Court Information

Court: Ontario Court of Justice Date: April 15, 2015 Location: London, Ontario

Between: Her Majesty the Queen -and- Michelle Streib

Before: Justice Jonathon C. George

Counsel:

• V. Decker for Crown
• L. Beechener for Ms. Streib

Reasons for Decision

Issues

[1] On the evidence presented at this trial, two questions are raised:

[2] First, has it been established beyond a reasonable doubt, that Ms. Streib's ability to operate a motor vehicle was impaired by alcohol?

[3] Second, respecting the charge of driving while the concentration of alcohol in her blood exceeded the legal limit, is there admissible evidence to support a finding of guilt?

Positions of the Parties

[4] The defence position is simply this. That a doubt exists relative to impairment, and that the breath samples were not taken as soon as practicable.

[5] The Crown asserts that the evidence, viewed in its entirety, clearly supports the position Ms. Streib's ability to operate a motor vehicle was impaired. And that, in the circumstances, the samples were taken as soon as practicable, which it correctly argues is not to be confused with 'as soon as possible'.

[6] Witness testimony was not vigorously contested. Little is in dispute. My determination of the issues is reduced to a question of how I should characterize the evidence, of course then applying the relevant law to these facts.

Facts

The Incident

[7] Ms. Streib operated a motor vehicle on the night in question. While in the drive-thru lane of a fast food restaurant, she bumped into a vehicle just ahead of hers. This vehicle was not in motion. There was little force to the impact; one hardly being able to describe it as a 'crash' or 'accident'. Although of little consequence, the collective response of the individuals in the struck vehicle was a bit strange in the level of irritation and anger, given there was no damage to their vehicle. In any event the police were called, and ultimately respond.

[8] The civilian witnesses make no observations of Ms. Streib's manner of driving, other than to say they were "bumped" from behind, and that Ms. Streib then moved the vehicle from the drive-thru lane to a nearby parking spot to await police.

Observations While Awaiting Police

[9] While awaiting police, one of the witnesses makes the following observations of Ms. Streib. That she was "unresponsive"; that her passenger "did all of the talking"; and that she sat in her vehicle throughout, never exiting. Another witness described Ms. Streib as being "very, very intoxicated", indicating she appeared "dazed, with glassy eyes", and to acting bizarre in that she was unresponsive in circumstances which clearly warranted her communicating with the others on the scene.

Police Observations

[10] The attending officer makes these observations of Ms. Streib. He testified to "detecting a strong odour of alcohol emanating from her breath; that her eyes were bloodshot and glassy; and that her speech was delayed and slurred"; and that, as she exited her vehicle, she was "unsteady on her feet, swaying back and forth". On a scale of 1 to 10, he described Ms. Streib's level of intoxication as "7 or 8".

[11] Pertinent to impairment only, the breath technician, during his interaction with Ms. Streib, observed slight slurring to her speech. He does not observe unsteadiness or swaying, although, as Ms. Streib is seated, his opportunity to notice this would have been limited. He described her face as normal, and "not flushed". According to this officer, her eyes were not glassy or blood shot. She responded appropriately and logically to his questions. He did smell alcohol on her. His overall impression was that she seemed "tired".

Timeline of Events

[12] Relevant to the timing and promptness of the demand and providing of the breath sample, the evidence reveals the following:

• The investigating officer is dispatched at 2:35 am
• He asks Ms. Streib to exit her vehicle, and forms his opinion that she is impaired by alcohol, at 2:50 am
• Right to counsel and caution are read to her immediately after forming the opinion
• The breath demand is read at 2:52 am
• At 2:55 am the investigating officer asks for a second officer to attend, to assist
• At 3:10 am the second officer arrives, at which time the investigating officer and Ms. Streib depart the scene for the police station
• Shortly before 3:13 am a call is placed indicating the need for a qualified breath technician
• At 3:16 am the breath technician completes a calibration test on the instrument
• At 3:17 am the breath technician completes a diagnostic test on the instrument
• The investigating officer and Ms. Streib arrive at the police cell bay doors at 3:16 am
• The doors are opened, and they enter, at 3:18 am
• From 3:18 to 3:26 am, Ms. Streib is removed from the police vehicle and searched
• At 3:26 am Ms. Streib is processed by a sergeant
• At 3:44 am the breath technician receives custody of Ms. Streib
• At 3:56 am the first breath sample is obtained
• The second, at 4:20 am
• Ms. Streib is served with documents and released at 4:40 am

