Court File and Parties

Date: April 1, 2015

Court File No.: 14-5627

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Alex Waisanen

Before: Justice Paul F. Monahan

Heard on: February 4, 2015 and March 4, 2015

Judgment Released on: April 1, 2015

Counsel:

Mr. M. Morris for the Crown

Mr. D. Lent for the defendant Alex Waisanen

MONAHAN J.:

Introduction and Overview

[1] Mr. Alex Waisanen is charged that on or about May 11, 2014 he had the care or control of a motor vehicle having consumed alcohol in such a quantity that the concentration in his blood exceeded 80 mg of alcohol in 100 ml of blood contrary to s. 253(1)(b) of the Criminal Code (the "Code").

[2] At trial, Mr. Waisanen brought a Charter application. The principal Charter issue raised was alleged violations of s.8 of the Charter in respect of the taking of the breath samples. The defence also submitted that the Crown had failed to prove that the "as soon as practicable" requirement of s. 258(1)(c) of the Code had been met. A blended Charter voir dire and trial was held on consent. There were two witnesses for the Crown: Constable Darren Glaab, the arresting officer, and Constable Dan Scobie, the breath technician. The defence called no evidence on the Charter voir dire or on the trial proper.

Facts

[3] In many respects, the facts are not contested. However, there are differences between the parties on the facts, including as to whether the arresting officer smelled alcohol on the breath of Mr. Waisanen; whether the arresting officer had sufficient and proper knowledge to operate the approved screening device ("ASD"); and what transpired at the police station between 3:15 a.m. and 3:46 a.m. I will address these contested factual issues when I determine the legal issues in the case.

[4] On May 11, 2014, Constable Glaab of the Peel Regional Police force was on patrol alone in a fully marked cruiser. At 2:47 A.M., he observed a vehicle which was being driven by the defendant. It was westbound on Dundas near Confederation in the City of Mississauga. The traffic was light and the weather was good.

[5] Mr. Waisanen's vehicle swerved quickly twice but each time the officer observed that there was a sewer or pothole on the ground and so the officer did not think much about it. Shortly after that, Mr. Waisanen's vehicle squealed its tires as it started from a stopped position at a light. It then moved quickly across two lanes of traffic into a left turn lane and went south on Mavis. Constable Glaab was concerned about sobriety so Constable Glaab pulled the vehicle over at 2:49 A.M. It took the defendant a little longer to pull over than was usually the case in the officer's experience.

[6] Constable Glaab approached the driver's side of the vehicle. Mr. Waisanen was the only occupant and he was in the driver's seat. The driver's side window was halfway down and the officer detected alcohol coming from the vehicle and he advised the driver that he detected the smell of alcohol. The driver responded that he had just dropped off a friend who had been drinking. The officer asked the address of the friend and the driver was not able to tell him. The officer testified that he leaned in towards the window and that he detected the smell of alcohol on the defendant's breath. As a result, he made a breath demand because he suspected that the defendant had alcohol in his body and had just been driving a motor vehicle.

[7] Constable Glaab's initial demand to the defendant was an informal one in the sense that he demanded a breath sample but did not read from the standard form language for a breath demand contained in his police notebook. He simply said words to the effect that "I demand that you provide a roadside breath test". This informal demand was made when the defendant was still seated in his vehicle. Constable Glaab then had Mr. Waisanen exit the vehicle and sit in the back of the cruiser with the door ajar. At that point, Constable Glaab made a formal breath demand on Mr. Waisanen reading from his officer's notebook and using the standard language.

[8] Constable Glaab was clear in his testimony that the ASD he was using was a Drager 6810. However, the preprinted yellow form upon which he made his incident report notes referred to the Alcotest 7410. Constable Glaab did not notice the reference to the Alcotest 7410 on the preprinted yellow form until he was testifying at trial. In re-examination, Constable Glaab produced further notes from his police notebook. The notes from his police notebook indicated that from the beginning of his shift that day, he was using a Drager 6810. Further cross-examination was permitted on these notes.

[9] I am fully satisfied that Constable Glaab was in fact operating a Drager 6810 and this was not seriously contested by the defence.

[10] Constable Glaab testified that the Drager 6810 was properly functioning and that he had tested it prior to administering the test by blowing into it himself and receiving a zero reading reflecting the fact that he had no alcohol in his body. He also demonstrated for the defendant as to how to give the sample using the device.

