Court File and Parties

Court File No.: 08/9008 Date: September 17, 2014 Ontario Court of Justice

Between: Her Majesty the Queen — and — Peter Wroniak

Before: Justice Gregory A. Campbell

Heard: September 11, 2014

(Released: September 17, 2014)

Counsel:

• I. Mizel, for the Crown
• M. Carroccia, for the Accused

CAMPBELL J.:

REASONS FOR JUDGMENT

1: BACKGROUND

[1] Mr. Wroniak had been downtown drinking until shortly after the bars had closed, when he got into his car and drove to the west end of Windsor where he ran over a street sign situated at a roundabout at Felix and Mill streets. The noise of the car running over the sign caught the attention of two paramedics who were packing up their gear after responding to an unrelated call. One of the paramedics walked out into the middle of the road and put up his hand in the direct path of Mr. Wroniak and instructed him to stop. Mr. Wroniak obliged the request and pulled his car off the road and backed into a driveway. While one paramedic went to see if Mr. Wroniak was alright, the other paramedic called a supervisor to report the accident and suggested the police should be contacted.

[2] After a brief medical assessment, Mr. Wroniak spoke with a police officer who had now arrived on the scene. After providing a sample of his breath by an approved screening device, Mr. Wroniak was arrested and charged with having a blood alcohol content in excess of 80 milligrams of alcohol in 100 millilitres of blood while driving his motor vehicle.

2: MATERIAL FACTS

[3] The usual indicia of impairment were very slight based on the accounts from the witnesses. While one paramedic detected an odor of alcohol, the other made no such observation. The arresting officer who made the initial screening demand described an odor of alcohol emanating from Mr. Wroniak as being "very faint." Mr. Wroniak acknowledged having consumed alcohol shortly before driving off in his vehicle from a downtown parking lot.

[4] Although the officer didn't have a screening device with him when he arrived, he requested that one be delivered immediately after he formed the requisite suspicion that Mr. Wroniak had alcohol in his system. I am satisfied from the device arrived in a timely manner. Approximately six minutes later, Mr. Wroniak provided a sample of breath, registered a fail, was arrested and received a demand to provide a sample of breath for analysis by an approved screening device. Seventeen minutes later, a transportation vehicle arrived to take Mr. Wroniak downtown for processing and to provide that sample. The arresting officer remained at the scene continually and beyond Mr. Wroniak's departure until a tow truck arrived to remove Mr. Wroniak's vehicle.

[5] It was 3:45 a.m. when the arresting officer contacted his supervisor about the need for a breath technician to be made available to take samples of the accused's breath. A qualified breath technician, Officer Mathers, called the arresting officer back while he was still at the scene at 4:09 a.m. and received the grounds for arrest and demand. It was 4:24 a.m. when Mr. Wroniak completed his telephone call with his counsel.

[6] The qualified breath technician entered the breath room at 4:45 a.m. and, at that time, spoke with another breath technician who also needed the instrument to take samples of breath from a separate individual. There was some discussion between the two technicians in regard to how they might proceed. The other breath technician, Constable Myles, had entered the breath room at 4:29 a.m. to turn the instrument on and changed the simulator solution. Technician Mathers entered the breath room at 4:45 a.m. Constable Myles was at that time running through the calibration and diagnostic testing while technician Mathers was present. Myles administered a self-test. It was 4:52 when the technicians were satisfied the instrument was ready to receive samples of breath.

[7] The two breath technicians decided at some point that they would do simultaneous testing. Because the instrument could receive tests from multiple subjects at different times it was not necessary for one subject's testing to be completed in its entirety before another subject could provide breath samples for analysis. Insofar as technician Myles' subject had been arrested before Mr. Wroniak, it was decided that Officer Myles would receive a first sample from his subject first or before Officer Mathers would procure a first sample from Mr. Wroniak.

