Court File and Parties

Court File No.: Central East - Newmarket 12-02917 Date: 2013-10-04 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Premkumar Kumarasamy

Before: Justice P.N. Bourque

Counsel:

• J. Lee, for the Crown
• A. Little, for the accused Premkumar Kumarasamy

Heard: In Writing

Judgment

Released on October 4, 2013

Overview

[1] The defendant was stopped at a RIDE program and as a result of further investigation was charged with driving with excess alcohol under the Criminal Code.

Evidence

Gilbert Metcalfe

[2] Gilbert Metcalfe is a York Regional Police officer with some 10 years experience and is a breath technician. He was working a RIDE program in the Region of York. He stopped the vehicle of the defendant at the RIDE program.

[3] He stated that he smelled alcohol on the defendant's breath. He asked him what he had to drink and the defendant told him he had something to drink some 6 hours ago. He told the defendant to pull his vehicle over and the defendant did so. The officer noted that the defendant came close to pylons when he pulled over and brushed by one of them.

[4] He went up to the car and got the defendant's driver's licence. He went inside the RIDE truck, which was a few car lengths away and stated that he "ran" the licence to make sure for officer safety whom he was dealing with and he also warmed up an approved ASD device. He stated that at that point, he had a reasonable suspicion that the defendant had alcohol in his body, but he wanted to briefly observe the defendant getting out of his vehicle to see if he had grounds to arrest for impairment. He asked the defendant to step out of the car and the defendant did so. The officer did not notice anything about the defendant's movements so with the reasonable suspicion, he read the ASD demand and after one failed attempt, the defendant provided a breath sample and it registered a fail.

[5] The defendant was arrested and taken into the RIDE truck. The following is a timeline of the arrest and processing of the defendant:

Time	Event
21:13	Set up the RIDE program
21:16	Stopped the defendant's vehicle. Spoke to the defendant about consumption of alcohol; smelled alcohol on breath.
21:18	After vehicle stopped and driver's licence obtained, went into RIDE truck to do checks. Warmed up ASD device.
21:19	ASD ready and checks complete.
21:20	Asked defendant to step out of car.
21:21	Read demand for ASD.
21:22	Registered a fail on the ASD, reasonable grounds for arrest formed and defendant arrested, handcuffed and taken into the RIDE truck. Defendant searched and items taken from defendant. Got into RIDE truck at approximately 21:25.
21:28	Read rights to counsel. Defendant said he understood and wanted to speak to Adam Little; had number on his phone.
21:29	Read caution.
21:30	Read the breath demand.
21:31	Contacted number for lawyer Adam Little.
21:39	Called again and left a second message.
21:47	Phone rang and Adam Little called back.
21:48	Defendant given opportunity to speak to lawyer; officer gives grounds to breath technician.
22:00	Defendant finished conversation.
22:01	Defendant turned over to the breath technician.
22:15	Officer went to breath room and got the first breath result.
22:40	Officer advised of breath readings and taken from breath room.
22:51	Left with the defendant for 4 District.
23:00	Arrived at 4 District and paraded before Staff Sergeant Shaw.
23:13	Lodged defendant in the cells.
23:28	Served paperwork upon the defendant including breath certificate.
23:44	Officer left the station to attend to other duties.

[6] The officer testified that the defendant's wife (who was the owner of the car he was driving) attended at the RIDE van area and he explained to her that the vehicle was being impounded and how to retrieve it. He also testified that he would have released the defendant on a promise to appear after the processing at the RIDE van was complete. He stated that the sergeant in charge of the RIDE program ordered that the defendant be taken to 4 District. At 4 District, the defendant was kept in custody until the next morning at 5:55 a.m.

[7] The officer was questioned extensively about his formation of grounds and particularly when he formed his grounds. The officer maintained that when he had the information about the smell of alcohol on his breath and the acknowledgement of the consumption of some alcohol, he would have had a reasonable suspicion about alcohol in the body which could have led to the ASD demand right away. It was his evidence that he wanted to speak to him after pulling over, run his licence for officer safety purposes and then ask him to step out of the car to see if he had further grounds to arrest for impairment before he made the ASD demand and performed the roadside test.

