Court File and Parties
Court File No.: Hamilton 12-2935 Date: 2013-11-14 Ontario Court of Justice
Between: Her Majesty the Queen — and — Daniel Johnston
Before: Justice M. Speyer
Heard on: June 26 and 27, 2013
Reasons for Judgment released on: November 14, 2013
Counsel:
- V. Reed, for the Crown
- F. Genessee, for the accused Daniel Johnston
Judgment
Introduction
[1] Daniel Johnston is charged with operation of a motor vehicle while his ability to do so was impaired by alcohol. He is also charged with operating a motor vehicle while his blood alcohol concentration exceeded 80 mg of alcohol per 100 ml of blood.
[2] Const. Sami Haddad observed Mr. Johnston driving a motor vehicle on Centennial Parkway at approximately 2:53 on the morning of March 31, 2012. He saw the accused's car collide with the centre median and continue to drive with a flat tire for almost another 1.5 kilometers before pulling into a parking lot on Lake Avenue N. Const. Haddad observed Mr. Johnston exit from his car and stagger to the front driver's side of his car. The officer approached Mr. Johnston and observed him to have glassy eyes, an odour of alcohol on his breath and slurred speech. At 2:56 Const. Haddad arrested the accused for impaired operation of a motor vehicle, advised him of his right to counsel, cautioned him and made a breath demand pursuant to s. 254(3) of the Criminal Code. At 4:03 a.m. and at 4:54 a.m., Const. Chantal Roberts, a qualified breath technician, took samples of Mr. Johnston's breath directly into an approved instrument. Both samples were analysed and found to contain 190 milligrams of alcohol per 100 millilitres of blood.
[3] Defence counsel raised two issues at trial: Whether the evidence establishes beyond a reasonable doubt that Mr. Johnston's ability to operate a motor vehicle was impaired by alcohol; and, whether the breathalyser tests were conducted as soon as practicable so that the Crown can rely on the presumption of identity to prove that Mr. Johnston's blood alcohol concentration was over 80 mg per 100 ml of blood at time of driving.
Count 1: Has the Crown proven beyond a reasonable doubt that Mr. Johnston's ability to operate a motor vehicle was impaired by alcohol?
[4] Case law establishes the following general legal principles in impaired driving charges:
The Crown has the onus of proof beyond a reasonable doubt that the accused's ability to drive is impaired to some degree by alcohol or a drug.
The impairment of the ability to drive must be caused by the consumption of alcohol or a drug.
The impairment of the ability to drive need not be to a marked degree, and any degree of impairment will be sufficient proof of the offence.
Observations of the accused's conduct can amount to proof of impairment of the ability to drive, if those observations establish a sufficient departure from conduct of unimpaired or normal individuals. Inference of any degree of impairment of the ability to drive can reasonably be drawn from conduct that exhibits a marked departure from the norm.
When the Crown is relying on circumstantial evidence to prove impairment, all evidence must be considered, including physical symptoms, conduct and manner of driving. Items of circumstantial evidence are not to be viewed in isolation. The entirety of the evidence must be considered, including evidence of non-impairment, in determining whether the Crown has discharged its onus.
Where circumstantial evidence alone or equivocal evidence is relied on to prove impairment of ability to operate a motor vehicle, and the totality of that evidence indicates only a slight deviation from normal conduct, it would be dangerous to find proof beyond a reasonable doubt of impairment to drive, slight or otherwise.
See: R. v. Stellato, R. v. Andrews, 1996 ABCA 23, R. v. McKenzie, [1955] A.J. No. 38 (Dist. Ct.), R. v. Palanacki, [2001] O.J. No. 5194 (SCJ).
[5] The Crown relies on the evidence of the arresting officer, Const. Haddad, and of the breathalyser technician, Const. Roberts, to prove that the accused's ability to operate a motor vehicle was impaired.
[6] Const. Haddad testified that he followed the accused's car from the intersection of Barton Street and Centennial Parkway to the intersection of South Service Road and Lake Ave. N., a distance of approximately 2 kilometres. During that time, he made the following observations of the manner in which Mr. Johnston drove his car:
He made a wide left turn from Barton Street East into the curb lane of Centennial Parkway, before moving into the centre lane of that street.
His car weaved from side to side within the centre lane as he drove north on Centennial Parkway.
The front left tire of Mr. Johnston's car collided with the concrete centre median on Centennial Parkway near Arrowsmith Drive. It appeared to the officer that the car hit the median fairly hard and caused a flat tire on the front driver's side. Const. Haddad observed the front driver's side of the car drop down and the car bounce to the right about one to two feet.
