Court Information

Ontario Court of Justice Old City Hall - Toronto

Between: Her Majesty the Queen And: Pirathees Subramaniam

Counsel:

• T. Goddard for the Crown
• K. Hunter for the Defendant

Heard: April 10, 2015

Reasons for Judgement

Justice Melvyn Green

A. Introduction

[1] An Ontario Provincial Police (OPP) RIDE team was checking drivers as they approached an on-ramp to the eastbound 401 in the early hours of December 16, 2012. The defendant, Pirathees Subramaniam, was one of those pulled over. Five minutes later, at 12:25am, he registered a "fail" on a roadside approved screening device (ASD). The defendant's arrest followed, as did an Intoxilyzer demand and, at 1:36am and 1:58am, he was found, respectively, to have 150 and 130 milligrams of alcohol in 100 millilitres of blood – well above the legal blood alcohol concentration (BAC) limit. As a result, the defendant is charged with operating a motor vehicle with a legally excessive BAC, contrary to s. 253(1)(b) of the Criminal Code.

[2] Cst. Angel Liu, the arresting officer, testified for the Crown, as did Cst. Johanna Roesink, a qualified breath technician (QBT). The defendant neither testified nor called any other evidence. The defence takes no issue with the breath technician's certification of the defendant's BAC readings. It says, however, that cumulative delays in the taking of the Intoxilyzer tests preclude prosecutorial reliance on the "presumption of identity" so that, in the end, the Crown has failed to establish to the requisite standard (that of proof beyond reasonable doubt) that the defendant's BAC at the time of his driving was at the same elevated level as that recorded by the QBT or otherwise in excess of the legal limit.

B. Evidence

[3] Based on the odour of alcohol on the defendant's breath, his bloodshot eyes and his admission of having consumed a beer, Cst. Liu formed a reasonable suspicion that the defendant had alcohol in his body – the statutory prerequisite for the ASD demand he then made. The defendant's subsequent "fail" on the device afforded proper grounds for the Intoxilyzer demand that followed. The defendant was arrested for driving with an excessive BAC at 12:26am and given his rights to counsel some eight minutes later, at 12:34am. He indicated he wished to contact a lawyer. Conventional cautions and the formal approved instrument (Intoxilyzer) demand followed within the next two minutes. By 12:38am, Liu and the defendant were on their way to the Toronto OPP Detachment, some 22 kilometers distant. They arrived at the Detachment sallyport some 13 minutes later, at 12:51am, and were in the Detachment's booking room by 12:53am.

[4] Liu understood that the OPP and the Toronto Police Service (TPS) were always willing to assist each other. Upon reviewing a map, he agreed there was a TPS station, 42 Division, about 2½ kilometers, or a three-minute drive, from the RIDE installation where he arrested the defendant. Accordingly, he agreed that he could have escorted the defendant to 42 Division by 12:41am. He also agreed that the requisite breath testing could be done at any police station that had an approved instrument, so long as there was a QBT on hand to administer the test. Although Liu was not then qualified, he was a QBT by the time he testified at the defendant's trial. In his personal experience, it generally takes about 15 to 20 minutes to set up an approved instrument for testing once a QBT is notified that his or her services are required.

[5] Some time after December 16, 2012, there had been occasions when Liu had been re-routed to a TPS station for an arrestee's breath testing when there was no QBT at the OPP Detachment or the OPP Intoxilyzer was out of service. Apart from such re-direction, as a matter of training and practice Liu routinely transported detainees to the OPP Detachment for breath testing. He gave no thought to taking the defendant to 42 Division on December 16, 2012. He had never been to 42 Division. He did not know if every TPS station had an approved instrument. He did not know if 42 Division was busy that evening. He did not contact the station. Based on his own experience, there was a risk of greater delay in attending an unfamiliar station where he was unacquainted with the sallyport or station protocols.

[6] Once in the OPP Detachment booking room, Liu collected and stored the defendant's personal items, had him remove his bulkier outer clothing and belt, and conducted a pat-down search. Roesink then completed the paperwork side of the booking process. The defendant was placed in a cell at 12:59am. According to Liu, he called the duty counsel office for the defendant at 1am and duty counsel returned the call at about 1:17am. He escorted the defendant from his cell to a privacy booth at 1:19am where the defendant spoke privately with counsel for about four minutes, until 1:23am. (These time notations reflect the times recorded by the digital clock on the videotape of the events at the Detachment and, importantly, afford a consistent and reliable measure of the duration between various events; the times noted by Liu and Roesink and repeated in their testimony generally differ by a couple of minutes from those on the video clock.)

