Court File and Parties

Court File No.: BRAMPTON 13-906 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Yassine Ameziane El-Hassani

Before: Justice J.W. Bovard

Judgment

Heard: November 12, 2013 and February 18, 2014

Released: July 23, 2014

Counsel:

• J. Mathurin, for the Crown
• F. Bernhardt, for the defendant Ameziane El-Hassani

BOVARD J.:

1:0 INTRODUCTION

1.1 The Issues

[1] These are the Court's reasons for judgment after the trial of Mr. Ameziane El-Hassani on the charge of operating a motor vehicle on January 1, 2013 while having more than 80 mg. of alcohol in 100 ml. of blood.

[2] With regard to the accused's last name, he informed the Court at the beginning of the trial that his last name is Ameziane El-Hassani.

[3] Ms. Estelle Lavoie, a fully accredited French interpreter, assisted Mr. Ameziane El-Hassani on the first day of trial, November 12, 2013. On the second day of trial, February 18, 2014, Mr. Thomas Penabad-Casas, also a fully accredited French interpreter, assisted Mr. Ameziane El-Hassani.

[4] The issues in this case are whether the Crown proved beyond a reasonable doubt that the police took the breath samples from Mr. Ameziane El-Hassani as soon as practicable and whether they took them within the two-hour limit.

1.2 The Evidence

[5] I will review the evidence only as it pertains to these two issues.

[6] Officer Pallett is the investigating officer. He said that he wrote his notes as the events were taking place.

[7] On January 1, 2013, he was performing a stationary R.I.D.E. check on the Queen Elizabeth Way westbound off-ramp at Hurontario Street in Mississauga.

[8] At 3:59 a.m. Mr. Ameziane El-Hassani stopped at the R.I.D.E. check. Officer Pallett asked him if he had been drinking. He replied that he had not. However, he could detect the odor of an alcoholic beverage on his breath. He also noted that his eyes were bloodshot and watery and that he was showing slight signs of the effect of alcohol.

[9] Officer Pallett told Mr. Ameziane El-Hassani that he could smell the odor of an alcoholic beverage on his breath. He asked him when he had had his last drink. Mr. Ameziane El-Hassani told him that it was about two hours ago.

[10] At 4 a.m. Officer Pallett formed the suspicion that Mr. Ameziane El-Hassani was operating a motor vehicle with alcohol in his body. He made a demand on him for a breath sample into an Approved Screening Device.

[11] The officer took the device from his cruiser, got a new mouthpiece and prepared the device to receive a breath sample. He explained to Mr. Ameziane El-Hassani how to provide a suitable sample of his breath into the device.

[12] At 4:01 a.m. Mr. Ameziane El-Hassani made his first attempt, which resulted in an "E-zero", which indicated that he gave an insufficient sample. He blew into the device for only approximately 5 seconds.

[13] The officer explained to him that he had to blow longer and harder.

[14] At 4:01 a.m. Mr. Ameziane El-Hassani made his second attempt, with the same result. This time he blew for only approximately 6 seconds.

[15] The officer explained to him again that he had to blow for a longer time.

[16] At 4:02 a.m. Mr. Ameziane El-Hassani provided a suitable sample and registered a fail.

[17] This indicated to the officer that Mr. Ameziane El-Hassani had 100 mg. of alcohol in 100 ml. of blood, or higher.

[18] At 4:02 a.m. the officer "formed the opinion that he was operating a motor vehicle with over 80 mg. of alcohol in 100 ml. of blood." He told Mr. Ameziane El-Hassani to step out of his vehicle and he took him to his cruiser.

[19] At 4:02 a.m. he told him that he was under arrest for operating a motor vehicle with over 80 mg. of alcohol in 100 ml. of blood.

[20] Between 4:02 a.m. and 4:05 a.m. he read him his rights to counsel and cautioned him.

[21] At 4:05 a.m. Officer Pallett made a demand on Mr. Ameziane El-Hassani for a sample of his breath into an approved instrument.

[22] Officer Pallett waited for another police officer to arrive to assist with the seizure of Mr. Ameziane El-Hassani's vehicle.