[8] It was 5:00 a.m. when Officer Myles obtained a first sample of breath from his subject and 5:15 a.m. when he left the breath room. It was 5:30 a.m. when Officer Mathers went to meet Mr. Wroniak to arrange to obtain a first sample of his breath, which was obtained at 5:35 a.m.

3: ISSUES TO BE DETERMINED

[9] This matter proceeded by way of blended voir dire arising from the defence application to exclude the samples of breath on the basis there was a breach of Mr. Wroniak's Section 8 right to be secure against unreasonable search and seizure. The issue to be determined in that regard is whether the breath samples were obtained as soon as practicable.

[10] Insofar as the merits of the Crown's prosecution is concerned, I must determine whether the Crown has proven beyond a reasonable doubt that Mr. Wroniak's blood alcohol content at the time of driving exceeded 80 mg of alcohol in 100 ml of blood.

[11] Because the first sample was taken outside of the requisite time limit, the Crown relied upon a toxicologist's report from the Centre of Forensic Sciences. The report from the toxicologist indicated that Mr. Wroniak's B.A.C. at the time of driving, based on the test results, was 230 to 285 milligrams of alcohol in 100 millilitres of blood. The defence takes issue with two facts relied upon in support of that conclusion. Firstly, the calculation is based on a time of driving that the Crown did not prove. Second, that the BAC determined at the requisite time pre-supposes there was no significant consumption of alcohol within 15 minutes prior to the incident.

4: REASONABLENESS OF THE SEIZURE – AS SOON AS PRACTICABLE

[12] A little more than one hour passed from the time when Mr. Wroniak registered a fail on the ASD to when the breath technician first entered the breath room and found technician Myles there preparing the instrument. This time period can be broken down into two segments. Time of registering the ASD fail and demand to when the breath technician received grounds from the arresting officer, being 29 minutes calculated from 3:40 a.m. to 4:09 a.m.; and then, the time when the breath technician received grounds from the arresting officer to the time when he entered the breath room, being 36 minutes calculated from 4:09 a.m. to 4:45 a.m.

[13] During that first segment, what occurred after the failure, arrest and demand was a telephone call for a transportation concurrent with a request to notify a breath technician about the need for his services and the eventual telephone call from the breath technician to the arresting officer to receive the grounds for arrest and demand. Technician Mathers said only that he was working on another matter when he was notified. No further detail was provided.

[14] During the second segment described, Mr. Wroniak was processed as a prisoner in detention and spoke with a lawyer. All of this was done without the knowledge of the breath technician. He was informed Mr. Wroniak had spoken to lawyer just after 5:00 a.m. when he first went to meet the cell officer to receive Mr. Wroniak to obtain a first sample of his breath. Beyond that, there is really nothing offered in the way of explanation about what the breath technician was doing during this time. The technician said he was working on something when he was notified at 4:09 a.m. that his services would be needed for Mr. Wroniak. The next information is that he entered the breath room at 4:45 a.m. and spoke with the other breath technician who was running through the calibration and diagnostic testing.

[15] Essentially, it took approximately one-half hour before the breath technician spoke to the arresting officer to obtain particulars, including grounds for the demand, and a little more than one-half hour after that before the breath technician entered the breath room. It was unclear in regard to just when or how long it took to sort out how the two technicians intended to proceed, either by separate complete testing or simultaneous testing. It is difficult to conclude that it would have taken more than a minute or two to sort that out once a decision was made to address the matter.

[16] In addition to this hour plus period of time I have described to this point, another 43 minutes passed from the time when the instrument was ready to receive a test at or around 4:52 a.m. until the time when the first sample was obtained from Mr. Wroniak at 5:35 a.m. What was clear from the evidence of breath technician Myles is that after the instrument was ready to receive a sample at 4:52 a.m., he dealt with his subject first and left the breath room at 5:15 a.m. It was 15 minutes later when breath technician Mathers went to meet Mr. Wroniak at 5:30 a.m. and then obtained a first sample of breath from him, five minutes later. There is no explanation for why it took a further 15 minutes before Officer Mathers decided to retrieve Mr. Wroniak to obtain a sample of his breath.