[11] Constable Glaab explained that the possible readings with such a device are as follows: if the blood alcohol concentration is 0 to 50 (milligrams of alcohol to 100 mL of blood) then it displays a numerical reading from 0 to 50. If the device detects a reading of more than 50 and less than 100 then it gives an alert with no number. If the blood alcohol concentration is more than 100, it gives a fail reading with no number.

[12] Constable Glaab also testified that he had the calibration date for the ASD and that it was April 27, 2014. He testified that the device would lock itself out if the calibration date had expired. He testified that he thought it had to be calibrated every two weeks. In cross-examination, he was asked about the "accuracy date" and he testified that he did not know what it was nor could he say whether that was important.

[13] At 2:56 AM, Mr. Waisanen provided a breath sample for analysis by the ASD and it produced a fail result. Constable Glaab relied upon this result in proceeding to arrest Mr. Waisanen for excess blood alcohol also at 2:56 A.M. Thereafter, he read him his right to counsel at 2:59 A.M. and this advice was complete by 3:02 A.M. He also read him a caution in the standard form and at the same time (3:02 A.M.) made a further breath demand under s. 254(3) of the Code.

[14] Constable Glaab indicated that he was aware of the possibility of a residual mouth alcohol problem whereby a false fail can be obtained on the ASD device if there has been consumption of alcohol in the 15 minutes prior to the administration of the test. At around the same time that he was providing rights to counsel he became aware from another officer who had arrived on the scene and was assisting that there were six empty beer cans and two full cans of beer which had just been located in the vehicle. Constable Glaab testified that this information did not cause him to say to himself that he should determine when Mr. Waisanen had had his last drink.

[15] Constable Glaab took the defendant to 11 division of Erin Mills Parkway and Dundas in the city of Mississauga. They left the scene at 3:07 A.M. and arrived at 3:15 A.M. having attended there directly. Constable Glaab testified that he made a phone call to the lawyer Mr. Waisanen had specifically requested, namely Mr. Douglas Lent. He testified that he called his office and then obtained an alternate number and actually reached Mr. Lent at 3:33 A.M. The defendant then spoke to Mr. Lent from 3:36 a.m. until 3:40 A.M. I will have more to say about the timing of when calls were placed to counsel in my consideration of the "as soon as practicable" issue below.

[16] At 3:46 A.M. Constable Glaab and Mr. Waisanen went to the breath room where Mr. Waisanen was turned over into the custody of the breath technician, Constable Scobie.

[17] At 3:52 A.M., the defendant provided the first breath sample and it registered 237 milligrams of alcohol in 100 mL of blood. At 4:15 A.M. he provided the second breath sample and it registered 212 milligrams of alcohol in 100 mL of blood.

[18] Constable Glaab was cross-examined concerning a Peel Regional Police memo but did not identify it and it was not marked as a numbered exhibit. The memo referred to the risk associated with breath samples where the person taking the test had consumed food five minutes prior to usage. Constable Glaab was not aware of the memo or the concern.

[19] The defendant otherwise appeared normal - the colour of his face and eyes were normal as was his speech and balance.

[20] The breath technician, Constable Scobie, testified. There were no issues about his qualifications. He testified that he got the reasonable and probable grounds from Constable Glaab during the period from 3:26 a.m. to 3:38 A.M. He acknowledged that this would have only taken a few minutes. He noted that Constable Glaab had observed the defendant swerve to avoid a couple of potholes or sewers. He had squealed his tires. He had made a quick lane change. It also took the defendant a lengthy period of time to pull over after the officer had put on his emergency lights, namely about 200 metres. There was a strong smell of alcohol on his breath. This led to the ASD demand which he failed and then the further breath demand.

[21] Both the breath technician and Constable Glaab told the court that the defendant appeared to fall asleep in the breath room between the giving of the two breath samples. The breath technician also observed a stagger to the right as the defendant left the breath room at 3:48 A.M. The defendant's speech was good and the defendant was polite and cooperative.

[22] The breath technician was cross-examined at some length on what he was doing between 3:26 A.M. and 3:38 A.M. The officer said that there may have been interruptions he did not recall.

