Court File and Parties

Ontario Court of Justice

Date: March 20, 2015

Court File No.: Kitchener 6321/13

Between:

Her Majesty the Queen

— and —

Patrick Joseph Machado

Before: Justice G.F. Hearn

Heard on: April 23, 2014; September 18, 2014; November 4 and 24, 2014; January 16 and 29, 2015; February 19, 2015

Reasons for Judgment released on: March 20, 2015

Counsel:

• Ms. Anita Etheridge, counsel for the Crown
• Mr. Peter Speyer, counsel for the accused Patrick Joseph Machado

Judgment

Hearn, J.:

Background

[1] On April 23, 2014 Patrick Machado entered pleas of not guilty to two counts arising out of events on November 3, 2013 in the City of Cambridge. The charges before the court are impaired operation and over 80. This matter has taken a good deal of time to finalize and there have been a number of reasons for that. As a result some explanation is required.

[2] Prior to trial counsel for Mr. Machado had filed and served a notice of application alleging a breach of Mr. Machado's rights under s. 8 of the Charter on the basis that the breath tests had not been taken "as soon as practicable". There was no response filed on behalf of the Crown who apparently took the position that that particular issue was not the subject of a Charter application. That position appears to have been without merit. However, at the commencement of the trial the Crown made an oral response which was noted by the court and counsel. Both counsel agreed to proceed on the trial date by way of a blended hearing. There were no objections by the defence with respect to the failure to provide a formal response. The Crown has called evidence on both the application and trial matters. The defence has elected to call no evidence on the application or on trial issues.

[3] During the course of the trial a further application dated October 3, 2014 alleging other Charter breaches was served by counsel for Mr. Machado. That application related to the failure of the police to videotape the accused and the breath technician during the course of the taking of the second sample of the accused's breath on the date in question. That particular allegation relates to the fact there had been evidence on the initial day of trial that although the taking of the first sample had been recorded as a result of the failure to reactivate the necessary equipment, the taking of the second sample had not been videotaped.

[4] Further during the first day of the trial it became apparent (perhaps not for the first time) there had been some interview process connected with the completion of the alcohol influence report in the booking area of the police detachment and that particular interaction may have been the subject of recording. As a result defence requested a copy of that particular videotaping which was provided but was unable to be viewed appropriately by the Crown or the defence until the trial continued on November 4, 2014.

[5] The application served on October 3, 2014 dealt with both the issue of the failure to record the second sample being taken and the Crown providing disclosure that was not in readable form ie., the videotape from the cellblock. The latter issue became a non-issue ultimately as on November 4, 2014 the investigating officer produced the video from the booking area which was able to be viewed by both defence and the Crown prior to the trial continuing. Then on the trial continuation the Crown confirmed the defence had received a readable copy and did not question the officer at all with respect to the completion of the alcohol influence report nor did the Crown seek to have the videotape from the booking area marked as an exhibit. Neither did the defence question that particular interaction in the booking area nor was the officer in cross-examination even referred to the tape. Ultimately defence confirmed there was no further issue with respect to any matter arising out of this particular video nor any disclosure issue raised previously with respect to this item.

[6] Following submissions on November 4, 2014 the matter was adjourned to November 24, 2014 to set a date for judgment. An issue raised during the November 4, 2014 submissions in addition to what is noted above was the failure of the Crown to again file a formal response to the application of October 3, 2014. The court invited counsel on November 4, 2014 to file further information with respect to the issue of failure to comply with the rules but on November 24, 2014 no further material had been filed. However, defence counsel on November 24, 2014 indicated on the record that there would be some further material filed and that would be done within 10 days of November 24, 2014.

[7] A third application in fact was served and filed by the defence but that was not done until January 6, 2015 and was made returnable on January 16, 2015. In that application the defence repeated the alleged breaches of s. 7 of the Charter relating to the failure to produce the cellblock video in proper format, the failure to record the second breath test and elaborated on the failure of the Crown to file a formal response to previous applications which failure the defence alleges compounds the s. 7 breaches otherwise referred to.

[8] I will deal more fulsomely with the issues concerning the videotape from the booking area and the failure of the police to videotape the second breath sample in due course. However, with respect to the issue of the lack of any formal response by the Crown, I note at the commencement of the trial continuation on November 4, 2014 the Crown readily acknowledged it was an oversight on her part that she had neglected to file a response to the application of October 3, 2014. Defence made absolutely no issue of that at the commencement of the trial continuation and the trial continued. Also, as noted, the alleged breach resulting from the videotape from the booking area was eventually indicated by the defence not to be an issue. The issue with respect to the failure to record the second breath sample was something that was or should have apparent to all except the court from the early stages of disclosure well before the commencement of the first day of trial yet the issue was not raised until the October 3, 2014 application after the trial had actually commenced. It is clear from the videotape that was provided well before the trial date by the Crown that the second sample had not been recorded. Still, notwithstanding that being in the possession of or available to the defence it did not become an issue until the application of October 3, 2014.

[9] It is not alleged that the lack of a formal response to any application caused any prejudice to the defence and in fact it is hard to imagine that it could, given the acknowledgement that the second sample had not been in fact recorded and that was obvious from the disclosure that had been previously provided. The Crown did not ask for an adjournment to file a response nor did the defence push the issue at all on November 4. The evidence was completed, submissions were made and the matter was adjourned to November 24 and then initially to January 19 for judgment. The most recent application before the court (which in itself ironically does not comply with the rules for service as it is dated and presumably served on January 6, 2015) takes issue with the failure of the Crown to file formal responses to the applications. The matter then has been adjourned ultimately to today's date in order to allow a transcript of the proceedings to be obtained to clarify defence's position with respect to certain matters.

