Court File and Parties

Court File No.: Central East - Newmarket 14-03155 Date: 2015-01-20 Ontario Court of Justice

Between: Her Majesty the Queen — and — Allan Berena Salanguit

Before: Justice P.N. Bourque

Counsel:

• D. Lerner, for the Crown
• J. Rabinovitch, for the accused Allan Salanguit

Judgment

Released on January 20, 2015

BOURQUE J.:

Overview

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

Evidence

David Strome

[2] David Strome is a York Regional Police officer with some 8 years' experience. He was in a parking lot on April 26, 2014 in his cruiser and made observations which led to this investigation:

Time	Event
02:17	He observed a group of more than 8 people outside a restaurant and they were boisterous and some were swaying. The officer did not maintain observation of the group.
02:21	The officer saw a vehicle leave the parking lot at a high rate of speed. The officer followed and saw some swerving in his lane. The officer wanted to check for his sobriety. The officer did a stop and went up to the car. The defendant was in the car with 3 others and there was a smell of alcohol. The defendant admitted to drinking alcohol. The officer made an ASD demand.
02:28	The officer asked the defendant out of his vehicle and they returned to the cruiser and the officer did an ASD demand and he instructed the defendant in the test. The defendant made several attempts before providing a suitable sample.
	I will comment more on this time interval and the actions taken by the officer below.
02:35	The officer arrested the defendant and provided rights to counsel, caution and a breath demand.
02:37	The officer left for the detachment and took the shortest route.
02:55	He arrived at the station and the defendant was booked by the Duty Sergeant.
03:10	The defendant was lodged in a cell.
03:15	The officer placed a call to duty counsel.
03:24	The call was returned.
03:26	The officer took the defendant to the telephone room.
03:32	The call with duty counsel was complete.
03:32	The officer handed the defendant over to the breath technician.
04:51	The officer served the defendant with the Certificate Of Analysis (Exhibit 1"A").

Bogban Molodykao

[3] Bogban Molodykao is a YRP constable with 8 years' experience and has been a breath technician since 2011. His timeline is as follows:

Time	Event
02:34	He was advised by dispatch that he would be required for a breath test at 4 District
02:35	Begins transport to 4 District
02:56	Arrived at 4 District, went to breath room and started to make preparations for the breath test. Intoxilyzer was already on, had to change the standard solution.
03:00	Changed the standard solution.
03:06	Did diagnostic checks.
03:17	Was on standby waiting for the defendant.
03:22	Defendant brought into the room.
03:33	Did the demand.
03:35	Did a self-breath test.
03:41	Intoxilyzer ready for the test.
03:43	Defendant provided a suitable sample.
03:45	Did the alcohol influence report.

Were the Tests Taken as Soon as Practicable?

[4] The time of last occupancy of the motor vehicle was 02:28. The first breath test was complete at 03:43, and that is an elapsed time of 1 hour and 15 minutes or 1 hour and 22 minutes, depending on when the time clock starts.

[5] As stated in R. v. Vanderbruggen, "as soon as practicable does not mean as soon as possible but rather means that the breath tests must be administered within a reasonably prompt time. The Crown is not required to detail minute by minute what took place leading up to the testing. The onus is still upon the Crown to demonstrate that in all the circumstances, including where relevant the way the police organized and why, the breath samples were taken within a reasonable prompt time.

[6] The defendant asserts that upon a review of the officer's notes, he actually finished the breath test at 02:28 and then did nothing for some 7 seven minutes. He also states that the officer should have just arrested upon reasonable and probable grounds for an impaired instead of taking the time to do an ASD at all.

[7] With regard to the first issue, that is, did the officer complete the taking of breath samples at 02:28 and took him to his cruiser where he then did all of the necessary steps to instruct and complete the taking of a roadside sample, including the several failed attempts. He stated that it was all finished at 02:35.

[8] In his notes, the defence looks a box ticked off by the officer which is entitled "Time of Test" – 02:28. The officer stated that box was ticked to show the start of the process and points to another spot where under "Time of Demand", it also states 02:28. There is also a reference at another point in the notes where the ASD demand is put at approximately 02:24 and the giving of instructions is at approximately 02:28. What is consistent throughout is that the completion of the tests was at 02:35.

[9] As I look at all of this, is there anything particularly unreasonable of an investigation at the roadside from a stop at 02:21 with the ensuing conversation and forming of the suspicion, to the demand for an ASD, the warming up of the instrument, the instruction to the driver, the attendance at the officer's cruiser, the 6 or 7 failed attempts (as per the notes) the warning to the driver and the final result all happening and completed by 02:35? I would have to say not. Taking 14 minutes from stopping to completing all these tasks and arresting in that time is not unreasonable at all.

[10] With regard to the necessity of the ASD, the officer set out his reasons for having a reasonable suspicion and how he arrived at them are very understandable. There may have been some objective evidence out there which may have given him grounds to arrest for impaired. He obviously never had the subjective grounds to do so. I don't think that when all these issues are moving promptly, that I should second guess the officer in that regard.

[11] I therefore do not find that he somehow should have simply gone to an arrest for impaired and save some 7 minutes of time. As stated in Vanderbruggen, the "touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably". In all I do not think any of this was unreasonable.

[12] I therefore find that looking at the totality of time (I find that it is between 1 hour and 15 minutes and 1 hour and 22 minutes), there is nothing about the total description of all of the time periods that would offend the "as soon as is practicable" principal. As I look at all the other times, the police moved expeditiously to leave and arrive at the station, to do the booking process and then assist the defendant in speaking to duty counsel. The breath technician was ready for the defendant when the call to duty counsel was complete.

[13] There is nothing about the specific time at the roadside, not the total time which in any way offends the principles and set out in R. v. Vanderbruggen and other cases.

Conclusion

[14] I find that all the Crown can rely upon the presumption of identity and the readings taken at 03:43, namely 140 milligrams of alcohol in 100 millilitres of blood correspond to the blood alcohol reading of the defendant at the time of last driving. He will be found guilty of the charge.

Signed: "Justice P.N. Bourque"

Released: January 20, 2015