[23] The breath technician was cross-examined on the operation of the Drager 6810. Constable Glaab said the he knew that there were two tests, namely an accuracy and calibration test. Calibration was recommended every 182 days. The breath technician acknowledged that you can scroll through the 6810 and see when the last accuracy test was done. However, he said that without scrolling one would know that it had been done within the proper timeframe because the device would otherwise lock the user out from using the machine.

[24] The breath technician acknowledged that a false positive test result with an ASD can occur if there is residual mouth alcohol and the test is done within 15 minutes of the last alcohol consumption.

[25] Defence counsel also suggested to Constable Scobie that there was also a concern about the recent consumption of food products and the need to wait 5 to 15 minutes after eating food before administering an ASD test. Constable Scobie said this is only an issue in respect of graduated (young) drivers because it might give a small false positive alcohol reading when in fact the blood alcohol was actually zero and required to be zero by law. Constable Scobie said that recent food consumption would not cause someone who had "99" in blood alcohol terms to get a false reading of "100". He was cross-examined on a Peel Regional Police directive which apparently suggested that the tester wait at least 5 minutes after food consumption before administering an ASD test. Constable Scobie acknowledged the directive but said that it was not in place at the time of the events in the case at bar. He was also cross-examined on an OPP memo which apparently suggested that the test subject should not have eaten food within 15 minutes of the ASD test but he did not acknowledge that memo other than saying that he had heard about it in a previous court case with Mr. Lent. Neither the Peel Regional Police directive nor the OPP memo (from November 2013) were marked as exhibits at trial.

Issues

[26] The following issues arise in this case.

Issue 1 – Has the Crown established that Constable Glaab had reasonable grounds to suspect that Mr. Waisanen had alcohol in his body such that the breath demand made under s.254(2) of the Code was valid?

Issue 2 - Has the Crown established that Constable Glaab had reasonable grounds to believe that Mr. Waisanen had committed an offence under s.253 of the Code such that the breath demand made under s.254(3) of the Code was valid?

Issue 3 - If there was a violation of Mr. Waisanen's Charter rights, should the breath samples be excluded pursuant to s.24(2) of the Charter?

Issue 4 - Has the Crown established that the breath samples were taken as soon as practicable as required by s.258(1)(c) of the Code?

[27] I will examine each issue in turn.

Issue 1 - Has the Crown established that Constable Glaab had reasonable grounds to suspect that Mr. Waisanen had alcohol in his body such that the breath demand made under s. 254(2) of the Code was valid?

[28] S.254(2) of the Code provides that if a peace officer has "reasonable grounds to suspect" that a person has alcohol or a drug in their body and has operated a motor vehicle within the preceding three hours, the peace officer can then demand a breath sample for analysis by an ASD. It is submitted by the defence, and I accept, that there is both a subjective and objective component to the "reasonable grounds to suspect" aspect of this test.

[29] The defence submits that while the reasonable suspicion test is not a high threshold to meet, the Crown must nevertheless prove that it is met beyond a reasonable doubt which I also accept. In this case, the defence submits that Constable Glaab's testimony that he smelled alcohol on the breath of the defendant is not reliable or credible. A brief overview of the defence's submissions on this point is as follows:

(a) It is submitted that Constable Glaab's initial testimony in-chief was that he smelled alcohol coming from the vehicle rather than from the defendant's breath and that it was only through some leading questions from the Crown that he gave his evidence that he smelled alcohol on the breath of the defendant;

(b) It is submitted that Constable Glaab's notes did not expressly refer to the smell of alcohol on the breath of the defendant save and except that the notes included a checked box on a preprinted form that referred to alcohol on the breath. The defence submits that alcohol on the breath of the defendant was only detected after the defendant was out of the vehicle and the breath demand had already been made; and

(c) The defence submits that Constable Glaab's evidence that he could have been face-to-face with the defendant and detected alcohol on his breath while the defendant was sitting in his vehicle with the window only halfway down is not credible or reliable.

[30] It is my view that Constable Glaab did have reasonable grounds to suspect that the defendant had alcohol in his body. He testified that he smelled alcohol on the breath of the defendant. I disagree that this evidence resulted from a leading question by the Crown. Further, I accept that Constable Glaab did have a note referring to alcohol on his breath. Constable Glaab did not accept defence counsel's submission in cross-examination that the checkmark on the preprinted form referring to the smell of alcohol on the breath of the defendant was something he learned after the breath demand had been made. It was his evidence that the checkmark section of his notes was "all-inclusive" and related to the entire interaction. I also do not accept that it was not possible to detect the smell of alcohol on the breath of the accused as he sat in his vehicle. It was Constable Glaab's unshaken testimony, which I accept, that he smelled alcohol on the breath of the defendant prior to the demand being made. The reasonable grounds to suspect test in s. 254(2) is met in this case.

