the police radio requesting an Approved Screening Device. Although Officer Brown had little recall of events, it is evident he remained with Mr. Ruck while Cst. Fong made his inquiries.
[11] There were numerous officers in the area and Cst. Fong expected an ASD device would be available in short order. When no one responded to his request another officer, Cst. Baya (phonetic) undertook over the air to get one from the nearby Elgin St. station and deliver it, a process that Cst. Fong believed would take three minutes. At 12:33 a.m. Cst. Baya broadcasted that all of the ASD devices were on the street. Cst. Ham heard this and advised Cst. Fong that he was now available to assist. Cst. Ham arrived with an Alcohol Screening Device that he gave to Cst. Fong at 12:39. The demand was made by Cst. Fong to Mr. Ruck at 12:41.
[12] At 12:44 Mr. Ruck provided a sample into the approved roadside device and produced a fail. He was arrested and subjected to what Cst. Fong said was a cursory pat down search.
[13] He was then given his rights to counsel at 12:52, with the cautions following, all of which Mr. Ruck agreed he understood. Mr. Ruck was then given his Intoxilyzer demand at 12:56 and transported to the station in Cst. Fong's vehicle, arriving at the police sally-port at 1:02 a.m.
[14] Cst. Fong testified to the call up procedure used at the sally-port and to the parading of suspects that occurs once admission is made to the station. He said after this cumbersome procedure is completed the subject is then taken to the area where the right to counsel can be enjoyed. By 1:18, 16 minutes after arrival, Mr. Ruck was given access to a list of lawyers. During the next 14 minutes efforts were made to contact four lawyers before counsel, Mr. Rowe, was contacted at 1:32.
[15] At 1:37 Cst. Fong was able to meet with Cst. Simon, a designated breathalyzer technician, to give him the information required to prepare to receive Mr. Ruck. At 1:42 the interview was finished, and at 1:52 Mr. Ruck was escorted to the breathalyser technician. In the 10 minutes of delay Cst. Fong was completing his notes, and he testified that Cst. Simon was inputting information furnished by Cst. Fong, into the Intoxilyzer, to ready it to receive the samples.
[16] Cst. Simon testified that he had been alerted to the need to prepare the approved instrument, the Intoxilyzer 8000C, for a test and that he made his way to the station and had the machine ready by 1:33. He said that all that remained to be done was to receive Mr. Ruck and then, in his presence, input information relating to Mr. Ruck into the machine, and then take the samples. At 2:02, after Cst. Simon cautioned Mr. Ruck and gave him information and ensured he had enjoyed his right to counsel Mr. Ruck provided the first sample of 127 milligrams of alcohol in 100 millilitres of blood. At 2:27 an identical sample was secured.
[17] Mr. Ruck called two witnesses, Officer Brown and Ms. Cassar, as part of the blended voir dire/trial procedure adopted in this case. This defence evidence was not related to the elements of the offence – the driving or the drinking. It related solely to the allegation of improper police conduct that I have addressed above. It is not therefore necessary to consider it further or to apply the principles of R. v. W.(D.).
IV. Analysis
[18] I will address the issues that do arise in the order in which I consider to be convenient. I will begin with the Charter-based claims, first the potential section 8 unreasonable search issue, and then the George issue. I will then address the "as soon as practicable" issue.
A. The Possible Section 8 Unreasonable Search Breach
[19] The possibility of a section 8 breach was raised in this case because of concerns I had with the reliability of the evidence of Cst. Fong. His testimony betrayed his insecurity on matters of detail. He betrayed uncertainty, for example, about where his vehicle was when Mr. Ruck was placed inside to be taken to the station. He initially testified, for example, that he received Mr. Ruck's driver's licence from him but then agreed that he received it from Officer Brown. He was unsure whether his dealings with Mr. Ruck took place while standing on the sidewalk or elsewhere. The best he could say is that some of them happened on the sidewalk. On one occasion he confessed uncertainty but then offered confident answers that would have required a firm memory; he testified that he did not recall speaking to the passenger in the car and then described having only ordinary conversation with her.