[10] It is true the Rules of this court require service in a timely fashion both by the Crown and the defence of an application and any response. This gives both counsel and the court notice of the matters to be addressed at trial. The rules are in place to allow fair and appropriate disposition and the conduct of a trial that takes place on a level playing field. The failure of the Crown to file a response is a practice that is definitely to be discouraged, but in the circumstances here I see no prejudice to the defence whatsoever nor has any been raised. If defence had required an adjournment at any point in time that request would have been granted or the matter held down until a formal written response was provided by the Crown. The video from the booking area was not disclosure that would normally have been provided and became an issue only during the course of the trial when one would have thought t if the alcohol influence report was to be questioned that disclosure would have been made and/or requested at a much earlier date than it was. The video or more appropriately the lack of video from the second breath test was something that was known or should have been known to both counsel presumably upon receipt of disclosure at the outset. Yet it was not raised until after evidence was called in April of 2014.

[11] The issues of the booking video and the absence of the videotaping from the second sample will be addressed later, but at the outset I would simply indicate I find no merit in counsel's position concerning the failure of the Crown to file a formal response to either the original application nor the application dated October 3 given the way this matter has proceeded and in the circumstances of this specific proceeding. Compliance with the rules is important, however I find here that non-compliance was never an issue for the defence except as somewhat of an afterthought. It if was an issue it should have been addressed at the appropriate times during the course of this protracted trial.

Evidence of the Crown

a) Evidence of Kelly Smith

[12] Ms. Smith was working on the evening of November 3, 2013 as a designated driver for a business called "Over The Limit". I gather she and her colleague Ms. Silvera, were in a vehicle on that evening at about 3:00 a.m.

[13] At about 3:00 a.m. Ms. Smith who was the passenger in the vehicle travelling on the expressway in Kitchener heading towards Hwy. 401 noticed a motor vehicle weaving on Hwy. 8. This driving attracted the attention of this particular witness and caused her some concern. She and her colleague decided to follow the vehicle which entered onto the 401 in an eastbound direction. She noted the vehicle to be "constantly weaving" along the 401 and the driving observed prompted her to call 911.

[14] She indicated to the police she felt the operator of the vehicle was "intoxicated" and was told to stay on the line as the vehicle was followed. She noted the vehicle to be what she believed a silver coloured Audi.

[15] The vehicle she was in followed the subject vehicle to the Hwy. 24 exit off the 401. At that location as the vehicle approached Hespeler Road there had been ongoing construction and pylons had been placed. The witness testified the vehicle they were following barely missed the pylons as well as a light standard.

[16] They followed the vehicle up Hespeler Road in a southerly direction and at that point noted a police cruiser to do a U-turn. They had been told to put on the four-way flashers in their vehicle and were then instructed to turn into a plaza near Dunbar Road.

[17] This witness observed the vehicle they had been following to turn right onto Dunbar where the vehicle was stopped by the police. That vehicle was found to be operated by the accused.

[18] The witness in-chief noted that after the construction area when the vehicle first exited the 401, it continued to weave in the middle lane of Hespeler Road as it approached Dunbar Road.

[19] In cross-examination the witness confirmed that there was no "extraordinarily fast or unusually slow" speed of the vehicle although she also indicated she was not operating the vehicle and took no note of the speed. She advised when she initially spoke to the police she was directed to the OPP and then to the Waterloo Regional Police once the vehicle had exited the 401.

[20] The witness was questioned on the placement of the pylons. She did not recall any of the pylons actually being on the roadway nor did she recall elevated manhole covers along Hespeler Road as suggested by defence counsel. She did acknowledge some paving had been done as part of the construction. She further confirmed that the vehicle, although it continued to weave as she noted, stopped appropriately at the various stoplights along Hespeler Road prior to turning right onto Dunbar. The witness also indicated at one stop near a Shoppers Drug Mart the vehicle had stopped within the intersection, although it did stop for the red light.

b) Evidence of Robbie Silvera

[21] Ms. Silvera was working with Ms. Smith on November 3, 2013 in her role as a designated driver and was operating the vehicle in which Ms. Smith was a passenger. She testified that sometime between 3:00 a.m. and 3:30 a.m. on the morning of November 3 she was driving her vehicle with Ms. Smith along the expressway in Kitchener when she noticed a white Audi hugging the barrier on the left lane of the expressway with what appeared to be its brake lights constantly on.

[22] Ms. Silvera described the Audi as being driven "all over the road" as she followed it down the expressway onto the 401. She made similar observations with respect to the operation of the Audi while on the 401. The brake lights appeared to be continuously on and the vehicle was weaving. The vehicle went from the far left lane to the exit at Hwy. 24 at Hespeler Road and Ms. Silvera followed the vehicle. By that time the police had been contacted.

[23] Ms. Silvera described the operation of the vehicle down Hespeler Road where there had been some construction at the initial part of the road. She described the subject motor vehicle coming close to but not striking various construction pylons and also described the vehicle at the intersection of Hespeler Road and Pinebush to almost mount the sidewalk.

[24] At that intersection after the light had changed the vehicle which was directly in front of Ms. Silvera's vehicle sped up. It was Ms. Silvera's impression that the driver of the vehicle appreciated he was being followed.

[25] Ms. Silvera was very candid and indicated she was concerned about the driving and the driver. She felt he was "drunk or on something else". She described the driving as not normal driving otherwise she would not have followed the vehicle "at 3:00 in the morning". She was afraid to pass the vehicle and followed the vehicle as instructed by the police.

[26] As the vehicle proceeded down Hespeler Road she noted the emergency brake still to be on and the vehicle to turn right on Dunbar Road in a rather quick manner. It was then stopped by the police.

[27] In cross-examination this witness was consistent with her description of the nature of the driving of the vehicle that she was following. She described again the manner of driving on the 401 with the brake lights appearing to be on, the car speeding and then slowing down and turning off the ramp onto Hwy. 24. She testified that although the vehicle had not struck the construction pylons it did come quite close to them as the vehicle was over to the side of the lane of travel.

[28] She also confirmed there were some raised manholes in the construction area as one travelled down Hespeler Road, but "not enough to cause someone to almost go up on the sidewalk" as she noted the vehicle to have done.

c) Evidence of Constable Paula Lafontaine

[29] Cst. Lafontaine is a member of the Waterloo Regional Police Service and has been since August 2011. Her evidence was given over the course of two days. On April 23, 2014 her evidence was scheduled to continue on another day as a result of concerns with respect to disclosure and specifically the videotaping of any interview process with the accused as well as the videotaping of the taking of the second breath sample.

