Court Information

Ontario Court of Justice

Between: Her Majesty the Queen — and — Peter Millar

Before: Justice H. Borenstein

Heard on: September 8, 2014

Reasons for Judgment released on: September 8, 2014

Counsel:

• Craig Coughlan for the Crown
• Alan Sobcuff for Peter Millar

Judgment

BORENSTEIN J.:

[1] Peter Millar is charged with operating a motor vehicle with a blood-alcohol content over the legal limit.

[2] He was stopped just after 1:00 a.m. on the day in question by PC Fiddler.

[3] PC Fiddler had an ASD in the cruiser as he was operating a mobile RIDE blitz program where he would patrol the streets and pull over cars to determine the sobriety of the drivers.

[4] He had tested the ASD prior to his shift and determined that it was working properly.

[5] He pulled over Mr. Millar just after 1:00 a.m. Mr. Millar had just exited a plaza.

[6] The officer explained to Mr. Millar that he was checking drivers for drinking and driving.

[7] He asked Mr. Millar if he had consumed any alcohol. Mr. Millar told him he had two beers. He asked Millar when he drank his last drink and Mr. Millar replied about "an hour ago".

[8] This all occurred just after 1:04 a.m.

[9] P.C. Fiddler suspected that Mr. Millar was operating a vehicle with alcohol in his system and read him the ASD demand. He then administered the ASD, which Mr. Millar failed at 1:09 a.m.

[10] By 1:12 a.m., Mr. Millar was arrested for driving while Over 80.

[11] P.C. Fiddler then read Mr. Millar the approved instrument demand and his right to counsel.

[12] He also called dispatch and asked where the closest qualified breath technician was located.

[13] Fiddler called for a tow truck and for another police unit to attend and wait for the tow so that he could take Mr. Millar to the station.

[14] At 1:25 a.m., another police unit attended to deal with the tow.

[15] At 1:26 a.m., PC Fiddler drove Mr. Millar directly to 41 Division, which was the closest division with a qualified breath technician.

[16] They arrived at 1:32 a.m.

[17] At 1:35 a.m., he paraded Mr. Millar before the booking officer. By 1:46 a.m., the booking was complete and Mr. Millar was placed in a report room.

[18] At 1:47 a.m., Fiddler called and left a message for duty counsel.

[19] Duty counsel returned the call at 1:56 a.m. Mr. Millar was placed in a privacy booth and spoke to duty counsel.

[20] At 2:10 a.m., Millar was turned over to a qualified breath technician.

[21] It is unclear exactly how much before 2:10 a.m., Millar got off the phone with duty counsel. Fiddler testified that Millar ended the call at 2:10 a.m. Millar testified that he was not sure when he ended the call but that it was minutes earlier. This factual dispute is inconsequential in this case.

[22] At 2:15 a.m., approximately one hour and ten minutes after failing the ASD, Mr. Millar provided a suitable sample of his breath into an approved instrument resulting in a breath reading of 149 mg of alcohol in 100 ml of blood. At 2:40 a.m., he provided his second sample which was also over the limit. The truncated readings on the certificate of qualified breath technician indicate readings of 140 mg of alcohol per 100 ml of blood.

[23] Between those two breath samples, Mr. Millar used the washroom.

[24] Mr. Millar was served paperwork and released on a promise to appear around 3:00 a.m.

Charter Arguments

[25] He initially raised various Charter issues but abandoned them at the close of the Crown's case.

[26] He had submitted that he was arbitrarily detained alleging that he was not stopped as part of a mobile blitz, but arbitrarily. I would have rejected that argument. On the evidence, that is exactly what Officer Fiddler was doing – operating a mobile RIDE program.

[27] He also submitted that Mr. Millar's right to know the reason for his detention was violated and that there were no grounds to issue the ASD demand.

[28] Those arguments would have failed as well and were wisely abandoned. On the evidence of Officer Fiddler as well as the in car camera, Officer Fiddler told Mr. Millar immediately that he was checking for drinking and driving, he asked him whether he had any alcohol to drink and Mr. Millar told him he had a couple of beers, maybe an hour ago.

[29] That justified Officer Fiddler's suspicion and approved screening demand. It also shows no violation of section 10(a).

"As Soon as Practicable" Analysis

[30] The only issue raised is whether the breath tests were taken as soon as practicable.

[31] I am guided by the Ontario Court of Appeal decisions in Vanderbruggen and the April 2014 decision in Singh.

[32] Quoting from Singh:

That trial judge drew and applied the correct principles from paras. 12-13 of Vanderbruggen. 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 should be administered within a reasonably prompt time in the overall circumstances. A trial judge should look at the whole chain of events, keeping 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.

[15] It is worth repeating that the Crown is not required to call evidence to provide a detailed explanation of what occurred during every minute that the accused is in custody. These provisions of the Criminal Code were enacted to expedite the trial process by facilitating the introduction of reliable evidence to prove an accused's blood-alcohol level. Interpreting these provisions to require an exact accounting of every moment in the chronology from the time of the offence to the second test runs counter to their purpose. As Rosenberg J.A. said in Vanderbruggen, at para. 12, "The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably."

[33] Bearing that in mind, the car was stopped just after 1:00 a.m.

[34] By 1:12 a.m., grounds for an ASD were formed, the ASD was administered and Mr. Millar failed and was arrested. By 1:25 a.m., he had been read his right to counsel, given a breath demand, the officer determined the closest breath technician, called for a tow and another police unit and the other police unit arrived.

[35] Fiddler and Mr. Millar left the scene at 1:26 a.m., arriving at the station at 1:32 a.m.

[36] He was paraded at 1:35 a.m. and by 1:46 a.m., was in the report room. By 1:57 a.m., he was speaking to duty counsel. By 2:10 a.m., the first test was administered, at 2:40 a.m., the second was administered and by 3:00 a.m., he was being served his paperwork and released shortly thereafter.

[37] This case proceeded not only reasonably but with remarkable dispatch.

[38] The defence submission that the delay between the taking of the two tests, or a minute here or there was overly lengthy fails to look at the overall length of time this case took.

[39] These tests were administered as soon as possible. All other preconditions having been established, Mr. Millar will be found guilty.

Released: September 8, 2014

Signed: Justice Borenstein