Court Information

Ontario Court of Justice

Between: Her Majesty the Queen — and — Saurabh Itty

Before: Justice Sandra Bacchus

Heard: March 4, 2015 and April 9, 2015

Counsel:

• K. Bartoska for the Crown
• T. Chan for the accused

Bacchus J.:

Introduction

[1] The defendant is charged with one count of operating a motor vehicle over 80 mg. On March 8, 2014, at approximately 1:05 am, police officers observed the defendant operating a motor vehicle on Yonge Street south of Steeles and north of Drewry Avenue in the City of Toronto. As a result of their observations of the defendant's vehicle—namely, that it nearly side-swiped a stopped police scout car; that it was speeding briefly; and that it swerved within its own lane—the vehicle was stopped by Officers McDonald and Sharma. Subsequent to this stop, a demand was made by Officer McDonald for the defendant to provide a sample of his breath into an approved screening device (hereinafter ASD).

[2] Consequently, the defendant failed the ASD demand, was arrested for Drive Over 80 mg, and a demand was then made that he provide a suitable breath sample. At 2:30 am the first breath sample was taken by Officer Clifford, a qualified breath technician, at 41 Division; a reading of 165 mg/100 ml of blood was obtained. The second test was performed at 2:54 am and a reading of 161 mg/100 ml of blood was obtained. The defendant was charged with the offence of Drive Over 80 mg.

Issues/Law

[3] The issue in this case is whether the crown is entitled to rely on the statutory presumption of identity. The defence submits that the breath demand is not valid as it was not made as soon as practicable as required by section 254(3) of the Criminal Code. The defence further submits that the second sample of the defendant's breath taken at 2:54 am was not seized as soon as practicable as required by s. 258(1) of the Code.

[4] In R v Vanderbruggen, [2006] O.J. No. 1138, the Court of Appeal held that the "as soon as practicable" standard does not require that the demand be made immediately or as soon as possible. The threshold criteria require only that the officer has acted reasonably in incurring any periods of delay. At paragraph 13 the Court held:

In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence in taking the first test. The "as soon as practicable" requirement must be applied with reason.

[5] Failure to make a roadside demand as soon as practicable does not of itself render the evidence inadmissible although it would likely provide the basis for a Charter violation. R v Forsythe (2009), 2009 MBCA 123, 250 C.C.C. (3d) 90 (Man. C.A.) leave to appeal S.C.C. refused 254 C.C.C. (3d) vi.

[6] However, the failure to comply with the "as soon as practicable" requirement in relation to obtaining breath samples will result in a finding that the crown has not proven the essential elements of s. 258(1)(c) beyond a reasonable doubt such that the crown may not rely on the presumption of identity. R v Inataev (2015), 2015 ONCJ 166, O.J. No. 1561, para. 67–69

Analysis

[7] Based on the testimony of Officer McDonald in conjunction with the unchallenged evidence provided by the in-car camera, exhibit 1 in these proceedings, Officer McDonald's first interaction with the defendant occurred at approximately 1:09 am when he approached the defendant's vehicle.

[8] Further, the credible and reliable evidence afforded by the in-car camera video reveals that following his investigation, Officer McDonald made an approved screening device demand of the defendant at approximately 1:13 am. The test was administered and a fail result recorded at approximately 1:17 am. At 1:19 am Officer McDonald made an approved instrument demand of the defendant.

[9] Within the period of time between the defendant's initial detention at the roadside at approximately 1:09 am and the second breath sample result obtained from the defendant at 2:54 am, the following areas have been identified as areas of unreasonable delay:

• The additional approximate 5 minutes of delay incurred as a result of the roadside screening test procedure which in the circumstances was arguably unnecessary because the officer had sufficient grounds to arrest the defendant for impaired driving and make an approved instrument demand;

• The additional 9 minutes delay which occurred at the sally port while the officers were waiting to book the defendant into 41 Division, which is unexplained;

• A further delay before the first breath sample was taken of approximately 11 minutes caused by the police contacting duty counsel for the defendant despite there being no indication that the defendant expressly requested to speak with counsel.

[10] The defence submits that the cumulative nature of these periods of time either in whole or in part have resulted in either an invalid demand or the samples not having been taken as soon as practicable.

Roadside Delay

[11] Officer McDonald testified that he formed his belief that the defendant's ability to operate his motor vehicle was impaired by alcohol at approximately 1:09 or 1:10 am and conceded that he had grounds to arrest the defendant for impaired driving as early as that time.

[12] Officer McDonald testified that he chose to make the ASD demand so that he could be 100% sure and give the defendant the benefit of the doubt in case he blew under the legal limit. The officer testified that he adopted this approach in dealing with the defendant because the defendant was young and he did not want the defendant to have to unnecessarily pay a tow fee for his vehicle.

[13] I see nothing unreasonable in Officer McDonald's decision to administer the ASD and his pragmatic approach to the investigation. There was no appreciable delay in adopting this approach as the officer had the approved screening device on hand.