[30] On April 23, 2014 while being examined by the Crown, the officer noted she was on duty on the evening of November 3, 2013. She was dispatched to a driving complaint, "a possible impaired". She had been advised by dispatch that the vehicle had been travelling along the 401 and then onto Hespeler Road where it was seen to be weaving and "nearly hit a pole".

[31] The vehicle had been noted to be travelling southbound on Hespeler Road so this officer set up patrol on Dunbar Road awaiting the vehicle.

[32] The officer noted the vehicle and ultimately made a traffic stop of the vehicle on Dunbar Road.

[33] The vehicle was as described during the course of dispatch and another officer pulled behind the vehicle at about the same time. There is no issue taken with respect to this being the vehicle followed by the civilian witnesses.

[34] The other officer together with this constable approached the vehicle. Cst. Lafontaine went to the driver's window and advised the driver who was the accused why the vehicle had been stopped. There were two people in the vehicle and she had conversation with the accused.

[35] He was asked where he was coming from. The accused indicated he was coming from a bar in Waterloo, but he could not remember the name of the bar. He also indicated to the officer when asked how much he had to drink that he had "nothing to drink at all".

[36] The officer testified the accused's eyes were red and glassy, she could smell an odour of an alcoholic beverage on his breath and noted his speech to be slurred. She also stated that when asked for his documents the accused fumbled with them and his driver's licence fell out of his wallet onto his lap.

[37] The officer asked Mr. Machado to put the keys on the dash and to step out of the vehicle. She had to remind him to turn the vehicle headlights off which he did. She noted when Mr. Machado exited the vehicle he "stumbled as he did so" and it was "as if he tripped over his own foot".

[38] At that time the officer stated she developed her grounds to arrest Mr. Machado for "impaired driving". She advised of the grounds and when asked if she had taken into account what she had heard from dispatch she indicated that was taken into consideration when initiating the traffic stop "but those were someone else's observations".

[39] The grounds were formulated at 3:33 a.m. and Mr. Machado was escorted to her cruiser.

[40] At 3:36 a.m. rights to counsel were read, then the caution and the breath demand. Rights to counsel were read from the front seat of the cruiser while the accused was in the back seat. There is no issue about the wording of the rights to counsel. Mr. Machado indicated he understood and when asked if he wished to call a lawyer, he indicated "I guess".

[41] The officer explained to Mr. Machado what duty counsel was and told him that once they arrived at the detachment they would make a phone call for him. Mr. Machado responded, "Oh, okay. I've never been in trouble before."

[42] The officer then contacted dispatch to arrange for a breath technician to respond to south division which was the nearest detachment but was informed there were no available technicians at South Division. The next closest location would have been the OPP detachment. Contact was made with that detachment, but the officer was told that they were "low staffed" so she could not attend there.

[43] She was advised there were two officers capable of conducting the tests, but for officer safety reasons they could not have "one tied up doing this impaired". She then called her supervisor at South Division and was advised to go to Central Division as there was a breath tech already there although he was "backed up with other impaired cases".

[44] At 3:45 a.m. she began to transport Mr. Machado to Central Division and arrived at 4:07 a.m. She made no stops along the way and testified during that trip, Mr. Machado was "asleep for most of it".

[45] Upon arriving at Central Division there was a wait in the sallyport for 11 minutes as there were other prisoners there and eventually at 4:18 a.m. Mr. Machado was paraded into the booking area.

[46] At 4:23 a.m. the officer called duty counsel at Mr. Machado's apparent request.

[47] While waiting for the return call from duty counsel Mr. Machado was placed in an interview room. Duty counsel returned the call at 4:58 a.m. and Mr. Machado was then given an opportunity to speak with duty counsel in private. That call was completed at 5:04 a.m.

[48] There were no requests by Mr. Machado to speak to another counsel and at 5:04 a.m. this officer testified she conducted the alcohol influence report. This interview apparently was conducted in the "booking area".

[49] It was during the course of this particular evidence that an objection was made by counsel with regard to the videotaping and the interview of the accused and whether or not that videotape was available in the booking area. A discussion then took place between counsel and the court and it was agreed to adjourn the continuation of this officer's evidence until such time as further investigation could be conducted as to whether or not a videotape was available from that area and/or the interview area as there appeared to be an issue about the admissibility of the contents of any alcohol influence report and the apparent interview the officer had conducted with Mr. Machado while awaiting the breath tests.

[50] Upon the return for the trial continuation on November 4, 2014 that particular videotape was produced and the matter was held down while the investigating officer provided a police computer and allowed both counsel then an opportunity to view the videotape. As noted previously, Crown counsel then had very few further questions of the officer, did not seek to introduce the contents of any alcohol influence report nor have the videotape marked as an exhibit. It is of further note that neither did the defence during cross-examination.

[51] In cross-examination very brief questions were asked with respect to the videotape from the booking area. It was never viewed by the court nor otherwise referred to by counsel. The officer was questioned more thoroughly with respect to the apparent failure of the police to record the second breath test. This officer ultimately could not recall if she had failed to reactivate the video equipment once Mr. Machado was brought into the breath room for the second test or not. Ultimately it is clear that the recording available from the breath room relates to the first test only. The officer was quite candid in indicating with respect to the failure to record the second test that she was not sure what had happened and attributes that somewhat to perhaps the busyness of the breath room on that particular night. There is nothing in her evidence to indicate the failure to record was intentional and from her evidence it appeared to be simply an oversight on the part of the police.

[52] The officer was also questioned with respect to her observations of Mr. Machado at the detachment. She was specifically asked if there was any observation she had made at the detachment to suggest impairment by alcohol. The officer said there was nothing in his behaviour or conversation and the only evidence she suggested was that there continued to be "just the odour of alcohol".