[8] He stated that it was his practice to get the ASD warmed up so he could immediately make the demand, perform the test once the defendant got out of his car and the officer could assess any issues of balance, and thus whether there were further grounds to make an arrest for impairment.

[9] I also notice that it was the evidence of the officer (Page 5 Line 30 and following from January 9, 2013), that he went a short distance to the RIDE truck and he "swiped" the licence and got the ASD machine. He speaks of the total time for both tasks as being some one and-a-half minutes.

[10] He agreed as well that it is his practice not to advise a person sitting in a car that he will be performing a roadside test for alcohol for officer and public safety reasons. He wanted the person out from behind the wheel because he was concerned that the person may start to argue with him and, indeed, attempt to drive away. He used the phrase "off balance" to describe his treatment of the defendant. I don't think he meant in an arbitrary fashion but only in the sense that at least until the defendant was out of the car, he did not want the defendant to be making dangerous decisions. The time from the first stop at 21:16 to the reading of the ASD demand at 21:21 was at most, 5 minutes.

[11] With regard to the ASD test, the officer testified that the device was calibrated that morning and he had tested it before his shift. Defence counsel pointed out a CFS document (Exhibit 4) which indicates that yearly full inspections of the device are recommended and produced a further document which indicated that the last full inspection of the device he used was over two years ago. Defence counsel asked hypothetically whether the officer would have used the device if he had known it had not had a full test for 2 and-a-half years. The officer basically refused to be fully drawn into that hypothetical and repeated that at the time, he believed that the results of the device were reliable.

[12] The officer was also extensively cross-examined about the timing of the rights to counsel. The officer stated that upon the arrest at the roadside, he wished to get the defendant inside the RIDE truck and settled (where it was warm) so he could complete the tasks of doing the rights to counsel, caution and the breath demand. He believed that not only would the defendant be more comfortable but he would be in a position to communicate better and the defendant understand.

[13] The officer was cross-examined extensively about the breath certificate. The officer stated that he met the defendant in an interview room. He stated that he had made copies of the breath certificate and stated they were the same. He did not read them all line for line. He stated that he handed the original and the copy to the defendant, asked him to read them over and then stated that he was not sure if he took the copy back and left it with the defendant's things or whether he left it with the defendant.

Todd Stewart

[14] Todd Stewart is a York Regional Police officer and a breath technician. He administered the breath test to the defendant. His timelines are as follows:

Time	Event
21:25	He was at the RIDE program and was notified that he would be performing a breath test for P.C. Metcalfe. He had set up the Intoxilyzer 8000C at 19:40.
21:28	Entered the breath room area.
21:31	Performed the calibration check.
21:34	Did the self breath test.
21:50	Spoke to officer Metcalfe and received the grounds.
22:01	Defendant turned over to officer.
22:02	Read breath demand.
22:10	First sample taken with readings of 180 mgs of alcohol in 100 millilitres of blood.
22:28	The intoxilyzer 8000C indicated an ambient fail. The officer had the defendant leave the room and opened the windows to clear the ambient air. Once air clear, proceeded with the sequence again.
22:36	Second sample obtained with reading of 170 milligrams of alcohol in 100 millilitres of blood.

[15] The defence conceded the officer's grounds to perform the tests, that he instructed the defendant on how to blow into the machine, and that all cautions and demands were made to the defendant.

Michael Rathmann

[16] Michael Rathmann is the officer who was the sergeant in charge of the RIDE program in Vaughan on December 11, 2011. He stated that the scene was on a road with two lanes and a turning lane. The passing lane and turning lane was blocked by pylons and the traffic was funnelled through the curb lane. There were a total of 5 officers including himself doing the RIDE program. The officers would stop cars in the one lane and there was an area in the closed lanes where vehicles would be directed for safety and convenience for further investigation.