[20] To be clear, I never had concerns about Cst. Fong's honesty. He was ready to admit his uncertainty and on a number of occasions accepted corrections suggested by Mr. Ruck during cross-examination. I was never left with the impression that the answers he did supply before or after acknowledging memory issues were fabricated. Instead I am satisfied that questioning provoked information that Cst. Fong believed to be true at the time of his evidence and that is what he furnished.
[21] Still, Cst. Fong's memory did fall into question. I therefore asked the Crown to address the implications should I hold, in light of this, that I could not rely upon Cst. Fong's claimed memory of having seen Mr. Ruck driving, a necessary condition on these facts to the legality of his ultimate demand for an evidential breath test.
[22] I have now had an opportunity to review Cst. Fong's evidence with care and in its totality. Having done so, I accept his testimony that he did see Mr. Ruck drive. I do not consider his problems of memory to be so acute that he would misremember whether he personally witnessed Mr. Ruck drive.
[23] My concerns about his memory of this event have also been allayed by the fact that he recorded seeing Mr. Ruck drive in his contemporaneous notes. This fact was put to him cross-examination by Mr. Ruck and Cst. Fong assented to it by his answer. Naturally, if Cst. Fong did record in his contemporaneous notes that Mr. Ruck was driving, his evidence before me that Mr. Ruck was driving is not the product of a confused memory caused by the passage of time and therefore my initial concerns about the quality of his memory on this point are put aside.
[24] I am mindful in making this finding that prior consistent statements are, as a general rule, inadmissible: R. v. Stirling 2008 SCC 10 at para. 5. That general rule exists for a variety of reasons. The prior consistent statement itself cannot be relied upon for the truth of its contents without violating the hearsay rule: R. v. Dinardo 2008 SCC 24 at para. 36. Nor does the fact that a prior consistent statement was made ordinarily, as a matter of logic, enhance credibility; mistaken information can be repeated: R. v. Stirling at para. 5. And prior consistent statements cannot corroborate in court testimony because, coming from the same witness who is testifying they are not an independent source of information: R. v. Dinardo at para. 40. Prior consistent statements therefore generally add nothing of value. There are, however, numerous exceptions to the rule. In explaining these exceptions it has been aptly observed that whereas the rule against proving prior consistent statements exists to exclude valueless evidence, "if for some reason they become valuable they become admissible": R. v. Simpson, [1988] 1 S.C.R. 3 at para. 21, quoting Seaton J. of the Manitoba Court of Appeal. In my view if an issue arises as to whether a claimed fact may be a mistaken recollection due to the passage of time, proof that the witness said the same thing close in time to the event is valuable information because it removes that concern. I am therefore comfortable, even in the absence of a settled exception to the general rule against prior consistent statements, in relying on the fact that Cst. Fong recorded that Mr. Ruck was driving for the narrow purpose of allaying any concerns I may have had about the reliability of Cst. Fong's memory.
[25] I also have no concerns about Cst. Fong's ability to observe the event. Cst. Fong recorded the call as having been broadcast at 12:22 and was advised that the vehicle was eastbound on Somerset St., a fact confirmed by Mr. Ruck in his evidence. Cst. Fong was in the immediate area near the Elgin St. Station when the call was received. He therefore had to proceed north. It is only a short distance from the Elgin St. Station to the Somerset intersection. He would have arrived promptly. It makes sense that he would have stopped before the intersection as he testified, and that he would have been facing northbound. Given the time-frame and geography Cst. Fong was well-situated to observe Mr. Ruck make the turn that Mr. Ruck, in his evidence, conceded making.
[26] Since I have no concerns about Cst. Fong's credibility, memory or opportunity to observe I find that Cst. Fong did see Mr. Ruck drive. I also accept Cst. Fong's testimony that Mr. Ruck smelled of alcohol and admitted drinking. Cst. Fong therefore had the necessary reasonable suspicion to make the Alcohol Screening Device demand. Mr. Ruck's failure on that device, in turn, gave Cst. Fong lawful grounds to arrest him and make a demand that he provide the samples he did into the approved instrument. The search of Mr. Ruck that those samples constituted was therefore legal and constitutionally valid.