Issue 2 - Has the Crown established that Constable Glaab had reasonable grounds to believe that Mr. Waisanen had committed an offence under s.253 of the Code such that the breath demand made under s.254(3) of the Code was valid?

[31] When the defendant provided his breath sample into the ASD device at 2:56 A.M. and registered a fail, Constable Glaab placed the defendant under arrest for excess blood alcohol. He proceeded to read him his rights to counsel at 2:59 A.M. At 3:02 A.M., he made a further breath demand on him, this time pursuant to s.254(3) of the Code. In order to make such a demand, an officer must have reasonable and probable grounds to do so. There would appear to be little doubt that the exclusive basis for the reasonable and probable grounds in this case was the ASD fail result.

[32] It is common ground that an ASD fail result will usually provide sufficient reasonable and probable grounds for a breath demand under s. 254(3). However, in this case the defence submits that Constable Glaab did not have reasonable and probable grounds to make the breath demand pursuant to s.254(3) as he reasonably ought to have known that the ASD fail result was not reliable for the following reasons:

(a) The defence submits that Constable Glaab did not properly know how to operate the ASD and even had some doubt as to the model of the ASD that he was operating; and

(b) The defence submits that after the ASD fail result and around the same time that Constable Glaab was giving the defendant his right to counsel, Constable Glaab learned from another officer that there were six empty beer cans and two full ones in the defendant's car. The defence submits that this should have caused an officer, acting reasonably, to realize that there was a possibility or likelihood that the defendant had consumed alcohol within 15 minutes of the ASD test, thereby raising the possibility of residual mouth alcohol causing an erroneous fail result.

[33] I do not accept that either of these two arguments of the defence are valid. It is my view that Constable Glaab did have reasonable and probable grounds, namely the ASD fail result, to proceed to make the breath demand under s. 254(3) of the Code.

[34] Dealing first with the question of Constable Glaab's knowledge of the ASD device he was operating, I consider that Constable Glaab was appropriately familiar with how to operate the ASD and he fully and fairly believed it was in good operating order. The defence submits that there was some confusion as to the model number of the device Constable Glaab was operating. I disagree. Constable Glaab testified that he was using a Drager 6810. He used some preprinted yellow notes to complete his report in this matter and those preprinted notes refer to an Alcotest 7410. Constable Glaab was clear that he was not using the 7410 but was using the 6810. During re-examination, he produced a note from his notebook from the beginning of his shift on the day in question which clearly referred to the 6810.

[35] It was also argued that Constable Glaab did not know both the calibration and accuracy test dates. He did have a record of the calibration date and he thought that the instruments were calibrated every two weeks and he was within that time period. Constable Scobie said the calibration requirement was every 182 days and it is unclear to me which of the two officers is correct on this point. However, more importantly, both officers testified that they were aware that if the calibration date had expired, the device would lock itself out, meaning that it would be inoperable. It was submitted that Constable Scobie, the breath technician, was more knowledgeable about the ASD and breath testing in general. I accept that Constable Scobie had a somewhat greater knowledge of breath testing in general and perhaps somewhat more knowledge on the operation of the ASD devices. However, in no way does that undermine the fact that Constable Glaab knew how to operate the ASD device he was using, that it appeared to be in proper working order on May 11 and that he did operate it properly.

[36] It was also suggested by the defence that Constable Glaab was not familiar with the concept that if there had been recent consumption of food, the device ought not to be used for a period of time and documents on this subject from the Ontario Provincial Police were put to Constable Scobie and Constable Glaab in cross-examination but were not marked as exhibits. Again, I find this submission to be without merit. Constable Scobie indicated that the issue of recent consumption of food was not something that was known to him as of May 2014 and that in any event it only might affect a driver who was to have no alcohol in their system such that it might incorrectly show that they had some alcohol in their system. It would not cause someone to have a false reading of over 80. The fact that Constable Glaab did not know about this issue is of no consequence. It does not undermine the proper working knowledge he had of the ASD that he was using on May 11, 2014.