[17] The sergeant has a recollection of that evening and has some notes, but no notes of this particular event. He only recalls that he was informed of the high readings and on that information, he directed that the defendant be taken to the District station for eventual release by the sergeant in charge. He does not have an independent recollection that the reading was 180, but it was his opinion that for the purposes of preventing and recurrence of an offence, taking into account the high readings, he made the decision to send him to the detachment.

[18] It was his expectation that the duty sergeant would release him at the point that he was deemed to be "sober" and he believed that would be when his readings would be below 80.

[19] He was cross-examined extensively about his reasons and he believed that a single reading of 180 (without the benefit of the second reading) that he would be impaired. His belief in this regard was based on his experience dealing with breath technicians in his years as a policeman. He also made reference to the science but he did not elaborate. He admitted that he did not talk to the defendant nor make any other assessment of impairment.

[20] He was shown the provisions of the Criminal Code dealing with release and he stated that he did not release because of the fear of a repetition of the offence.

[21] He was shown a policy directive of the York Regional Police which made reference to releasing people where possible in the custody of family members. He did not believe that he would have released this defendant to the custody of family members. For the officer the high readings were the determining factor.

Sergeant Robert Shaw

[22] Sergeant Robert Shaw is a York Regional Police officer and was the sergeant on duty at 4 District. The defendant was brought in and paraded before him at approximately 10:22 p.m. He has few notes but notes the attendance. He made no notes of any signs of impairment. He states that it took about half-an-hour to book the defendant and place him in the cells. He was informed of the breath reading of the defendant being 180 milligrams of alcohol in 100 millilitres of blood. He was informed that Sergeant Rathmann ordered he be brought to the station in custody.

[23] It was his opinion that the defendant be kept in custody for the reason that his breath reading was so high, that it denoted a level of impairment and that there was a risk that he would re-offend for this reason alone. Put into evidence was the sheet maintained at the station which showed when an officer viewed the defendant on the video (a camera in the cell) or went up to the door to look through the window.

[24] The witness was extensively cross-examined about the reasons for his detaining the defendant in custody. For the officer, it all came back to the elevated level of the breath readings. For him (and I believe objectively) a reading of 180 milligrams of alcohol in 100 millilitres of blood is very high.[1]

[25] He testified that he did not observe any discernable signs of impairment but stated that for him, those readings were enough to raise the concern that the offence could be repeated by the defendant, and whether to release him with that level of alcohol would lead to a real risk that the defendant himself could come to harm. When pressed, he stated that even without the obvious signs of impairment, the defendant had already demonstrated that night that he was capable of making the decision to drive a motor vehicle on public streets with a great amount of alcohol in his system. The officer had real concerns that at those alcohol levels, and the already poor evidence of judgment, he could not release the defendant until the alcohol levels were reduced.

[26] It was his evidence that once the levels (by his ad hoc calculations) had reached around 100 or 110, he would explore the possibility of release. In any event, the officer went off duty at 4:30 and by his calculations, the defendant was still at 120 and was asleep. Therefore, he left it up to the next duty sergeant to make the decision to release the defendant.

[27] The defendant was released at 5:55 a.m., having spent some 7 hours in police custody after his arrest.

Legal Analysis

Were the ASD Tests Demanded and Performed Forthwith?

[28] Under section 254(2)(b) of the Criminal Code, an officer may demand a roadside sample where he has "reasonable grounds to suspect that a person has alcohol in their body…and the officer may by demand, require to person to provide, forthwith a sample of breath…".

