Court File and Parties

Court File No.: Toronto Region Ontario Court of Justice

Between:

Her Majesty the Queen

M. Thomaidis, for the Crown

— And —

Rishad Kazi

J. Tong, for the accused

Heard: June 4, July 2, 2015

FELDMAN J.:

[1] Charge and Plea

Rishad Kazi entered a not guilty plea to a charge of Operation Over 80. It is alleged that he was driving his motor vehicle with more than the legal limit of alcohol in his system. He says that samples of his breath were not taken as soon as practicable and should be excluded.

The Evidence

[2] Initial Stop and Roadside Screening

On November 27, 2014, at 1:35 a.m., P.C. Luigi Trovato saw the accused stop his motor vehicle very close behind the bumper of a car ahead of him at a red light on southbound Victoria Park Ave at the intersection of Shephard Ave East. What caught his attention was that despite the light nature of the traffic and an open lane beside him, the defendant chose to pull up too close to this vehicle, raising questions about his judgment. The officer stopped Mr. Kazi under the authority of the Highway Traffic Act in order to check on his level of sobriety.

[3] Smell of Alcohol and Roadside Demand

P.C. Trovato told the court that at 1:38 a.m. he smelled alcohol on the accused's breath, which led to his having a reasonable suspicion that Mr. Kazi had alcohol in his system. The officer demanded that he provide a sample of his breath into a roadside screening device. The defendant complied with the demand. At 1:41 a.m., he registered a Fail.

[4] Arrest and Demand for Approved Sample

Mr. Kazi was arrested at 1:43 a.m., read his rights to counsel and cautioned. He asked the officer about the process that was to follow. At 1:45 a.m., P.C. Trovato demanded that the defendant provide a suitable sample into an approved Intoxilyzer machine. He was handcuffed and placed in the rear of the police cruiser.

[5] Versedex Computer System Delay

Prior to leaving the scene, until 2:03 a.m., P.C. Trovato entered record of arrest information into the cruiser's new Versedex computer system as part of a mandatory police policy to make this information available to the parading officer in advance and without which the receiving station would not accept the detainee. It was a policy designed to make the work of the division more efficient. In this case, it made the start of the investigation process less so.

[6] Difficulty Finding Correct Criminal Code Section

The problem was that P.C. Trovato was unable to find the proper Criminal Code section for the charge for 9 minutes, from 1:48-57 a.m. This is borne out by the in-car video. The officer agrees that his escort could have started driving towards 41 Division, but his colleague was hungry and wanted to eat something.

[7] Decision Not to Drive While Entering Data

At 1:55 a.m., after eating some food, his escort asked if he should start driving. P.C. Trovato said no. He explained to the court that he felt it might be difficult, if not unsafe, to make input into the computer while the car was in motion. However, he believes he will become better over time in the use of this new system. He says he is mindful that breath tests need be taken as soon as practicable.

[8] Arrival at Station and Parade

They arrived at the station at 2:16 a.m., but had to wait outside until 2:28 a.m., although P.C. Trovato is unsure why. As well, while the officer's notes indicate entry at 2:24 a.m., the video shows the door to the sally-port opening at the later, likely more accurate, time. The accused was paraded at 2:28 a.m. and then placed in the report room at 2:30 a.m.

[9] Duty Counsel

P.C. Trovato called duty counsel because Mr. Kazi had asked him about the process. The officer did not inquire if he had his own counsel. The defendant spoke to duty counsel in private at 2:36 a.m.

[10] Breath Samples

Mr. Kazi was turned over to the breathalyzer technician, P.C. Moffat, at 2:39 a.m. It took the officer about 5 minutes to fill out an Alcohol Influence Report. The defendant's first breath sample was taken at 2:48 a.m., after which he was returned to the report room. He was brought back for his second sample at 3:07 a.m. That was provided at 3:13 a.m. Both tests resulted in readings of 131 milligrams.

Positions of the Parties

Defence Position

[11] Administrative Delays and Computer System Issues

Mr. Tong says that the newly imposed administrative responsibilities have added to the arresting officer's duties. He submits it is unclear what training was involved in use of the Veresedex computer system to ensure efficiency rather than delay. In this case, he says that 18 minutes to input information, at least 9 minutes of which were taken up in finding a section of the Code is unreasonable.

[12] Multiple Delays Identified

Mr. Tong submits, as well, that there is no explanation for the delay outside the sally-port prior to the cruiser being let in to start the parading process. He also says it was unreasonable for the breathalyzer technician to fill in the Alcohol Influence Report for about 5 minutes prior to the taking of the first breath sample. Finally, counsel submits that the taking of the second breath sample at 3:13 a.m. was 10 minutes longer than statutorily necessary.