The roads were dry and clear of snow, and the officer observed nothing to cause the car to lose control or collide with the centre median.
Mr. Johnston did not stop his car or reduce speed after colliding with the center median. He continued travelling at approximately 50 kilometres per hour north on Centennial Parkway to South Service Road, a distance of approximately 500 metres. The officer testified that this area of Centennial Parkway is well lit and there were numerous businesses with parking lots that Mr. Johnston could have pulled into.
Mr. Johnston made a right hand turn onto South Service Road and continued to drive at a reduced speed for approximately one kilometre before pulling into the parking lot of Dewildt Honda at Lake Ave. N. South Service Rd. is very dark and the officer observed sparks coming from the front driver's side tire as it travelled on this street from Centennial Parkway to Lake Ave. N.
[7] Once Mr. Johnston pulled into the Dewildt parking lot, Constable Haddad saw him exit from his car and stagger to the front driver's side of his car. The officer acknowledged that this is a short distance. The parking lot was dark and the only illumination was from the officer's cruiser lights. Constable Haddad spoke briefly with Mr. Johnston and noted him to have an odour of alcohol on his breath, his eyes to be glassy and his speech slurred. Mr. Johnston was also unsteady on his feet. At this point the officer had reasonable grounds to believe that the accused was operating a motor vehicle while impaired and arrested him for that offence. Constable Haddad testified that Mr. Johnston's physical condition remained the same during his dealings with him throughout the morning.
[8] Const. Roberts testified that she dealt with the accused on three occasions that morning. The first period of interaction was from 3:52 a.m. to 4:03 a.m. when Mr. Johnston provided the first sample of his breath. She did not see Mr. Johnston's walk into the breath room so was not able to assess his ability to walk. She observed him to have the following physical symptoms:
Pronounced slurring of words
Flushed complexion
Droopy and bloodshot eyes
Lethargic and slow movements
Moderate odor of alcohol on his breath
Emotional, crying, and talking of suicide
[9] Mr. Johnston returned to the breath room at 4:36 a.m. but Const. Roberts did not make note of his physical condition as she was preoccupied with the breathalyser. Shortly after he came into the breath room, she had Constable Haddad return the accused to the holding cell while she restarted the breathalyser. At 4:49 a.m. Mr. Johnston returned to the breath room to provide a second sample of his breath. During this interaction, Const. Roberts noted that his speech was still slurred and his voice was thick. His eyes were bloodshot and watery, although she acknowledges that this could be because he had been crying. She observed that Mr. Johnston was emotionally calmer and was sleepy. In her opinion, Mr. Johnston's ability to operate a motor vehicle was impaired by alcohol.
[10] Mr. Johnston did not testify. His mother, Carol Duncan, testified on his behalf. She advised the court that her son was a truck driver and had been experiencing financial difficulties at the time of his arrest. He had also recently broken up with his girlfriend. She believed her son to be suffering from depression. Since this incident he has been prescribed antidepressants.
[11] Mrs. Duncan testified Mr. Johnston lives with her and her husband. To her knowledge Mr. Johnston does not drink and he is always the designated driver. She acknowledged that she did not see her son from at 6 a.m. on March 30, 2012 until she picked him up from the police station at 7:30 a.m. on March 31, 2012.
[12] After careful consideration of all of the evidence, I am satisfied beyond a reasonable doubt that the accused's ability to operate a motor vehicle was impaired by alcohol at the time in question. The breathalyser test results establish that the accused had alcohol in his system. This is in direct contradiction to Ms. Duncan's evidence that her son does not drink.
[13] Mr. Johnston's physical condition, as described by the officers, is consistent with someone who is impaired by alcohol. In my view, the officer's evidence in this regard was not shaken on cross-examination and their evidence is largely consistent with each other. Any inconsistency between their evidence was minor and did not give rise to a reasonable doubt. Similarly, the fact that the officers were not able to specify what kind of alcohol they smelled on Mr. Johnston's breath does not diminish the weight of their evidence.
[14] I also rely on the manner in which Mr. Johnston operated his motor vehicle as further circumstantial evidence of impairment. In my view, the accused's manner of driving as observed by Const. Haddad is a marked departure from normal conduct by a sober driver. Const. Haddad's evidence on this point was not contradicted and I accept his evidence fully.
