Court File and Parties

Court File No.: Central East – Newmarket – 14-06887 Date: 2015-05-12 Ontario Court of Justice

Between: Her Majesty the Queen — and — Clark Carruthers

Before: Justice P.N. Bourque

Counsel:

• S. Renaud, for the Crown
• L. Mark, for the accused Clark Carruthers

Heard: In Writing

Released: May 12, 2015

Reasons for Judgment

Overview

[1] The defendant is charged with driving a motor vehicle with excess alcohol.

Jessica Aho

[2] Jessica Aho is a York Regional Police constable with 8 years' experience. On September 9, 2014, she was in her police cruiser in a parking lot where there is a beer store in Keswick, Ontario in the Region of York.

[3] The following is the timeline of her investigation:

Time	Event
17:10	The officer was in the parking lot and saw the defendant walk out of the beer store with a case of beer and he looked unsteady on his feet. He got into the driver's seat of a pick-up truck and drove to another store in the parking lot. She went up to the driver's side of the vehicle and smelt a strong odour of alcohol. She also noticed his eyes were glassy and bloodshot and watery looking. She asked him if he had anything to drink and he said that he had one beer an hour ago.
17:22	The officer formed the suspicion he had been consuming alcohol and she did a breath demand.
17:24	The defendant provided a "fail".
17:25	The officer arrested the defendant, and officer notified dispatch of the arrest and notified the need for a breath technician.
17:32	The officer read the defendant the rights to counsel, the caution and the breath demand.
17:35	The officer departed for the 3 district York Regional Police station.
17:47	Arrived at 3 district. The defendant was paraded before the duty sergeant. The defendant was searched and put into a cell, which took about 15 minutes. The officer began working on her paperwork and at 18:55 the breath tech took over.
19:40	The officer attended the defendant in the cells and provided the defendant a copy of the breath test certificate (Exhibit 2) and it was then left with his belongings.

Bogdan Molodyko

[4] Bogdan Molodyko is a breath technician, and the following is a timeline of the events which took place:

Time	Event
17:35	The officer was on his way to work at the Aurora detachment and he was notified by his senior officer that he would be required for a breath test at 3 district. He went to his detachment and got into uniform and got his gear and inspected his vehicle.
18:04	He left for 3 district.
18:35	He arrived at 3 district. He attended the breath room and took the intoxilyzer out of standby. He then changed the standard alcohol solution. He synchronized his watch to the intoxilyzer and put the defendant's information into the intoxilyzer.
18:47	He configured the standard solution. He performed the diagnostics and the device passed.
18:49	He did a self-test and the device passed.
18:54	He did a calibration test and the device was within 10 milligrams and that was acceptable. He concluded that the device was calibrated properly and in proper working order and capable of taking breath samples. He got the defendant and explained how to blow into the device and the defendant provided a suitable sample directly into the device.
19:04	The first sample was provided and a reading of 153 milligrams in 100 millilitres of blood.

[5] Between taking breath samples, the defendant was asked several questions for the alcohol influence report. Some of the questions and responses are as follows:

Question: Were you operating a motor vehicle? Answer: Yes.

Question: Where were you driving to? Answer: Beer store and convenience store.

Question: Where started from? Answer: 3441 Queensville Side road East

Question: When did you start drinking? Answer: Around 5:00 p.m.

Question: What time is it now? Answer: I don't know.

Question: Have you consumed alcohol? Answer: Yeah.

Question: What were you drinking? Answer: A beer before I left.

Question: Amount that you drank? Answer: Coors light, two cans, drinking at my address.

Question: Time started drinking? Answer: Don't know.

Question: What time stopped? Answer: Before I left home.

Question: Location of last drink? Answer: At home.

[6] The second sample was taken at 19:27, with a reading of 145 milligrams of alcohol in 100 millilitres of blood.

Analysis

[7] The Crown must prove the essential elements of the offence beyond a reasonable doubt. The defence asserts that for the following reasons, the Crown has not met that burden.

Were the samples of breath taken as soon as practicable?