[29] The section does not specifically require the demand to be made forthwith upon the officer coming to that suspicion, but the case law has found that the forthwith requirement is implicit in relation to the police demand and explicit in relation to the driver's response. It connotes a prompt demand and an immediate response.[2]

[30] The defendant argues that the officer formed a reasonable suspicion when he first questioned the defendant and asked him to pull over to the area near the pylons. That was at 21:16. He did not make the actual demand until 21:21; a delay of 5 minutes. The officer's explanation was that he had not completed his investigation on the issue of impairment and wanted to first get the defendant's identification and "run it" for purposes of officer safety, then have the defendant step out of the vehicle to see if that action provided any evidence of impairment before acting upon his suspicion and reading the ASD demand and performing the test.

[31] The officer testified that he warmed up the ASD while running the defendant's licence so he could have it ready if there was not sufficient indicia of impairment to arrest for impairment. The officer appeared to be thinking of all the issues in this matter. He believed that the running of the licence was a reasonable thing to do for officer safety. He waited until the defendant had gotten out of the vehicle to make his observation and make his final decision.

[32] This issue arises in two contexts, one being, in the time it takes to have an ASD at the scene whether there arises a right to consult with counsel and also whether the breach of the "forthwith" requirement leads to an unreasonable search which can lead to an exclusion of the final breath test results. This case involves a consideration of the latter point.

[33] In R. v. Quansah, it states that the "immediacy" requirement in 254(2) necessitates the courts to consider five things:

1. The analysis must be done contextually. There is a balance between public interest in eradicating driver impairment and the need to safeguard individual Charter rights;

2. The demand must be made promptly once the suspicion is formed;

3. "Forthwith" connotes a prompt demand and an immediate response although in unusual circumstances a more flexible interpretation may be given. The time from the formation of the reasonable suspicion to the making of the demand to the detainee's response must be no more than is reasonable necessary to enable the officer to discharge their duty;

4. The immediacy requirement must take into account all the circumstances; and,

5. If the delay exceeds the time that the police could have fulfilled the detainee's 10(b) rights, then the forthwith requirement is not met.

[34] In the Quansah case, the time delay was 17 minutes and in the context of that case, it was found to be reasonable necessary for the officer to perform his task.

[35] In our case, there was a RIDE program. The defendant's car was stopped literally in the middle of the street as all cars traveling in that direction on that street were being funnelled into this program. In this context, making an ASD demand while the vehicle is in the middle of the street hardly makes any sense. Asking the vehicle to pull out of traffic into a side area does not seem to be unreasonable and the time it takes to perform this task is one of the circumstances to take into account.

[36] The officer also, in my opinion, had a right to obtain the defendant's driver's license before proceeding. I note that in all the cases that I have been referred to, it was not a RIDE stop and these tasks are usually done before any inquiry is made about alcohol consumption. The RIDE program, by its very nature, begins immediately with a question about alcohol consumption. This is logical, for there should be no need to detain further (and perhaps hold up other motorists) if the answer is negative with no other indicia of impairment.

[37] I find that the delay to ask the vehicle to move over and for the officer to get the driver's licence from the defendant are contextually necessary and does not offend the immediacy requirement. Also, asking the defendant to step out of the vehicle for two stated reasons, namely officer safety and the wish to see if there could be any possible grounds to arrest for impaired operation, does not seem to offend any of the 5 factors.

[38] The fact that there is a possibility that a driver may panic and attempt to drive away is a real possibility. More than one tragedy has occurred when an officer states his intentions before the operator is out of the vehicle. Remember, the officer had no opportunity to follow this defendant while he was driving and make any assessments about his driving. Asking him to step out of the car to see if there were any signs of impairment was an extremely quick and small task. Surely this was a delay of under a minute to perform this task. I am sure the parking, the getting of the licence and the getting out of the car were tasks that could have occupied a couple of minutes.

[39] We are left with the minute and-a-half that the officer took, to take the licence to the RIDE van to "run" it and the concurrent time to warm up the ASD device. I note that if the officer had left this task to after making the ASD demand, the demand could have been made a moment or two earlier, but the total time to actually give the opportunity for the defendant to complete the task would have not changed.