Accused's Testimony

[13] Ms. Streib testified. Not much turns on her evidence; little depends on my assessment of her credibility. She described what she did that evening, and how much alcohol she consumed. She insisted she was not impaired. She explained why she bumped into the vehicle ahead of her in the drive-thru lane, describing it as momentary inattention. There are factual disputes, which are marginally relevant, including her contention that she did exit her vehicle after the accident at the restaurant. She attributes any unusual behaviour to nerves and to the anxiety she felt waiting for the police, something she had never before experienced.

Legal Analysis

Issue 1: Impairment

Legal Test

[14] What guides me in determining whether the evidence presented by the Crown meets the requisite threshold?

[15] Respecting impairment, there is no special legal or prescribed test. If the evidence establishes any degree of impairment, ranging from slight to great, the offence is made out [R. v. Stellato (1993), 78 C.C.C. (3d) 380]. It must be relative to one's ability to operate a motor vehicle, meaning I shouldn't assume that because one's functional ability is affected by alcohol, that their ability to drive is necessarily impaired. This is not a link I can automatically draw.

Crown's Evidence at Its Highest

[16] At this point, I will say this of the impairment evidence. While it is true that any one feature of the Crown's case in this respect would not rule the day, should I accept the Crown's evidence in its entirety, and take it at its highest, the cumulative effect would lead to a finding that Ms. Streib's ability to operate a motor vehicle was impaired. In saying this, I am referring to the observations of the civilian witnesses; the observations of the investigating officer; and the fact Ms. Streib's vehicle made contact with another. Not to mention the fact that, according Ms. Streib herself, she voluntarily consumed alcohol prior to driving.

Defence Challenges to Reliability

[17] The question then becomes, whether or not the following points, as raised by the defence, impact the reliability of that evidence. Does it raise a doubt? In other words, should I not take it at its highest? In this regard I refer to:

• First, the fact the observations made by one of the civilian witnesses - that Ms. Streib was "very, very intoxicated…..appeared dazed…..had glassy eyes……was unresponsive - while having provided this account in her testimony, was not included in her police statement.

• Second, the police created video which captures the booking in process and what occurs in the breath test room, which is consistent with and confirms the breath technician's testimony, and which appears to show Ms. Streib exhibiting little to no signs of impairment.

• Third, the fact the investigating officer, in chief, referenced Ms. Streib's reduced motor skills, while in cross examination was completely incapable of pointing to anything specific, indicating only that he "had a sense there was a motor skill deficiency".

Video Evidence

[18] As to the timing and promptness of the breath sample, section 254(3) provides that:

254(3). If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person

(a) to provide, as soon as practicable,

(i) samples of breath that, in a 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

[19] In Ms. Streib's instance, there is no issue respecting the timing of the demand. The question is whether the sample was provided as soon as practicable. No Charter issues were raised by the defence; a concession there existed grounds to make the demand, and that Ms. Streib's rights were implemented and given effect. In other words, she was not detained arbitrarily, and was properly advised of her right to counsel.

Conclusion on Impairment

[23] Before addressing this, I will close off the impairment issue. A doubt has been raised and I will dismiss that count. This is an inescapable conclusion, the cumulative effect of the following:

• First, the lack of evidence respecting the manner of driving. It is important to note here that the 'bump' of the vehicle in front of Ms. Streib in the restaurant drive thru lane is equivocal and non-determinative. In terms of what caused the accident, I simply can't discount Ms. Streib's evidence that it was mere inadvertence as she attempted to reach for something inside her car.

• Second, the curious description offered by one of the civilian witnesses, which is at odds with the other civilian witness, and is an account she did not provide to the police. I appreciate her testimony indicating she did provide that description of Ms. Streib to the officer (who presumably failed to note it in the statement), but I reject that.