[53] It was put to the officer that she had only spent a "very brief" time with the accused at the scene but she indicated she had spent 15 minutes from the time of arrival to the time of departure. She noted there was nothing unusual in the interaction at the scene with the accused and other officers nor herself and the accused was "very polite throughout the night".

[54] With respect to attending at Central Division, the officer testified that the South Division of the Waterloo Regional Police situated in Cambridge is a large detachment. On arrests such as that before the court given the location of the arrest the accused would normally have been taken to that particular detachment, but there were no breath techs available at the detachment on that night. She also indicated she contacted the OPP, spoke to a male officer whose name she did not recall and was told there was no one there available to conduct the breath tests as there were only two officers on duty that particular night and it was a question of officer safety.

[55] The officer again testified that she ultimately was advised by dispatch to attend at Central Division at 3:45 a.m. and she did so. Some notes were produced to the officer with respect to those instructions and it appears from those notes that the actual time she was told to go to dispatch was sometime between 3:48 a.m. and 3:49 a.m.

[56] The officers did not take note of the availability of interview rooms at Central Division. She acknowledged Mr. Machado had been placed in an interview without recording equipment. She conducted no physical coordination tests of Mr. Machado at any point in time.

[57] She was questioned about the policy the Waterloo Regional Police use in Cambridge using the facilities of the OPP detachment in Cambridge to conduct breath tests if necessary. The officer indicated there was no policy on that and their practice is to use due diligence to find the closest breath testing facility.

d) Evidence of Constable Shawn Keller

[58] Cst. Keller is a qualified technician and so qualified to operate the Intoxilyzer 8000C. There was no issue taken with the qualifications of the officer. He in fact was the technician who performed the breath tests in this matter. He is a member of the Waterloo Regional Police Services and noted that on the day in question he was located at Central Division in his capacity as a breath technician. He described the evening as a busy evening and he had two prior "subjects" to deal with prior to meeting the accused.

[59] Mr. Machado was escorted into the breath room by Cst. Lafontaine at 5:35 a.m. Prior to that he had been conducting other breath tests which caused some delay in administering the test to Mr. Machado.

[60] He had been given the grounds for the arrest at 5:15 a.m. by Cst. Lafontaine. Upon meeting with Mr. Machado he read him the secondary caution. He also read the breath demand to Mr. Machado at 5:36 a.m. which Mr. Machado indicated he understood.

[61] The officer explained the method of providing a proper sample and the first sample was provided at 5:37 a.m. directly into the approved instrument resulting in a reading of 112 milligrams of alcohol in 100 millilitres of blood.

[62] At the completion of the first test Mr. Machado was taken out of the room by Cst. Lafontaine at 5:38 a.m. and returned to this officer at approximately 6:00 a.m. At 6:04 a.m. a second suitable sample was obtained resulting in a reading of 105 milligrams of alcohol in 100 millilitres of blood.

[63] During the course of administering the tests the officer observed a "light" odour of an alcoholic beverage from Mr. Machado's breath and described him as being very cooperative throughout the entire process. The certificate of qualified technician was produced and marked as Exhibit 2 in this proceeding.

[64] In cross-examination the officer indicated that he was only one of two breath techs working that particular evening in the Region. The other technician was at the detachment in Waterloo. The officer also confirmed that Waterloo Regional Police work in conjunction with the Ontario Provincial Police to facilitate breath testing in appropriate cases.

[65] The officer was questioned on the existence of any protocol for conducting "for example" a breath test at the OPP detachment although the arrest had been made by the Waterloo Regional Police Services. The officer was not sure that there was in fact such a protocol but knew on this particular evening that had not been done.

[66] The officer also noted again that the accused had been cooperative during his dealings with the officer and his speech was "okay". The officer had not noted any balance problems and in his opinion Mr. Machado's face appeared to be normal in colour.

[67] Of note, the officer was questioned with respect to the video recording of the breath tests. He described the location of the video equipment and how that equipment is activated. The officer described that particular evening as busy and he could not recall if he had activated the video or not but it is quite clear that the normal practice is to videotape both breath tests. However, in this particular case only one test had been so recorded. The officer was unaware of that apparently until cross-examined by counsel for Mr. Machado.

[68] After reviewing the video of the administering of the first test the officer recalled that it was Cst. Lafontaine who was responsible for the pausing of the video equipment while Mr. Machado was out of the room. It also appears at some point Mr. Machado had asked to use the "facilities". From viewing the video it appears that he was not the one responsible for pressing the pause button on this occasion. Whoever may have been responsible it is clear on the evidence that the second test was not videotaped.

[69] In re-examination with respect to the other tests performed prior to Mr. Machado's, the officer indicated his estimation was that the second individual who was tested just before Mr. Machado had had that testing completed about 15 to 20 minutes prior to Mr. Machado's first breath sample being provided. The officer indicated he did not take a break between the subjects and went from "one to the next".

[70] The video of the first breath test has been marked as Exhibit 2.

[71] In questioning by the court with respect to the Waterloo Regional Police practice of videotaping both samples the officer testified that the failure to record the second sample was not in accordance with the policy of the Waterloo Regional Police Service and noted as follows:

"That would not be following practice. I believe it was more – it was more than likely an oversight that the video wasn't pressed to record again."

e) Evidence of Teri L. Martin

[72] Filed as Exhibit 1 in this proceeding is the affidavit of Teri Martin a toxicologist with the Centre of Forensic Sciences. There is no issue taken with respect to the filing of this exhibit nor with respect to the qualifications of the deponent to provide evidence as an expert in the absorption, distribution and elimination of alcohol in the human body, the effects of alcohol in the operation of the Intoxilyzer instrument, any approved screening device and blood alcohol analysis.

[73] Attached as Exhibit A to the affidavit is a report setting out among other things that given the Intoxilyzer readings of 112 and 105 milligrams of alcohol in 100 millilitres of blood obtained at approximately 5:37 a.m. and 6:04 a.m. respectively the projected blood alcohol concentration at or between 3:27 a.m. and 3:33 a.m. the time of the stopping of Mr. Machado's vehicle by the police would be 105 to 150 milligrams of alcohol in 100 millilitres of blood. In the report the toxicologist explains the projected range and also sets out that an individual would be impaired in their ability to operate a motor vehicle at a blood alcohol concentration within that projected range.