[40] I am left to decide whether some two minutes (or just one and-a-half minutes as per the officer's evidence) to perform this task with the defendant sitting in his vehicle is such as to offend the requirement. I find that it does not offend the requirement and I find that the ASD test was demanded and taken "forthwith" as set out in the section. The officer's wish to take a moment to scan the licence to see if there were any other issues with this defendant before he continued to deal with him were explained in the context of officer safety. While the officer's safety was not directly threatened in any way, was the small time taken for the officer to assure himself of these issues offensive to the requirement, as stated in Quansah, of a "prompt" demand. I do not think so. My thoughts may have been different if the officer had left the defendant sitting in the car for 15 minutes or so.

Maintenance upon the ASD Device

[41] The defence alleges that since the maintenance records show that the ASD device did receive a service test for over 2 years, then the search and seizure (by the use of the ASD device) constituted an unreasonable search and seizure and the ultimate results obtained by the breathalyzer should be excluded from evidence.

[42] He does not ask me to find that the officer's subjective feelings that he could rely on the results of the ASD "fail" result was not objectively reasonable. There is a plethora of case law to the effect that the officer's subjective reliance upon the results of the test are almost always sufficient to cloak him with reasonable and probable grounds once the "fail" is indicated.

[43] The defendant argues from the general principles that this is a warrantless search and thus where some evidence is led that the device may not be maintained in accordance with various maintenance procedures (even if these procedures are unknown to the officer operating the device), then the Crown has not met his onus to show the reasonableness of this warrantless search. Specifically, the defendant points to the evidence that this device did not receive annual maintenance for over two years. He points to Exhibit 9, which is the "Recommended Standards And Procedures Of The Canadian Society Of Forensic Science Alcohol Test Committee" from December 24, 2009, and particularly the following extract:

All approved Instruments, Approved Screening Devices and accessory equipment intended for active use in the program shall be individually inspected before being placed into service, and periodically thereafter to ensure that they initially meet, and continue to meet, the manufacturer's specification. The recommended interval between inspections is one year.

[44] The defence states therefore that failure to meet this recommended standard of annual checks, leads to the conclusion that the Crown has no longer met its burden to show that the search was reasonable.

[45] This is a novel argument and the defence admits that it has no authority directly on point for this proposition. The defence argues that since the SCC in R. v. St-Onge Lamoureux made the comment at paragraph 78, that in the context of the constitutional challenge to the new statutory scheme of rebutting the presumption of the correctness of the breath readings, "the accused may rely for example on a maintenance log that shows that the instrument was not maintained properly…".

[46] I do not think that I am sidestepping the argument when I point out that the St-Onge Lamoureux case deals with the legislation around the intoxilyzer results and not the ASD, nor does it deal with a definitive statement that the recommendations of the "Alcohol Test Committee" has the imprimatur of absolute correctness and infallibility. As pointed out by the Crown, Exhibit 9 contains statements which point out that the standards recommended do not necessarily have a direct bearing on the result, on the overall quality system that is in place. It goes on to state that:

As such, the standards and procedures contained herein are intended as recommendations to encourage the development of a quality system or best practices within a breath test program. They are not to be considered as required elements of proof additional to those already provided in the Criminal Code.[5]

[47] I think that to put doubt into the maintenance program of the ASD one should have some further evidence to show that this impairs in some way the reliability of the results of the ASD. In other words, I do not feel that there is a sufficient evidentiary record for me, without any appellate authority for the position advanced, to adjudicate on this issue. Quite frankly, I do not feel that I have a sufficient evidentiary basis to come to the conclusion that the defendant has somehow put into doubt the accuracy of the result so as to deprive the Crown of proof that this warrantless search was reasonable or indeed to rob the officer of his subjective belief that the device was operating properly and the results so obtained give him reasonable and probable grounds to arrest for driving with excess alcohol.

[48] I therefore feel that R. v. Mastromartino is binding upon me and I have no basis to deviate from it.

[49] I have not found any section 8 or section 10(b) breaches. However, if I had made such a finding, I will apply the test in Grant to decide whether the breaches are such that to admit the breath test results into evidence would bring the administration of justice into disrepute.

