Court File and Parties

Ontario Court of Justice

Date: 2014-04-14

Court File No.: Brampton, File number 3111 998 13 2741

Between:

Her Majesty the Queen

— and —

Jonathan Segal-Townsend

Before: Justice K.L. McLeod

Heard on: March 3, 2014

Reasons for Judgment released on: April 14, 2014

Counsel:

• Ms. J. Vlacic, counsel for the Crown
• Mr. R. Craig Bottomley, counsel for the defendant Jonathan Segal-Townsend

Judgment

McLEOD J.:

Introduction

[1] At the outset of his trial Mr. Segal-Townsend faced four charges: driving with over 80 milligrams of alcohol in 100 millilitres of blood, drive disqualified, possession of a prohibited weapon and breach of a weapons prohibition. At the conclusion of the trial on these matters, I dismissed the drive disqualified, the breach and the weapons counts for reasons given at the time and reserved on the over 80 count.

[2] This therefore is the judgment on that count.

Facts

[3] In the early hours of the morning of March 5th, Mr. Segal-Townsend was stopped while driving by Constable Nicholson whose attention had been drawn to the speed of the car.

[4] Constable Nicholson investigated Mr. Segal-Townsend, demanded an ASD test; the result of which was a fail. Mr. Segal-Townsend subsequently provided breath samples to Constable Tyrus Darcy. The tests taken at 1.55 a.m. and 2.17 a.m. registered readings of 105 and 98 respectively.

[5] Mr. Bottomley on behalf of Mr. Segal-Townsend has brought an application pursuant to the Charter seeking an exclusion of the breath tests as a result of a breach of Section 8 of the Charter; namely that the breath tests were not taken as soon as practicable.

Legal Framework

[6] In this case the Crown has relied on what is commonly known as the presumption of identity: i.e., that the BAC readings of breathalyzer are presumed to be the BAC readings that would have existed at the time of the impugned driving.

[7] In order for the Crown to rely on the presumption there must be evidence that the breath tests were taken as soon as practicable.[1]

[8] Despite the defence application, I will deal with this issue on the basis of whether or not the prosecution had fulfilled the statutory requirements of the Code so as to rely on the presumption, rather than as a Charter application.

Timeline of Events

[9] I will now set out the evidence of Constable Nicholson with respect to what preceded the taking of the tests:

Time	Event
12:30 am	Time of Stop
12:34	Mr. Segal-Townsend in Constable Nicholson's cruiser
12:35	ASD Demand read
12:38	Time of arrest
12:39-12:40	Constable Nicholson spoke to dispatcher requiring (1) a contract tow for Mr. Segal-Townsend's car and (2) a qualified breath technician to perform the breath tests
12:41	Constable Purdy arrived to seize the vehicle: no conversation between the two officers
12:42	Rights to Counsel given
12:45	Breathalyzer demand given
12:48-12:53	Searched Car
12:53-12:58	Search and handcuffing of Mr. Segal-Townsend
12:59-1:04	Note taking
1:04	Left Scene
1:11	Arrived at 11 division
1:19	Call to counsel of choice
1:25	Call to duty counsel
1:34	Commenced r & pg to Breath tech
1:35	Further call to lawyer of choice
1:38	Mr. Segal-Townsend spoke to counsel
1:41	Advised Counsel charge of prohibited weapon being laid
1:47	Mr. Segal-Townsend finishes call
1:48	Mr. Segal-Townsend enters breath room
1:55	First breath test
2:17	Second breath test

[10] Thus from the time of being stopped driving to the time of the first test 1 hour and 25 minutes had elapsed.

Analysis of Police Conduct

[11] The detail provided by Constable Nicholson with respect to his activities in the time frame is as follows:

[12] From the time of the demand to the time at 12.45 and the time of the search at 12.48 there was no evidence as to what occurred other than the recitation of the breathalyzer demand.

[13] With respect to the 5-minute search of the vehicle: Constable Nicholson testified as to the following:

[14] He went to the car to retrieve some belongings requested by Mr. Segal-Townsend. Those belongings were on the front seat of the car and in plain view. Constable Nicholson said he searched the car for documentation relating to the car: he searched the driver's compartment, the glove compartment and the centre console. He could not recall if he found the electronic devices requested before or after he found the knife that formed the substance of the weapons count in the glove box.

[15] Once he searched the car, Constable Nicholson returned to his vehicle and apparently spent another four minutes searching Mr. Segal-Townsend and handcuffing him: which he described involved an emptying of pockets, a feeling down of legs, the crotch area and the back belt area and the handcuffing.

[16] Constable Nicholson then spent a further five minutes writing his notes.

[17] Mr. Bottomley argues that the reasons given for the 19 minute delay between the conclusion of the rights to counsel to the leaving the scene do not pass the reasonableness test required to fulfill the "as soon as practicable" requirement.