[15] Defence counsel argued that Const. Haddad testified that it was possible for Mr. Johnston to have had a flat tire before hitting the median and this could have caused him to weave within his lane and hit the centre median. I reject this argument for two reasons. First, while this scenario may have been possible, there was no evidence before me that this is what actually occurred. Const. Haddad testified that it appeared to him that the tire was blown as a result of the collision because the front of the car dropped down and the car bounced to the right. This is a reasonable inference for him to have made.
[16] Second, even if I accept that the tire was flat before colliding with the median, why was Mr. Johnston driving on a flat tire for a distance of at least 2 kilometres? Const. Haddad testified, and I accept his evidence, that there were several places on Centennial Parkway where Mr. Johnston could safely have pulled off the road. I find that the accused's continued driving on a flat tire, to the point where sparks were coming from it, goes beyond a question of judgement, as argued by defence counsel. In my view, it is a marked departure from normal conduct and, when considered in conjunction with his physical condition, is compelling evidence that Mr. Johnston's ability to operate a motor vehicle was impaired.
[17] On all of the evidence before me, including the physical condition of Mr. Johnston and the manner in which he operated his motor vehicle, I am satisfied beyond a reasonable doubt that his ability to operate a motor vehicle was impaired by alcohol and there will be a finding of guilt on count 1.
Count 2: Were the breath tests taken as soon as practicable?
[18] The issue of what is meant by as soon as practicable was determined by the Ontario Court of Appeal in R. v. Vanderbruggen. At paragraph 12, Justice Rosenberg held that the phrase as soon as practicable means nothing more than that the tests were taken within a reasonably prompt time under the circumstances. There is no requirement that the tests be taken as soon as possible. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably. At paragraph 13, Justice Rosenberg instructs trial courts as follows:
In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The "as soon as practicable" requirement must be applied with reason. In particular, while the Crown is obligated to demonstrate that -- in all the circumstances -- the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody.
[19] In order to address this issue, it is helpful to outline the evidence of what occurred between the time of the accused's arrest and the time he provided the second sample of his breath. The evidence establishes the following timeline:
02:53 Const. Haddad observes the accused driving and follows him to the Lake Ave. N. and the Dewilt Honda parking lot.
02:56 Const. Haddad arrests Mr. Johnston for impaired operation of a motor vehicle.
02:57 Constable Haddad makes a demand pursuant to s. 254(3). He obtains identification, licence and ownership information from Mr. Johnston. He communicates with the police dispatcher to send a second officer to stay with Mr. Johnston's vehicle and arrange for a tow truck. He receives instructions about the location of a qualified breath technician and is instructed to take Mr. Johnston to central police station. He waits for a second officer to arrive before leaving for central police station. He does not make a note of the time the second officer arrives. He drives directly to the station arriving at 03:22. The drive to the station took approximately 15 to 20 minutes.
02:57 Const. Roberts is advised by police dispatch that she is required at central police station to conduct breath tests on Mr. Johnston. When Const. Roberts receives these instructions, she is on the road investigating another suspected impaired driver. She continues that investigation before returning directly to central police station. She testified that it took her about 20 minutes to drive to the station.
03:22 Const. Haddad and Mr. Johnston arrive at central police station. Const. Haddad gives his grounds for arrest to the custody sergeant. He takes Mr. Johnston into the booking area where he is booked into custody and searched.
03:38 Const. Roberts arrives at central police station and turns on the breathalyser instrument and video equipment. She checks to ensure that the instrument is in proper working order and starts to prepare the documentation for Mr. Johnston's tests.
03:40 Constable Haddad telephones duty counsel at Mr. Johnston's request and leaves a message.
03:45 Duty counsel calls back and Mr. Johnston is taken into the phone room to speak to counsel.
03:50 Constable Haddad gives his grounds to Const. Roberts for the arrest of the accused and the making of the breath demand.
03:52 Mr. Johnston is taken into the breath room where he speaks to Const. Roberts. Mr. Johnston is emotional, is crying and is talking about killing himself. Const. Roberts speaks to him and waits until he has stopped crying. She ensures he has spoken to counsel, cautions him and explains the testing procedure.
04:03 Const. Roberts completes taking the first breath sample. Mr. Johnston is returned to the holding area while Const. Roberts conducts a breath tests on another person who has been arrested. She was the only breath technician on duty in Hamilton that morning.
04:36 Mr. Johnston is brought back into the breath room to give his second breath sample. Const. Roberts makes a typing error when recalling Mr. Johnston's test report from the Intoxilyzer's computer system. The typing error causes the instrument's computerized records program to freeze. Constable Roberts knows from experience that she can access the test records by turning the machine off and on again, effectively re-booting the computer. Mr. Johnston is returned to the holding cell while Const. Johnston turns off the instrument and re-starts it. The instrument takes approximately 15 to 20 minutes to re-boot and warm up again.