[23] At 4:12 a.m. Officer Klubak arrived on scene. Officer Pallett gave her the keys to the car.

[24] In Brampton there are two police divisions with breath testing facilities. In Mississauga there are three. Officer Pallett said that he "was advised by communications" that the breath technician would be available at 11 Division in Mississauga. This was also the closest location to where he was.

[25] When he calls dispatch to ask them where he can take an accused person for a breath test it is up to them to advise him of the closest location and of the one that is most readily available. This is what they are supposed to do. There are a certain number of breaths technicians working on any given shift. It is dispatch's job to advise arresting officers of the "closest and/or fastest arrangement possible."

[26] He did not inquire whether there would be other accused persons taking breath tests at 11 Division because it would have caused delays in providing Mr. Ameziane El-Hassani the opportunity to speak with counsel. He explained his reasoning as follows: "if I'm sitting at the scene trying to go beyond what dispatch is telling me to do, to go to 11 Division, and try to find another division that may or may not have more or less people there, I am only just delaying, like I said, time for the accused to speak to counsel."

[27] His understanding from what the police dispatcher told him was that a breath technician would be available right away at 11 Division. Therefore, he left with Mr. Ameziane El-Hassani to go to 11 Division for the breath tests.

[28] Since it was January 1 there was a "high, high" volume of persons being arrested for drinking and driving offenses. He did not know whether there was already a person at 11 Division giving breath samples. The only information that he had was that a breath technician was available at 11 Division so he took Mr. Ameziane El-Hassani there.

[29] At 4:19 a.m. they arrived at 11 Division. The sallyport was full. It can only contain two cruisers at a time. They had to wait their turn.

[30] Officer Pallett did not inquire as to whether another division would be able to accommodate them earlier. He thought that since they were already at 11 Division this would cause further delays even if another station were available.

[31] At 4:26 a.m. they were able to enter the sallyport.

[32] At 4:29 a.m. Officer Pallett took Mr. Ameziane El-Hassani into the booking area and called duty counsel for him.

[33] At 4:35 a.m. duty counsel called back and spoke to Mr. Ameziane El-Hassani.

[34] At 4:40 a.m. Mr. Ameziane El-Hassani finished speaking with duty counsel.

[35] At 5:45 a.m. Officer Pallett turned Mr. Ameziane El-Hassani over to Officer Holmes, the qualified breath technician. They had to wait this long because Officer Holmes was administering breath tests to another person. He spoke to Officer Holmes at the station and they decided that it would be quicker for him just to remain at 11 Division.

[36] At 6:16 a.m. Officer Holmes returned Mr. Ameziane El-Hassani to Officer Pallett and gave him the Notice of Intent to Produce the Certificate of the qualified breath technician.

[37] Officer Holmes testified that he was the qualified breath technician in this case. He said that it is difficult to predict how many tests they will have on New Year's Eve. There may be none, or there may be many.

[38] At 4:10 a.m. he received a call advising him of Mr. Ameziane El-Hassani's arrest. At this time he knew that he was going to administer the breath tests to Mr. Ameziane El-Hassani.

[39] The administration of the breath tests to the accused before Mr. Ameziane El-Hassani took a little bit longer than normal because there was an ambient fail while that person was performing the second test. He did not state specifically how long of a delay this caused.

[40] At 5:45 a.m. Officer Pallett turned over Mr. Ameziane El-Hassani to him for breath tests and gave him his grounds for the arrest.

[41] At 5:46 a.m., Officer Holmes read the breath demand to Mr. Ameziane El-Hassani.

[42] In conducting the breath tests he followed his training and the manufacturer's manual. He also provided instructions to Mr. Ameziane El-Hassani on how to give a suitable sample.

[43] At 5:47 a.m. he ran an air blank test.

[44] At 5:51:54 a.m. he administered the first breath test. The reading was 121 mg. of alcohol in 100 ml. of blood. Officer Holmes could not say specifically what he did between 5:46 a.m. and 5:51 a.m. without looking at the breath room videotape. He believed that he was typing information into the Intoxilyzer. He said that it takes the Intoxilyzer approximately 4 minutes to cycle through its internal checks and standards. He said that this "would certainly be [ sic ] account for that time."