[14] The in-car camera video shows that by approximately 1:13 am, Officer Sharma had already placed the approved screening device on the hood of the police scout car. Further delay in administering the ASD arose as a consequence of Officer McDonald and Sharma's efforts to answer the defendant's questions. In addition there was a brief delay caused when the defendant dropped the mouthpiece he had been given for the initial sample to be taken at 1:15 am.

[15] I concur with the decision in R v Hudder (2006), O.J. No. 5853, at para. 9 and find the principle articulated therein applicable to the circumstances before me:

It does not necessarily follow that because an officer decides to use an approved screening device as an investigative tool that the count under Section 253(a) is somehow fatally flawed. It is well-recognized that the decision to make a demand for an arrest is one that must be made relatively quickly without the opportunity for reflection and made with the knowledge that whatever decision is made will be painstakingly dissected and reviewed a number of months later at trial. Even if the officer is well-satisfied that the detained person is clearly impaired beyond a reasonable doubt it does not prevent the officer from obtaining further evidence with respect to the offence of Over 80 especially when one will later have to provide objective evidence for that decision. Going a step further to obtain objective grounds for belief is not inappropriate and in some cases is to be preferred. Further investigation through a statutory scheme, if reasonable in duration and scope, as it was here, is not objectionable so long as the evidence obtained is not used improperly.

[16] I find that Officer McDonald's decision to administer the ASD was reasonable in duration and scope in the circumstances. The ASD demand was made as soon as practicable.

Sally Port Delay

[17] The in-car camera video reveals that the defendant and arresting officers arrived into the sally port of 41 Division at approximately 1:51 am. Officer Sharma testified that they told the booker they had arrived. Officer Sharma immediately exited the cruiser and appeared to enter the division. Officer McDonald remained in the cruiser. At 1:57 am Officer McDonald asked the defendant if he was doing okay. It appears that the defendant had fallen asleep in the back of the cruiser. There is no explanation for the wait until 2:00 am to enter the booking hall.

[18] Despite the lack of explanation for this period of delay I would not find that this period alone is significant enough to find that the breath sample was not taken as soon as practicable.

[19] While the Crown is obligated to demonstrate that in all the circumstances the sample was taken within a reasonably prompt time there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody. R v Singh, 2014 ONCA 293, [2014] O.J. No. 1858

[20] I find that there is no credible inference which arises on the evidence that the 9-minute delay in the sally port was occasioned by a lack of diligence on the officers' parts, and it is a reasonable inference that it had something to do with the occupation of those booking prisoners into the division.

[21] I consider this unexplained delay in the context of the overall tenor of the officers' dealings with the defendant which I find had been professional and attentive throughout to the defendant's Charter rights and to the timeliness required in securing a breath sample. Standing alone this period of delay is not detrimental to a finding that the readings in this case were taken as soon as practicable. To decide otherwise would in my view erroneously elevate the "as soon as practicable" standard to a requirement that breath samples be taken as soon as possible in the circumstances of this case.

Right to Counsel Delay and Waiver

[22] At approximately 1:20 am Officer McDonald gave the defendant his right to counsel and caution. As captured by the in-car camera video exhibit 1, the discussion between Officer McDonald and the defendant transpired as follows following the initial rights to counsel:

The defendant: "So I have to call a lawyer within the…"

Officer McDonald: "When we take you to the station you are going to speak to a lawyer before you do a breath test. Do you understand that? Do you have a lawyer? Do you want to talk to duty counsel/a free lawyer?"

The defendant: No response

Officer McDonald: "We are going to put you in touch with someone from duty counsel when we get to this station."

The defendant: "Yeah, I know how this goes".

The defendant: "Can I withdraw that last comment".

[23] At 1:22 am Officer McDonald repeated rights to counsel and caution to the defendant and asked the defendant whether he wished to speak to a lawyer. The defendant did not respond to this question. Nor is there any evidence that the defendant specifically requested to speak with a lawyer at any other time.

[24] At 2:09 am after the booking process was completed the defendant was taken to the report room. At 2:14 am a call was placed to duty counsel on the defendant's behalf and the defendant taken to a private booth to speak with duty counsel. At about 2:20 am the defendant completed his discussion with duty counsel and was escorted to the breath room. The first breath test was administered at 2:30 am, and the second test at 2:54 am.

[25] Officer Clifford testified that he was ready to receive the defendant to conduct the first breath test at 1:56 am.