[13] Cumulative Delay and Reasonable Doubt

Mr. Tong says that these periods of delay in combination in the context of the statutory two hour period for the taking of samples raise a reasonable doubt that the tests were taken as soon as practicable as required in Code s. 258(1)(c)(ii).

Crown Position

[14] Reasonable Timeliness Within Statutory Framework

Mr. Thomaidis submits that the police acted reasonably and within a reasonably prompt time in the circumstances to obtain suitable breath samples from the defendant. He says that the time involved should not be broken down by the minute. Rather, the time taken should be seen in the context of the two hours set out in s. 258(1)(c)(ii), in this case, one hour and 13 minutes to the receipt of the first breath sample.

The Authorities

[15] R. v. Vanderbruggen – "As Soon as Practicable" Standard

In R. v. Vanderbruggen, [2006] O.J. No. 1138 (Ont. C.A.), Rosenberg J discussed the meaning of 'as soon as practicable'. He said it means nothing more than that the tests were taken, not as soon as possible, but rather within a reasonably prompt time under the circumstances. In determining this issue, the court must consider whether the police acted reasonably.

[16] Whole Chain of Events Analysis

In this latter regard, the court "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". As Justice Rosenberg points out, there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody.

[17] Parliamentary Purpose and Reliable Evidence

He concludes by providing a common sense perspective that these provisions should be interpreted reasonably in a manner "consistent with Parliament's purpose in facilitating the use of this reliable evidence". It is understood that early testing within the two hour time frame enhances the integrity of the results.

[18] R. v. Davidson – Flexibility and Legitimate Basis

The application of the Vanderbruggen principles in other authorities is of assistance. In R. v. Davidson, [2005] O.J. No. 3474 (Ont. S.C.), Justice F. Dawson points out, at para. 20, that there need be some flexibility in the analysis, but was of the view that a delay will not be reasonable where there is no legitimate basis to support the delay.

[19] R. v. McDonald – Absence of Detail

As well, where the delay is of more than a minor nature and there is a complete absence of any detail as to what the officer was doing and why he was doing it, the delay will be unreasonable: see R. v. McDonald, [2014] O.J. No. 83 (Ont. S.C.), at para. 8.

Application to this Case

[20] On-Scene Investigation Delays

There are some delays here that require scrutiny and in combination raise questions about whether the police acted reasonably and if the breath tests were taken as soon as practicable. The 9 minutes P.C. Trovato spent searching for the correct section of the Code tended to diminish the efficiency intended by the new police policy of prior input of information. As well, the officer's reasons for not using the computer while the cruiser was in motion are weak. Nonetheless, given the recency of the new computer system and policy, some initial leeway is reasonable as adjustments are made. Standing alone, this delay in the on-scene investigation is explained and is not unreasonable.

[21] Sally-Port Delay

There was a delay of 8, but more likely 12 minutes before the cruiser was let into the sally-port and the parading process commenced. The officer could not remember the reason. This is unhelpful. At the same time, it is unrealistic to expect immediate entry each time given the volume of criminal investigations in this jurisdiction. However, to assume there was another detainee being paraded at the time would be speculative. I would attribute at least 8 minutes of unexplained delay to a consideration of the timeliness of the tests.

[22] Alcohol Influence Report

The Alcohol Influence Report is an important part of the investigation and of the breathalyzer technician's responsibilities. It took about 5 minutes to complete. In the context of the statutory time frame, it was brief. I have no difficulty with when it was done and would not attribute any meaningful delay to its undertaking.

[23] Interval Between Breath Tests

Finally, the second breath test was taken 25 minutes after the first. The Code requires a minimum of 15 minutes between tests. It is well known that reliance on the minimum time would raise a doubt that there had been statutory compliance. As a result, it is common for the technician to wait 17-20 minutes between tests. There is nothing improper here about the extra 5 minutes, in the sense of diminishing the integrity of the results, but also no explanation for it.

[24] Chronological Analysis and Borderline Case

Looking at the chronology of events, in the context of the two-hour statutory time frame, and mindful that the approach is not one of calculating minutes, I would consider the 9 minutes of delay to be explained and 13 minutes unexplained. It is a collective delay that on the issue of 'as soon as practicable' renders this a borderline case. It is of significance, however, in relation to this 'reliable evidence' that the first sample was taken one hour and 13 minutes after the time of the offence.

[25] Conclusion on Admissibility

In the circumstances, I am not left in reasonable doubt that the breath tests were taken as soon as practicable. The test results will not be excluded.

[26] Finding of Guilt

In the result, the essential elements of the offence have been proven beyond a reasonable doubt. There will be a finding of guilt.

Released: August 24, 2015

Signed: "Justice L. Feldman"