[74] That concluded the evidence on behalf of the Crown on both the application and the trial matters. Defence elected to call no evidence on either the application nor trial issues.

Issues to be Determined

[75] The issues to be determined in this matter are as follows:

1. Were the s. 8 Charter rights of the accused breached by the alleged failure of the breath tests to be conducted as soon as practicable in all the circumstances and if there was such a breach what remedy should be considered.

2. Were the Charter rights of the accused breached a result of the failure of the police to videotape the procedure involved in the taking of the second sample of Mr. Machado's breath on the evening in question particularly in light of the fact that the taking of the first sample had been duly recorded and if such a breach is found what remedy should be considered.

3. If the Charter applications are dismissed or if allowed and the evidence of the Intoxilyzer tests is not excluded, has the Crown proven all essential elements of the charge of over 80 beyond a reasonable doubt.

4. Has the Crown established beyond a reasonable doubt that on the date in question Mr. Machado's ability to operate his motor vehicle was impaired by alcohol and that he did so operate a vehicle.

Analysis and Rulings

1. The "As Soon As Practicable" Issue

[76] In dealing with this particular issue it is important to note the relevant timeframes established by the evidence of the Crown. In regard to the timing issue Cst. Lafontaine and Cst. Keller provided their evidence in a candid, forthright, consistent and uncontradicted manner. I accept their evidence with respect to the various timeframes involved. I find those times to be as follows:

• At or about 3:30 a.m. – Stopping of the motor vehicle and although the specific time of the stop was not noted in the evidence of Cst. Lafontaine, the grounds were formulated very shortly before the arrest of Mr. Machado and after the stopping of the vehicle. Cst. Lafontaine also testified in cross-examination that she had spent about 15 minutes at the scene with Mr. Machado and given the time of departure the 3:30 a.m. timeframe for the stopping of the vehicle is appropriate I find.

• 3:33 a.m. – Grounds for arrest formulated by Cst. Lafontaine.

• 3:36 a.m. – Right to counsel, breath demand and caution read to the accused.

• 3:45 a.m. (time may be as late as 3:48 to 3:49 a.m.) – Transport to Central Division as instructed by Cst. Lafontaine.

• 4:07 a.m. – Arrival at Central Division.

• 4:18 a.m. – After spending some 11 minutes in the sallyport which according to Cst. Lafontaine was busy with other prisoners the accused was brought into the booking area.

• 4:23 a.m. – Call placed to duty counsel.

• 4:58 a.m. – Duty counsel returned the call, Mr. Machado had an opportunity to speak to with duty counsel.

• 5:04 a.m. – Call completed and interview then conducted in booking area where Cst. Lafontaine testified the alcohol influence report was completed.

• 5:15 a.m. – Grounds for the arrest were provided to Cst. Keller by Cst. Lafontaine.

• 5:35 a.m. – Mr. Machado is escorted to the breath room after Cst. Keller had completed breath testing of other detained persons.

• 5:36 a.m. – Breath demand revisited by Cst. Keller.

• 5:37 a.m. – The first sample of Mr. Machado's breath was received into the approved instrument.

• 5:38 a.m. – Mr. Machado was escorted from the breath room.

• 6:00 a.m. – Mr. Machado was returned to the breath room.

• 6:04 a.m. – Mr. Machado provided a second sample of his breath into the approved instrument and was then removed from the breath room by Cst. Lafontaine, processed and ultimately released.

[77] It is important to appreciate that here the Crown does not rely on the presumption set out in s. 258(1)(c) of the Criminal Code in that it is obvious from the evidence that the samples of breath of the accused were taken outside the two hour timeframe set forth in that section. The "as soon as practicable" argument here arises as a result of what the defence alleges is a failure to comply with s. 254(3) of the Criminal Code which provides that a police officer who has reasonable grounds to believe that the person is committing or at any time within the preceding three hours has committed an offence under s. 253 as a result of the consumption of alcohol may by demand made "as soon as practicable" require that person to, among other things, provide "as soon as practicable" samples of his or her breath that in the qualified technician's opinion will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person's blood. It is the submission of defence counsel that in this particular case the tests were not provided "as soon as practicable" and therefore the failure to do so has resulted in a breach of Mr. Machado's s. 8 Charter rights.

[78] In Regina v. Deruelle, the court dealt with the interaction of s. 254(3) and s. 258(1)(c) of the Criminal Code specifically as it relates to the purpose of each section and the common phrase used in both sections of "as soon as practicable".

[79] There the court stated the breathalyzer scheme in the Code is designed to ensure that breath or blood samples are obtained as quickly as possible after the alleged impaired driving offence. This overriding objective is achieved through various mechanisms found in specific Code provisions. While the general objective is the same throughout the scheme, the specific purposes of each mechanism are different. As such, the fact that the provisions constitute a "scheme" does not mandate a unitary interpretation contrary to the language of each individual provision. The three hour limit in s. 254(3) contributes to the objective of the scheme by forcing prompt police investigation, and by requiring the police to take the sample as soon as practicable. The specific purpose which goes to the admissibility of the sample into evidence can be distinguished from the purpose of the time limit in the presumption section, s. 258(1)(c). The latter provides a procedural shortcut for the police, but only if the blood or breath sample is obtained within two hours of the alleged offence. As such it is concerned with the quality of the evidence obtained by the police rather than its admissibility.

[80] Here the defence takes no issue with respect to the demand being made "as soon as practicable", nor any issue with respect to the basis for making the demand for the samples of Mr. Machado's breath. Here the defence takes the position that, in the overall circumstances, the tests themselves were not administered "as soon as practicable" as contemplated by s. 254(3).