[50] Applying the first part of the test, I will consider the seriousness of the state infringing conduct. The using up of upwards to one and-a-half minutes of a 5 minute investigation to run the driver's licence of the defendant and pick up and turn on the ASD constitutes minimal infringing conduct. Likewise the other slight delay of perhaps a minute to make a very cursory check for grounds for making the breathalyzer demand fall into the same minimalist category. I note that in this period of time from start to finish, the officer applied himself to the handling of this investigation. He did not deviate. Where the overall time is short, and the actions relate to the investigation, it would be unwise to second-guess all of an officer's actions, when on their face, they seem reasonable.

[51] With regard to the issue of the maintenance of the ASD, I am unable to determine whether this is serious state conduct. I have no expert testimony to tell me the relation between the 1 year maintenance recommendation and any doubts about the reliability of the ASD.

[52] With regard to the effect upon the protected interests of the defendant, I would describe it as minimal. The total time at the roadside before the demand was some 5 minutes. The test was taken immediately thereafter and if the defendant had passed the test, he would have been on his way within another 2 minutes.

[53] With regard to the state interests in prosecuting cases of impaired driving, I need not restate its importance. I also need not restate the proven reliability of the breathalyzer test results.

[54] On balance, even if I were to find all of these breaches as requested by the defence, I would find that on balance, section 24(2) favours the admission rather than the exclusion of this evidence.

Section 9 "Overholding" Charter Application

[55] The defendant states that upon him being taken to 4 District and lodged in the cells until the sergeant felt it was time to release him, violates section 9 of the Charter and it also triggered a further right to consult with counsel.

[56] With regard to the rights to counsel, the defendant spoke to his lawyer at the RIDE van before the intoxilyzer test. He was under detention for a drinking and driving offence. After completion of the breath test, he was still being investigated for a drinking and driving offence. The nature of the investigation did not change. His jeopardy, in terms of the seriousness of the offence, never changed. It is, I believe, good law that where the jeopardy does not change, as in this fashion, there is no further triggering of his rights to counsel.

[57] The sergeant who testified (the one who made the initial decision at the roadside and the one who decided when to release) felt that the detention in custody of the defendant was necessary for the protection of the public. Both of the sergeants concentrated upon the very large breath reading of 180. As I noted above, Officer Shaw expressed his concerns with regard to the repetition of the offence and expressed that as the defendant had previously driven with a great amount of alcohol in his body, there was a risk while his blood alcohol levels were elevated that he could make the same decision.

[58] I note that there is evidence that he was checked twice each half-hour. The officer stated that he would have assessed him when he felt his alcohol levels were around 110 and 100 and spoken to him to see if he was capable of being released. It is clear that he was released sometime (according to his calculations) with a blood-alcohol level near that amount. There was no evidence that the defendant was being ignored. While the defendant need not testify, there is no evidence to contradict the assertions by the officers and no evidence to contradict the evidence of the checks upon the defendant.

[59] In R v. Iseler, the Court of Appeal considered several situations of persons held in custody upon being charged with drinking and driving offences. Clearly there were situations where detention in custody was not warranted. It would appear from the court's reasons that there needs to be some expression of why the defendant was detained. Elevated readings, if expressed as the reason, may be enough. There also should be a system of monitoring the defendant while in custody. Lastly, the length of time in custody is also a factor.

[60] As the court stated:

Burns is distinguishable both on the facts and on the burden of proof. In my view, there is a considerable difference between a detention of five hours and a detention of eleven hours in which the appellant was ignored for the entire period of time, except for a five-second interlude at the tenth hour.[8]

[61] Justice Durno of the Superior Court in R v Price, felt that basing the detention and continued detention solely on the blood alcohol readings was too narrow a focus and thought that other issues including impairment, and means to get home and other things must be considered. In our case, the officer in charge at the station testified that he was prepared to consider the other factors, but not while the defendant was showing a blood alcohol reading of 180.