The "As Soon as Practicable" Standard

[18] The law surrounding "as soon as practicable" was clarified in [R. v. Vanderbruggen][1]. The lens through which an examination of this issue must be focused is one of reasonableness:

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][2], 150 C.C.C. (3d) 225 (Ont. C.A.) at para. 20; R. v. Carter, supra; [R. v. Cambrin][3], 1 C.C.C. (3d) 59 (B.C.C.A.) at 61-3, and R. v. Seed at para. 7.

[19] In Vanderbruggen Justice Rosenberg relied on [R. v. Seed][4] an earlier decision of the Court when he stated: "the touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably". In Seed the Court stated the focus should be on whether the police acted reasonably and expeditiously. By relying on Seed, it appears that "reasonableness" in the context of "as soon as practicable" includes the concept of "expedition". Of course this does not mean that it is a no-holds barred race against time, however the actions of the police in bringing a detainee to the breath tests, when ultimately the prosecution is seeking to rely on an evidentiary shortcut, must be focused on completing the necessary tasks required to bring a person safely to the police division and to the breath tests with expedition.

[20] Added to that focus must also be cognizance and compliance with the spirit of the implementational requirement of Section 10(b) of the Charter of Rights when a detainee has not waived his right to counsel. The right to counsel not only includes the words: "You have the right to retain and instruct counsel without delay", but also "You have the right to call a lawyer now" when a detainee chooses to exercise his right to counsel: the obligation of the officer is to permit that to happen without delay.

[21] Additionally where as in Mr. Segal-Townsend's case, there was no evidence of any signs of impairment from Mr. Segal-Townsend (the question of whether his blood alcohol level was over 80 was the only issue) there has to be a greater focus on expedition in such circumstances.

[22] While most of the cases provided refer to fact situations where there has been no explanation of activity during a certain time period in which a Court can determine reasonableness, any explanation given is still subject to the requirement of reasonableness and expedition.

Application to the Facts

[23] Turning to Mr. Segal-Townsend's case therefore at 12.42 or shortly thereafter Mr. Segal-Townsend asked to contact his lawyer.

[24] Despite the presence of a second officer who was tasked with securing Mr. Segal-Townsend's motor vehicle and dealing with the tow, Constable Nicholson who went to the car to get the electronics requested by Mr. Segal-Townsend, which were sitting on the car seat in full view, then chose to search the car.

[25] Once he returned to the police car he said he then spent four minutes searching and handcuffing Mr. Segal-Townsend: given the officer's description of the intrusiveness or lack thereof of the search, four minutes does seem to allow for a very leisurely pace.

[26] Constable Nicholson then spent a further five minutes to compile his notes. At this time it is seventeen minutes from the time Mr. Segal-Townsend indicated his choice to contact counsel and twenty-one minutes from the time of the arrest.

[27] The compilation of notes is an interesting issue. In Peel Region officers use a form (colloquially known as the yellow form) much of which permits for a "fill in the blanks" approach to many of the details, including responses to rights to counsel which, given the verbatim nature of Constable Nicholson's testimony about Mr. Segal-Townsend's responses, assumes a verbatim note taken as the responses were given.

[28] There was no explanation proffered as to why the note taking in the car could not be completed, as it is so often in a vast majority of cases, back at the Division.

[29] When Constable Nicholson returned to the division he had from 1.38 to 1.47 while Mr. Segal-Townsend was on the phone and from 1.48 to 2.19 to complete his notes when the tests were being conducted where the officer was unencumbered by any statutory restraints of time.

[30] Given the imprimatur of expedition and the facilitation of access to counsel "without delay" and "now" the concept of reasonableness is severely tested by Constable Nicholson's choice of activities.

[31] It is also important to note that during this period of time, Mr. Segal-Townsend is sitting in the back of a car, handcuffed for a considerable period of time, as yet not charged with a criminal offence and isolated from any legal assistance, which is his right.

Conclusion

[32] Ultimately this decision comes down to where the onus lies. The onus is on the Crown to prove "as soon as practicable". While the breath tests were taken within the two-hour period; that does not mean that Constable Nicholson has the luxury of performing non-essential tasks within that time limit. There was another officer present able to conduct a search of the vehicle, there was an unaccounted period of time after the demand, there was a leisurely search and time spent writing notes at the scene. In combination I find the choice to perform these activities did not permit for the breath tests to be taken "as soon as practicable" within the meaning of the Criminal Code.

[33] Thus the Crown is unable to rely on the presumption in the Criminal Code; there being no evidence of the BAC at the time of driving, the charge must be dismissed.

Released: April 14, 2014

Signed: "Justice K. L. McLeod"

Footnotes

[1] Section 258(1)(c)(ii) Criminal Code of Canada

[2], [2006] O.J. No. 1138

[3] R. v. Vanderbruggen (infra) at para. 13

[4], [1998] O.J. No. 4362

[5] R. v. Vanderbruggen (infra) at para. 12