[7] Within seconds of completing his conversation with duty counsel, the defendant was escorted to the breath room and the primary custody of Cst. Roesink, the QBT. Approximately 24 minutes had passed since the defendant was first placed in a cell to await duty counsel's return call. Liu agreed that, despite several opportunities, he did not convey the essential background information to Roesink, the QBT, until he, the defendant and Roesink were first together in the breath room. Liu attributed his delay in substantively communicating with the QBT to his routine practice and the training he had received from his coach officers. His exchange with Roesink regarding the alleged offence and the arrest, their timing, and the provision of rights to counsel ultimately occupied less than two minutes. It was recorded by the CCTV in the breath room. Liu agreed that Roesink likely knew at least some of the answers to the questions she posed in the breath room as she was part of the same RIDE team that had stopped the defendant. Liu left the breath room upon conclusion of this Q and A.

[8] Cst. Roesink first learned that Liu had arrested an "over-80" suspect at 12:28 am. As Roesink was the only OPP breath technician on duty that evening, she had immediately left the RIDE installation to attend at the OPP Detachment, arriving at 12:45am. She was not originally from Toronto and did not know the location of the TPS 42 Division station. She also did not know whether there was an Intoxilyzer 8000C (the instrument she was qualified to operate) at 42 Division. She did not think to make inquiries respecting the location of any TPS stations. The single OPP Detachment in Toronto, she explained, is "our home detachment".

[9] Roesink attended to setting up and testing the approved instrument upon arriving at the OPP Detachment. She was "good to go" by 1:02am. She then waited until the defendant completed his conversation with the duty counsel at 1:23am. Seconds later, once all three were in the breath room, Roesink asked Liu a mechanical series of questions essential to satisfying herself that there were adequate grounds to conduct the Intoxilyzer testing. Consistent with her training and personal preference, this exchange was conducted with the defendant present and while subject to video recording. She made no effort to secure this information from Liu prior to the defendant's attendance in the breath room. Roesink agreed that different stations employed different protocols in regard to when and how a QBT obtains the background information from an arresting officer, including the station to which she was assigned at the time of trial. She denied that her exchange with Liu was "meaningless" as she only knew some of the answers and the procedure she followed afforded the defendant an opportunity to both hear the arresting officer's answers and respond to them. The defendant said nothing during her interrogation of Liu but he clearly appears to be following their conversation.

[10] Roesink provided the defendant with a secondary caution once Liu left at 1:25am. Between 1:26 and 1:29am, she instructed him as to the operation of the Intoxilyzer, including a demonstration and self-test. Roesink then completed some data entry on the approved instrument for the next five or six minutes. The defendant's first effort to provide a sample, at 1:35am, was unsuccessful. A suitable sample was taken less than a minute later – some 13 minutes after the defendant first entered the breath room and 76 minutes, or almost exactly 1¼ hour, after the occurrence of the alleged offence of driving with an excessive BAC.

[11] Roesink then endeavoured to interrogate the defendant about his driving, his alcohol consumption and the circumstances surrounding his arrest. "Not answering" was the defendant's response to each of her questions. He was advised that his next test would be some 17 minutes later. Roesink explained that although the law requires a minimum 15-minute gap between the taking of the two approved instrument breath tests, as a safeguard her practice was to not conduct the second test until at least 17 minutes had passed.

[12] The defendant returned to his cell at 1:38am. He was back in the breath room at 1:53am, some 15 minutes later, and provided a second suitable sample at 1:58am – 22 minutes after the first suitable sample was taken.

[13] Roesink agreed that in some circumstances, such as when the OPP Intoxilyzer was inoperative, the OPP would resort to a TPS station to conduct breath testing. In her own experience, a TPS breath technician would conduct the testing. In Roesink's opinion, it was "more practicable" to conduct the testing at one's own station as the officers would then be more familiar with the local protocols, the physical facilities, and the lodging for detainees.

C. Analysis

(a) Introduction

[14] The sole issue is whether the Crown has proven that the defendant's BAC at 12:20am, the time he was observed operating his motor vehicle, exceeded the legal limit of 80 milligrams of alcohol in 100 millilitres of blood. The prosecution's forensic challenge in such cases arises from the difficulty of proving that an accused's BAC at the time he was driving was greater than that allowed by law when the only reliable measurement of his or her BAC (that assessed by an approved instrument such as an Intoxilyzer) is not taken until sometime, usually over an hour, after the event. The conventional methods of "reading back" Intoxilyzer evidence is through expert evidence or reliance on a statutory presumption, an evidentiary "shortcut" that may be invoked only where all of its preconditions are satisfied.

[15] As no expert evidence has here been tendered, the Crown relies exclusively on the statutory presumption in proof of this essential element of the offence. Where the necessary statutory prerequisites are met, the pertinent provision (s. 258(1)(c)(ii) of the Code, generally known as the presumption of identity) prescribes that the BAC readings resulting from approved instrument testing accurately reflect (that is, are to be treated as identical to) a suspect driver's BAC at the time of the alleged offence. The relevant portions of s. 258 read:

In any proceedings … in respect of an offence committed under section 253 …,

(c) where samples of the breath of the accused have been taken pursuant to a [approved instrument] 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 … [Emphasis added.]

