Court File and Parties

Court File No.: 13-0083

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Jordan Moyer

Before: Justice Robert S. Gee

Heard on: November 15, 2013

Reasons for Judgment

Counsel:

• C. Lapointe for the Crown
• D. Henderson for the Accused

Facts

[1] Jordan Moyer is charged that on December 22, 2012 he was in care or control of a motor vehicle at a time when the concentration of alcohol in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood.

[2] The Crown called two witnesses at trial, the investigating officer, Craig McMurtrie and the qualified breath technician, Shaun Webb. Mr. Moyer did not testify.

[3] The facts in this matter are straightforward and not, for the most part, in dispute. On the morning of December 22, 2012, OPP Constable McMurtrie was on routine patrol in a rural part of the County of Brant. He testified that at approximately 8:28 a.m., he came across a motor vehicle parked in a secluded area near Fawcett and Newport Roads. On the ground near the vehicle he noticed an empty case of beer and beer bottles scattered about. Mr. Moyer was observed by Constable McMurtrie to be occupying the driver's seat of the vehicle and the keys were in the ignition. As well, there was a male passenger in the vehicle consuming a beer.

[4] Constable McMurtrie began speaking with Mr. Moyer and in doing so he could detect an odour of alcohol. In order to confirm this odour of alcohol was coming from his breath, he asked Mr. Moyer to step out of the vehicle and continued speaking with him. Once this was confirmed, Constable McMurtrie suspected Mr. Moyer had been in care or control of the vehicle with alcohol in his body, so at 8:32 a.m. he made a demand for him to provide a sample of his breath into an approved screening device.

[5] A suitable sample was obtained from Mr. Moyer at 8:40 a.m. and registered a 'fail'. At 8:41 a.m. he was arrested for being in care or control of a motor vehicle while having more than 80 milligrams of alcohol in 100 millilitres of his blood, and read his rights to counsel and cautioned. At 8:47 a.m. Constable McMurtrie made a demand for samples of Mr. Moyer's breath to determine the concentration of alcohol in his blood.

[6] By this time, Sergeant Potruff was also on scene. Instead of Constable McMurtrie immediately leaving with Mr. Moyer, they stayed and he started his notes. As well, the two officers inventoried Mr. Moyer's vehicle, finding several more containers of alcohol.

[7] When the inventory was completed, Constable McMurtrie and Mr. Moyer left, and arrived back at the OPP station in Paris at 9:23 a.m. Constable McMurtrie placed a call to Duty Counsel for Mr. Moyer and the call was returned at 9:49 a.m. Mr. Moyer finished his call and was turned over to Constable Webb, the qualified breath technician at 10:03 a.m.

[8] Constable Webb testified he completed taking the first breath sample at 10:25 a.m., which indicated Mr. Moyer had 157 milligrams of alcohol in 100 millilitres of his blood. He completed taking the second sample at 10:49 a.m. and it indicated 149 milligrams of alcohol in 100 millilitres of blood. At 10:56 a.m. Constable Webb turned Mr. Moyer back over to Constable McMurtrie.

Issues

[9] The defence contends the Crown is not entitled to rely on the presumption of identity as set out in s. 258(1)(c) of the Criminal Code. The defence contends the Crown has failed to prove beyond a reasonable doubt two prerequisites required by s. 258(1)(c)(ii) in order for the presumption to apply. Those being that the samples were taken as soon as practicable, and that the first sample was taken within two hours of the offence being committed.

Analysis - As Soon as Practicable

[10] The defence contends the decision by Constable McMurtrie to remain at the scene with Sergeant Potruff to assist inventorying the vehicle instead of leaving immediately with Mr. Moyer for the station, and Constable McMurtrie's decision to attend the Paris OPP detachment instead of the Brantford Police station, or some other closer police service, should result in a finding that the samples were not obtained as soon as practicable.

[11] I do not accept these contentions by the defence and find the Crown has proven the samples were obtained as soon as practicable in the circumstances. Constable McMurtrie testified that Sergeant Potruff responded to his request for back up. He had called for backup since he found himself in a secluded area dealing with two persons who were possibly under the influence of alcohol. Given the circumstances I find it was not unreasonable for Constable McMurtrie to stay to assist Sergeant Potruff to inventory the vehicle. Mr. Moyer's passenger was still present and was apparently acting somewhat belligerent. I am not about to second guess Constable McMurtrie's judgment when he decided to remain with Sergeant Potruff at that time.