[45] At 6:14:11 a.m. he administered the second breath test. The reading was 113 mg. of alcohol in 100 ml. of blood.

[46] Defence counsel pointed out that it was "a bit more than 17 minutes" between the administering of the first test at 5:51 a.m. and the second test at 6:14 a.m. Officer Holmes said that he was doing "Everything I could to get the second sample in." He was not sure, but it was quite possible that he needed "extra coaching for [Mr. Ameziane El-Hassani]." He did not recall specifically what took those extra few minutes, but he said that "certainly I was doing everything I could to expedite."

[47] There were only two breath technicians working on this evening. Mr. Ameziane El-Hassani was the fifth person to whom he administered a breath test on this date. He administered these tests "pretty much back-to-back."

[48] He took custody of accused persons to administer breath tests to them as soon as they had "satisfied all the requirements for rights to counsel." He took them in as soon as he was able. It was a very hectic night for him. He tried to work as efficiently as possible.

[49] On rare occasions he can stagger the persons to whom he is administering breath tests. Sometimes he can start administering breath tests to one accused while another waits for a call from counsel. However, on the day in question he did not do this. He took all of the accused persons in the order that they arrived at the police station.

[50] Officer Holmes said that he is the one that decides in which order accused persons at the station provide their breath samples. In addition, he decided to bring Mr. Ameziane El-Hassani to 11 Division from where he was arrested in 12 Division. In doing this he was in contact throughout the night with the other breath technician, Officer Bell. By doing this he "would know what stage [Officer Bell] was at…" After speaking with Officer Bell he determined that it would be faster for Mr. Ameziane El-Hassani to go to 11 Division rather than to Officer Bell. He knew that Officer Bell had as many tests as he did and that "he still had a lineup out the door as well." He and Officer Bell were in the same situation in that they both had an accused person in the breath room and one waiting. But he (Officer Holmes) was closer.

[51] Although Officer Holmes formed the opinion that Mr. Ameziane El-Hassani "had been operating a motor vehicle with excess blood-alcohol", he did not believe that his ability to operate a motor vehicle was impaired by alcohol.

[52] He returned Mr. Ameziane El-Hassani to Officer Pallett immediately after the second sample was taken.

[53] That was all of the evidence.

2:0 ANALYSIS

[54] The defence submits that (1) the breath tests were not administered as soon as practicable and that (2) the Crown did not prove beyond a reasonable doubt that they were administered within the two-hour limit.

[55] The time period that the defence argues is in contention is the period between 4:40 a.m., when Mr. Ameziane El-Hassani finished speaking with duty counsel and 5:45 a.m., when Officer Pallett turned him over to Officer Holmes in the breath room. This is a period of one hour and 5 minutes. Therefore, the defence does not take issue with what transpired before that, or with the time that it took Officer Holmes to administer the breath tests to Mr. Ameziane El-Hassani once he was in the breath room.

[56] The defence contends that when one subtracts the statutorily mandated 15 minutes between breath tests, 30 seconds for Officer Holmes to make the breath demand on Mr. Ameziane El-Hassani, 60 seconds to caution him, 10 seconds for Mr. Ameziane El-Hassani to blow into the Intoxilyzer, the delay is reduced to approximately 45 minutes. This period is unexplained other than by Officer Holmes's testimony that he was dealing with another accused before he could get to Mr. Ameziane El-Hassani.

[57] The defence argues that Officer Holmes did not explain what dealing with this other accused entailed. The Crown is obligated to explain the delay caused by this.

[58] The defence has posited a temporal hypothetical regarding how long it would have taken Officer Holmes to administer the required breath tests to the person that he was dealing with immediately prior to Mr. Ameziane El-Hassani.

[59] The weakness of this hypothetical is that it assumes a perfect scenario in which everything occurs without a hitch. This is often not the case. An example of this is Officer Holmes's testimony that while administering the breath tests to this individual there was an ambient fail that caused delay.

[60] In addition, although the Criminal Code requires a 15 minute delay between breath tests, the minimum common delay is 17 minutes.