04:49 Mr. Johnston is brought back into the breath room. Const. Roberts types in the correct code to recall the accused's first test record. The instrument goes through a series of internal calibration and blank air checks and is ready to receive a second sample at 04:53:31.
04:54 Mr. Johnston completes the second breath test.
[20] Defence counsel argued that there were 3 periods of unreasonable delay in taking Mr. Johnston's breath samples: 1) the time that Const. Haddad waited for the second officer to arrive at the Dewildt parking lot before he and Mr. Johnston left for the station, 2) the time that Const. Roberts spent completing a roadside investigation before returning to the station, and 3) the time between the first and second tests.
[21] With respect to the first period, Const. Haddad testified that he was required to wait for a second officer to arrive because the accused's vehicle was being impounded. He testified it was the responsibility of the police to ensure that the vehicle was securely towed and he could not leave it unattended. I accept this explanation and find that Const. Haddad acted reasonably in waiting for the second officer. Moreover, the time he waited was not overly lengthy. Based on the time they arrived at the station and the time required to travel to the station, I conclude that Const. Haddad waited at most only 10 minutes for the other officer to arrive.
[22] Defence counsel argued that Const. Roberts ought to have proceeded immediately to central police station when notified of Mr. Johnston's arrest. Const. Roberts testified that when she was notified, she was in the mountain area of Hamilton and had stopped a motorist for a possible impaired driving offence. She had just made an approved screening demand and proceeded to administer the test. She testified she could not leave the driver unattended and waited for another officer to arrive to take custody of that person. She then proceeded directly to central station, arriving at 03:38. I accept Const. Roberts' explanation and find that in the circumstances, she acted reasonably. While there is no evidence of the time she left for the station, I can calculate from the time it took to drive there and the time she arrived, that at most she was delayed by about 20 minutes to complete the other investigation. Given that the accused and Constable Haddad did not arrive at the station until 03:22, and that the accused did not speak to duty counsel until 03:45, I find that this 20 minute delay had minimal impact on the timeliness of Mr. Johnston's breath samples.
[23] On the evidence before me, there is a delay of 51 minutes between the first and second breath tests. Section 258(1)(c)(ii) of the Criminal Code requires that there be an interval of at least 15 minutes between the times when the breath samples are taken. The usual police practice is to wait at least 17 minutes between tests. Defence counsel argues that the additional 34 minute Mr. Johnston had to wait is unreasonable and therefore the second sample was not taken as soon as practicable.
[24] The delay between the two tests occurred because Const. Roberts conducted a breath test on another person and made a typing error when recalling Mr. Johnston's test record for his second test. In R. v. Coulter, [2000] O.J. No. 4599 (O.C.J.) at para. 30, affirmed at [2001] O.J. No. 5608 (S.C.J.), Justice Duncan found that delaying the second test for 30 minutes because another person was being tested was not unreasonable. "To hold otherwise would be tantamount to requiring that a separate technician be available for each person arrested."
[25] The added complication in the case before me is the error made by Const. Roberts. She was ready to commence the second test on Mr. Johnston at 4:36 but made a typing error that caused the instrument's computer to freeze. Const. Roberts testified she was aware of her obligation to take the samples as soon as practicable and took action that she knew from previous experience would most quickly correct the problem. She testified that there was another portable breathalyser instrument in the station that she could have used. However, she would have had to start that machine up as well and she knew the breathalyser instrument she was already using was in proper working order. She also knew she could recall Mr. Johnston's first test record by restarting the machine. In these circumstances, I find that Const. Roberts acted reasonably. She made a simple typing error and acted quickly to correct it. To fault her for a typing error would be to hold breathalyser technicians to a standard of perfection that is unattainable.
[26] The total length of time between Mr. Johnston's arrest and the completion of the second breath test is just under 2 hours. The police acted diligently and did not waste any time in dealing with Mr. Johnston. In my view the total delay was reasonable and the samples were taken as soon as practicable. The Crown can rely on s. 258(1)(c) to prove that Mr. Johnston's blood alcohol concentration was over 80 mg per 100 ml of blood at time of driving and I find him guilty of that offence. Accordingly, there will be a finding of guilt on count 2. Pursuant to R. v. Kienapple, count 2 is conditionally stayed.
Released: November 14, 2013
Signed: Justice M. Speyer