[81] Defence relies on the reasoning of the court in Regina v. McLeod (2011) ONCJ 439 in support of its position that the tests were not taken "as soon as practicable" and as a result there is a breach of Mr. Machado's s. 8 Charter rights. In Regina v. McLeod, supra, the court considered a Charter application was appropriate in similar circumstances where the tests had been taken outside of the required time for the presumption of identity to apply but still the tests were to be taken "as soon as practicable". The facts in that case are readily distinguishable as ultimately there appears to have been a significant unexplained gap between the first and second reading which prompted the court in consideration of the evidence in total to find that the tests were not taken "as soon as practicable". However, the reasoning in that case is persuasive and I adopt the reasoning of the court there.

[82] The reasoning included, among other things, the fact that the language of s. 254(3)(a) suggests that samples taken even after the two hour window of opportunity are still required to be provided "as soon as practicable". At that point the court found there is no ability on the part of an accused person to create any delay as they have to respond to the demand made by the police, the police control the process and the police are therefore obligated to facilitate the accused in providing the samples "as soon as practicable".

[83] The court in McLeod went on to consider the requirements for the court to enable it to determine the "as soon as practicable" argument by considering Regina v. Vanderbruggen, a decision of the Ontario Court of Appeal. That decision has been further considered in Regina v. Singh (2014) ONCA 293 which dealt with the presumption section of the Code but also dealt with the timeframe between two samples. Although the facts in those cases do not relate directly to the argument advanced by counsel here as the presumption was in play, the reasoning the court found in McLeod and which I adopt here is similar in dealing with the "as soon as practicable argument" in the context of a Charter application.

[84] Vanderbruggen and Singh both are determinative of the issue with respect to the meaning of the words "as soon as practicable" when dealing with the breath tests. Those cases are quite clear that the Crown is not required to provide a detailed explanation of what occurred during every minute that an accused is in custody. The requirement that the samples be taken "as soon as practicable" does not mean "as soon as possible". It means, as noted in Singh, nothing more than that the tests should be administered within a reasonably prompt time in the overall circumstances. A trial court is to look at the entire chain of events and the "as soon as practicable" requirement must be applied with reason. The Crown is not required to call evidence to provide a detailed explanation of what occurred every minute that the accused is in custody and as noted in Vanderbruggen at paragraph 12 by Justice Rosenberg:

"The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably."

[85] Here the defence alleges effectively that since this matter arose in Cambridge there should have been a closer detachment than the Central Division in Kitchener available to conduct the appropriate breath testing. The defence submits that the court should put little weight on the evidence of Cst. Lafontaine with respect to interaction with the OPP detachment which ultimately led her to being dispatched to Kitchener in view of the fact that she has no specific notes with respect to the conversation that she says took place. I place no weight on that argument and I accept the officer's evidence that she in fact did have conversation with the Ontario Provincial Police which was a closer detachment after South Division where she usually would go had no technician available on the evening in question.

[86] I accept the officer's evidence that the OPP detachment was unable to accommodate the testing of Mr. Machado for officer safety reasons. I accept that it was a reasonable position to find in accordance with what is the practice of the Waterloo Regional Police as testified to by Cst. Lafontaine that the tests were to be conducted with due diligence at the closest breath testing facility. That happened to be Central Division on this particular night. Avenues had been explored to have the tests conducted in another location without success and it was reasonable for the officer to attend at the Central Division where a tech was available.

[87] The time of the arrest was 3:33 a.m. The initial interaction with the accused and Cst. Lafontaine took approximately 15 minutes at the scene. That period of time was subsumed not only in the initial investigation but in the arrest and providing of various rights to Mr. Machado and then Cst. Lafontaine attempting to ascertain the closest facility to conduct the testing.

[88] Upon learning that the facility that would be used was in Kitchener she promptly and directly went to that facility. It was a busy night, there was a backup of prisoners in the sallyport area which prompted an 11 minute delay which has been explained and which the officer had no control over. Mr. Machado then requested a call to duty counsel and it took a considerable period of time before duty counsel returned the call.

[89] Mr. Machado was afforded an opportunity to speak with counsel, grounds were provided to the breath tech and the first test was conducted at 5:37 a.m. just outside of the two hour timeframe set out in s. 258.

[90] Although Mr. Machado arrived at the detachment at 4:07 a.m. approximately an hour and a half before the first test was conducted there was a delay for 11 minutes in the sallyport and a further delay effectively until 5:04 a.m. resulting from the call to duty counsel. There was an additional delay as a result of Cst. Keller having to conduct other breath tests. Cst. Keller advised that it was a busy evening and that he effectively had moved from subject to subject and testified that he did not take a "break" between the subjects and went from one to the next. That evidence is uncontradicted and I accept that Cst. Keller was dealing with matters in a reasonable manner.

[91] I find that in this particular case although the Crown need not account for every minute, the time overall considering the issues of the location to attend, the delay at Central Division and getting into the building and the other tests that were being conducted as well as the call to duty counsel, all indicate that the tests were taken within a reasonably prompt time under the circumstances. As noted in Vanderbruggen the touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably. The Crown is obligated to demonstrate that in the circumstances and I am satisfied that they have done so.

[92] As a result, I find that the samples were taken "as soon as practicable" and the Charter application as it relates to s. 8 is dismissed. There is no need to make an analysis under s. 24(2), but if I was required to do so, very briefly I would indicate I would find that the conduct of the police here was not unreasonable, wilful, intentional or negligent, the impact in all the circumstances on the accused was minimal and the test results are important for the Crown's case. I would ultimately not have excluded the evidence of the breath tests in any event.

2. The Failure to Record the Taking of the Second Sample of Breath

[93] This issue arises as a result of an allegation that s. 7 of Mr. Machado's Charter rights have been breached by the failure of the police to record the taking of the second sample of breath on the night in question. The context in which that occurs is important to understand and the evidence would indicate that although the taking of the first sample had been duly recorded there appears to have been an oversight or neglect on the part of the investigating officer and/or the breath technician, to reactivate the video equipment following the completion of the first test and prior to the taking of the second sample.

[94] The defence submits that although the first sample is recorded and the video from that particular sample is in fact marked as an exhibit, the failure to record the second sample has prejudiced the defence case. The defendant submits the failure to record is effectively lost evidence that would have been relevant to the accused's defence and as a result the accused is unable to make full answer in defence.