[16] The defence does not object to the admission of the Certificate of Analysis recording the defendant's BAC or to the accuracy of the reported results. Its position, in brief, is that those results speak only to the defendant's BAC at the time of his Intoxilyzer testing and have nothing probative to say about the single critical issue – the defendant's BAC at the time he was observed driving. Viewed cumulatively, the defence asserts that several police engendered delays in the collection of the defendant's breath samples are not, in the language of the governing jurisprudence, "reasonable". As a result, the Intoxilyzer samples were not "taken as soon as practicable", as required by s. 258(1)(c)(ii), and therefore the Crown cannot rely on the presumption of identity for "conclusive proof" of the defendant's BAC at the time he drove his car. Absent any other avenue of proof of the defendant's BAC at the time of his driving, the argument continues, an acquittal must follow.

(b) The Governing Jurisprudence

[17] The 'modern' seminal statement of the meaning and application of the phrase "as soon as practicable" is that authored by Rosenberg J.A. on behalf of the Court of Appeal in R. v. Vanderbruggen, 206 C.C.C. (3d) 489. The core of the Court's reasoning and its functional underpinnings are set out in following oft-quoted passages, at paras. 12-13 and 16 (citations omitted):

That leaves the question that is at the heart of this appeal – the meaning of as soon as practicable. Decisions of this and other courts indicate that the phrase means nothing more than that the tests were taken within a reasonably prompt time under the circumstances. There is no requirement that the tests be taken as soon as possible. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably.

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 to the taking of the first test. The "as soon as practicable" requirement must be applied with reason. In particular, while the Crown is obligated to demonstrate that – in all the circumstance – the breath samples were 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.

To conclude, these provisions, which are designed to expedite trials and aid in proof of the suspect's blood alcohol level, should not be interpreted so as to require an exact accounting of every moment in the chronology. We are now far removed from the days when the breathalyser was first introduced into Canada and there may have been some suspicion and scepticism about its accuracy and value and about the science underlying the presumption of identity. These provisions must be interpreted reasonably in a manner that is consistent with Parliament's purpose in facilitating the use of this reliable evidence.

Needless to say, Vanderbruggen defines the contours of the defendant's argument and the Crown's response.

(c) Applying the Law

[18] The defence points to three periods of delay that, it says, together deprive the Crown from reliance on the presumption of identity. The first delay identified by the defence is the 12-minute differential between, on the one hand, the travel time involved in escorting the defendant to the single OPP Detachment in Toronto (some 15 minutes distance) and, on the other, the estimated three minutes it would have taken to drive him to the nearest TPS station. The second relates to a posited 12½-minute delay between the defendant's attendance in the breath room and the taking of the first suitable breath test. And the third refers to the 22 minutes between the collection of the first and second breath samples, some seven minutes longer, on the defence theory, than the "fifteen minutes" spelled out in s. 258(1)(c)(ii). Accordingly, some 31½ minutes of total cumulative delay is advanced as amounting to "unreasonable".

[19] Each of these three periods warrants comment. As to the first, it is of course pure conjecture as to whether the TPS 42 Division station had an operable approved instrument, whether a TPS breath technician was available or the officer in charge of the station was prepared to permit a QBT from a different force to utilize the instrument, or whether the station, by virtue of the press of its own business, was able to promptly accommodate the testing of the defendant. Neither Liu nor Roesink had ever been to 42 Division. Even assuming a vacant and operable Intoxilyzer available for Roesink's immediate attention, the OPP officers' attendance at an unfamiliar station and their adjustment to its logistics and protocols would inevitably have eroded the 12 minutes of "savings" the defence attributes to the shorter drive.

[20] By any measure, the OPP officers acted with admirable promptness following the defendant's initial detention. Despite preliminary questions, an ASD demand, the administration of a roadside screening test, a subsequent arrest, an approved instrument demand and the provision of rights to counsel and formal cautions, Liu was on his way to the Detachment within 18 minutes of first stopping the defendant. Roesink left the RIDE program even sooner, departing as soon as she learned of the arrest and arriving at the Detachment some 8 minutes before Liu and the defendant. It is not insignificant that the defence advances no complaint about the time that expired between the defendant's initial stop and his departure with Liu for the OPP Detachment. As said by Durno J. in R. v. Price, 2010 ONSC 1898, at para. 16, respecting the proper application of Vanderbruggen to the assessment of the reasonableness of any delay preceding the taking of a first sample:

It must also be remembered that focusing on one aspect of the total time is not the appropriate way to determine if the tests were taken as soon as practicable. Rather, it is the entire time period that must be examined.