B. The Section 10(b) Breach
[27] Ordinarily officers need not advise persons of their right to counsel or facilitate contact with counsel when they have been detained for the administration of an Alcohol Screening Device. This is so even though normally, pursuant to section 10(b), a detention triggers a right to counsel without delay. The reason is that the loss of liberty entailed in providing a roadside sample is intended to be brief. Yet facilitating contact with counsel takes time. It would be self-defeating to prolong a detention in order to permit consultation where individuals will be summarily released if they pass the test. It is therefore a reasonable limit on the right to counsel to hold off unless and until the subject fails the test and is detained for an evidential breath test: R. v. Thomsen (1988), 40 C.C.C. (3d) 411 (S.C.C.). Where there is a realistic opportunity to consult counsel before the administration of the roadside test because of delay in securing a device, however, there is no justification for delaying the right to counsel. If the accused has the time and the facilities are available to permit consultation then there is no reason why constitutional rights associated with detention cannot be enjoyed. The failure to give the right to counsel in such a case is therefore a violation of section 10(b): R. v. George.
[28] In this case there was a delay before the device arrived, raising a potential George violation. It is not possible to be precise as to the length of the delay as Cst. Fong did not record when he formed the grounds to demand a roadside sample. Sensibly the rule in George is not one that has to be applied with mathematical precision, however. "The issue is … not strictly one of computing the number of minutes": R. v. George. Still, as I will explain below, determining whether there is a realistic opportunity to consult counsel does require attention to be given to the delay period to determine whether it is sufficiently lengthy in the circumstances to accommodate legal consultation before the Alcohol Screening Device arrives.
[29] A reasonable assessment of the period of actual delay and therefore the potential time for consultation in this case is 9-11 minutes. Cst. Fong said he was dispatched to the scene at 12:22 when he was in the immediate vicinity. He was a minute or so in travel time south of where the vehicle was intercepted. He said he arrived at the intersection, presumably at 12:23 or so, and stopped his vehicle. He estimated that it took three minutes from the time he stopped his car until he was actually at Mr. Ruck's vehicle, presumably in the vicinity of 12:26. He said there was another 5-6 minutes of interaction before he formed the grounds. If all of his estimates are accurate that would put the time from the formation of grounds to the time the Alcohol Screening Device arrived at 12:41, approximately 9-10 minutes.
[30] Working backward, a comparable time period is produced. We know that by 12:33 Cst. Baya had already received the request from Cst. Fong for help and had undertaken to go to the station to secure a device, only to find there were none available. Cst. Fong estimated that the total trip there and back would take about 6 minutes. If that estimate is accurate Cst. Baya would have discovered that there was no device available in 3-4 minutes. That would put the call by Cst. Fong after he formed the grounds at approximately 12:30 or 12:31. This produces the same general period of delay of approximately 10-11 minutes. I agree with Ms. McVey who raised this issue. This period of delay is long enough to require that I consider whether Mr. Ruck has proved on the balance of probabilities that he had a reasonable opportunity to consult counsel while waiting.
[31] It is helpful, in my view, to conduct the George-breach analysis of whether there has been a realistic opportunity to consult counsel in two stages. The first question has to do with the whether the facilities required to consult counsel are available. That inquiry can be answered by asking whether it was feasible in the circumstances for the subject to contact and speak to counsel in a private, secure fashion where the integrity of the investigation could be secured. If those facilities are not available at the roadside there will be no realistic opportunity to consult counsel.
[32] Second, even if those facilities were available, it remains to ask whether the period of delay was long enough to enable both contact and meaningful consultation to occur. Both factors, relating to facilities and time, are to be evaluated in the particular circumstances of the case.
[33] This first inquiry, into the facilities for consulting counsel, arises not only as a matter of common sense in asking whether roadside consultation would have been feasible. It is also suggested by R. v. George itself. In that case the Ontario Court of Appeal distinguished its earlier decision in R. v. Latour (1997), 116 C.C.C.(3d) 279 (Ont. C.A.), where no breach was found, on the basis that there was no evidence in Latour that there was a telephone readily available. The lack of facilities to contact counsel meant there was no reasonable opportunity to do so.
