Court File and Parties

Ontario Court of Justice

Date: 2013-10-24

Court File No.: Kitchener 3190/12

Between:

Her Majesty the Queen

— and —

Matthew Wiebe

Before: Justice G.F. Hearn

Heard on: May 13, 2013, July 17, 2013 and August 21, 2013

Reasons for Judgment released on: October 24, 2013

Counsel:

Ms. Cynthia Jennison — counsel for the Crown

Mr. Bruce Ritter — for the defendant Matthew Wiebe

Hearn, J.:

Background

[1] On May 13, 2013 the accused entered a plea of not guilty to a count of operating a motor vehicle, having consumed alcohol in such a quantity that the concentration thereof exceeded 80 milligrams of alcohol in 100 millilitres of blood. The offence date is alleged to be June 13, 2012 and the location in Kitchener. Both of these facts together with identity were acknowledged at the commencement of the trial by counsel for Mr. Wiebe. For reasons that will become apparent it is important to note defence counsel made no further admissions at the opening of the trial.

[2] The Crown has called two witnesses. The defendant has elected to call no evidence. As a result of various issues put into play and as a result of the evidence or perhaps more appropriately the absence of evidence this matter was adjourned to permit counsel to provide written submissions. Those submissions have been received and the matter has been adjourned ultimately to today's date for judgment.

[3] Based on the submissions of counsel, there are basically three issues for the court to determine. The ultimate question however is whether or not the Crown has established the essential elements of the charge before the court. In considering whether the onus has been met the following issues are to be addressed:

1. Should the Crown be granted leave to re-open its case and present evidence which is "readily available" as submitted by the Crown to prove beyond a reasonable doubt that the accused on the day in question provided such samples of his breath to Cst. Maxwell "directly into the approved instrument".

In considering this issue the Crown submits the court should take into account, among other things, the admissions made by defence counsel during the course of the evidence of Cst. Cadilha, the qualifications of Cst. Maxwell and an apparent conversation between counsel during a recess following the completion of the evidence of Cst. Cadilha. All of these items the Crown submits led the Crown to assume there was no contest with respect to this particular issue and as a result the Crown should in all the circumstances be granted leave to reopen its case and present the necessary evidence in that regard.

2. If leave to reopen is not granted, has the Crown proven beyond a reasonable doubt that the samples of Mr. Wiebe's breath were received "directly into the approved instrument" as required by s. 258(1)(c)(iii) of the Criminal Code so as to enable the Crown to rely upon the presumption of identity set out in s. 258(1)(c) of the Criminal Code.

3. Has the Crown proven beyond a reasonable doubt the statutory precondition again necessary for reliance on the presumption set out in s. 258(1)(c) of the Criminal Code that the breath samples provided by the accused were taken "as soon as practicable".

Overview of the Evidence

[4] In determining the various issues noted it is necessary to initially review the evidence relevant to these issues in some detail.

Evidence of Cst. Richard Cadilha

[5] Cst. Cadilha is a member of the Ontario Provincial Police and has been since June 1989. He was assigned a night shift on June 12 working into the morning hours of June 13. One of his duties on that particular night was to take part in a RIDE program being conducted on Hwy. 7 in the City of Kitchener at the Bruce Street exit.

[6] He noted prior to the commencement of his shift that he had in his possession an approved screening device properly described which had been recently appropriately calibrated. He tested the device and found it to be in proper working order. He possessed that device at the time of the RIDE program.

[7] He stated that at 1:52 a.m. on June 13 a motor vehicle approached the program, that the motor vehicle was operated by Mr. Wiebe. Upon speaking with Mr. Wiebe the officer detected what he noted was a strong odour of alcohol emanating from the "interior of the vehicle". Further conversation was conducted, documentation was produced and during that conversation the officer determined that the odour was in fact coming from the breath of Mr. Wiebe. He informed Mr. Wiebe that he could smell alcohol on his breath and asked how much he had had to drink. A response was made and, as a result of all the observations, he formed the necessary suspicion that Mr. Wiebe had alcohol in his body and was operating a motor vehicle. He then asked Mr. Wiebe to accompany him for the purposes of a roadside "demand".

[8] There is no issue taken with respect to the grounds for the demand and counsel for Mr. Wiebe acknowledges that the officer had the necessary suspicion to make the demand which he ultimately did at 1:54 a.m.

[9] The approved screening device again properly described was produced and at 1:55 a.m. the officer asked Mr. Wiebe for a sample of his breath. The first sample was insufficient as a result of what the officer described as a "short puff" on the part of Mr. Wiebe.

[10] The officer again explained the procedure in "delivering a sample". Three similar attempts were made and finally on the fifth attempt a suitable sample was obtained. At 1:56 a.m. the device registered a fail and the officer formed the grounds to arrest Mr. Wiebe for having an excessive concentration of alcohol in his blood.

[11] The arrest was conducted at 1:56 a.m. Rights to counsel were given at 1:57 a.m., the caution at 1:58 a.m. as well as the breath demand for the Intoxilyzer. There is no issue taken with the wording of any of these items. During the course of reading rights to counsel and the caution, Mr. Wiebe indicated he understood and also advised the officer that he would not need to contact counsel. The officer then indicated he would remind him of his rights to counsel as well as the caution when they arrived at the detachment and Mr. Wiebe would be given another opportunity to exercise his rights to counsel.

[12] The officer and Mr. Wiebe left the scene after having made arrangements for another officer to await a tow truck to remove Mr. Wiebe's motor vehicle. He also made arrangements for a qualified breath technician to be present at the detachment for the purposes of conducting the breath tests there.