5: ANALYSIS

[17] The Crown must demonstrate the first sample of Mr. Wroniak's breath was taken within a reasonably prompt period of time. There is no obligation on the police to proceed as quickly as possible but the sample must be obtained within a reasonably prompt period of time from a consideration of the whole of the events. From my perspective, there was essentially one hour of inactivity that is devoid of explanation.

[18] Following his arrest and demand, Mr. Wroniak was transported and completed his telephone call with counsel at 4:24 a.m. He would have been ready from that point in time to provide a sample of his breath. The qualified breath technician had already received the arresting officer's grounds 15 minutes earlier at 4:09 a.m. but the record reflects he essentially did nothing until 4:45 a.m. when he entered the breath room and encountered breath technician Myles. Breath technician Mathers made no inquiry in regard to whether Mr. Wroniak had spoken with counsel until 5:00 a.m. The best I can determine is that he may have had a brief discussion with the other breath technician about whether to do separate or simultaneous testing. Beyond that I only know that at the time when he was notified his services as a breath technician would be needed, he was doing other work, but I do not know what he was doing. It seems reasonable that since the officer was on duty at the time he would be doing other work, but nothing was offered to suggest that the other work was urgent or otherwise had to take priority before dealing with Mr. Wroniak who had been arrested, had received a formal demand to provide a sample of his breath and was entitled to have his constitutional rights respected.

[19] From that point, however, as previously indicated, technician Myles was getting the equipment ready to take a sample of breath although from a separate individual before it was ready for Officer Mathers. I suppose I can only wonder if technician Mathers entered the breath room to ready the instrument soon after he spoke with the arresting officer at 4:09 a.m. or in any event before 4:45 a.m. when he ran into officer Myles if he would have been able to proceed with Mr. Wroniak's test first. And, notwithstanding, having regard to the amount of time that passed from the time of arrest and from when he received grounds, one might expect that Officer Mathers would have had a better eye on the breath room and moved with more diligence to ensure that Mr. Wroniak was brought to the breath room to provide a sample of breath as soon as it became available and in any event, before a further 15 minutes passed after Officer Myles was finished.

[20] I of course appreciate that there is no requirement to account for every minute with an explanation and that the police are not required to move as quickly as possible but, the lack of any explanation in regard to the considerable amount of time that passed after the demand was made satisfies me that the samples were not obtained as reasonably prompt as should have been expected in the circumstances or, more specifically, not as soon as practicable as required by s. 254(3) of the Code. As a result, Mr. Wroniak's right to be secure against unreasonable seizure, in this case the seizure of samples of his breath, was breached.

5.1: Should The Breath Samples Be Excluded?

[21] The infringing conduct at issue here is the longer than necessary period of detention. Insofar as Mr. Wroniak failed the ASD test and received a demand for a sample of breath for analysis by an approved instrument, the police of course acted lawfully in transporting Mr. Wroniak to headquarters, processing him and lodging him in a cell while efforts were made to address his 10(b) rights. It was also reasonable that the arresting officer would have to communicate with the breath technician about the circumstances surrounding the arrest and grounds for demand. And there would be time required to ready the instrument to receive a sample of Mr. Wroniak's breath. All of the foregoing would result in a reasonable and foreseeable period of detention but, as I have indicated, there was an excessive period of unexplained time that Mr. Wroniak was detained while little if anything was happening in regard to facilitating his right not to be unreasonably detained.

[22] I don't know if this delay was the product of inattention or distraction on the part of the breath technician because very little was offered to explain the delay. The prosecutor could only suggest that it would have taken the two technicians time to figure out who was going to go first. As I have indicated, in the absence of more about what was involved or how long that actually took I was left to reach my own conclusion. The officers did not indicate or suggest that this was a complicated or difficult issue to resolve but indicated only that it was something they had to address. That is, which way to go either separate and complete testing or simultaneous testing. If they turned their mind to the issue without delay I can't imagine the decision would have taken more than a minute or two. As I understand their evidence, the time of arrest of each subject they were dealing with was one of the considerations. I don't know what else they may have discussed.