[61] Furthermore, it may or may not take 30 seconds to make a breath demand and 60 seconds to caution an accused. And finally, it often takes longer than 10 seconds for an accused person to provide a suitable sample of breath into the Intoxilyzer.

[62] Therefore, the defence calculation of an untenable 45 minute delay between the time that Mr. Ameziane El-Hassani finished speaking with duty counsel and when the first breath test is administered is to a large extent speculative.

[63] Section 258(1)(c) states:

258. (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2),

(c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if

(ii) each sample was 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 fifteen minutes between the times when the samples were taken,… (Emphasis added)

evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused's blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, …

[64] Officer Holmes stated that he administered the first breath test at 5:51:54 a.m., and that at 6:14:11 a.m. he administered the second breath test. Therefore, according to s. 258(c) and the defence argument, the relevant time period to consider is between 4:40 a.m. when Mr. Ameziane El-Hassani finished speaking with duty counsel and the times when he gave his breath samples; not 5:45 a.m. when Officer Pallett turned Mr. Ameziane El-Hassani over to Officer Holmes.

[65] Consequently, presuming that Mr. Ameziane El-Hassani was ready to give his first breath sample right after he spoke with duty counsel, there was a delay of 1 hour, 11 minutes, 54 seconds until he gave his first breath sample. There was a delay of 1 hour, 34 minutes, 11 seconds until he gave his second sample.

[66] When one subtracts the 16 1/2 minutes that the defence concedes it would have taken Officer Holmes to administer the breath test to the person immediately before Mr. Ameziane El-Hassani, it is reasonable to conclude that with regard to the first sample there was an unexplained delay of 55 minutes and 14 seconds and with regard to the second sample there was a delay of one hour, 17 minutes and 31 seconds.

[67] In the case at bar, it is difficult to ascertain with specificity how long it took Officer Holmes to administer the breath tests to the accused person that he dealt with immediately before dealing with Mr. Ameziane El-Hassani. There is no specific evidence in this regard. Nor is there any evidence with regard to generally how long it takes to administer breath tests to a person in an ideal situation, or in a situation where there is at least one ambient fail which requires a readjustment of the testing procedure.

[68] Therefore, the Court is presented with a situation in which, there was a delay of 1 hour, 11 minutes, 54 seconds between when Mr. Ameziane El-Hassani was ready to give his breath samples and when he gave his first breath sample, and a delay of 1 hour, 34 minutes 11 seconds until he gave his second sample.

[69] For the reasons given above, I find that the defence's calculation of how long it should take to give two breath samples (16 1/2 minutes) is too short. I am not taking judicial notice of this, but I find that a more reasonable estimate would begin at approximately 20 minutes.

[70] Following this line of reasoning, if one subtracts as a reasonable delay 20 minutes from the time that it took Officer Holmes to administer the breath samples to Mr. Ameziane El-Hassani, that leaves a delay of 51 minutes, 54 seconds to administer the first breath test, and a delay of 1 hour, 14 minutes, 11 seconds to administer the second breath test.

[71] As stated above, in the case at bar there is an important absence of evidence with regard to the issue of what is a reasonable time to administer a breath test to an accused. Such evidence would have been of great assistance to the Court in determining the reasonableness of the delay that occurred while Officer Holmes was administering the breath test to the accused person that he dealt with immediately before being able to turn his attention to Mr. Ameziane El-Hassani.

[72] There is some evidence that the Court can consider in evaluating the reasonableness of this delay; namely, that Officer Holmes said that it was a hectic night because there were many persons to whom he had to administer breath tests. He said that he was doing the best that he could to work as efficiently and quickly as possible. There is no evidence that would call this into doubt.

[73] Presumably, the Crown would want the Court to conclude that based on Officer Holmes's efforts to proceed as expeditiously as possible it has proved beyond a reasonable doubt that the delays were reasonable.

[74] The phrase "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 "touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably" (R. v. Vanderbruggen, at para. 12).