[13] The two left the scene as noted at 2:07 a.m., travelled directly to the Cambridge detachment and arrived at the detachment at "approximately 2:22 a.m.".

[14] While at the scene the officer made arrangements for the care of Mr. Wiebe's vehicle, notified the communication centre and did what he referred to as an initial CPIC and driver's check on Mr. Wiebe.

[15] Upon arrival at the detachment, Mr. Wiebe was removed from the cruiser, escorted into the detachment, placed in an interview room, unhandcuffed and certain personal items were removed. The officer completed "some forms" and again reminded Mr. Wiebe of his rights to counsel. Again, Mr. Wiebe declined to exercise that right and was lodged in a cell at 2:25 a.m.

[16] At that point the officer testified that he continued to make certain "checks" (MTO checks). He spoke to the breath tech that was present and advised that the accused was declining counsel. He went to his cruiser to take out various items which he "needed to proceed", including the Alco-test and its mouthpiece. At 2:39 a.m. the officer completed "all my administrative tasks" and took Mr. Wiebe from the cell area to the breath room at which point Mr. Wiebe was advised that the room was being monitored by video and audio. Interestingly enough this video was never produced at the trial of this matter notwithstanding that Cst. Maxwell later during an adjournment requested by the Crown was given an opportunity to view the video himself to refresh his memory. This officer provided his grounds to Cst. Maxwell the qualified technician, reminded Mr. Wiebe why he was there and left Mr. Wiebe in the presence of the breath tech alone, departing the breath room himself at 2:44 a.m.

[17] At 3:48 a.m. he was advised by Cst. Maxwell that the tests had been completed and Mr. Wiebe was returned to his control where he was processed, fingerprinted, photographed and released. He was also escorted to a bank machine as a result of the terms of his release as determined by the officer in charge.

[18] At 5:56 a.m. the officer served Mr. Wiebe with copies of a certificate of a qualified technician as well as notice of intention. Neither of those documents have been filed as part of the Crown's case in this matter as the Crown has placed reliance on the viva voce evidence ultimately of both the arresting officer and the breath technician. This officer then at 6:04 a.m. escorted Mr. Wiebe out of the detachment and drove him to a local motel.

[19] When asked by the Crown specifically what took place between the time Mr. Wiebe was placed in the cell at 2:25 a.m. and the time of turn over to Cst. Maxwell at 2:39 a.m. the officer stated as follows:

"At this point I go back to the cruiser. I grab all my required – my notebooks – the actual Alco-test, the identification, any property that I have left in the cruiser. When I first initially get out of the cruiser I'm just taking Mr. Wiebe inside."

[20] He further stated:

"My intention is to come back out and grab all the other stuff that I require. So that's what I did as soon as Mr. Wiebe was lodged. At that point I log on to a computer and then I did all the checks myself regarding Mr. Wiebe and his driving record."

[21] Relevant to the issue of the re-opening request by the Crown at the conclusion of the Crown's examination in-chief the following exchange between the court, the Crown and the defence took place:

Ms. Jennison: So Your Honour I just inquired with Mr. Ritter – the only area I was going to go back to was the issues of specifically what the fail means to this officer and all the details with the taking of the samples provided to the accused. Mr. Ritter is not requiring me to go through all that – directly into the mouthpiece – those kinds of issues. He's not going to be raising a concern about the officer's knowledge of the device and the procedure.

The Court: So, there's an acknowledgement that the machine was working properly. This is an approved screening device right? Working properly and registered fail and this officer understood as a result of the fail what that meant to him and that led to the reasonable and probable grounds to make the arrest? That's all acknowledged?

Mr. Ritter: Yes, and I believe that was actually his evidence already so. Looking at my notes but – I don't dispute that, sir.

Ms. Jennison: My notes are terrible in that area so I was going to take him back to go through it but Mr. Ritter is …

The Court: Ms. Jennison, if you need a moment, we're going to take the break.

Ms. Jennison: Sure, we might as well. I just want to make sure all the timelines have been covered off.

The Court: Then you can see if you have any more questions. Come back at five after 12:00.

[22] Upon return the Crown advised that she had in fact no further questions of this officer.

[23] During cross-examination the officer confirmed:

1. While at the scene after the arrest he had made various checks with respect to the motor vehicle as well as the status of Mr. Wiebe as a licenced driver. In addition, the owner of the vehicle was checked to make sure the vehicle was not stolen and the other checks were made for what the officer describes as an officer safety issue. Further, during this period of time the officer was in touch with the communications centre. No issue is taken with respect to the timeframe following the arrest prior to departure to the detachment by counsel.

2. It appears the officer was aware Cst. Maxwell would be the breath technician prior to his arrival at the detachment and upon arrival he noted the presence of Cst. Maxwell at the detachment.

3. With respect to what took place between 2:25 a.m. and 2:39 a.m. the officer made two or three trips to his vehicle to retrieve items which would have taken two to three minutes and conducted some further computer checks. He provided the grounds to Cst. Maxwell at 2:39 a.m. He was questioned with respect to any interaction he may have had with Cst. Maxwell before 2:39 a.m. after his arrival at the detachment. The officer was uncertain as to whether or not he had conversation with Cst. Maxwell before then, but noted that it was a small office and believes he would have had some conversation with him. He had not noted in his notebook when he was advised that Cst. Maxwell was ready to receive Mr. Wiebe for the test but assumed it would have been at the point he removed Mr. Wiebe from the cell area.