[23] As I have indicated, the delay at issue that ultimately led to the seizure of Mr. Wroniak's breath samples arose from a lawful set of circumstances with Mr. Wroniak having failed the ASD and receiving a proper demand. There is nothing in the conduct of the police to suggest any egregious behaviour. The best I can determine from all of this is that Mr. Wroniak's matter was not a priority but I am without the benefit of any reason or explanation about why, on at least a couple of occasions, long periods of time passed while he was in detention waiting to provide a sample of breath without any meaningful explanation.

[24] The protected interest at issue is bodily integrity in the form of breath samples. Insofar as the extent to which this breach might undermine that interest is concerned, it has been said before that the seizure of breath samples falls at the relatively non-intrusive end of the spectrum. There was nothing out of the usual or any difficulties that arose during efforts to obtain the breath samples that would take this case outside of the norm. The demand was made, the instrument was readied, Mr. Wroniak was brought into the breath room, provided with instructions and suitable samples were obtained for analysis.

[25] Finally, insofar as society's interest in the adjudication on the merits is concerned, the evidence and authorities have made it abundantly clear that breath samples from approved instruments taken by a qualified technician are reliable. Without this evidence, the Crown's case would fail on this single count of "exceed" is concerned. While this is a rather routine set of facts arising from the operation of a motor vehicle with a blood alcohol content exceeding the permissible limit where there was no accident or injury, the public interest in prosecuting drinking and driving cases nevertheless remains steady as an important undertaking.

[26] There is always a certain attraction to me in cases similar to this to want to conclude that the evidence ought to be excluded in an effort to elevate the expectation that individual rights should receive the due care and attention they deserve. And, in cases such as this where there was no injury to any individual or damage to property – although possibly a sign, but that was inconclusive as there was no eye witness who saw Mr. Wroniak actually go over the sign and his evidence was that the sign was already down and he simply drove over it – there is no heightened reason for this particular case to be in need of prosecution. However, notwithstanding my inclination, the factors that I must consider as set out in the 2009 Grant decision indicate that exclusion of breath test evidence is really more the exception than the norm. Accordingly, it is difficult to conclude that any one of these three lines of inquiry under s. 24(2) of the Charter would favour exclusion. To my mind, the first, second and third line of inquiry all favour admission of the evidence notwithstanding the breach.

[27] The delay was not the product of serious State infringing conduct. The best I can determine is that the breach arose from inattention or possibly distraction as the breath technician attended to other matters. It appears to me that he was simply not as diligent as he ought to have been. The product of the breach, as I have indicated, was minimally intrusive and in circumstances such as these, having regard to the nature of the offence with its public importance and the loss of the ability to prosecute the case otherwise without the benefit of the test results, I am satisfied the evidence should not be excluded notwithstanding the breach.

5.2: The Crown's Case on the Merits

[28] The Crown relies on the report of the toxicologist to prove Mr. Wroniak's blood alcohol level at the time of driving, which was between 230 milligrams and 285 milligrams of alcohol in 100 millilitres of blood. The defence argued that the Crown has not met its burden insofar as it did not prove with certainty the time of driving, and the B.A.C. calculation done by the toxicologist assumes that no large quantities of alcoholic beverages were consumed by Mr. Wroniak within 15 minutes prior to the incident. In the absence of these underpinnings, the defence asserts that the opinion is unreliable and as such the Crown has not met its burden and the case should be dismissed.

[29] Insofar as the time of driving is concerned, there was some lack of clarity insofar as the first paramedic thought it was after midnight when he heard the noise and the second paramedic could only rely on what was written in a report that was not available. She otherwise had no independent recollection about when they were loading up their gear and heard the sound of Mr. Wroniak's car running over the sign. However, the police constable who arrested Mr. Wroniak testified that he was dispatched to the scene from downtown Windsor at 3:05 a.m. and arrived at the scene at 3:12 a.m. The dispatch arose from a call placed by the paramedics immediately after they heard the noise at or about the time Mr. Wroniak was stopped on the road. The paramedic testified he instructed his partner to notify their supervisor that they were attending to Mr. Wroniak and to call the police. He recalled the police arrived while he was attending to Mr. Wroniak.

