Citation: R. v. MacDonald, 2014 ONCJ 536

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

BRENDAN MACDONALD

Before Justice C.S. Dorval

Reasons for Judgment released on May 5, 2014

Mr. Cavanagh ............................................................................................................ for the Crown

Mr. Abergel .............................................................................................................. for the accused

DORVAL, J.:

[1] Mr. MacDonald is charged with having the care and control of a motor vehicle when his blood alcohol concentration exceeded 80 mgs of alcohol in 100 ml of blood, contrary to section 253(b) of the Criminal Code of Canada.

EVIDENCE

[2] On March 10, 2013 Cst Simpson was dispatched to a disturbance call on Chateau Crescent in the City of Ottawa. She arrived at 12:32 am right behind another cruiser who had stopped a vehicle in order to request information on the location of the disturbance. She approached the vehicle in question and noted that it was running, there were four occupants in the vehicle, and it was occupying a lane of the roadway. She approached the driver’s window with the intent to further the investigation into the disturbance. She detected a very strong odor of alcohol emanating from the vehicle and asked the driver if he had been drinking. The passengers in the car said that they had been drinking and all four occupants said that the driver was the designated driver for the evening. The driver himself responded: ‘Nothing’. She requested that he provide his driver’s licence and the defendant provided his G1 license, his health card, an Algonquin College student card and a piece of paper for his upgraded driver’s license. She returned to her cruiser to make the necessary verifications. When she returned to the vehicle the odor of alcohol remained prevalent, but she could not determine the source of the odor. She requested that the defendant accompany her to her cruiser. She placed him in the rear of her cruiser uncuffed. Once inside the cruiser, she detected an odor of alcohol emanating from his breath and formed the belief that he had alcohol in his body. She read him the Approved Screening Device demand from her dutybook and then explained it. She used the Dragger Alcootest 6810. On the fourth attempt, he provided a sample of his breath which resulted in a Fail. She testified that she is aware that the ASD is calibrated to fail when the blood alcohol concentration is at least 100 mgs of alcohol in 100 ml of blood, and therefore formulated the grounds to arrest the defendant under s. 253(b). She did so at 00:46, and had the defendant exit the cruiser, handcuffed him and returned him to the cruiser.

[3] Cst Simpson then read to the defendant his rights to counsel at 00:51. He was very talkative and was swearing and interrupted her during this process. He acknowledged he understood, but when asked if he wished to call a lawyer, he replied: “How the fuck am I supposed to know?” At 00:53 she read him his caution, to which he replied: “What the fuck, what I say, this is bullshit.” At 00:54 she read him the secondary caution to which he replied: “Whatever”. At 00:55 she read him the s.524 warning and he said: “No fucking shit, I understand, I am not retarded.” She testified that she then read the breath demand, during which he continued to interrupt her. She had been flipping back and forth between the notebook page she was using and the back of the notebook where the wording for the demands and cautions are found. At this point, she put her notebook down to explain the demand, but did not document either the reading of the demand nor the defendant’s response to the demand. She testified that the defendant said much more than what she has documented, but that she was not able to take everything down in writing.

[4] Cst Simpson left for the station at 01:01and stated that the defendant continued to talk and swear on the way to the station. She arrived at the station at 1:14. The defendant was processed, and then chose to speak to counsel Mr. McGarry. Counsel was reached at 1:30 and the defendant connected at 01:32. The phone call was completed at 2:00 which became 03:00 as a result of daylight savings time. The officer monitored the defendant at 4-5 minute intervals. At 3:02 he requested to use the washroom and the officer accompanied him to a washroom then he was placed in a holding room. At 3:10 Cst Simpson was interviewed by the breath technician and this interview lasted some 21 minutes. She turned over the defendant to the technician’s custody at 03:37. At 4:48 she attended the cellblock to serve documents to the defendant only to learn that he had been mistakenly released. She attended his residence arriving at 05:15 and served exhibits 1 and 2 on him.

[5] Cst Simpson did not note the names of any of the passengers in the vehicle. She stated that she made some notes on the roadside, but began making most of her notes about this occurrence at the station, while the defendant was exercising his right to counsel, then during the time he was with Cst. Fournier, and after he was lodged in the cellblock. She stated that when she reviewed her notes after attending at the residence of the defendant, she realized that she had not noted the reading of the demand and made a note to that effect. This was some five hours after the demand had been made. She states that she had an independent memory of doing so.