[37] The separate argument of the defence that requires consideration is the issue of the six empty beer cans (and two full cans) located somewhere in the vehicle by another officer and about which Constable Glaab learned around the time he was giving rights to counsel. The defence submits that a reasonable officer learning of these facts after the fail result on the ASD device would have realized that the ASD result was suspect and could not be relied upon. I disagree.

[38] The effects of residual mouth alcohol on ASD testing are well known. Constable Glaab and Constable Scobie were both aware of the fact that if there is consumption of alcohol within 15 minutes of use of the device there could be a false fail reading with the ASD. This issue has been canvassed in a number of decisions including by the Supreme Court of Canada in R. v. Bernshaw, by the Court of Appeal for Ontario in R. v. Einarson and by Mr. Justice Durno of the Ontario Superior Court in R. v. Mastromartino. Some of the relevant principles are as follows:

(i) Officers making ASD demands must address their minds to whether or not they would be obtaining a reliable reading by administering the test without a brief delay;

(ii) Where the screening device used is an approved one, the officer is entitled to rely on its accuracy unless there is credible evidence to the contrary;

(iii) The mere possibility that the driver has consumed alcohol in the previous 15 minutes is not enough to prevent an officer from relying upon a fail result from an ASD device;

(iv) The fact that a driver is seen leaving a bar moments earlier does not compel an officer to delay a breath demand in respect of an ASD device. The fact that a driver is observed leaving a bar is only one circumstance to consider when the officer is deciding whether to delay the taking of a test;

(v) Officers are not required to ask drivers when they last consumed alcohol; and

(vi) A flexible approach applies to the issue such that different officers may assess similar circumstances differently. The particular officer's assessment must be tested against the litmus of reasonableness.

[39] The Crown has the obligation of establishing that the officer had reasonable and probable grounds to make the breath demand under s. 254(3) of the Code. As indicated above, it is common ground that if the fail result from the ASD can be reasonably relied upon, it supplies the reasonable and probable grounds to make the breath demand under s.254(3). I have already concluded that the breath demand under s. 254(2) was properly made. Once the ASD fail result was received, it supplied Constable Glaab with reasonable and probable grounds to make the breath demand under s. 254(3). The fact that he learned that there were six empty cans of beer in the car (and two full cans) did not change the honest belief he held as concerns reasonable and probable grounds and he specifically stated this in cross-examination. The only issue is whether that view was objectively reasonable. In my view, it was. Six empty beer cans in a car is not much different than a person leaving a bar and moments later being pulled over for a sobriety check. The law is clear that there is no bright line requirement that an officer must wait 15 minutes to make an ASD breath demand on a person seen leaving a bar. I have no doubt that there are plenty of empty beer cans in a bar as well.

[40] In this case, the defendant was with Constable Glaab for seven minutes from 2:49 A.M. (when he was pulled over) to 2:56 P.M. (when he provided the fail in respect of the ASD breath sample). Six empty beer cans in the vehicle raises no more than a mere possibility that the defendant had consumed some of them in the eight minutes prior to him being pulled over (thereby bringing his consumption of alcohol within the 15 minute window necessary to undermine the ASD breath device breath sample analysis). There was no credible evidence to indicate how long the empty cans had been in the car or to suggest that Mr. Waisanen had consumed some of the beer during the 8 minutes prior to the time he was pulled over. Moreover, Constable Glaab, like the officer in R. v. Bernshaw was not obliged to make any inquiry as to the timing of Mr. Waisanen's last drink.

[41] Constable Glaab was aware of the residual mouth alcohol issue. Prior to the ASD demand, he told the defendant that he smelled alcohol, to which the defendant responded that it must have come from the passenger he dropped off. He did not need to revisit the question of alcohol consumption when he learned of the empty beer cans. His actions meet the litmus test of reasonableness in my view.

[42] In summary, I consider that Constable Glaab had reasonable and probable grounds for the demand under s. 254(3) and that they were not undermined by the beer cans located in the car.

Issue 3 - If there was a violation of Mr. Waisanen's Charter rights, should the breath samples be excluded pursuant to s. 24(2) of the Charter?