4. When asked if he was aware Cst. Maxwell was ready to receive Mr Wiebe prior to 2:39 a.m. the officer responded as follows: "I'm not sure what Officer Maxwell did or did not do. All I can say is that when I was informed he was ready to go, at that point I would remove the accused from the cell area and take him in. I wouldn't do it any earlier and I would wait for his – asking for him – him telling me he's ready to proceed."

5. When asked if there was a protocol in place that a certain officer will "tell you when Cst. Maxwell is ready" the officer indicated that the "protocol is the breath technician themselves" meaning that Cst. Maxwell would tell him when to bring in the accused. The officer indicated he could not specifically recall Cst. Maxwell doing that on this particular night.

6. Specifically the officer was asked how that would take place and indicated as follows: "What happens is, again, I'd be sitting in the constable's office, the breath technician comes in, presses play/record on the video and says to the investigating officer we're ready to go. At that point they walk into the breath room and I would follow behind them and walk into the cell area and remove the accused from the cell area and taken him to the breath room."

7. The officer candidly acknowledged that if Cst. Maxwell had advised him earlier than 2:39 a.m. that he was ready to receive the accused he could have produced the accused at that time. In fact the officer indicated when that was put to him that that could have been done "absolutely" and it would not have been necessary to complete the computer checks that he was conducting if Cst. Maxwell had been ready earlier.

Evidence of Cst. Wayne Maxwell

[24] Cst. Maxwell is as well a member of the Ontario Provincial Police and was on duty on the night in question. When he was initially examined by the Crown he was asked if he had any "specific qualification within your service" to which the officer responded as follows:

A: I do. I am a breath tech, motorcycle operators, SFST – Standardized Field Sobriety Tester – multiple – but I'm assuming in this case, you're looking more for the breath tech?

Q: In this case yes.

[25] Of some importance is the following exchange which then took place:

Ms. Jennison: Mr. Ritter, no concern about the qualifications of the officer?

Mr. Ritter: No.

The Court: No issue with this officer being a qualified breath technician who is capable of operating the – the Intoxilyzer was an 8000?

A: An 8000C, yes Your Honour.

Mr. Ritter: That's acknowledged.

[26] The officer then went on to explain that he was not part of the RIDE program in question on the night, but was on shift conducting traffic stops along the 401. His evidence is a little confusing as originally he thought he had received a call at 2:01 a.m. on June 13 to attend at the detachment but as his evidence proceeded and he reviewed his notes he believes ultimately that he was at the detachment when that call was received.

[27] He testified that he then went to the breath room and pushed the "start/test button" on the approved instrument properly described. He said the machine itself takes about five minutes to start before he can commence the calibration check or the diagnostic check or "anything". During that wait period he did what he describes as a "whole bunch of things" including putting a DVD into the video recorder and getting the paperwork prepared. He as well logged onto the computer in the breath room so that he could "query the person who's coming and the vehicle and that sort of thing".

[28] At 2:07 a.m. he commenced the calibration check and gave details of that which would clearly indicate he's familiar with the operation of the instrument. At 2:09 a.m. the calibration check was received and a diagnostic check was started at 2:10 a.m.

[29] The officer testified the next step he then took was to test the machine himself. That was done at 2:12 a.m. He described that test as follows:

"The next one is my self-breath test at 2:12. That one is – I began a test where I blow into it myself and that one – subject test 000 at 2:12 with 56 seconds."

[30] The officer described that test as follows:

"I'm testing to make sure that the instrument accurately is reading a person with no alcohol and then it's also a reading that's standard as calibrated to give a reading of approximately 100 milligrams of alcohol for 100 millilitres of blood."

[31] The officer testified that as a result of his test he found the device to be in proper working order. He testified further that following the completion of the self-test he was ready to receive someone "right away". This appears to have been the case at 2:12:56.

[32] The next time noted by the officer was 2:38 a.m. when he activated the DVD in the recording system in the breath room which to him meant that he was ready to receive the arresting officer, the grounds and the suspect is ready to enter the room. He described his procedure then with the individual who is brought in and the "little speech" which he goes through. He also described the grounds that he had received from Cst. Cadilha which were consistent with Cst. Cadilha's evidence. Again, there is no issue taken with the grounds provided.

[33] The officer again indicated that Officer Cadilha asked Mr. Wiebe in his presence if he wished to contact legal aid and this officer himself again read rights to counsel, the caution and demand. When asked what time that was he indicated it would "be on the videotape". Mr. Wiebe indicated he did not wish to consult with counsel and so the testing procedure began.

[34] The tests were conducted with the first test being conducted at 2:58 a.m. The officer was asked what had happened between 2:38 a.m. and 2:58 a.m. and the officer indicated he would have to review the tape to be specific. He was given that opportunity over the lunch hour. He did testify however at 2:58 a.m. the result of the first test was 166 milligrams of alcohol in 100 millilitres of blood. He then had to wait at least 17 minutes and conducted alcohol influence report with the second test being completed at 3:21 a.m. with the result of 136 milligrams of alcohol per 100 millilitres of blood.

[35] The following exchange then took place with the Crown:

Q: All right and given the difference between the 166 and the 136 what protocol do you have then?

A: Well, what happens is, as you can see on both the report, it says no zero two zero agreement which means both results truncated – so both results get lowered. The 166 becomes 160, the 136 becomes 130 and so 160 versus 130 the two tests have to be within 20 for it to be considered two suitable samples. So in that case a third test was required and – which you must wait a minimum 17 minutes once again.

Q: All right. And in this case when was the third test started?

A: So, third test was started at 3:40 and the test was at 3:44 and that result was 135 milligrams of alcohol per 100 millilitres of blood, which was consistent with test number two.

[36] The officer testified that the samples were completed at 3:44 a.m. and at 3:48 a.m. Mr. Wiebe was "out of the breath room back in the cell area".