[34] The right to counsel also carries with it the right to privacy. It is therefore relevant whether it is reasonably possible, in the circumstances of the case, to enable private consultation to occur at the roadside: R. v. Wright [2005] O.J. No. 3892 at para. 31 (Ont.C.J.); R. v. Devitt, [2005] O.J. No. 744 at para. 16 (Ont.C.J.), aff'd [2006] O.J. No. 3964 (S.C.J.).
[35] There are other facilities-based considerations arising from the fact that Charter rights are not absolute. Logistical limitations can make consultation impractical. If there is a credible basis for believing that facilitating contact with counsel will compromise officer safety or the safety of the public (R. v. Wright at para. 33, R. v. Devitt, at para. 16, R. v. Burnett at para. 8) or would undermine the ability of the police to retain continuity over the accused because of the risk the accused could consume further alcohol if permitted privacy to achieve consultation (R. v. Wright, at para. 36) then the ability to receive legal advice at the roadside may not be feasible.
[36] Although the burden of establishing the Charter breach is on the accused person, it is sensible to expect the Crown to present an evidential foundation for any logistical limitations such as an inability to ensure privacy, or concerns about officer safety or continuity. Only the police are in a position to assess whether these challenges might be present.
[37] In this case I have no evidence before me that there were problems with any private road-side consultation, or that such consultation could compromise safety or the integrity of the investigation. The feasibility inquiry therefore turns solely on whether Mr. Ruck could make contact with counsel at the roadside.
[38] On the evening in question Mr. Ruck did not have a cellphone. Ms. Cassar, however, did. Mr. Ruck therefore had the physical means to call. I am therefore prepared to find that the first George hurdle has been met. It was feasible in the circumstances for Mr. Ruck to contact and speak to counsel.
[39] The second George inquiry that must be satisfied before a Charter violation is found asks whether the period of delay is long enough in the particular circumstances to enable the right to counsel to be accommodated. To be clear, the applicant must establish not only that contact could be achieved in the time in question, but also that meaningful consultation could, on the balance of probability, have been accomplished: R. v. Torsney 2007 ONCA 67, [2007] O.J. No. 355 (Ont.C.A.).
[40] In my view this is not a purely objective assessment of the time that actually transpires, with the benefit of hindsight. It includes consideration of the circumstances known to the officer at the time. I say this because every Charter breach is predicated upon state action. Not surprisingly, the essence of the breach in R. v. George is the failure by the police to take reasonable steps to facilitate a detainee's right to counsel when doing so is feasible: R. v. George, para. 42. The only way to judge sensibly whether an officer has taken reasonable steps is to evaluate the officer's conduct objectively, given what the officer knew or should reasonably have known. Simply put, it is reasonable for an officer to take steps to facilitate a detainee's right to counsel when it is apparent there will be time to do so. It is not reasonable to expect an officer to do so where, objectively viewed, it appears as though the right to consult counsel cannot possibly be accommodated in the time available. The officer's reasonable belief about the expected delay is therefore, in my view, a central factor.
[41] To hold otherwise would defeat the purpose behind the law. If breaches were measured solely based on the opportunity that proved to be available with the benefit of hindsight officers would be encouraged to accommodate contact with counsel in all cases, on the off-chance some unexpected delay in the arrival of the roadside unit might take place. Such an approach would bring about the mischief sought to be avoided in R. v. Thomsen, namely, exacerbating the loss of liberty roadside detentions entail, by delaying the test to accommodate consultation.
[42] In R. v. Devji [2008] O.J. No. 1924 (Ont.S.C.) the accused argued otherwise, citing passages from R. v. Latour. He urged that the measure of a George breach should be the actual opportunity that the subject had, given how things played out, rather than the opportunity the officer reasonably believed the subject to have at the time the demand is made. I agree with Justice Blishen in R. v. Devji [2008] O.J. No. 1924 (Ont.S.C.J.) that Latour does not support this broad proposition. What Latour does say is that even if an officer expects a lengthy delay before the Alcohol Screening Device arrives, it is not a George violation for the officer to fail to accommodate the right to roadside consultation if the device happens to show up promptly. Simply put, there can be no George breach unless the failure by the police to take reasonable steps to facilitate the right to counsel in fact deprives the accused of a realistic opportunity to consult counsel. This proposition is not informative where an officer acts reasonably in the first place. If an officer who refrains from facilitating apparently impossible consultation is acting reasonably because a delay is expected, there has been no culpable state action capable of supporting a finding of a Charter violation. The fact that the officer innocently proved to be wrong in predicting the arrival of the unit cannot change that.