[8] I find that upon the evidence, the first breath test was complete within two hours of the last driving (last driving between 17:10 and 17:22 and the first breath test was complete at 19:04). The defence argues that the presumption of identity does not apply as the test, while within the two-hour limit was not taken as soon as practicable.

[9] In doing so, the defence points to the fact that the breath technician came from the detachment in Aurora and as a result, the breath tests were basically delayed for an hour. The defendant would have been ready to take the breath test by 18:02 but the breath technician was not ready to do the test until 18:54, some 52 minutes later. The defendant states that this delay can be attributed to the fact that there was no one in 3 District to do the breathalyzer test when it was requested by the arresting officer at 17:35. He further states that the failure of the Crown to give a detailed explanation as to why someone was not available at 3 District is in and of itself a failure to account for this time.

[10] I cannot agree with the defence assertion in this regard. As stated in R. v. Van Der Veen, "there is no obligation upon the police to have a technician available at all times at every police station." In that case, a delay of some 40 minutes for the technician to attend from another local "does not itself require further explanation".

[11] In our case, the time was explained. The technician accounted for all of his actions, and there was nothing in my opinion that was unreasonable about any of them. As has been stated many times "as soon as practicable" does not mean "as soon as possible". While there may be some situations where evidence is led which could lead to the conclusion that there were resources available which could have utilized to shorten any delay, such evidence was not forthcoming here. I therefore reject this argument. As a result, the Crown can rely upon the presumption of identity and the case is proven by the tendering of the breath certificate evidence.

[12] It is not strictly speaking necessary to proceed further, but I will do so and consider the other arguments raised by the defendant.

If the test was not taken as soon as practicable, is the toxicologist's report sufficient to satisfy me beyond a reasonable doubt that the defendant's breath readings at the time of last driving were between 140 and 180 mgs of alcohol in 100 mls of blood?

[13] The report of the toxicologist was tendered as Exhibit 1, and was filed on consent. There were no objections taken at that time to the qualifications of the expert nor whether the report was beyond the limits of her expertise. I believe that it is at the stage of the tending the report that any issue of qualifications should be considered. In any event, the curriculum vitae filed with the report, sets out ample factors upon which the toxicologist's expertise was proven.

[14] The defendant states that the first two qualifications set out in the report (the rate of elimination and the allowance for a two-hour plateau) have not been met. I believe that there is copious case law which stands for the proposition that the Crown need not prove those issues in each case and unless there is evidence in dispute, I can take judicial notice of those issues. Those issues are ones of general scientific opinion and are not dependent upon the evidence in each specific case.

[15] With regard to the issue of bolus drinking, the question to be decided by me is whether the defendant can point to any evidence which would detract from the general proposition as stated.

[16] In R. v. Grosse, the Court said:

The trial judge was also entitled to consider that it was inherently unlikely that the respondent, in the space of less than 30 minutes, before embarking on his trip home to Brampton would consume the equivalent of nine ounces of alcohol. This was not a matter of taking judicial notice of drinking patterns but merely applying common sense as to how ordinary people behave. (Emphasis added)

[17] The defendant told the officer at the scene that he had a beer about an hour previous. The defendant told the breath technician that he "had a beer before he left (home)". This is the only evidence upon which the defendant could point to. It does not, in my opinion, detract from the general proposition. The evidence does not rise above mere speculation. Obviously the defendant drank alcohol before driving. It is obvious he drove to a beer store, attended and purchased beer, went to his vehicle and drove in a parking lot for some 5 to 10 minutes. There was no evidence of any potential bolus drinking in those times.

[18] I therefore find that the third condition has been satisfied. As per the fourth condition, there was no evidence of any post-event drinking.

Conclusion

[19] I find that the Crown has proven beyond a reasonable doubt that the defendant, at approximately 17:10 to 17:22 on September 9, 2014, had a blood alcohol level of 140 milligrams of alcohol in 100 millilitres of blood and I find him guilty of the offence of driving with excess alcohol.

Signed: Justice P.N. Bourque

Released: May 12, 2015