• Third, and most importantly, the video obtained from the police station. The defence referred to my decision in R. v. Vale 2012 ONCJ 721 where, in circumstances similar to this where the video evidence seemed to be at odds with witness descriptions of the accused, I write the following:

One employing common sense, and simply trusting the visual images before them, could only conclude based on this that Mr. Vale was showing no signs of impairment. He walked fine showing no unsteadiness. He spoke coherently and without any difficulty. He was able to stand still when instructed to do so and responded appropriately to every question and direction. This can be clearly and easily gathered from viewing the video. I cannot conclude from this evidence that his ability to operate a vehicle was even slightly impaired.

[24] I agree with defence counsel's submission that one could simply substitute Ms. Streib's name for the accused in that case, and it would be equally applicable.

Issue 2: Timing of Breath Sample

Statutory Framework

[20] The practicability and promptness of the testing is purely a factual determination. On this issue, the defence highlights the fact that this is an essential question as, should the Crown wish to rely on the presumptions of identity and accuracy set out in the legislation, they must prove several things, including that the sample was taken as soon as practicable. This requirement is set out in section 258(1) of the Criminal Code. Subsection (c) provides that:

where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if

(ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken,

evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused's blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things - that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused's blood exceeded 80 mg of alcohol in 100 ml of blood, and that the concentration of alcohol in the accused's blood would not in fact have exceeded 80 mg of alcohol in 100 ml of blood at the time when the offence was alleged to have been committed.

[21] There is no issue respecting the general outer time limit. I am concerned solely with whether it was taken 'as soon as practicable'.

Standard for "As Soon as Practicable"

[22] The question can be framed several different ways. The best and simplest way is to ask - assuming it is done within two hours, was the sample taken, in the circumstances, within a reasonably prompt time? The central focus should be on whether the police officers involved acted reasonably.

Importance of Strict Compliance

[26] To understand the importance of this requirement, one should have regard to Justice Hill's comments in R. v. Walker [2006] O.J. No. 2679 (S.C.J.). At paragraph 2, he writes that:

This evidentiary assist for the Crown, designed to expedite trials while producing reliable evidence, deems the results of the breath tests to be proof, in the absence of evidence to the contrary, of a defendant's blood alcohol level at the time of the alleged operation of the motor vehicle. Compliance with the statutory scheme must be strictly construed where the prosecution is relieved of the obligation of adducing expert evidence on the subject.

[27] This applies in this case. The Crown has not tendered expert evidence and is relying on the presumptions set out in the Criminal Code.

"As Soon as Practicable" vs. "As Soon as Possible"

[28] It is true, as the Crown points out, that as soon as practicable does not mean as soon as possible; R. v. Vanderbruggen (2006), 206 C.C.C. (3d) 489. I am to look at everything, and to take a broad view of the evidence, never requiring the Crown to provide a minute by minute account of the entire delay period.

Analysis of Delays

[25] To the main issue of 'as soon as practicable'. The defence focus is on the time period that begins at 3:18 am, when the officer and Ms. Streib enter through the cell bay doors, and 3:56 am, the time at which the first breath sample is taken. The concerns are specifically broken down into four different areas, and I will summarize each.

3:18 am to 3:26 am - The doors are opened, and they enter into the facility at 3:18 am. The booking in process does not begin until 3:26 am. The defence characterizes this as an unexplained delay.

3:26 am to 3:44 am – As indicated, at 3:26 the booking in process begins. Of note is that, although she was offered the opportunity to speak to counsel, she chose not to. The importance of this, according to the defence, is that although access to counsel would have been a legitimate explanation for a delay at this time, given she did not exercise that right, that this too constitutes an unexplained delay.

The investigating officer testified that the breath technician was unavailable and not immediately ready as he needed to be called in from the street. This, however, is at odds with the breath technician's evidence on this point, which was to clearly say that he was there, at the station and in his office, throughout, including the time at which the call is placed requesting the assistance of a technician. This was sometime shortly before 3:13 am. As I set out in an earlier summary of the evidence, the breath technician went so far as to confirm that he completed all testing and calibrations before 3:17 am. The defence asks, why was the sample not taken immediately after the booking in process is complete? The argument is essentially that the only explanation offered is false and therefore should not be accepted as a reasonable explanation for the delay.

