Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Shivani Sharma

Before: Justice Hall

Heard on: December 16, 2013; January 13, 2014

Reasons for Judgment released on: March 10, 2014

Counsel:

• T. Edward, for the Crown
• E. Chen, for the accused Shivani Sharma

HALL J.:

FACTS

[1] Ms. Shivani Sharma (hereinafter) the defendant is charged with one count of impaired driving and one count of operating a motor vehicle while her blood alcohol level exceeded 80 mg of alcohol in 100 ml of blood.

On the street:

[2] On the night of December 29, 2011, the defendant was driving a motor vehicle on Sheppard Avenue East in the city of Toronto where she was stopped at a R.I.D.E. program. While speaking with the defendant constable William Kay (hereinafter) the police constable detected an odour of alcohol beverage emanating from her breath.

The police constable suspected that the driver had alcohol in her system, and the Police Officer asked that the defendant provided a sample of her breath into an approved screening device.

[3] After three attempts, a proper sample was obtained and the approved screening device registered a fail. As a result of the fail test, the defendant was arrested for the offence of "over 80". The defendant was given her right counsel and cautioned.

The defendant responded: yes she understood, and no she did not want to speak a lawyer, she just wanted to speak to her brother.

[4] The police constable noted: that the defendant had a slur in her speech while providing her address of "Raymereville" when she was in the back seat of the police car. In addition she had bloodshot glossy eyes.

The defendant, according to the police constable in his testimony: was a little slower than average in her motor skills, particularly when she was trying to find her driver license which she did not have with her.

In the Police Station:

[5] The defendant was transported to 32 Division. On arrival at the Division she was paraded before the staff Sergeant Nolan. She was later escorted to the bathroom by the police constable, and returned to the reporting room.

The police constable made a call to duty counsel at just before the defendant provided the first sample of her breath; she was directed to a private booth to speak with duty counsel.

[6] After proving two samples of her breath for analysis, the results were: for the first reading 150 mg of alcohol in 100 mL of blood, the second reading 140 mg of alcohol in 100 mL of blood, the defendant was then arrested for impaired driving.

[7] The police constable testified that she was crying and emotional throughout the entire process.

[8] According to testimony of the police constable the defendant told him at the station that she was feeling dizzy and requested to use the bathroom for a second time, while in the bathroom he could hear her vomiting.

[9] He further testified that the defendant had difficulty with her balance while walking back to the reporting room and the police constable had to assist her to prevent her from falling.

[10] The police constable claimed that this was after the breath tests however; later in his evidence he testified the vomiting and that the fact she was having trouble walking occurred before the breath tests were taken.

According to the defendant in her testimony, the vomiting and the issue with her balance was a result of suffering from sinus problem while in the police station.

[11] The defendant testified she was unstable on her feet because of vision problems Further she explained that she was not able to open her eyes because they were hurting.

The Lawyer Question:

[12] As previously mentioned the defendant originally waived her right to consult with a lawyer. The police constable testified that the defendant later changed her mind about speaking with a lawyer as a result he contacted duty counsel for her to obtain legal advice.

The police constable did not include in his notes that the defendant to change her mind on exercising her right to speak to counsel. On this issue the police constable testified purely from memory.

[13] The defendant testified that she never requested to speak to duty counsel. She explained that she never did change her mind on this point and that the police officer acted on his own volition and certainly not at her request.

ISSUES:

There are two issues to resolve in this case:

(i) Has the crown proven beyond a reasonable doubt that the defendant was operating a motor vehicle while impaired?

(ii) Were the breath samples taken 'as soon as practicable'?

IMPAIRED DRIVING CHARGE:

[14] The test to be applied in determining whether the offence of impaired driving has been established by the Court of Appeal in R. v. Stellato, (1993), 78 C.C.C. (3d) 380 (Ont. C.A.) the offence of impairment is made out if there is evidence of any degree of impairment to operate a motor vehicle ranging from slight to great.

[15] However it cannot be assumed that simply because ones functional ability is affected by alcohol, that their ability to drive is impaired as well. As Conrad J. in R. v. Andrews, 1996 ABCA 23, [1996] A.J. No. 8 at para 17 cautioned, "judges must be careful not to assume that, where a person's functional ability is affected in some respects by consumption of alcohol, his or her ability to drive is also automatically impaired.