[62] For the purpose of my decision, I think the following are the important factors:

(a) the elevated readings (over twice the legal limit), were a legitimate primary fact for the officers to believe that there was a risk as per section 489(1.1) that the defendant could commit a further offence;

(b) the officer was prepared to consider a release after the levels of alcohol were by his calculations down to 100 or 110;

(c) the defendant was not abandoned in his cell but was monitored on a regular basis;

(d) the defendant was in custody for 7 hours beyond the earliest release;

(e) the defendant's wife was available to have taken him home;

(f) the defendant was not showing signs of impairment and the arresting officer was of the opinion that he would have released him;

(g) the view of both of the sergeants was that the elevated readings of 180 milligrams would "trump" any other issues and they would not consider those other issues until the readings came down to the 110 to 120 milligram range.

[63] I note that in Price the readings of the defendant were 130 milligrams. There were other factors there which were not present in this case, such the officers in Price saying they would not release until the blood alcohol level was below the legal limit. In Peel, these issues of "overholding" had been in the courts for some 8 years. There was no evidence presented in this case that issues of overholding have been rampant in this County.

[64] In Price at paragraph 93, there seems to set out a check list of factors that the releasing officer should go through, which includes the blood alcohol readings. In our case, the only other consideration was the recent display of bad judgment by the defendant in drinking and driving.

[65] I have great sympathy with the officers placing the utmost weight upon the readings when, as is here, they were more than two times the limit permitted by law. High alcohol readings of this type by a person who is apparently symptom-free may denote a person with a very high tolerance to alcohol and an ability to "mask" the signs of intoxication. I believe that it is implicit in the testimony of Sergeant Rathmann, when the following exchange took place with the defence counsel:

Q. . . . I'm trying to find out where in the Criminal it says that if you're over 80 you're impaired.

A. Your decision making is impaired.

Q. Based on, how are you coming to that conclusion that your decision making is impaired?

A. Because the evidence of 180 supports it.

Q. Based on what? What are you relying upon?

A. Scientific - I don't know, like. . .

Q. But no, that's what I'm getting at. You don't know, you're not a scientist, right?

A. Correct.

Q. You're not a toxicologist.

A. Correct.

A. And that's because I work with breath techs.

Q. Yes.

A. Who take breath courses where they have to measure a person's impairment through drinks and time and a know a number of 180 is high which means they consumed a lot of alcohol.[10]

[66] It is implicit in his evidence that he equated the high reading with impairment and it was based on his experience in dealing with breath technicians. While his reasoning is somewhat tautological, the point is that it was his belief in accordance with his knowledge and experience that these high readings are indeed equated with impairment notwithstanding any physical symptoms. He may not be able to establish that belief with his own scientific research, but clearly it was an honestly held belief and one that could be supported.

[67] I believe that this case is different from Price in that we do not have evidence of a systemic problem in York Region, and the officer, in my opinion, did not simply ignore other considerations, but the extremely high readings moved any of those considerations clearly into the background. When the readings (by the officer's rough calculation came down to the 100 to 110 range), he undertook to speak to the defendant and make a personal assessment of his condition. Our case has readings which began in the 170 to 180 range. I believe that is also a relevant distinguishing factor.

[68] In R. v. Key, Robertson J., in circumstances very similar to the facts here, declined to find that the defendant's section 9 rights were breached and that the detention during the period that his readings went from 180 milligrams to 84 was in any way arbitrary. Schwarzl J., in R. v. Steele, adopted the reasoning in Key, when he stated at paragraph 39:

The presence or signs of impairment is important to consider when deciding whether a detainee should continue to be held, but the absence of outward signs of impairment is largely irrelevant. Many individuals do not show outward signs of impairment but this does not mean they are not under the influence of alcohol or that they do not continue to pose a risk to the public.