[95] Defence counsel has provided a book of authorities and I have looked at those cases as well as others. In looking at those cases I think it is important to appreciate that a number of them dealt with security tapes that had been destroyed after a timeframe and were no longer available for disclosure purposes. Also the cases involved specifically the charges before those courts and the relevance of the "lost evidence" which ranges from marginal to highly relevant. For the purposes of the argument here I will assume that the failure of the police to record the second sample while having duly recorded the first sample is the equivalent to effectively "lost evidence". Starting with that assumption, the Crown here acknowledges the video of the second sample was not taken but submits that the failure to do so did not arise from negligence and in any event given the issues in play in this particular case that recording would have been irrelevant.

[96] The case law clearly sets out that an accused's right to disclosure of material that meets the requirements as set out in Regina v. Stinchcombe (1991), 3 S.C.R. 326 is a component of the accused's right to make full answer in defence which is a principle of fundamental justice set out in s. 7 of the Charter. As a result, a breach of the Crown's duty to disclose is a breach of the s. 7 rights.

[97] The Crown's duty is to disclose relevant evidence and that includes an obligation to preserve relevant evidence. In R. v. La (1997), 2 S.C.R. 680, however the court noted that:

"Despite the best efforts of the Crown to preserve evidence owing to the frailties of human nature evidence will occasionally be lost,"

[98] That case also establishes however that the loss or destruction of relevant evidence that was once in the Crown's possession or control does not automatically equate to a breach of the Crown's disclosure obligation. In La the court set out the legal framework for analyzing when lost or destroyed evidence gives rise to a s. 7 breach and when it justifies a stay of proceedings (see also Regina v. Bero, [2000] O.J. No. 4199 (ONCA)).

[99] In Regina v. G.S. 2010 ONCA 296, [2010] O.J. No. 1666 a decision of the Ontario Court of Appeal when dealing with this particular issue noted at paragraphs 33 to 36 as follows:

[33] The starting point is the Crown's obligation to explain why the evidence was lost. That obligation flows from the Crown's duty to preserve relevant evidence. Sopinka J. discusses two classes of cases: cases where the Crown's explanation is unsatisfactory or the Crown gives no explanation at all, and cases where the Crown's explanation is satisfactory.

[34] Where the Crown gives no explanation or where the Crown's explanation shows that the evidence has been lost or destroyed because of the Crown's "unacceptable negligence", then the Crown has failed to meet its disclosure obligation. It has breached s. 7 of the Charter. Whether the breach entitles the accused to a stay of proceedings or some lesser remedy depends on the extent of the actual prejudice caused by the loss or destruction of the evidence.

[35] Where the Crown satisfactorily explains the loss or destruction of the evidence, it has met its disclosure obligation. Section 7 of the Charter has not been breached. Still, "in extraordinary circumstances" the accused may be entitled to a stay if the accused can show that the lost or destroyed evidence is "so prejudicial to the right to make full answer and defence that it impairs the right of an accused to receive a fair trial."

[100] The case law also provides that even if the Crown has shown no unacceptable negligence in extraordinary circumstances the accused may still be entitled to a stay if it can show prejudice. In order to assess the degree of prejudice arising from lost evidence the court indicated as well that it is preferable to rule on the stay application after hearing all of the evidence. That becomes important to consider as well in this particular case. Here there is no doubt that there was a failure to preserve information which if preserved would have been available to the defence as part of disclosure. That does not automatically mean it constitutes a breach of Mr. Machado's s. 7 rights under the Charter. That will only occur if the Crown cannot advance a satisfactory explanation for the failure to preserve the evidence. If the explanation provided shows the evidence was not lost as a result of unacceptable Crown negligence the duty to disclose has not been breached by failure to preserve the evidence.

[101] In this case I have considered the following in concluding that the s. 7 rights of the accused have not been breached:

1. By virtue of all of the evidence which I accept of the police officers this was a busy night in the Region of Waterloo with respect to the availability of qualified technicians. The delay in the sallyport at Central Division indicates to the court that that division was a busy location as well on this particular night.

2. Cst. Keller was conducting in order of priority other breath tests with other individuals and proceeded with the taking of samples from Mr. Machado without break between the subjects.

3. The evidence of Cst. Lafontaine and Cst. Keller indicates that although it is uncertain whose responsibility it was to reactivate the video equipment prior to the taking of the second sample it is clear that the video equipment was in place for the purposes of the first sample and that evidence is before the court. It appears there was a gap between the two tests, the machine was stopped and it was I find simply an oversight on the part of one or both officers in a very busy situation to effectively press the button again. There is absolutely nothing in the evidence to suggest that the failure to do so was a result of unacceptable negligence or intentional. I find in the context in which it occurred it is quite understandable.

4. It is important to note as well that the defence takes absolutely no issue with respect to the demand initially made, the basis for the arrest, the qualifications of Cst. Keller nor does the defence take any issue at all with respect to the procedure involved in preparing the Intoxilyzer for the appropriate testing of Mr. Machado nor the providing of the samples of breath by Mr. Machado. Both samples were provided, one has been recorded, one has not. This is not a fail to provide charge nor is it a situation where the defence takes any issue at all with respect to the operation of the approved instrument in an appropriate manner. There is no attack otherwise on the reliability of the readings obtained.

[102] I find the Crown has satisfactorily explained the failure to record the evidence of the second test. I also find that there are no "extraordinary circumstances" here that even in the absence of a breach of s. 7 the accused should be entitled to a stay as there is absolutely nothing to indicate that the "lost" opportunity to record the second sample is so prejudicial to the defence's rights to make full answer and defence and receive a fair trial.