[16] The police constable admitted the defendant's glossy eyes could have been a result of her crying, as she was visibly upset and clearly sobbing throughout the whole incident.

On the issue of the defendant's motor skills; the police constable admitted that her responses were "only a bit delayed" and "nothing out of the ordinary." Upon arriving at the station, the police constable stated that she was not unbalanced, unsteady and again stated that nothing was out of the ordinary.

[17] The question of the defendants balance or lack thereof that was exhibited at the police station after she was paraded, could have been the result of the difficulties she claimed she was having her vision.

[18] At the scene of the arrest no observations were made with respect to her balance, it was not of concern to the police constable. Furthermore, the police constable expressed no concerns with respect to the defendant's ability to drive when he interacted with her at the scene.

[19] On the question of slurred speech it was in reference to the one lone incident and only one word, her street address, "Raymerville." This could be a consequence of nervousness or being unfamiliar with police investigations. I cannot conclude that Ms. Sharma's speech was slurred based on one single spoken word.

[20] He made no notes that the defendant was impaired during his investigation; he did not arrest her for impaired until after the second breath test was completed.

It would seem to me, the presence of the odor of alcohol and glassy and bloodshot eyes point only to the fact that the defendant consumed alcohol recently, and not necessarily to impairment.

[21] For those reasons I am not convinced beyond a reasonable doubt that the Crown has proven that the defendant was operating a motor vehicle while impaired.

[22] The charge of impaired operation will therefore be dismissed.

OVER 80, and as soon as practicable:

[23] The second issue that was argued before me is that the samples of Ms. Sharma's breath were not taken as soon as practicable. It was argued as a result the crown cannot rely on the presumption found in section 258(1)(c)(ii) of the criminal code of Canada. In order to relying the presumption of identity the crown must first prove certain statutory requirements. One of these requirements is a sample was taken as soon as practicable.

Position of the Defence:

[24] The defendant testified that she understood her rights to counsel and waived those rights, she never changed her mind. The defendant argues that the police constable had no authority to occasion contact with duty counsel and the eighteen minutes delay that resulted from the call with duty counsel was unreasonable and therefore the breath tests were not administered as soon as practicable and cannot be relied on.

Position of the Crown:

[25] The crown position is that the defendant changed her mind with regards to right to counsel. At the station, after being cautioned again, she indicated she wanted to speak with duty counsel. The eighteen minutes delay in administering the breath tests was a result of defendant exercising her right to counsel and therefore was reasonable and justifiable.

[26] A review of the time of events will be helpful in assessing the all the circumstances over the whole chain of events. The timeline will help me in the analysis to determine if the samples of breath from the defendant were taken as soon as practicable:

• 11:42 p.m. – The defendant's car approaches the R.I.D.E spot check.
• 11:43 – The police Constable reads the defendant approved screening device demand.
• 11:45 – The defendant is arrested.
• 11:48 – The defendant is read her rights to counsel and waives her rights.
• 11:50 – The defendant is read the breath demand.
• 12:02 – The defendant is transported to 32 Division.
• 12:15 – The defendant arrives at 32 Division.
• 12:16 – Parade is done.
• 12:19 – First bathroom trip.
• 12:23 – The defendant is escorted to the report room.
• 12:30 – The police constable places a call to duty counsel.
• 12:39 – Duty counsel calls back and a conversation occur between the defendant and the duty counsel lawyer.
• 12:41 – The defendant exits the privacy booth and goes to breathe room.
• 12:47 – First breath sample is taken from the defendant.
• 1:12 a.m. – Second breath sample is taken from the defendant.
• Note: there was a second bathroom trip at some point between 12:23 and 1:12.

CREDIBILITY:

[27] In order for the offence of over 80 to be made out, the crown needs to establish that the breathalyzer reading was in fact accurate and over the legal limit of 80 milligrams in 100 millitres in blood.

[28] Section 258(1)(c)(ii) of the Criminal Code provides the Crown the ability to rely on the presumption of identity as long as it meets the statutory requirements. The requirements include administering two breath tests "as soon as practicable."

If I believe the police constable that the defendant did change her mind and asked to speak to duty counsel, then it is clear that that the tests were administered as soon as practicable and the analysis ends there.

[29] If I believe the defendant that she did in fact waive her rights to counsel and Police Officer Kay called duty counsel on his own volition, then I must find that the delay was unreasonable and effectively unexplained per R. v. Davidson, [2005] O.J. No. 3474 at para 21.