[37] The officer was also asked if he had any recollection of seeing Cst. Cadilha and Mr. Wiebe when they arrived at the detachment. He had no recollection, but did indicate the office was small and although he probably opened the door and helped him he did not make note of that and he was not one hundred percent sure. He had no specific note of when they had arrived at the detachment.

[38] He was further asked what his "protocol" was when he is ready to conduct testing. His "protocol" was noted to be as follows:

A: I advise the – the arresting officer that I'm ready. I usually ask them if they're ready first, the person has spoken to a lawyer and so forth and – because there's always quite a lot to be done in a case like this so you have to wait for people to speak to duty counsel or – or notes or grounds. You have to – there's a lot going on.

[39] It was at this point that the officer was given an opportunity over the lunch hour to view the videotape to refresh his memory as to the particulars of what was going on between the self-test at 2:12 a.m. and the turn over at 2:38 a.m. The officer was asked by the Crown about the absence in his notes of any notations specifically with respect to him advising anyone that he was ready to receive the accused and in response the officer stated as follows:

A: Oh I would just verbally say are you ready. A lot of times they'll ask me if I'm ready and that's when I would go turn the DVD's on.

[40] Upon return to the stand after the lunch break and after having been given an opportunity to review the DVD (an opportunity again the court did not have), the officer covered in greater detail what had taken place upon his entry into the breath tech room at least as far as the recording was concerned which commenced at 2:38 a.m. The officer stated after reviewing the DVD himself that "I still think it's best just to watch it", but did note appropriately what had taken place during the course of the testing procedure after presentation of Mr. Wiebe to him at 2:38 a.m. The officer was asked by the Crown as to whether or not the review of the DVD had refreshed his memory with respect to the "process of who was advising who about readiness on that particular occasion" and the officer responded that it did not "make any bells go off or anything like". All the officer could state was when he puts on the DVD's he is ready to begin and so in this particular case, referring to Cst. Cadilha, he stated, "… either I told him I'm ready to go and I put the DVD's on or he said I'm ready to go and I put the DVD's on. Either way, I put the DVD's on when they're ready to go."

[41] The officer was also asked by the Crown if there is any protocol in place in a situation where he might be ready to proceed prior to the arrival of an officer in charge of an accused at a detachment. He indicated there was no such protocol, but the protocol he would follow when he was ready to proceed would be as follows:

A: My protocol is, I wait until the officer in charge is ready to go. This was a bit of an odd case, in the fact that he declined duty counsel. In many cases, I'm assisting with the accused speaking to duty counsel because we transfer the phone down to the cell area and so forth. So, as the tech, I kind of stay aware that they're speaking to duty counsel and when they're done, I don't if know they're done and then we take them right from the cells right into the breath room without any delay.

So in this case, with no duty counsel, it's just whatever time Cst. Cadilha got him into the station with whatever notes and lodging he did and then whatever time – like I said, I began at 2:38 so I don't know what time different we're missing from that point. I have no clue.

[42] In cross-examination counsel questioned Cst. Maxwell again with respect to any protocol that might be in place with respect to being prepared to conduct tests. The following exchange then took place with counsel and the officer:

Q: So, for Cst. Cadilha in this case to know that you were ready to deal with the breath test, am I correct that there's no protocol for either you announcing or you radioing to him or you going to him directly and saying, I'm now ready to take Mr. Wiebe?

A: We don't have a defined – call, like SOP – like operating procedure where one person is solely in charge of saying, I'm ready. It's a fluid type of thing where he says he's ready or I say I'm ready and it just kind of proceeds.

Q: Okay. And you don't recall – in all fairness, you don't recall how it happened on this particular …

A: In all fairness, absolutely. I don't recall if I said I'm ready or if he said he was ready.

[43] The officer in cross-examination again confirmed that his self-test had been completed at 2:12 a.m. and that if Mr. Wiebe had been brought to him at that point he could have started dealing with him at that time.

[44] That concluded the evidence for the Crown. As noted defence elected to call no evidence.

Analysis and Ruling

[45] The charge before the court is a criminal charge and as with all criminal offences the accused, in this case Mr. Wiebe is presumed to be innocent until the Crown proves his guilt beyond a reasonable doubt. The burden or onus of proving the guilt of Mr. Wiebe beyond a reasonable doubt rests with the Crown and it never shifts. Mr. Wiebe does not have to prove his innocence. I am to presume that he is innocent throughout my deliberations and I can only find him guilty if after I consider all of the evidence I am satisfied that the essential elements of the charge have been proven by the Crown beyond a reasonable doubt.

[46] As noted previously defence has conceded in this particular case that all essential elements of the charge before the court have been proven to the degree required save and except with respect to the issues of whether the evidence establishes the accused provided samples of his breath "directly into the approved instrument" and whether or not the tests were conducted as soon as practicable. Subsumed in the issue with respect to the "blowing directly" into the approved instrument is the issue to be initially determined whether or not the Crown should be granted leave to reopen its case.

[47] Dealing then with the issues in the appropriate order I find as follows:

1. Should the Crown be granted leave to reopen its case to lead evidence from Cst. Maxwell that the samples provided by Mr. Wiebe were provided directly into the approved instrument evidence the Crown submits is readily available?