[103] This is not a situation where there is an absolute disregard by the police for the proper recording of the breath testing procedure. The police had acted appropriately and in fact recorded the first sample. Their full intention obviously was to record the second sample, but that was not done as a result of an oversight not unacceptable negligence. There is absolutely no air of reality to the submission that the failure to have that evidence before the court would assist the defence of Mr. Machado in any substantial or material way. There is nothing in the defence position to challenge the operation of the machine nor indeed the evidence of Cst. Keller whose evidence does not necessarily support the Crown's position that Mr. Machado's ability was impaired as he noted no signs of impairment. Further, in assessing that particular issue the testing from the first sample which took place a very short period of time before the taking of the second sample was in fact recorded and is in evidence in this proceeding.

[104] As a result, I find the Crown has not breached its duty of disclosure under s. 7 of the Charter and that particular application will be dismissed as well. Further, although it is not necessary in view of that finding to conduct an analysis under s. 24(1) or s. 24(2) of the Charter, clearly this would not have been a situation where a stay of proceedings would have been appropriate given effectively the total absence of prejudice. Nor would it have been appropriate to exclude the evidence of the test results from the second sample nor the first.

[105] As a result of the Charter applications being dismissed and in view of the fact that there is no issue taken at all that the Crown has otherwise proven the essential elements of the charge of over 80 there will be a finding of guilt on that particular count.

3. Issue of Impaired Operation

[106] Dealing with this particular issue the Crown has the onus on this charge as well to prove all essential elements beyond a reasonable doubt. There is no onus on Mr. Machado to prove his innocence and I am to consider that he is innocent throughout.

[107] The Criminal Code itself does not set out any particular test for determining impairment. From the case law it is clear that the onus of proving the ability to operate the vehicle is impaired to some degree by alcohol is on the Crown that proof is beyond a reasonable doubt. The case law also indicates that the impairment must relate to the ability of the individual to drive and must be caused by the consumption of alcohol or a drug.

[108] With respect to the issue of impairment one must look at the totality of the evidence including the observations of the civilian witnesses, the police officers and Mr. Machado himself and his conduct with the officers. Those observations would have to establish beyond a reasonable doubt that his conduct departed from normal behaviour. A person that has anything to drink and drive a vehicle does not commit the offence. Regina v. Stellato (1993), 78 C.C.C. (3d) 380 is the authority for the principle that it is not necessary for the Crown to establish a marked degree of impairment of one's ability to drive and that any degree of impairment of that ability if proven beyond a reasonable doubt is supportive of a finding of guilt.

[109] Regina v. Andrews [1996] O.J. No. 8 stands for the proposition that where the evidence indicates that an accused's ability to walk, talk and perform basic tests of manual dexterity is impaired by alcohol, the logical inference may be drawn that the accused's ability to drive a vehicle is also impaired. In most cases if the conduct of the accused was a slight departure from normal conduct, it would be unsafe to conclude beyond a reasonable doubt that his or her ability to drive a motor vehicle was impaired by alcohol. Ultimately the conduct observed must satisfy the trier of fact beyond a reasonable doubt that the ability to drive was impaired to some degree by alcohol or a drug.

[110] In looking at this issue, I am satisfied beyond a reasonable doubt that the essential elements of this charge have also been proven by the Crown beyond a reasonable doubt. I say that when looking at the totality of the evidence which included the following:

1. The observations of both civilian witnesses as to the course of driving and the operation of the motor vehicle acknowledged to be driven by Mr. Machado on the night in question. The conduct included weaving, variation in speed, narrowly missing construction pylons and almost mounting a curb on Hespeler Road. Although the evidence also includes the fact that Mr. Machado appears on occasion to have operated his motor vehicle properly within the distance for which he was followed by the two civilians in their vehicle it is clear as well the driving was not normal according to the witnesses. Perhaps the observations of that driving were put rather succinctly by the one witness who indicated that she would not have followed a car at 3:00 a.m. unless there had been some concern about the operation of the vehicle. Both civilian witnesses were candid, forthright and ironically employed as designated drivers. Their observations were consistent throughout and uncontradicted. The pattern of driving observed by those witnesses is an issue the court has considered.

2. Upon stopping the motor vehicle Cst. Lafontaine had conversation with Mr. Machado and during the course of that conversation noted that the accused's eyes were red and glassy. She could smell an odour of an alcoholic beverage on his breath and noted his speech to be slurred. She further noted that when she asked him to produce documents Mr. Machado fumbled with them and his driver's licence fell out of his wallet onto his lap. The officer asked Mr. Machado to exit the vehicle. She had to remind him to turn the vehicle headlights off and when the accused exited the vehicle she noticed him to stumble and as she put it "as if he tripped over his own foot". Further when transported to the station while in the cruiser she noted that Mr. Machado was asleep for most of it. Her evidence was candid, forthright and uncontradicted. I accept the evidence of Cst. Lafontaine with respect to her interaction with Mr. Machado at the scene at 3:30 a.m. or thereabouts.

3. The evidence with respect to observations of impairment once at the detachment is rather minimal. Cst. Lafontaine was asked specifically what observations she made with regard to impairment at the detachment and she simply indicated the odour of alcohol. Cst. Keller made no observations consistent with impairment and indicated that Mr. Machado's speech was "okay", there were no issues with balance and Mr. Machado's face appeared to be normal in colour. This absence of evidence in my view however does not impact on the initial observations of the civilian witnesses nor Cst. Lafontaine at the scene nor reduce the reliability of that evidence and the weight to be applied. The observations of Cst. Keller were made over two hours after the stopping of the vehicle and approximately an hour and a half after Mr. Machado had been at the detachment.

4. Further the affidavit of Teri Martin clearly sets out the range of levels of blood alcohol concentration at the relevant time. The admitted expert's evidence is that even at the lowest of that range, ie. 105 milligrams of alcohol in 100 millilitres of blood an individual would have their ability to operate a motor vehicle impaired by alcohol.

[111] Considering all of the above, I am satisfied that the Crown has proven the essential elements of this charge and there will be a finding of guilt on the count of impaired operation as well.

Summary

[112] In conclusion then the applications brought by the defence are dismissed. There will be findings of guilt on both the count of impaired operation and over 80 and there will be a conviction registered on the impaired operation charge with a conditional stay on the over 80 charge.

Released: March 20, 2015

Signed: "Justice G.F. Hearn"