[75] The Crown does not have to "provide a detailed explanation of what occurred during every minute that the accused is in custody" (Vanderbruggen, para. 13):

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. See R. v. Letford (2000), 150 C.C.C. (3d) 225 (Ont. C.A.) at para. 20 ; R. v. Carter , supra ; R. v. Cambrin (1982), 1 C.C.C. (3d) 59 (B.C.C.A.) at 61-3 , and R. v. Seed at para. 7.

[76] Whether the samples were taken as soon as practicable is an issue of fact for the trial judge. See: R. v. Lightfoot (1980), 4 M.V.R. 238 (Ont. C.A.) and R. v. Renda, [2005] O.J. No. 1453 (C.A.), (Cited in Vanderbruggen, para. 14).

[77] Where there is no evidence to explain a significant delay, the Crown has not discharged its burden to prove beyond a reasonable doubt that the tests were taken as soon as practicable.

[78] In R. v. Blacklock, E.B. Fedak J. summarized and agreed with the holding in R. v. Craig, [2007] O.J. No. 3616 that "while the Crown does not have to account for every moment of time, there is a burden on the Crown to account for the time in order to meet the evidentiary burden of proving that a test is taken "as soon as is practicable"."

3:0 DISPOSITION

[79] After considering all of the evidence, the law and counsel's submissions, I find that delays of 51 minutes, 54 seconds to administer the first breath test, and 1 hour, 14 minutes, 11 seconds to administer the second breath test requires a more detailed explanation than what the Crown has provided.

[80] I have no doubt that Officer Holmes was working hard and doing his best to administer breath tests to all of the persons that he had to deal with on the night in question. However, in the absence of more specific evidence as to why it took the length of time that it did to administer the breath test to the accused person that he dealt with immediately before dealing with Mr. Ameziane El-Hassani, I find that the Crown has not adduced evidence that justifies this delay.

[81] The Court cannot simply assume that the delay caused by Officer Holmes administering the breath tests to the accused person immediately before he dealt with Mr. Ameziane El-Hassani was reasonable. Delays of this length require a more detailed explanation than what the Crown has provided.

[82] It may be that the delay was reasonable, but in the circumstances of the case at bar the Crown is required to prove this beyond a reasonable doubt. It would be easier for the Court to conclude that the delay was reasonable had it been, for example, in the range of 20 to 25 minutes, which, in general, could be considered to be a reasonable time for the administration of breath tests in cases where there are no occurrences that interrupt the normal testing procedure. In the case at bar, even considering that there was an ambient fail, the Crown did not adduce evidence to explain how long of a delay this caused. The Court is not satisfied that this sole factor provides a reasonable explanation for the delay in this case.

[83] During the Crown's submissions, the Court asked the Crown about the lack of evidence with regard to what transpired during the testing of the accused person that Officer Holmes dealt with immediately before administering the breath tests to Mr. Ameziane El-Hassani.

[84] The Crown mentioned the ambient fail and asked the Court to take judicial notice "of the fact that there-he has to make a demand, the machine has to go through its various testing again even though it's a, a new test."

[85] Without taking judicial notice of this procedure, as explained above, I allowed 20 to 25 minutes for the administration of breath tests to an accused, which I consider to be a reasonable amount of time. The Crown agrees that there is no evidence with regard to how much of a delay the ambient fail caused. The Court cannot simply guess at this. In addition, the Crown agreed that there is no evidence with regard to the time that Officer Holmes finished administering the tests for the other person.

[86] The Crown's position was that "based on Officer Pallett's testimony that he delivered him [Mr. Ameziane El-Hassani] after he was finished that, that I would assume it's around the 5:45 a.m. time that Constable Holmes takes custody of [Mr. Ameziane El-Hassani]."

[87] In the case at bar the Court cannot act on such an assumption.

[88] Consequently, the Crown did not prove beyond a reasonable doubt that the breath tests were administered to Mr. Ameziane El-Hassani as soon as practicable.

[89] Therefore, Mr. Ameziane El-Hassani is found not guilty. In light of this finding, it is not necessary to consider the defence's second argument that the first breath sample be taken not later than two hours after the time when the offence was alleged to have been committed, as required in s.258(1)(c)(ii) of the Criminal Code.

Released: July 23, 2014

Justice J.W. Bovard