[48] In dealing with this particular issue I think it is important to note initially the stage of the trial at which the Crown has brought this particular application. The Crown has completed its evidence. The defence has closed its case and elected to call no evidence. This is not an application for a non-suit or a directed verdict, but it is an application brought after the defence has rested its case and effectively relies on the alleged failure of the Crown to specifically lead sufficient evidence for the court to determine beyond a reasonable doubt that when Mr. Wiebe provided samples of his breath to Cst. Maxwell into what is agreed to be an approved instrument those samples were provided directly into the instrument. It is also important to note that Crown counsel who is a very experienced and capable Crown readily acknowledges that she did not question Cst. Maxwell specifically on that particular issue as she assumed it was unnecessary to do so as it had been by inference conceded not to be an issue by defence counsel. That inference the Crown submits was in place as a result of the admission made with respect to a similar issue with respect to Cst. Cadilha and the utilization of the approved screening device as well as a conversation that took place between counsel at a recess during the course of Cst. Cadilha's evidence.

[49] In looking at this particular issue and the relevant case law it is clear the decision to permit or deny reopening is a matter of judicial discretion and although there is no exhaustive list of factors to consider to inform the exercise of judicial discretion prejudice to the opposite party is of considerable importance (see Watts Manual of Criminal Evidence). In determining whether to permit a party to reopen his or her case a trial judge should consider:

a) whether the proposed evidence is relevant to a material issue at trial;

b) if the proposed evidence is relevant, whether the other party will be prejudiced by reopening the case; and

c) the effect, if any of reopening on the orderly and expeditious conduct of the trial (see Regina v. Hayward, 86 C.C.C. (3d) 193 (Ont.C.A.)).

[50] The Supreme Court of Canada in Regina v. G.(S.G.), 2 S.C.R. 716 noted that there are three stages or phases of a trial for the purpose of determining the scope of discretion according to the trial judge in permitting the Crown to reopen.

[51] In the first stage, before the Crown's case is closed, the discretion is quite broad. The second stage at the close of the Crown's case where the defence has not yet elected whether to call evidence, the discretion is more limited. The third stage where the defence has begun to call evidence, the discretion is very narrow. The emphasis at that point is on the protection of the accused's interests and avoidance of prejudice to the accused. The Crown, however, might be permitted to reopen, for example:

a) where the conduct of the defence directly or indirectly contributed to the Crown's failure to lead evidence prior to the close of the Crown's case; or

b) where the Crown made an error or omission of a purely technical or formal nature which had nothing to do with the substance of the case.

[52] The Supreme Court has made it clear that the trial judge has the discretion to be exercised judicially and in the interests of justice to permit the Crown to reopen its case prior to a verdict. The scope of the discretion to permit reopening narrows as the trial proceeds due to the increasing likelihood of prejudice to an accused.

[53] The Supreme Court in Regina v. P.(M.B.), 1 S.C.R. 555, again emphasized that whether the Crown will be permitted to reopen depends on the timing of the application and the nature of the evidence the Crown proposes to call.

[54] That particular case noted:

a) Before the Crown's case is closed a trial judge has considerable latitude to permit the Crown to recall a witness to correct earlier testimony. Any prejudice to the accused may be cured by an adjournment, cross-examination of the recalled and other witnesses that have been reviewed by the trial judge on the record to determine whether certain portions of the evidence should be struck.

b) After the Crown has closed is case, but the defence has not begun to answer it, the discretion of the trial judge to permit reopening is narrowed. It may be permitted to correct some oversight or inadvertent omission provided justice requires it and the accused is not prejudiced.

c) After the Crown's case is closed and the defence has commenced the defence the discretion of the trial judge to permit the Crown to reopen is very restricted. It is only in the narrowest of circumstances as, for example, where matters of form are involved that the Crown will be permitted to reopen since the principle that the accused not be conscripted against himself or herself is thereby compromised. As a rule the Crown should not be permitted to reopen once the defence has started to meet the Crown's case.

[55] Here again I note the application has been brought by the Crown after the close of the Crown's case and after the defence has rested its case electing to call no evidence. The defence effectively relies on what is very likely an oversight on the part of the Crown to prove a technical issue which is in fact a very important issue for the Crown to establish in order to rely on the presumption which the Crown relies on in this particular case.

[56] Having reviewed the record and considering this matter further I am ultimately of the view that the Crown should not be granted leave to reopen at this particular stage of the trial.

[57] I am mindful that very often this type of charge is in fact a very technical charge as noted by the Crown herself in her submissions and during the course of the conversation which apparently took place with defence counsel during the course of Cst. Cadilha's evidence. There certainly was an admission of a similar issue with respect to the evidence of Cst. Cadilha, but that is part of the record. There is nothing in the record to indicate that that particular admission extended to the evidence of Cst. Maxwell on the identical issue, ie. blowing directly into the approved device.

[58] Notwithstanding that it might have been reasonable for the Crown to infer the same issue was not an issue with respect to Cst. Maxwell that was never formally stated nor conceded by defence counsel. Given this court's experience with defence counsel I would point out that there is nothing on the record or otherwise to indicate the Crown was intentionally mislead by counsel. It was the Crown's decision to proceed with viva voce evidence of the breath tech without reliance on any certificate or indeed any reliance on the videotaped recording of the testing procedure either of which might have provided evidence, if not otherwise specifically addressed, as to the method of Mr. Wiebe providing the samples into the approved instrument.

[59] It would have been a simple matter for the Crown to simply ask the relevant question of Cst. Maxwell. The Crown did not and wrongfully assumed it was not an issue without clarifying that on the record as in fact the Crown had done with respect to the evidence of Cst. Cadilha. Further the conversation between counsel during a court recess is not something this court should really get into. However, accepting that the conversation was as stated by the Crown and which acceptance appears to be consistent with the defence submission in that regard that he does not recall the specifics of the conversation, that conversation was not an admission in any way. It simply, as the defence notes, should have alerted the Crown to the "technical" issues that the Crown must address on occasions such as that before the court.