[43] I therefore agree with the decision in R. v. Pilon [2006] O.J. No. 701 (Ont.S.C.) that if an officer has reason to believe that an Approved Screening Device will arrive in a very short time, there is no duty to facilitate a communication.
[44] This is the case here. At the time the device was requested Cst. Fong had every reason to believe that the period of delay would be shorter even than the 10-12 minutes that transpired. The incident occurred in downtown Ottawa at night, a busy time. Officer Fong testified credibly that there were numerous police units in the vicinity that would be equipped with an Alcotest device. Even when he radioed and discovered that no one on the road had an available device he was told by a fellow officer that the officer would retrieve one and bring it to him, something Cst. Fong believed would happen within six minutes given the proximity of the station and where the units are kept. When he learned at 12:33 that there were in fact no units at the station he was also advised that Cst. Ham was now available and on his way with a unit. He was close by. The unit arrived shortly thereafter, at 12:39. In my view there is therefore no foundation for holding that Cst. Fong failed to take reasonable steps to facilitate the right to counsel. On the information available to him he acted reasonably in delaying the right to counsel until the roadside test had been administered.
[45] In any event, I am not satisfied that the period of delay of 9-11 minutes presented, in the circumstances of this case, an adequate opportunity to consult counsel at the roadside.
[46] In this case I have no evidence that Mr. Ruck knew the phone number of his lawyer, a factor that is apt to cause delay in achieving contact: R. v. Wright [2005] O.J. No. 3892 at para. 36 (Ont.C.J.); R. v. Devitt, [2005] O.J. No. 744 at para. 16 (Ont.C.J.), aff'd [2006] O.J. No. 3964 (S.C.J.); R. v. Burnett [2004] O.J. No. 5581 at para. 6 (Ont.C.A.).
[47] Even had Mr. Ruck called duty counsel by using the "1-800" phone number that was available to the officer it was probable that he would have encountered a delay in contacting counsel let alone in securing relevant advice.
[48] More importantly, in cases such as this where a subject does attempt to exercise the right to counsel at the station, the time and complexity of those efforts is relevant in assessing what would have been feasible at the roadside: R. v. Torsney at para. 13. It took Mr. Ruck 14 minutes to even make contact with a lawyer at the station, this with the aid of a lawyers list.
[49] In all of the circumstances I am not persuaded that the police failed to facilitate his right to consult counsel, as I am not persuaded that it would have been feasible for them to do so either on the information available to the police or in the actual circumstances of the case. No George violation occurred in this case.
C. The "As Soon as Practicable" Requirement
[50] As a matter of law, the Crown cannot succeed in this prosecution without relying on the presumption of identity found in section 258(1)(c) of the Criminal Code of Canada. This legal tool is necessary before I can find that at the time of driving Mr. Ruck's blood alcohol readings were the same as they were when he provided his samples at 2:02 and 2:27. In order to use this presumption the Crown has to prove among other things that the samples were taken "as soon as practicable." This does not mean that the samples were taken as soon as possible. It means they must have been taken "within a reasonably prompt time under the circumstances": R. v. Vanderbruggen, [2006] O.J. No. 1138 at para.12 (C.A.). In this case the Crown was correct to address this issue in submissions. There are periods of suspicious delay that require consideration.
[51] Before examining those periods of suspicious delay it is helpful to consider the purposes for the "as soon as practicable" requirement. I believe there to be two.