This reminder is an apposite consideration respecting each of the intervals and the cumulative delay challenged by the defence.

[21] The second period of impugned delay (the 12½ minutes between the conclusion of the defendant's consultation with duty counsel and the recording of his first suitable breath sample) is, in my view, not nearly as flagrantly dilatory as the defence suggests. It is simply not correct to say, as does the defendant's counsel, that the entirety of what occurred after the defendant's conversation with duty counsel and before the first test could have been conducted earlier. Effective instructions as to the manner by which to properly provide a sample and a related demonstration both require proximity to the Intoxilyzer. Roesink's questions about the events surrounding the alleged offence could not fairly have been posed before the defendant had consulted counsel, in accordance with his request; indeed, his declining to answer Roesink's questions likely reflected the advice he received. Approximately a minute of the contested time frame was a result of the unsatisfactory nature of the defendant's first effort and his having to redo the test.

[22] There is no doubt that Roesink could have extracted the essential background information from Liu before the defendant entered the breath room. However, at least in my view, the procedure here followed was not unreasonable. It permitted the defendant to hear and correct, if so inclined, the information conveyed by Liu, and it preserved a video record of that exchange should its content or integrity ever be called into question. In any event, this "dog and pony show", in defence counsel's characterization, was less than two minutes duration. As to any otherwise unaccounted portion of this period in the breath room, it is here worth reiterating the Court of Appeal's reminder in Vanderbruggen that "there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody". (See also, and much more recently, the Court of Appeal's re-affirmation of this proposition in R. v. Singh, 2014 ONCA 293, at para. 15.)

[23] Finally, there is the complaint respecting the 22 minutes that passed between the first and second breath tests that, as posed by the defence, constitutes an untenable delay of approximately 7 minutes beyond the 15 minutes referenced in s. 258(1)(c)(ii). To be clear, that provision does not specify "fifteen minutes" but, rather, requires "an interval of at least fifteen minutes between the times when the [two] samples were taken" (emphasis added) to satisfy the preconditions to reliance on the presumption of identity. There is no outer statutory limit. To ensure that the second sample is not secured prematurely, most QBTs, including Roesink, routinely wait some 17 to 20 minutes before conducting the second test. (See, for example, R. v. Singh, supra, at para. 6.) The holdover, if any, here amounts to a mere two minutes. Further, as said at para. 16 of Singh, supra (in which the reasonableness of a 28-minute delay between the first and second breath tests was affirmed on appeal), "There was, in this case, no suggestion that the interval between the two samples was somehow related to the reliability of the results".

[24] In my estimation, the delay attracting any close scrutiny amounts to no more than, at highest, some 10 to 15 minutes. To be clear, even if I accepted the full, if hyperbolic, defence calculation of some 31½ minutes of salvageable time, I would still find that the "as soon as practicable" prerequisite was here satisfied.

[25] The language of "as soon as practicable" does not impose a statutory limitation period. Nor does it create a standard of temporal minimization or require the Crown to demonstrate that no swifter comparator was available or that the approach followed by the police was the most reasonable of reasonable alternatives. The test is simply one of reasonableness – and one to be applied bearing in mind that reliance may be had on the presumption of identity so long as the first test is conducted within two hours of the alleged offence. Here, exactly as in Vanderbruggen (see para. 14), "there was an approximate delay of one hour and fifteen minutes from the time of the offence to the taking of the first sample" – a global delay that the Court of Appeal found unobjectionable in light of the two-hour rule and "the whole chain of events" that command consideration. This is not one of those unfortunate cases where the police stopped for a donut or gave precedence to patently less urgent matters. Rather, as said in Vanderbruggen, at para. 14:

The record only shows that they were attentive to their duties and to the need to administer the tests to the appellant as soon as practicable. There was no evidence that the officers gave unreasonable priority to any other task.

[26] Finally, I note that Vanderbruggen strongly signals that the doubts and misgivings that accompanied the advent of Intoxilyzers and, in particular, the reliability of the results they generate, have long been overtaken by experience. To repeat:

We are now far removed from the days when the breathalyser was first introduced into Canada and there may have been some suspicion and scepticism about its accuracy and value and about the science underlying the presumption of identity. These provisions must be interpreted reasonably in a manner that is consistent with Parliament's purpose in facilitating the use of this reliable evidence.

[27] In the end I am satisfied, as was the Court in Vanderbruggen, at para. 14, that, "There was no evidence that either the arresting officer or the technician acted unreasonably". Accordingly, the conditions for the application of the presumption of identity have been satisfied and, in the result, the defendant is guilty of the charge upon which he was arraigned.

D. Conclusion

[28] Consistent with these reasons, I find the defendant guilty of the offence of operating a motor vehicle with an excessive blood alcohol concentration.

Released on June 23, 2015

Justice Melvyn Green