[60] The defence has elected to call no evidence and submits that to permit the Crown to reopen its case on the facts in this particular case in the circumstances as disclosed both on the record and even accepting the conversation between counsel took place as stated by the Crown would be prejudicial to the defence. I agree. The proper exercise of this court's discretion in a judicious fashion leads the court to deny the application of the Crown to reopen.

2. Has the Crown in any event proven beyond a reasonable doubt that the samples of breath were received directly into the approved instrument?

[61] In this case the Crown relies on what is effectively an evidentiary shortcut available as set out in s. 258(1)(c) of the Criminal Code. That section provides that if certain conditions are met the results of the tests on the approved instrument constitute conclusive proof of the concentration of alcohol in the accused's blood at the time of the test and at the time when the offence is alleged to have taken place.

[62] One of the conditions set out is in s. 258(1)(c)(iii) requires each sample to be received from the accused directly into a container or an approved instrument operated by a qualified technician.

[63] The Crown must prove beyond a reasonable doubt in order to rely on the presumption available among other things that the sample of breath was received directly into the approved instrument. This can be done by direct evidence or circumstantial evidence (see Regina v. Alatyppo, [1983] O.J. No. 55; Regina v. Mulroney, [2009] O.J. No. 4581; Regina v. O'Meara, 2012 ONCA 420, [2012] O.J. No. 2752; Regina v. Metz, [2011] O.J. No. 1202).

[64] In this case clearly there is no direct evidence with respect to this particular issue from either officer who gave evidence on behalf of the Crown. However there is the unchallenged evidence of both officers (fully appreciating that Mr. Wiebe does not have any evidentiary burden with respect to this issue) which provides sufficient evidence from which this court can reasonably infer and conclude that the samples of breath provided by Mr. Wiebe on the night in question in the presence of Cst. Maxwell were in fact received directly into the approved instrument.

[65] I have come to that conclusion for the following reasons:

a) At the commencement of Cst. Maxwell's evidence, defence counsel indicated to the Crown there were "no concerns" about the qualifications of Cst. Maxwell as a "breath tech". More specifically it was acknowledged by defence counsel that Cst. Maxwell was a qualified breath technician who was capable of operating the Intoxilyzer 8000C which was the approved instrument in this particular case. A logical and reasonable inference from this admission by defence counsel is that Cst. Maxwell was a properly qualified individual capable of operating the approved instrument and receiving samples in a proper manner in order that results could be obtained, ie. by samples being provided directly into the approved instrument.

b) When notified that he would be required to conduct the tests, Cst. Maxwell began to test the approved instrument according to manufacturer's instructions. He described in his evidence in some detail, which evidence is effectively unchallenged, the tests that he conducted on the machine including calibration and diagnostic checks. He then self-tested the machine which he described as "blowing into the machine".

This evidence clearly establishes not only the proper preparation of the machine for receiving a test, but also more importantly the method of testing the machine which the officer describes as "blowing into the machine". Again, a reasonable and logical inference is that the samples later provided by the accused would be provided in the same manner, ie. by blowing into the machine.

Following the completion of the various tests, the officer testified he found the machine to be in proper working order which would logically mean that the machine was ready to receive samples of breath not only from himself, but also from the accused.

c) When Mr. Wiebe was presented to Cst. Maxwell, he testified as to a number of things that he did including, among others, starting up the machine, reading rights to counsel and the caution again, but most importantly, he testified that he "began explaining the test and how it worked – how the instrument worked".

He then testified as to the tests being taken and ultimately three samples of breath having been provided and the results that were obtained. Again, it is a logical and reasonable inference that a qualified technician when explaining the "test" would advise the accused as to the manner of providing a sample in order that "results" would be obtained. The "results" would be obtained in the same manner as the self-test result undertaken by Cst. Maxwell, ie. by "blowing into the instrument". Indeed, it is hard to imagine results being obtained in any other fashion other than the samples of breath being provided directly into the instrument.

d) Although not of a great deal of weight, the court also notes that admissions were made with respect to Cst. Cadilha's qualifications for conducting the tests on the approved screening device the results of which ultimately led to the arrest of Mr. Wiebe. When that matter was being address Ms. Jennison specifically referred to the samples being provided "directly into the instrument" when seeking confirmation from defence counsel as to whether or not there was any issue about that with respect to Cst. Cadilha. The Crown unfortunately did not take the same steps to address the issue specifically with respect to Cst. Maxwell and the court fully appreciates that. However the qualifications of Cst. Maxwell, as with Cst. Cadilha, were acknowledged and although not specifically addressed, it is clear that defence counsel was taking no issue with respect to not only the qualifications of Cst. Maxwell, but also his ability to operate the instrument that he was conducting the tests on appropriately. Again, this particular item is of little weight ultimately, but is a consideration although the court relies on the circumstantial evidence otherwise as noted to a much greater extent.

[66] As a result of the above, the court is satisfied that the circumstantial evidence in this particular matter is more than sufficient to satisfy the court beyond a reasonable doubt that the Crown has in fact established that the accused provided samples of his breath directly into the approved instrument as required.

3. Were the tests taken as soon as practicable?

[67] Defence submits this issue involves effectively two periods of time that require close scrutiny by the court. The defence takes no issue with respect to a good deal of the time relevant to the "as soon as practicable issue", but submits two periods should cause concern. The initial period is from 2:25 a.m. to 2:38 a.m. (or 2:39 a.m.) being the timeframe from the time Mr. Wiebe arrived at the detachment until the time he was turned over to Cst. Maxwell for testing. Defence submits that the concern with respect to this particular timeframe is the lack of explanation for what defence argues is up to a 14 minute delay and the lack of evidence to explain why Mr. Wiebe was not presented to Cst. Maxwell at an earlier time than he was.