[6] Dr. Robert Langille is a toxicologist with the Centre of Forensic Sciences and he gave opinion evidence on the absorption and elimination of alcohol and the calculation of blood alcohol concentration as extrapolated by results on the breathalyser. He testified that based on the Intoxilizer results of 156 mgs of alcohol in 100 ml of blood at 03:49 and 136 mgs of alcohol at 04:15, the blood alcohol concentration of the defendant at 12:32 am would have been in the range of 135 to 180 mgs of alcohol in 100 ml of blood. This extrapolation is irrespective of age, gender, weight or height of the subject. It does, however, rest on assumptions. The first is that the elimination rate of the defendant is between 10-20 mgs of alcohol which is the range accepted in the scientific community. Dr. Langille used 20 mgs as it is the most conservative. The second assumption is with respect to the plateau. The plateau denotes the point at which the rate of elimination of alcohol is the same as that of absorption. In most cases, this is reached within 20 minutes, but in rare cases reported in the literature, it has been reached only after 2 hours. In order to be conservative, Dr. Langille used this figure. Finally, the last two assumptions are that there was no large amount of drinking consumed within 15 minutes of the driving and that there was no drinking between the driving and the Intoxilizer test.

[7] Dr. Langille also gave evidence that the range of 135 to 180 mgs of alcohol represents 5 to 6 3/4 drinks within the system at a body weight of 150 lbs. This figure varies from 4 1/3 to 7 ½ depending on the weight of the person. He also testified that a 150 lbs male with a blood alcohol; concentration of 135 mgs of alcohol in 100 ml of blood, would have had to drink 2 ¾ to 3 ¾ drinks within 15 minutes of driving to have had a BAC below 80 at the time of driving. This varies from 2 ¼ to 4 ¼ depending on a range of weight of 130 lbs to 170 lbs.

[8] Dr. Langille testified that he examined the Intoxilizer record for the test performed on this defendant and found that the instrument was in proper working order. He added that in a recent publication, it was found that a comparison of the blood analysis of 90 subjects to the Intoxilizer results showed none of the breath results to exceed that of the blood analysis.

[9] Cst Fournier was the qualified Intoxilizer technician. This was the first Intoxilizer test he performed outside his training. On March 10, 2013 he was called in from patrol and arrived at the police station at 01:06. He conducted diagnostic checks at 01:49 and a calibration check at 01:51. He conducted a self-test at 01:53. He was satisfied the instrument was in proper working order. He set up the audio video in the breath room, then was ready to interview the arresting officer. At 03:10 (daylight savings) he went to see the arresting officer to conduct an interview. He does not know what was happening in the 17 minutes between 01:53 and 3:10. The interview was conducted near the Sergeant’s desk. The officer conceded that he was not familiar with the forms yet and that now his interviews are shorter than this one. His practice is to conduct the interview while the subject is talking to counsel. Cst Fournier’s evidence on this point was unclear as he referred to the subject being in a holding cell as well as the cell where the phone is provided. He acknowledged that the general practice is to wait until the subject is placed in a holding room, but that his practice is to do so while the subject is speaking to counsel. He asked Cst Simpson for the time of the demand, and noted it as 2:40 but this was clarified to be the time of the demand to provide a sample in the Approved Screening Device. His interview with Cst Simpson ended at 03:31 and the defendant was turned over to him at 03:37. Cautions were then repeated to the defendant and at 03:41 the demand was read to him. At 03:49 he completed the first sample into the Intoxilizer 8000C. It was provided directly into the instrument and the result of its analysis was 156 mgs of alcohol in 100 ml of blood. At 04:15 the second sample was taken and resulted in an analysis of 136 mgs of alcohol in 100 ml of blood. Although the time between the two tests is usually 17 minutes, it was slightly longer in this case because attention was given to a scab on the subject’s knee.