[43] I have concluded that there was no violation of the defendant's s. 8 Charter rights in respect of the breath sample demands made under ss.254(2) and (3). Accordingly, the s. 24 Charter issue does not arise.

Issue 4 - Has the Crown established that the breath samples were taken as soon as practicable as required by s. 258(1)(c) of the Code?

[44] S.258(1)(c) is the section of the Code which contains the "presumption of identity" whereby if the provisions of the section are met, the results of the breath sample analysis taken pursuant to a breath demand under s.254(3) constitute conclusive proof that the blood alcohol readings were the same at the time of the alleged offence. There are a number of requirements of s.258(1)(c) but for the purposes of this case the only relevant point for consideration is the requirement that each sample be taken "as soon as practicable" after the alleged offence.

[45] There is no issue that the first breath sample was taken not later than two hours after the offence is alleged to have been committed as is also required by s. 258(1)(c). The defence does submit that the breath samples were not taken as soon as practicable. The defence correctly points out that Parliament has legislated both the two-hour requirement for the first sample and the "as soon as practicable" requirement within that two-hour provision.

[46] The law is clear that "as soon as practicable" does not mean "as soon as possible". All of the circumstances must be considered and the breath samples must be taken within a reasonably prompt time. Further, there is no obligation on the Crown to provide a detailed explanation of what occurred every minute that the defendant is in custody. The key question becomes whether the police acted reasonably.

[47] The defence complains in particular about the 18 minute period between 3:15 a.m. and 3:33 A.M. and the 6 minute period between 3:40 A.M. and 3:46 A.M.

[48] It is my view that the as soon as practicable requirement has been met in this case but in order to explain this conclusion one needs to review the chronology. There are some disputed events and I will address those as I review the chronology. The relevant parts of the chronology to be considered for this issue are as follows:

2:47 A.M. - Mr. Waisanen is observed driving by Constable Glaab.

2:49 A.M. - Mr. Waisanen is pulled over by Constable Glaab. This is the time of the alleged offence for the purpose of s. 258(1)(c).

2:56 A.M. - The breath demand pursuant to s. 254(2) is made and provided and registers a fail on the ASD device.

2:56 A.M. - Mr. Waisanen was arrested and charged with excess blood alcohol.

2:59 A.M. - Mr. Waisanen is advised of his right to counsel and this giving of information is completed by 3:02 A.M.

3:01 A.M. - Mr. Waisanen advised that he would like to speak to counsel namely Douglas Lent.

3:02 A.M. - Constable Glaab made a breath demand pursuant to s.254(3).

3:07 A.M. - Constable Glaab departed with Mr. Waisanen for 11 division of Peel Regional Police.

3:15 A.M. - Constable Glaab and Mr. Waisanen arrived at 11 division.

[49] It is at this point in the chronology that some dispute arises about precisely what occurred which requires a determination by me. The defence submission is that nothing of substance occurred between 3:15 A.M. and 3:33 A.M. when, it is submitted, Constable Glaab first placed a telephone call to Mr. Lent. The Crown's submission is that this is not how the chronology unfolded and I am in agreement with the Crown's submission on this point.

[50] Constable Glaab testified that when they arrived at the station, Mr. Waisanen was "lodged" at 11 division. In effect, the process of lodging is a registration process which includes a search. Constable Glaab further testified that he believed the lodging continued after 3:40 A.M. after Mr. Waisanen had spoken to counsel between 3:36 A.M. in 3:40 A.M.

[51] Constable Glaab testified in part as follows:

Question: All right. When you get at 11 division what happens next, please?

Answer: Upon arrival at 11 division the male is lodged into cells or lodged in at 11 division there. And then I also made a call to the lawyer that he had requested.

Question: All right. And so am I - you tell me if I'm wrong, but were you waiting for a lawyer to get back for him that he requested.

Answer: I made a phone call first to his office, then I believe at an alternate number where I actually reached the lawyer.

Question: All right. What time did you reach him?

Answer: I believe it was 3:33 A.M.

[He then testified that Mr. Waisanen actually spoke directly to counsel between 3:36 A.M. and 3:40 A.M.]

[52] In cross-examination, Constable Glaab's testimony was as follows:

Question: You get to the police station at 3:15 A.M. and your evidence is that you call at 3:33 A.M. the lawyer's office, right? (my emphasis)

Answer: Correct.