[52] One of the reasons for the "as soon as practicable" requirement is that in spite of the presumption of identity the actual blood alcohol level of accused persons at the time of the alleged offence is apt to be factually different from their blood alcohol level at the time of the test, and that the longer the delay between the alleged offence and the evidential breath test, the greater that discrepancy is apt to be. This is inevitable given that alcohol is absorbed into the blood over time and metabolized. In spite of this the presumption of identity was adopted out of necessity. At the time the legislation was passed it was not feasible to equip officers with mobile evidential breath machines that meet Canadian standards of accuracy. Delay in capturing actual blood alcohol concentrations would be inevitable. In order to facilitate the prosecution of alcohol driving offences the law had to deem the blood alcohol level to be identical at the two points in time, even though it is not in fact apt to be so. Parliament evidently sought to minimize the risk of inaccuracy raised by the presumption in two ways. First, it required that samples be taken "as soon as practicable" to encourage samples to be secured promptly. Second, Parliament provided that even if the entire delay is reasonable in the circumstances, if it takes more than two hours after the alleged offence to secure the first breath result the delay is too long to suppose fairly that the blood alcohol content of the driver would be the same at the time of the test as it was at the time of driving. Hence the presumption of identity cannot be relied upon.
[53] Another reason for the "as soon as practicable" requirement is concern for the deprivation of liberty that detention to accommodate the test entails. It is exceptional to require citizens to forfeit their liberty to accommodate police investigations. While it is necessary to do so the period of deprivation should not be unreasonably long, given its purpose. The "as soon as practicable" requirement is no doubt meant to ensure that liberty deprivations caused by the need to secure breath samples are reasonable in their duration.
[54] Even bearing these purposes in mind the case law is clear that in deciding whether a sample has been taken "within a reasonable prompt time under the circumstances" a judge is not to require a precise accounting of every minute between the arrest and the test. The judge must consider the overall period of delay (R. v. Newton [2013] O.J. No. 428 (Ont.S.C.J.)). Individual periods of delay that are not adequately explained or that are unexplained can, however, contribute to a finding that the samples were not taken "as soon as practicable": R. v. Bugler [1997] O.J. No. 2238 (C.A.). In effect, the judge should assess the overall delay, including periods of inordinate or unexplained delay, to determine whether in all of the circumstances the samples were taken "within a reasonably prompt time under the circumstances."
[55] In this case according to the testimony of Cst. Fong, Mr. Ruck was operating his motor-vehicle shortly after 12:22 p.m. when the call was received. Cst. Fong made his way from the Elgin Station to the nearby intersection of Elgin and Somerset St. where approximately four minutes later he observed Mr. Ruck driving. While the first sample was received at 2:02, within the two hour period provided for in the presumption, the second sample occurred more than two hours after the driving, at 2:27. In this case the overall period of delay is not significant. The first sample was not secured so close to the wire as to be inherently suspicious. Nor is the overall time frame so short as to rebut any sensible suggestion of unreasonable delay. The overall period of delay is, in this case, a neutral factor.
[56] What is of concern are three periods of inadequately explained or unexplained delay. Although it was the subject of extensive submissions by the Crown I do not consider the 16 minute delay between arrival at the station and providing Mr. Ruck with a lawyers list to be one of those suspicious periods. The evidence I heard about the protocol in the sally-port, the parading and search of the subject, as well as the processing and movement of individuals within the cell area, sufficiently explain the delay that occurred.
[57] The first suspicious delay is the period between the fail result on the test at 12:44 and the right to counsel notification at 12:52. That is an eight minute period. Cst. Fong explained that he arrested Mr. Ruck during this period and conducted a search of his person. When describing the procedure at the station he explained that a more extensive search was undertaken by Special Constables in the cellblock on arrival, and in that context contrasted his own search as "just a pat down search." I can only find in the face of this that Cst. Ruck's roadside search took no appreciable time. Evidence was also presented that Mr. Ruck was likely handcuffed, apparently at this time. These tasks do take some time but would not seem, in my view, to require an eight minute period. The actual act of arrest is a brief event, and so too is the search and the handcuffing in the ordinary course. There may well be other explanations that account for the entire eight minute period. It may be that time was consumed, for example, escorting Mr. Ruck to the police vehicle before his rights were read, but it is not clear that this happened. Cst. Fong could not recall with certainty when he brought Mr. Ruck to the car or whether he walked him there or brought the car around. Based on the evidence I am not persuaded that the events relied upon by Cst. Fong would have required eight minutes to complete. There was an unquantifiable, brief, but material delay between the formation of the grounds and the process of giving Mr. Ruck his rights and cautions. It does not violate the admonition not to require the Crown to account for every minute of delay for me to make this observation. Where an explanation has been offered and it is manifestly inadequate, that is some evidence that officers have not used the kind of dispatch in processing a subject that the law requires.