[69] Based upon all of the evidence, and even with all of the comments noted above, I believe that I cannot distinguish Price and I am bound by its ruling. If the officers had stated that they had considered the other factors (outward signs of impairment, presence of transportation et cetera) but felt that the very large readings in this case trumped any of those considerations, then in my opinion, there would have been no breach. Such considerations may be implied in parts of their testimony, but it was not explicitly stated. I therefore come to the conclusion that there has been a breach of the defendant's Section 9 right "not to be arbitrarily detained or imprisoned".

[70] The question to be decided therefore, is what is the appropriate remedy?

[71] Durno J. in Price, did not grant a stay. Several of my brother judges have found a breach and have imposed a lower penalty than that provided for as a minimum. Horkins J., for example, in R. v. O'Neill, accepted the defendant's detention as pre-trial detention and notionally imposed a day in the place of the monetary fine. In all of the cases cited to me where there has been a section 9 breach in remotely similar circumstances, none of the courts have felt that a stay was the appropriate remedy.

[72] R. v. Zarinchang sets out the principles which guide the courts in assessing whether a stay is the appropriate remedy. I will not cite it here. I do not feel that this case rises to the level where a stay is justified.

[73] The defendant has submitted that even where a stay is not appropriate, then it would be possible to apply a lesser remedy of not allowing the Crown to rely upon the presumption of identity, and therefore, as the breath results cannot be deemed to be the blood alcohol level of the defendant at the time of the stop, he would be entitled to an acquittal. He states that this is not as serious as a stay, as the Crown is left with a "work around" solution by calling a breath tech in all situations where there is an application under section 9 for "overholding". This is a novel remedy, for this type of breach. It would result in a result that is probably better for the defendant than a stay. The Crown has argued that if I were to grant such a remedy, it would be tantamount to a stay and thus the same factors in considering a "stay" should also be applied in considering this remedy suggested by the defence.

[74] It has the difficulty not just that it has no stamp of approval by an appellate court (and no decisions by my brother Judges in the Ontario Court) but that it would apply a remedy to actions taken by the police after the proper taking of that evidence. In other words the remedy has no connection to the breach. The cases where courts have denied the Crown a reliance upon the presumption of identity, all involved some breach of statutory procedure or charter right involved in the scheme to take the breath sample. The defence argues that there is no reason why this remedy could not be used in these circumstances. I respectfully disagree. The remedies being used by some of my brother Judges (reducing the sentence) have, at best, some relation to the breach.

[75] As Horkins J. noted in O'Neill at paragraph 46: "giving credit for time served strikes me as a remedy that is particularly appropriate and just in the circumstances where the Charter breach itself was actually an unlawful period of detention."

[76] I am therefore not disposed to grant the remedy of not allowing the Crown to rely upon the presumption of identity.

[77] The Crown has argued persuasively that the only remedy for a section 9 breach now sanctioned by our courts is a stay and a stay should only be granted in the clearest of circumstances. This is not such a case.

Conclusion

[78] I have not found that the defendant's section 8 or section 10(b) Charter rights have been infringed. I find the defendant guilty of the offence of driving a motor vehicle with a blood-alcohol limit which exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to section 253(1)(b) of the Criminal Code.

Signed: "Justice P.N. Bourque"

Released: October 4, 2013

Footnotes

[1] I note that any reading of 160 milligram is considered an aggravating circumstance on sentencing for a drinking and driving offence.

[2] R. v. Gill, [2011] O.J. No. 3924

[3] 2012 ONCA 123

[4] 2012 SCC 57

[5] Recommended Standards and Procedures of the Canadian Society of Forensic Science Alcohol Test Committee, at page 2.

[6]

[7]

[8] Supra, at paragraph 22.

[9] 2010 ONSC 1898

[10] Transcript of trial proceedings, January 10, 2013, page 30-31, lines 6-11.

[11] [2011] O.J. No. 5972

[12] [2013] O.J. No. 2126

[13] 2013 ONCJ 216

[14] 2010 ONCA 286