[10] Anthony Neireles gave evidence. He is a friend of the defendant and was present with him on March 10, 2013. He testified that the defendant drove them to the house party around 11 p.m. Guests were playing drinking games and he participated. He saw the defendant holding a beer at least once. At one point in the evening, two persons went outside to fight. He went to watch and the defendant was right beside him. He testified he saw the defendant drinking from a 26 oz bottle of alcohol with a brown tint to it. He saw him take sips from this bottle. He would pour a little alcohol in his mouth for a second. When someone said that a person had been ‘bottled’ they went to the car. He estimates the time between seeing him drinking from this bottle to the time they got in the car to be 10 minutes. When he was asked in examination in chief whether the bottle was the same as the bottle found in the vehicle by the police, he stated: “I would say so”.

[11] In cross –examination, Mr. Neireles was asked whether the defendant was the designated driver that evening. He replied: “Well he drove us there so I would say yes.” He did not remember the passengers in the car say to the officer that he was the designated driver. As far as he remembered, none of the passengers said anything to Cst Simpson. He did not attempt to stop the defendant from drinking and got in the car knowing that the defendant had been drinking. He had assumed the police had been called, given how loud the fight had become. Mr. Neireles said that he had not brought any alcohol and drank 2 to 3 beer. He did not drive as he did not have his G2 license, and it would be illegal for him to drive. According to his recollection, the officer and the defendant spoke a few minutes, she went to her cruiser and when she returned, she said she could smell alcohol. The defendant said it could be from the air in the car. The defendant got out of the car, they had a private conversation at the cruiser, he saw him get handcuffed and placed in the rear of the cruiser. He did not remember seeing the defendant going into the back of the cruiser, then come out, be handcuffed and return to the cruiser. He testified that he was asked by the defendant to be a witness with respect to being a passenger in the vehicle. He was not asked anything about the consumption of alcohol until one or two months prior to trial when he met with counsel for the defendant. He had never written notes or a statement about this evening.

[12] When asked what type of activities he does with the defendant, the witness said that they played sports in the past, and still have a common interest in sports, but they frequently party together.

ISSUES:

1. Was the demand under s.254 (3) made by the arresting officer. If it was not, was the defendant arbitrarily detained? If he was arbitrarily detained, should the evidence which flows from that detention be excluded?

2. Has the Crown established the assumption that there was no bolus drinking by the defendant in order to rely on the extrapolation of the readings to the blood alcohol concentration at the time of driving?

FINDINGS AND CONCLUSIONS

[13] Initially the defendant argued that the samples of his breath had not been taken as soon as practicable and that the statutory requirements of the presumption of identity had not been met. The Crown is not relying on the presumption of identity at section 258 (1)(c). The toxicologist testified and his evidence constitutes the evidence as to the blood alcohol concentration at the time of driving.

[14] The defendant also argues that the lack of a proper demand and the delay in taking the samples constitutes a breach of his s. 7 and 8 rights under the Charter and seeks to have the results of the Intoxilizer excluded. In R. v. Ruck (2013) 2013 ONCJ 527, O.J.No.4429 Justice Paciocco reviewed the rationale for the statutory requirement that samples of breath be taken as soon as practicable. The first pertains to the need to minimize the effect of the presumption of identity and is not relevant to these reasons. The second pertains to the concern over the detention of individuals in order to obtain breath samples. He states at paragraph 53:

“ Another reason for the ‘as soon as practicable’ requirement is concern for the deprivation of liberty that detention to accommodate the test entails. It is exceptional to require citizens to forfeit their liberty to accommodate police investigations. While it is necessary to do so the period of deprivation should not be unreasonably long, given its purpose. The ‘as soon practicable’ requirement is no doubt meant to ensure that liberty deprivations caused by the need to secure breath samples are reasonable in their duration.”

[15] I agree with Justice Paciocco as to the rationale for the statutory prerequisite, and find that delays in processing a detainee can also be assessed in the context of s. 7 and s.8 rights.

[16] In the case before me, however, I find that the defendant has not satisfied me that the delay rendered his detention arbitrary. I also find that the detention was pursuant to a properly made demand.

[17] I accept the evidence of Cst Simpson that she gave the defendant the demand for his breath upon arrest on the scene. Although she was able to note only a sample of the comments made by the defendant, what she described in her evidence shows that the defendant was being belligerent and difficult. Her description of flipping from the back of her notebook to the page where she was actually taking down the times of the cautions and warnings is also quite logical. The fact that she deposited her notebook in order to explain the demand to the defendant is also understandable in the context of his behaviour. This officer was quite meticulous in her notes but made an error, which she noted as soon as she realized it. I do not find that the completeness of the rest of her notes renders the suggestion that she did not make the demand any more probable.