3:44 am to 3:56 am - At 3:44 am the breath technician takes custody of Ms. Streib. At 3:56 am the first sample is taken. Although this delay is not specifically addressed in the testimony, I have observed the video which was marked into evidence. It captures what is occurring over the course of this entire period. The breath technician does ask some relevant questions as a follow up to the grounds he had received, including questions about alcohol consumption, where she had been that particular evening, and so on. The defence otherwise impugns much of this conversation as it is not a prerequisite to taking the first sample. For example, Ms. Streib is asked questions about some of her life circumstances, prior interaction with the police, and other personal matters. The defence asserts there is no reason for the officer to know this information and, as indicated, is not a prerequisite to administering the test.

3:56 am to 4:20 am - The defence concedes that 17 minutes of this particular period are explained. Obviously, fifteen minutes must lapse before the second test can be taken. In this case, and with this machine, 17 minutes must pass between tests. It is not suggested these 17 minutes constitute an unreasonable delay. The question is, why is there a 7 minute delay beyond that. Again, the video answers this question in that these 7 minutes is comprised of further personal conversation, including a discussion about the make and model of Ms. Streib's vehicle, whether she has a boyfriend, and a general discussion about Calgary and Vancouver. None of this is to suggest there was anything improper in this; rather that it is an insufficient explanation for a delay, when time is of the essence.

Relevant Case Law

[30] This is never an easy consideration. The defence references several cases which find unreasonableness in delays that are less than the one present here - see R. v. Schouten; R. v. Willette, 2011 ONSC 1055; R. v. Cargill, 2014 ONSC 3897; R. v. Makacek, 2015 ONSC 69. Conversely, there are several examples of courts finding lengthier delays are reasonable; that determination always depending upon the explanation provided.

[31] As Justice Durno points out in Schouten, there is no magic point in time when an unexplained gap will be sufficient to raise a doubt. The defence argument turns on me accepting that, respecting the delay there is, in some instances, no explanation at all, and in others an unreasonable one. What do I mean? Respecting the former, there is no explanation for the delay that occurs from 3:18 to 3:26 am. I could speculate that the delay is attributed to the time it took to park the car in the port, and escort the accused to the location of the book-in sergeant, but this is not in evidence. To the latter, for the entire period that begins from the moment they arrive at the station until 3:56 am (time of the first test) the explanation is not reasonable, as it is not even true. The explanation offered by the investigating officer is that the breath technician was not there, had to be called in, and was therefore unavailable. This may have been the officer's belief; perhaps he simply posits hoping that it turns out to be true when he doesn't really know; or maybe it's a post-facto justification, likely the result of wishful thinking rather than deceit. It doesn't really matter. It is not a reasonable explanation and is tantamount to there being no explanation at all.

[32] I would also agree with the defence that the lengthy, at times personal and sometimes irrelevant conversations between the breath technician and Ms. Streib, while not representing anything untoward, is no basis upon which to delay the taking of the test. This is the case for the entire period that begins at 3:44 am and ends at 3:56 am, and also from 4:13 am to 4:20 am, the 7 minutes that follow the required waiting period between samples.

Conclusion on Timing

[29] The delay here however, while not inherently unreasonable, cries out for an explanation. That is, 3:18 am through to 3:56 am is not, standing alone, unreasonable, but if not sufficiently explained, can be. Indeed, the main issue can be further reduced to this question - whether or not there is a reasonable explanation provided in the evidence that would permit me to conclude the breath tests were taken as soon as practicable?

[33] With the exception of the brief period it would have taken to go through the booking in process, and the necessary waiting period between the samples, most of the entire period from 3:18 am until 4:20 am is either unexplained or improperly (and inaccurately) accounted for. Therefore, the Crown has not established that the officers acted reasonably and expeditiously in all the circumstances.

[34] Consequently, the Crown is not permitted to rely on the "evidentiary assist". The breath test results then being inadmissible, I must find Ms. Streib not guilty.

Disposition

The accused is acquitted on both charges.

Released: April 15, 2015

Justice Jonathon C. George