[12] As well, I find that Constable McMurtrie's decision to attend the OPP detachment he was assigned to in Paris, Ontario as opposed to the police station in the City of Brantford or some other police service the defence suggested as possible alternates, was reasonable in the circumstances. There was no evidence before me that there were qualified breath technicians available at any other detachment. Additionally, Constable McMurtrie testified he took the most direct route from where he located Mr. Moyer to the Paris detachment. There was no evidence before me of the relative distances from where Mr. Moyer was located and any of these alternates proposed by the defence. Without some evidence in this regard it would be mere speculation on my part to presume that his decision to attend the Paris detachment, where he knew the sample could be taken, added any appreciable delay to the taking of the first sample.

[13] As such, in the circumstances, I find the Crown has proven the samples in this case were taken as soon as practicable.

First Sample Within Two Hours

[14] Section 258(1)(c)(ii) also requires the first sample to be taken within two hours of the offence being committed for the presumption of identity to apply. Here, the time the offence was committed was at approximately 8:28 a.m. when Constable McMurtrie observed Mr. Moyer in the driver's seat of the vehicle with the keys in the ignition. In cross examination he testified he got this time from looking at his watch and he candidly admitted it could have been inaccurate by up to several minutes.

[15] Constable Webb testified the taking of the first sample was completed at 10:25 a.m., some one hour and 57 minutes later; very close to the two hour requirement.

[16] The Crown chose to prove Mr. Moyer's blood alcohol concentration by the testimony of Constable Webb. The certificate he prepared setting out the results of the two samples, although mentioned in testimony, was never tendered at trial. At no time did Constable Webb testify what timepiece was used to provide the time of the completion of the first sample.

[17] The Crown has pointed out that both Constable McMurtrie and Constable Webb testified that Mr. Moyer was turned over to Constable Webb at 10:03 a.m. This, according to the Crown, is evidence which demonstrates a consistent set of times, and upon which I could find beyond a reasonable doubt that the first sample was taken within two hours.

[18] However, there is no evidence what timepiece either Constable McMurtrie or Constable Webb were using to determine Mr. Moyer was turned over at 10:03 a.m. Did they both look at a clock on the wall in the breath room? Did they both look at their respective watches? Did they check the internal timepiece in the Intoxilyzer 8000C? Without some evidence in this regard it is not open to me to speculate which it may have been, or that whatever timepiece was utilized, that it was consistent with Constable McMurtrie's wristwatch, which was used to fix 8:28 a.m. as the time of the commencement of the two hour period.

[19] Nor as noted earlier, is there any evidence before me what timepiece was used to provide the 10:25 a.m. time of the first sample. For the same reasons it is not open to me to speculate which was used or to assume this timepiece was consistent with the time on Constable McMurtrie's watch.

[20] This is not a novel situation. Courts grappled with similar problems in R. v. Motta, [2011] O.J. No. 5404, R. v. King, [2008] N.J. No. 99 and R. v. Dhaliwal, [2004] O.J. No. 5783. The cases are consistent in that, there has to be evidence before the court, capable of supporting a finding beyond a reasonable doubt that the first sample was taken within two hours. Each case is decided on its own facts. In some cases it is proven to have been taken in time, and in others it has not.

[21] The police ought to stay ever mindful of the two hour limit. In situations, such as this, where it is apparent the first sample is not going to be taken until close to this limit, they should compare the various timepieces used to mark the events leading up to, and the taking of the samples, and be prepared to provide evidence of the relation between them. If they do not, then there will be the risk that the Crown is unable to establish beyond a reasonable doubt the first sample was taken in compliance with s. 258(1)(c)(ii).

[22] I find that in this case the Crown has not proven beyond a reasonable doubt the first sample was taken within two hours. Constable McMurtrie candidly admitted when testifying about coming upon the accused in care or control of the vehicle at 8:28 a.m., that this was an approximate time, and further, that the time was taken from his watch which may have been inaccurate by upwards of several minutes. When the first sample is then said to have been taken, as it was here, within three minutes of the two hour limit, without some evidence to establish the relationship between the timepieces used for the 10:25 a.m. of the first sample and Constable McMurtrie's watch, I cannot be satisfied that it was taken within two hours.

Conclusion

[23] As such, given this the Crown is not entitled to rely on the presumption of identity in this case which means I am left without any admissible evidence as to the concentration of alcohol in the accused's blood on December 22, 2012 at the time he was in care or control of the motor vehicle, and as such the charge against him will be dismissed.

Dated at Brantford, Ontario

This 20th day of December, 2013

The Honourable Mr. Justice R.S. Gee