[18] The defendant was transported promptly to the station, was processed and placed in contact with counsel of his choice within 18 minutes of his arrival at the station. The duration of the consultation with counsel was unusually long. Cst Simpson monitored him at intervals of 4-5 minutes to see if the call was completed. Irrespective of the opinion of Cst Fournier, I do not find it reasonable to suggest that while a subject is exercising his rights to counsel, the arresting officer ought to forego her responsibility to monitor the person in order to provide her grounds to the breath technician. In most instances, the call to counsel is quite short. The arresting officer would be interrupted until she dealt with any requests and ultimately placed the subject in a holding room. The fact that in this case the call to counsel was sufficiently long as to permit the relaying of grounds was not predictable and is happenstance. It was reasonable for the officer to wait until the defendant had exercised his rights to counsel prior to meeting with Cst Fournier. The interview with Cst Fournier was longer than usual because this was his first test. It is an explained delay, which I find to be reasonable. Finally, the additional delay between breath samples to take care of the scab on the defendant’s knee is perhaps ill-advised, as the defendant’s rights under the Charter are more significant than a slight injury which is on the mend. The onus on this application is that of the defendant. He has not satisfied me that this slight delay on its own or cumulatively, establishes a breach of his s.7 or s.8 rights.

Bolus Drinking:

[19] As noted previously, Dr. Langille’s evidence as to the blood alcohol concentration of the defendant at the time he was driving depends on four assumptions. The defendant argued that in the case before me, the Crown has not established that there was no bolus drinking.

[20] In R. v. Paszczenko and Lima (2010) 2010 ONCA 615, O.J. No.3974 the Ontario Court of Appeal stated at paragraph 32:

“I would frame the rationale for this approach as the imposition of a practical evidentiary burden on the accused, not to persuade or convince the trier of fact that there was bolus drinking involved, but to point to something in the evidence (either in the Crown’s case, or in evidence led by the defence) that at least puts the possibility that the accused had engaged in bolus drinking in play. The imposition of a practical evidentiary burden to come forward with evidence is simply another way of explaining the invitation to draw a common sense inference which puts the accused in essentially the same spot if he or she cannot point to some evidence to overcome either hurdle.”

And at paragraph 34:

“…Here, the effect of the evidentiary shift is not to require the accused to convince the trier of fact of anything, but simply to be able to point to some evidence on the basis of which it can be said the issue of bolus drinking is alive on the record.”

[21] In the case before me, the following evidence is relevant to my considerations:

(a) The defendant showed few signs of impairment at the roadside. He did provide the officer with unnecessary pieces of identification, but he did provide a driver’s license as well as what may be perceived to be a new license.

(b) There was no increase in the symptoms of impairment over the course of 2 hours after his arrest.

(c) It was clear that he had just attended a house party where alcohol was consumed.

(d) An opened bottle of liquor was found in the defendant’s vehicle.

The evidence of Mr. Neireles.

[22] There were substantial weaknesses in the evidence of Mr. Neireles. He purports to have played drinking games but only consumed 2-3 beer. He went outside to watch a fight, yet purports to be able to describe the type of swigs of alcohol consumed by his friend. His recollection of what happened once Cst Simpson dealt with the defendant belies his own consumption of alcohol. He does not recall any passenger telling the officer that the defendant was the designated driver and that they had consumed alcohol. He did not recall the sequence of seeing his friend going into the cruiser, come out and then be handcuffed and returned to the cruiser. This would have been the focus of his attention. His friend is being arrested, yet he was not paying attention as to what was happening? I do not believe the evidence of Mr. Neireles, but his evidence points clearly that the issue of bolus drinking was alive. The Crown has the onus of establishing beyond a reasonable doubt that there was no bolus drinking. In the context of the evidence as to the party, the opened bottle of liquor, the unexpected end to the party and the evidence of Mr. Neireles, I am not satisfied that the Crown has satisfied that onus.

[23] The evidence of Dr. Langille can therefore not establish the blood alcohol concentration at the time of driving. The charge is dismissed.

RELEASED: MAY 5, 2014

The Honourable Justice C.S. Dorval