[68] The second period of time which is in issue is the time between the completion of the second sample and the taking and completion of the third sample of breath once Mr. Wiebe was in the presence of Cst. Maxwell. This comprises the time from approximately 3:21:51 when the second sample was completed and the commencement of the third sample at 3:40 with it being completed at 3:44. Defence counsel suggests is an additional unexplained delay of some 20 to 23 minutes. Subsumed in this particular argument is the submission of defence counsel that there is no suitable explanation before the court as to why a third sample was required at all.

[69] For the purpose of determining this issue I find the uncontested evidence of the timing of various events to be as follows:

Time	Event
1:52 a.m.	Mr. Wiebe's motor vehicle enters the RIDE program and was approached by Cst. Cadilha.
1:54 a.m.	The demand was made for the approved screening device.
1:55 a.m.	The device was presented and Mr. Wiebe failed in an attempt to provide a suitable sample of his breath.
1:56 a.m.	After a fifth attempt the device registered a fail. Mr. Wiebe is placed under arrest for over 80.
1:57 a.m.	Rights to counsel were provided.
1:58 a.m.	Caution and breath demand for the Intoxilyzer were read to Mr. Wiebe.
2:07 a.m.	Cst. Cadilha and Mr. Wiebe leave the scene.
2:12 a.m.	Cst. Maxwell was in a position to conduct the tests.
2:22 a.m.	Cst. Cadilha and Mr. Wiebe arrive at the detachment.
2:25 a.m.	Mr. Wiebe was lodged in a cell.
2:38 a.m. (Cst. Maxwell's evidence) / 2:39 a.m. (Cst. Cadilha's evidence)	Mr. Wiebe was presented to Cst. Maxwell for further testing.
2:58 a.m.	The first test was conducted.
3:21 a.m.	The second test was completed.
3:40 a.m.	Third test commenced.
3:44 a.m.	Third test was completed.

[70] Section 258(1)(c)(ii) of the Criminal Code provides, together with other conditions that must be met as set out previously, a shortcut for the Crown with respect to the proof of the concentration of alcohol in an accused's blood for the purposes of proving the offence under s. 253(b) of the Criminal Code.

[71] This particular section provides that where breath samples are taken "as soon as practicable after the time when the offence was alleged to have been committed and in the case of the first sample not later than two hours after that time with an interval of at least 15 minutes between the times when the samples were taken" and provided certain other conditions are met the Crown can rely on the presumption of identity. This presumption deems the results of the breath tests to be proof of an accused's alcohol level at the time of the offence in the absence of evidence to the contrary.

[72] The leading case in this particular area is Regina v. Vanderbruggen, [2006] O.J. No. 1138. In Vanderbruggen there was a delay of approximately an hour and 15 minutes from the time of the offence to the taking of the first sample. During that period of time there was an unexplained 46 minute gap. The Court of Appeal ultimately found that the Crown had to adduce sufficient evidence before the trial court from which the trial judge could conclude that the police acted reasonably in the circumstances and that the breath samples were ultimately taken as soon as practicable:

"The Court of Appeal indicated that the requirement that the samples be taken as soon as practicable does not mean as soon as possible. It means nothing more than that the tests were taken within a reasonably prompt time under the circumstances. The court also stated that a 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 and that the "as soon as practicable" requirement must be applied with reason. At para. 13 of the judgment the court noted as follows:

"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."

Further, in para. 16 the court stated as follows:

"To conclude, these provisions, which are designed to expedite trials and aid in proof of the suspect's blood alcohol level, should not be interpreted so as to require an exact accounting of every moment in the chronology. We are now far removed from the days when the breathalyser was first introduced into Canada and there may have been some suspicion and scepticism about its accuracy and value and about the science underlying the presumption of identity. These provisions must be interpreted reasonably in a manner that is consistent with Parliament's purpose in facilitating the use of this reliable evidence."

In Vanderbruggen as well the Court of Appeal at para. 12 noted:

"The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably."

The case law then requires that the tests be taken within a reasonably prompt time."

[73] The cases also suggest that in the absence of any gap in the demand of sampling chronology of a duration beyond what one would reasonably expect as a matter of common sense, proof of reasonable promptitude will not be defeated by the absence of an accounting for all of the elapsed time (see Regina v. Malefant, [2011] O.J. No. 4464).

[74] In Regina v. Price, [2010] ONSC 1898 (Ontario Superior Court) at para. 16 the court noted:

"It must also be remembered that focusing on one aspect of the total time is not the appropriate way to determine if the tests were taken as soon as practicable. Rather, it is the entire time period that must be examined."

[75] In considering those principles then and looking at the two timeframes of concern, I note as follows:

1. The timeframe from 2:25 a.m. to 2:38 a.m. or 2:39 a.m.

[76] The timeframe is either 13 to 14 minutes, as the two officers seem to have a difference of approximately one minute, concerning when Mr. Wiebe was actually presented to Cst. Maxwell. During this timeframe it would appear from the evidence that Mr. Wiebe had been placed in the cell at 2:25 a.m. and ultimately removed and taken to Cst. Maxwell. This 13 to 14 minutes is not a period of unexplained delay as suggested by defence counsel. To be clear, there is some lack of precision in both officers' evidence as to exactly how Cst. Cadilha became aware Cst. Maxwell was ready to receive Mr. Wiebe for the purpose of testing. However, there is also evidence that the detachment is a very small detachment, there was communication between the officers and although Cst. Maxwell was in a position to receive a sample at 2:12 a.m., Mr. Wiebe did not arrive at the detachment until 2:25 a.m.