[26] In determining whether or not an officer's decision to contact duty counsel may result in a finding that the defendant's breath samples were not taken as soon as practicable an analytical framework for analysis by the trier of fact has been set out and relied upon in cases such as R v Davidson, [2005] O.J. No. 3474 and R v Maudsley, (2006) O.J. No. 3619 as follows:

• The first question is whether there has been a clear and unequivocal waiver by the accused of the right to counsel;

• If the waiver was not clear and unequivocal it is reasonable for the police to contact duty counsel in order to avoid later being confronted with the argument that the accused's right to counsel was infringed;

• If the degree of the accused's intoxication is such as to create a reasonable basis for the police to conclude that the right to counsel was not fully comprehended it would be reasonable for the police to contact duty counsel to avoid a subsequent allegation of a breach of the right to counsel;

• If the waiver is clear and unequivocal it is not reasonable, as a matter of law, for the police to contact duty counsel thereby delaying the administration of the breath tests. Where the delay occasioned by the call to duty counsel is unreasonable it is effectively unexplained;

• The innocence of the police motive in placing the call to duty counsel is irrelevant, as an accused should not be forced to speak to counsel where he or she clearly wishes to waive that right;

• There is no requirement that an accused repeat or persist in a waiver or express the waiver in strong terms. As in other areas of the law, "no means no";

• The fact that an accused ultimately takes a call from duty counsel does not, by itself, operate as an estoppel of the waiver. All the surrounding circumstances must be examined to discern if the waiver has been withdrawn.

[27] There is no evidence that the defendant expressly waived his right to exercise counsel. The defendant's comments at the scene in response to his right to counsel—"yeah I know how this goes" followed by "can I withdraw my last statement"—are vague at best.

[28] In fact, on the evidence there was a reasonable basis for the officers to believe that the defendant approved of their course of action in contacting duty counsel given the defendant's earlier questions to them regarding his license, demerit points, whether he could just get away with a ticket, and whether he could speak to his friends in the vehicle about this situation.

[29] The law requires a clear waiver by the defendant of his right to counsel and no such waiver took place in this case. Officer McDonald's action in contacting duty counsel for the defendant was not unreasonable and no inordinate delay was caused in doing so.

[30] As per Campbell J. in R v Kusnir, (2002), 22 M.V.R. (4th) 36 (Ont. S.C.J.), at paras. 20 and 21:

The courts should encourage the police to err, if at all, on the side of ensuring that an accused actually gets access to counsel. Courts encourage the opposite when they penalize the police for ensuring access to counsel. It defeats the purpose of the Charter, trivializes the right to counsel, and carries the wrong message to the police to penalize them for putting the accused in touch with counsel when there is the slightest doubt about waiver ... Where there is any doubt at all about waiver it should be clear that there is a bright line duty on the police to ensure access to counsel. Otherwise the courts discourage, rather than encourage, access to counsel by detained persons.

Obtaining Breath Samples and Delay

[31] The defendant was booked into the station at 2:09 am. The defendant spoke with duty counsel for approximately six minutes and was turned over to Officer Clifford at 2:20 am. Officer Clifford asked the defendant a number of standard questions and obtained personal information from him. The defendant provided his sample at 2:30 am.

[32] I see no inordinate delay in the time this sample was taken. In addition, I note and accept the compelling inference that some passage of time between the completing of the booking process and the taking of the defendant's first breath sample would have been necessary in this case, because the defendant vomited during the booking process.

[33] As Officer Clifford testified, fifteen minutes would have had to have passed before any breath sample could be taken in order to clear the defendant's mouth of residue alcohol to ensure a proper sample is obtained.

[34] As such, even if it had been unreasonable for the officers to connect the defendant with duty counsel there would have had to have been some delay before he provided his first sample in any event.

[35] The earliest a breath sample could have been taken in this case may have been somewhere between 2:15 am and 2:24 am irrespective of the call placed to duty counsel. On a minute-by-minute count this time frame is anywhere between 6 and 15 minutes before the initial sample was actually taken not including the time it might take the breath technician to conduct his interview.

[36] Again, in finding that this period of time does not offend the "as soon as practicable" requirement, I consider it through the lens of the overall tenor of the police dealings with the defendant which I have found was diligent and considering that it is not required that the tests be taken as soon as possible in order to satisfy section 258(1) of the Criminal Code.

[37] The defendant was back before Officer Clifford to provide his second sample at 2:49 am. Officer Clifford testified that a minimum of 17 minutes is required between each test and that the Intoxilyzer will not be set to resume testing before that time. The defendant provided his second sample at 2:54 am.

[38] There was no unreasonable delay between the taking of the first and second sample. Officer Clifford's actions are captured by the video, exhibit 2, and he is clearly engaged in duties relating to the defendant and obtaining the second sample in the 6 minutes leading up to the time the sample is obtained.

Conclusion

[39] I find that the officers conducted themselves at all times in a professional, conscientious manner in dealing with the defendant and there is no evidence to suggest a lack of diligence on their part in respect of the issue of the timing of the processes the defendant was required to submit to in obtaining the breath samples.

[40] The crown has complied with the requirements of section 258(1)(c)(ii) of the Criminal Code and is entitled to rely on the presumption of identity in relation to the breath readings. The defendant is therefore found guilty of the Drive Over 80 mg count.

Reasons released: May 5, 2015

Justice S. Bacchus

Footnote

[1] In submissions counsel referred to this period of delay as 12 minutes however the evidence supports this time frame as being a delay of 9 minutes before the defendant was brought into the station. Even if I am incorrect and the time frame was indeed 12 minutes this fact would not change my overall analysis and the conclusion I reach given the overall facts and legal principles I am required to consider.