Question: And then immediately thereafter you call another number and you get through to the lawyer?

Answer: Correct.

[53] Accordingly, the position left after cross-examination was that the call had been made to the lawyer's office at 3:33 A.M. The defence submits that this was the first call to the lawyer. I do not accept this. I believe that Constable Glaab first called counsel shortly after 3:15 A.M. when they arrived at the station. He actually connected with counsel directly at 3:33 A.M. as he said in-chief. There was a short period of waiting at 3:33 a.m. until 3:36 A.M. Mr. Waisanen spoke directly to his counsel of choice and that conversation continued until 3:40 A.M.

[54] Let me add as well that Constable Scobie testified that at 3:26 A.M. he began to receive the grounds for the arrest from Constable Glaab and that this occurred between 3:26 a.m. and 3:38 A.M. Constable Scobie acknowledged that it would not have taken 12 continuous minutes to receive the grounds and that it was quite possible that other things were occurring between 3:26 A.M. and 3:38 A.M.

[55] Constable Glaab testified that the lodging process continued at 3:40 A.M. and that custody was handed over to Constable Scobie, the breath room technician, at 3:46 A.M. The first sample was obtained at 3:52 A.M. and the second sample was obtained at 4:15 A.M.

[56] Accordingly, it is my conclusion that the following occurred in terms of the chronology:

3:15 A.M. - upon arrival at the station the lodging process with respect to Mr. Waisanen began. Shortly after 3:15 A.M. and before 3:33 A.M., Constable Glaab placed a call to Mr. Lent's office.

3:26 A.M. - Constable Glaab met with Constable Scobie and began to convey to Constable Scobie the grounds for the arrest. This likely only took approximately 3 minutes.

3:33 A.M. - Constable Glaab called Mr. Lent and spoke to him directly. He then arranged for Mr. Waisanen to speak to counsel.

3:36 A.M. to 3:40 A.M. - Mr. Waisanen spoke to his counsel of choice, Mr. Lent.

3:40 A.M. to 3:46 A.M. - the lodging process continued.

3:46 A.M. - Mr. Waisanen entered the breath room and became subject to the custody of Constable Scobie.

3:52 A.M. - the first breath sample was obtained.

[57] In light of the foregoing factual conclusions, I now turn to the analysis of the defence's submission with respect to "as soon as practicable". It is clear that once the events from 3:15 A.M. to 3:33 A.M. are further examined and broken down, there can be no bona fide complaint that there was an unreasonable delay. Immediately upon arrival at the station, the lodging process began. I have found that the first attempt to reach counsel occurred shortly after 3:15 A.M. Constable Glaab met Constable Scobie at 3:26 A.M. and began to give him the grounds for arrest. A conversation between Mr. Waisanen and his counsel of choice was facilitated at 3:36 A.M., 21 minutes after arriving at the station.

[58] Let me be clear that even if I agreed with the defence's submission that no effort was made to contact counsel for the first time until 3:33 A.M. and a discussion with counsel did not occur until 3:36 A.M., my conclusion would be the same. The Crown is not obligated to explain every single event that occurred between 3:15 A.M. and 3:33 A.M. It is clear that appropriate activity was occurring during this timeframe, including the lodging process.

[59] It is also important to keep the big picture in mind. The alleged offence occurred at 2:49 A.M. and the arrest was made at 2:56 A.M. Within fifty-six minutes after the arrest, the first breath sample was taken at the police station. This only occurred after the defendant was able to speak directly to his counsel of choice at 3:36 a.m.; only 21 minutes after he arrived at the station in the middle of the night.

[60] My view is that the police acted reasonably with Mr. Waisanen throughout the arrest, detention and related breath sample process. Accordingly, the "as soon as practicable" argument fails.

Conclusion

[61] I have concluded that the breath sample demands made under s. 254(2) and (3) were both validly made. Accordingly, there was no violation of s.8 of the Charter. I have also concluded that the as soon as practicable requirement of s. 258(1)(c) has also been proven by the Crown beyond a reasonable doubt. Accordingly, the breath sample readings are properly in evidence. S.258(1)(c) is operative and establishes that the defendant had excess blood alcohol in his body at the relevant time. There will be a finding of guilt on the over 80 charge contrary to s.253(1)(b) of the Code.

Released: April 1, 2015

Justice Paul F. Monahan