[30] I am satisfied from the whole of this evidence that Mr. Wroniak was stopped on the road by Paramedic Hodges at approximately 3:00 a.m. which is not so different in time from the time relied on by the toxicologist in his report. It provides for a blood alcohol concentration calculated as between 2:48 a.m. and 2:52 a.m.

[31] Even if the incident occurred slightly before or after 3:00 a.m. and that is different from 2:48 a.m. to 2:52 a.m. as identified in the toxicologist's report, I am satisfied from the readings that are not in dispute; namely 230 milligrams of alcohol in 100 millilitres of blood registered at 5:35 a.m. and 224 milligrams of alcohol in 100 millilitres of blood registered at 5:57 a.m., that Mr. Wroniak's B.A.C. at the time of the incident, which could not have been earlier than 2:00 a.m. as by Mr. Wroniak's own evidence he recalled being at the bar after "last call" which he indicated was 2:00 a.m. – his B.A.C. would have exceeded 80 milligrams of alcohol in 100 millilitres of blood which is all the prosecutor needs to prove to make out that element of the offence.

[32] Taking the scenarios most favourable to Mr. Wroniak, with a B.A.C. plateauing at 220 milligrams based on the second test at 5:57 a.m. and giving him the benefit of the doubt as a slow eliminator of alcohol as discussed in the expert's report, based on an elimination rate of 10 milligrams of alcohol in 100 millilitres of blood per hour, at or around 3:00 a.m. Mr. Wroniak's B.A.C. would have been 250 milligrams or in any event over 80 mg of alcohol in 100 ml of blood.

[33] Insofar as the reliability of the calculation of the blood alcohol concentration in Mr. Wroniak's blood at or around 3:00 a.m. is concerned, based on what was described by the defence as evidence of large quantities of alcohol consumed within 15 minutes prior to the incident is concerned, I am satisfied that no such drinking occurred within 15 minutes of the incident.

[34] Mr. Wroniak said that after he left the bar he went to his car on Riverside Drive and sat there and drank alcohol which was in 7-Up bottles in his car. He said he sat there and drank for a while but stopped drinking 10 or 15 minutes before he left and drove to the west end where he was encountered by the paramedic after running over the sign. In cross-examination, he agreed that he may have stopped drinking earlier than 10 or 15 minutes before he left and perhaps as long as 25 minutes earlier. The drive from the parking lot at Riverside and Ouellette to the point where Mr. Wroniak was stopped in his vehicle by the paramedic after running over the sign was, I believe, generally accepted by counsel and I agree with to be approximately seven minutes away. Mr. Wroniak's ability to recall was not without difficulty. He indicated that he was out with friends celebrating a birthday but could only recall one friends name and not the other two, one of whom was the individual who's birthday was being celebrated. He also could not recall the address of the women he met at the bar who's house he was travelling to before being stopped by the paramedic. These deficits are consistent with his inability to recall with reasonable certainty when it was that he says he stopped drinking alcohol in his car before he drove off to the west end. I am satisfied Mr. Wroniak did not consume a large quantity of any alcoholic beverage within 15 minutes prior to the incident at Felix and Mill street. If he was drinking in his car as indicated, the last consumption would have been more than 15 minutes before that time. This therefore would not have undermined the toxicologist's calculations, which I accept.

6: CONCLUSION

[35] For these reasons, I am satisfied the Crown has met its burden. Mr. Wroniak was operating his motor vehicle at a time when his blood alcohol content exceeded 80 milligrams of alcohol in 100 millilitres of blood.

[36] Finding of guilt.

Released Orally: September 17, 2014

Gregory A. Campbell Justice