[58] The second period of suspicious delay occurred between 1:42 when Cst. Fong finished the interview with Cst. Simon, and the delivery of Mr. Ruck to Cst. Simon at 1:52. Cst. Fong gave two explanations for this 10 minute period. First, he said that he was preparing his notes in the matter. Second, he said that during that time Cst. Simon was inputting data into the Intoxilyzer 8000C, information that Cst. Fong provided as Cst. Simon had initially written it on a piece of paper.
[59] I reject this latter explanation. It is not supported by Cst. Simon. Cst. Simon testified that he inputs the relevant information in the presence of the subject. The machine was otherwise ready when Cst. Fong met with Cst. Simon, the machine having been set up to receive a sample at 1:33. There is nothing in Cst. Simon's role that can account for the delivery delay.
[60] The other explanation for the delay, that Cst. Fong was preparing his notes, is unimpressive. While it is important for an officer to complete timely notes, there is no reason why an officer who is about to turn over a subject to another officer, should make their notes before passing the subject on. The decision to take those notes before delivering Mr. Ruck resulted, on the evidence before me, in a pointless 10 minute delay.
[61] The third period of delay occurred as a result of the 25 minute gap between the first and second samples. Evidence in this case showed that the required period of delay to ensure the integrity of the samples is 17 minutes. I agree with those authorities that require the Crown to explain a delay where the time between two tests exceeds the norm: R. v. Krunshauser [2006] O.J. No. 4092 at para. 31 (C.J.); R. v. Blacklock, [2008] O.J. No. 1472 (S.C.J.); but see R. v. Seguin [2007] B.C.J. No. 1136 and R. v. Rasmussen [2006] O.J. No. 2079 (C.A.). No explanation was offered in this case as to why this further eight minutes of delay occurred.
[62] On their own, none of these periods of delay would be sufficient to undermine an "as soon as practicable" finding. I am aware that the unquantifiable delay between deciding to arrest and the administration of the caution and warning was brief. I am also mindful that in R. v. Payne [1990] O.J. No. 630 (Ont. C.A.) a nine minute delay caused by the decision of a breathalyzer technician to interview the subject before rather than between tests did not prevent a finding that the samples were taken within a reasonably prompt time under the circumstances. And I am aware that there are cases holding that unexplained delays of 27 minutes (R. v. Seguin [2007] B.C.J. No. 1136 (Prov. Ct)) and even 30 minutes between two breath tests (R. v. Coulter [2000] O.J. No. 4599 at para. 30) will not preclude such a finding. Yet every case must turn on its facts. In this case the entire period of unexplained or ill-explained delay was in the order of 20 minutes, a materially long period during which Mr. Ruck was detained and during which the accuracy of the presumption of identity was being compromised. Quite simply, on the record before me the Crown has not satisfied me that the police exhibited the kind of reasonable dispatch and concern for prompt processing that the purposes underlying the "as soon as practicable" requirement suggests. If I ask the simple question, did the Crown establish on the balance of probabilities that the police acted in a reasonably prompt fashion under the circumstances in processing Mr. Ruck and securing samples from him the answer is a decided no. I therefore find that the samples were not taken "as soon as practicable" and that the Crown cannot rely on the presumption of identity.
V. Conclusion
[63] There being no evidence before me as to Mr. Ruck's blood alcohol level at the time of driving I am finding Mr. Ruck not guilty of the offence of operating a motor vehicle with more than 80 milligrams of alcohol in 100 millilitres of blood as charged, contrary to section 253(1)(b) of the Criminal Code of Canada.
Released: September 26, 2013
The Honourable Justice David M. Paciocco
[1] Mr. Ruck said in his submissions that he had his lawyer's number, but as I repeatedly explained to Mr. Ruck, what he says from counsel table is not evidence.