[77] Thereafter in one form or another, Cst. Cadilha became aware Cst. Maxwell was prepared to proceed with the testing. Cst. Maxwell also became aware at some point that Cst. Cadilha was ready to present Mr. Wiebe for the purpose of the testing. How that communication was actually made is uncertain on the evidence, but there is nothing in the evidence that is before the court to suggest that period of time was unreasonable.

[78] Further, for a portion of that time Cst. Cadilha was performing administrative duties. He was retrieving various items from his cruiser after placing Mr. Wiebe in the cell area, which items were apparently necessary from this officer's point of view for the purposes of his investigation. On his own evidence this comprised some period of time from two to three minutes. In addition the officer then conducted various computer checks which were required for the purpose of processing Mr. Wiebe which the court finds reasonable and although the period is not specified clearly it involved some timeframe of the 13 to 14 minute time period in issue.

[79] Further it is important to note that although the defence takes some issue with respect to the lack of precision in the officers' evidence as to whether or not there was a protocol in place with the OPP with respect to who was responsible for communicating readiness for the testing, ie. the investigating officer or the breath tech, the evidence of Cst. Cadilha was clear that at some point Cst. Maxwell did tell him that he was ready to receive the accused. Although he had not noted it in his notebook it was at that point that he removed Mr. Wiebe from the cell area, ie. 2:39 a.m. according to his timing.

[80] Further, Cst. Maxwell's evidence was that he turned the DVD on at 2:38 a.m. and he only does that once both he and the investigating officer are ready which is in itself consistent with him being aware that Cst. Cadilha was ready to present Mr. Wiebe and he was ready to receive him.

[81] These factors lead the court to find this period of time is suitably explained and there is nothing at all unreasonable about the passage of this short time period compromising the "as soon as practicable" requirement or condition.

[82] It is of note as well that the first test was conducted at 2:58 a.m., approximately an hour after the arrest of Mr. Wiebe and the third test was completed at 3:44 a.m. less than two hours after the arrest and the demand had been made.

[83] I agree with the Crown that the case law clearly indicates the Crown does not have to account for every minute while the accused is in custody nor does the Code require that the breath samples be taken the moment the Intoxilyzer is capable of receiving a subject. There is nothing to indicate the officers were acting unreasonably in this particular case. I find that they in fact were acting reasonably.

2. The time period involved with the taking of the third sample.

[84] The issue with respect to this particular timeframe relates to what defence alleges is an additional 20 to 23 minute delay between the completion of the second sample at 3:21:51 and the completion of the third sample at 3:44 a.m. The argument on this particular issue boils down to the failure of the Crown to lead evidence to explain why in fact a third test was taken at all. As I understand defence counsel's argument there is no issue taken with the period of time between the second and third sample save and except the lack of adequate explanation for why the sample on the third occasion was necessary. Clearly, Cst. Maxwell's evidence with respect to the timing between the various tests and the necessity to wait effectively 17 minutes adequately explains the gaps from a time point of view between the taking of the first and second sample and the second and the third.

[85] As noted in Regina v. Koury, [2009] O.J. No. 4885 the demand under s. 254(3) of the Code requires that the person provide "samples of breath that in a qualified technician's opinion will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person's blood". Section 258(1)(c) provides that the lowest result of samples taken with the minimum interval of 15 minutes between them is proof of the person's blood alcohol concentration at the time of the offence.

[86] The court in Koury found that there was "nothing problematic" with the taking of three samples, provided the first sample being taken within two hours of the time of the alleged offence.

[87] Cst. Maxwell's evidence is quite clear. In this case the first sample resulted in a reading of 160 milligrams of alcohol in 100 millilitres of blood. The second reading truncated was 130. The officer specifically indicated the two tests have to be within 20 (obviously meaning 20 milligrams of alcohol in 100 millilitres of blood) for them to be considered "two suitable samples". The officer then clearly explained in his evidence that a third test was therefore required and 17 minutes waiting period was necessary again. As a result, the third test was then started at 3:40 a.m., completed at 3:44 a.m., resulting in a reading of 135 milligrams of alcohol per 100 millilitres of blood.

[88] The timeframe between the second and third readings is fully explained and not in any way lacking explanation. Defence counsel conceded that Cst. Maxwell was qualified to operate the approved instrument in question and although his evidence may have been perhaps clearer, his experience and his understanding of the operation of the instrument required that the readings be in accord and at least within 20 milligrams of each other for them to be considered "suitable samples".

[89] This is an explanation as to why the third test was required and that test yielded a result which, according to Cst. Maxwell, was "consistent with test number two". The logical inference then it was the second of the necessary two "suitable samples".

[90] I find there is no merit in defence counsel's submission that Cst. Maxwell's explanation did not adequately explain why a third test was being done. I find as a fact there was sufficient evidence explaining why it was necessary to conduct such a test.

Summary

[91] In summary then I find that the Crown is not in a position to reopen its case and present further evidence with respect to the issues in play. I find, however, that there is sufficient evidence to satisfy the court beyond a reasonable doubt that samples of Mr. Wiebe's breath were received directly into the approved instrument being operated by Cst. Maxwell. Finally, I find that the tests conducted were conducted as soon as practicable in all the circumstances. The Crown has then proven all the essential elements of the charge before the court beyond a reasonable doubt and there will be a finding of guilt and a conviction registered.

Released: October 24, 2013

Signed: "Justice G.F. Hearn"