[30] Even if I don't believe the accused, if having regard to his evidence in the context of the whole case, I have a reasonable doubt; I must acquit.

Finally even if I disbelieve his evidence on it does not raise a reasonable doubt, if I have a reasonable doubt on the basis of the balance of the evidence that I do accept; I must acquit.

[31] I shall resolve the dispute between the evidence of the police constable and that of the defendant by applying the principle established in R. v. W. (D): if I believe the accused; I must acquit.

[32] The police counsel testified that the defendant had changed her mind with regards to right to counsel at the station, upon being given her right to counsel a second time. For these reasons, the police constable put the accused on the phone with duty counsel. This does not appear anywhere in his notes.

[33] The case law is quite clear that absence of notes by police officer in relation to pivotal issues diminishes the weight attached to their evidence. (See R. v. McGee, [2012] O.J. No. 523 at para 66). Duncan J. in R. v. Zack, [1999] O.J. No. 5747 (Ont. C.J.) held that "In this day of full disclosure, it cannot be an acceptable explanation for an officer to say 'I did not note it because I would remember it'."

Feldman J. in R. v. Lozanovski, 2005 ONCJ 112, [2005] O.C.J. 112, 64 W.C.B. (2d) 630 at page 3 said the following: "It is important to the proper functioning of the judicial fact finding role that significant facts be recorded by the police and not left to the whim of memory."

In R. v. Odgers, 2009 ONCJ 287, [2009] O.J. No. 2592 at para 16, Fournier J. stated, "It goes without saying that the absence of notes on an important factor is relevant to an officer's credibility. As a result the courts have on occasion, been reluctant to attribute much weight to evidence adduced viva voce by an officer, in the absence of corroborating written references in that officer's notebook."

The absence of notes is clearly relevant to the officer's credibility, as the Court of Appeal stated in R. v. Fisher, [2005] O.J. No. 1899, "[t]he notes, and in particular the absence of the important fact as to the origin of the odor of alcohol, were relevant to the officer's credibility."

Wright J. in R. v. Hayes, [2005] O.J. No. 5057 at para 9, "for an officer to come to court and simply say I have an independent recollection doesn't cut it in this court. Not in front of me. Not in front of Justice Duncan and I suspect probably not in front of very many judges anymore."

[34] For the police constable to come to court and testify that he simply did not record in his notes, something as important and significant as right to counsel, because he was multi-tasking is concerning and I cannot place any weight on his viva voce evidence that the defendant asked to speak to duty counsel.

[35] On the other hand, the defendant gave her evidence in a straightforward manner and her recollection of events, other than the disputed with respect to "change of mind" regarding right to counsel, it is largely consistent with officer Kay's version of events. In light of these reasons, and I have no reason to disbelieve Ms. Sharma's evidence.

[36] I therefore accept the evidence of the defendant and find that there was a clear and unequivocal waiver with respect to her right to counsel and that she never changed her mind with regards to this waiver.

CONTACTING COUNSEL:

[37] In Davidson, Dawson J. addressed the issue where police occasioned a call with duty counsel, on their own volition, after a clear waiver of right to counsel was given by the accused. Dawson J. held in Davidson at para 21, "If the waiver is clear and unequivocal it is not reasonable, as a matter of law, for the police to contact duty counsel thereby delaying the administration of the breath tests.

[38] Where the delay occasioned by the call to duty counsel is unreasonable it is effectively unexplained." In these circumstances, the defendant clearly and unequivocally waived her right to counsel without ever changing her mind. Therefore the eighteen minutes delay in administering the breath test was unreasonable and effectively unexplained.

[39] The test for "as soon as practicable" means nothing more than that the tests were taken within a reasonably prompt time under the circumstances: Vanderbruggen, J., 2006, O.J. No. 1138 at para 12.

[40] Was the eighteen minutes delay reasonable in light of all the circumstances? The eighteen minutes was a substantial amount of delay in light of the two hour guidelines and therefore the breath tests were not administered as soon as practicable and cannot be relied on by the crown under the presumption of identity.

DISPOSITION

I find the defendant not guilty of impaired driving and not guilty of over 80.

Released: March 10, 2014

Signed: "Justice Hall"

[1] Adopting and rephrasing Quinn J. in R. v. Barrick, [1998] O.J. No. 3252 (Gen. Div.).