Court File and Parties

Court File No.: Kitchener 2767/14 Date: 2015-09-15 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Gregory David Juniper

Before: Justice G.F. Hearn

Heard on: May 14, 2015 and August 12, 2015

Reasons for Judgment released on: September 15, 2015

Counsel:

• Mr. Simon McNaughton, for the Crown
• Mr. Michael Caroline, for the defendant Gregory David Juniper

Hearn, J.:

BACKGROUND

[1] On May 14, 2015 Gregory Juniper entered pleas of not guilty to counts of operating his motor vehicle while his ability to do so was impaired by alcohol and operating his vehicle with a concentration of alcohol in his blood exceeding the legal limit. The offences are alleged to have taken place on May 8, 2014 at the City of Kitchener.

[2] The Crown called two witnesses at trial. The defence elected to call no evidence. A number of issues have been raised, submissions were heard and further written submissions were received. The matter has ultimately been adjourned to today's date for judgment.

EVIDENCE OF THE CROWN

1. Evidence of Cst. Kevin VanKuik

[3] At approximately 1:00 a.m. in the early morning hours of May 8, 2014 Cst. VanKuik while on duty as a member of the Waterloo Regional Police had occasion to observe a motor vehicle operating at a "high rate of speed" travelling in the opposite direction as he on a road way in the City of Kitchener. The officer did a U-turn in his vehicle and followed that vehicle coming within four car lengths of it.

[4] He noted the vehicle to be varying its speed which the officer felt was inconsistent for "no necessary reason". The officer noted the speed would vary "a few kilometres up and down" from 80 kilometres per hour in a 60 kilometre an hour zone. During the course of this he did not observe brake lights being applied by the operator of the vehicle.

[5] The vehicle came to stop at a red light appropriately but apparently "not at the stop bar, but a short distance back". The light changed, a left turn was initiated by the vehicle which the officer noted was "wide". The vehicle continued to be operated on the dividing line between two lanes before changing into the curb lane "completely". At that point the officer activated the emergency equipment on his vehicle and conducted a traffic stop. The time was 1:01 a.m.

[6] The officer exited his cruiser, approached the vehicle and found the accused to be the driver. In addition to the accused there were two passengers.

[7] He advised Mr. Juniper of the reason for the stop being "his speed, his driving habits, his turn and when exiting his vehicle noting that the validation sticker on the licence plate had expired".

[8] The constable testified when asked by the Crown how the accused reacted, that the accused acted "strangely". By this he apparently meant when he usually conducts traffic stops people make eye contact with him when he is speaking, but in this case Mr. Juniper simply "stared straight ahead".

[9] The demand was made for documentation. The ownership and insurance could not be immediately located but when they were Mr. Juniper "stared at it" stating that it was expired and he knew that. The officer also testified Mr. Juniper was reading the ownership "upside down". Mr. Juniper did produce a driver's licence without difficulty. An insurance card was also produced which had expired.

[10] At this point the officer observed the passengers to be acting in a way that caused him to lean over into the vehicle where he could smell an odour of an alcoholic beverage which he described as a strong odour.

[11] Eventually the officer asked Mr. Juniper if he had consumed an alcoholic beverage that evening. The accused indicated with a "slightly slurred no" that he had not but the passengers had. When asked what the officer meant by "slightly slurred", he replied that the response of no was not "clear and crisp, but dragged on". The officer returned to his cruiser, did the usual checks and formed a suspicion of alcohol consumption by the driver. He brought Mr. Juniper back to the cruiser and at 1:14 a.m. read the demand for the approved screening device. He then demonstrated how the device worked and produced it to Mr. Juniper.

[12] He described the device appropriately, found it to be in proper working order and produced it to Mr. Juniper for a sample to be taken at which point Mr. Juniper was "pleading" with him to be released. All this was said without Mr. Juniper looking directly at the officer.

[13] The officer instructed Mr. Juniper how to provide the sample, coached him, but a suitable sample after some effort was not obtained. The officer described the efforts made and while discussions were taking place for "the first time" the officer had an opportunity to view Mr. Juniper directly "in a well-lit area".

[14] At that time he noted Mr. Juniper's eyes to be "red-rimmed, glossy, glassy" and he detected an odour of an alcoholic beverage on his breath. The officer then formed the opinion that Mr. Juniper's ability to operate a vehicle was impaired by alcohol and arrested him.

[15] The grounds for his arrest, with which no issue is taken, were noted to be the high rate of speed, the inconsistent speed, the wide left turn, the odour of alcohol in the vehicle, the time of night, the odour on Mr. Juniper's breath, the fact that his eyes were red and glassy and that he "wouldn't look at me".

[16] Mr. Juniper then requested to take the test, the officer indicated he was under arrest and there seems to have been some issue the officer described as a "struggle" to handcuff Mr. Juniper and place him in the cruiser. That was eventually accomplished.

[17] The arrest was at 1:24 a.m. Rights to counsel and the caution were provided at 1:28 a.m. during which the officer noted that he was "met with unco-operation". Nothing in the evidence of the officer would indicate that Mr. Juniper understood his rights to counsel nor to this point requested or waived his right to counsel.

[18] The breath demand was read at 1:34 a.m. and the officer with Mr. Juniper in his cruiser was en route to the detachment at 1:35 a.m. arriving at 1:41 a.m.

[19] Mr. Juniper's "unco-operation" apparently continued at the detachment while answering questions of the desk sergeant (the court never heard from the desk sergeant). This officer's evidence was that Mr. Juniper was "indecisive calling lawyer", but when asked directly by the Crown if he requested to speak to a lawyer the officer indicated in-chief "duty counsel, yes".

[20] The officer placed a call to duty counsel at 2:07 a.m. That call was returned at 2:17 a.m.

[21] The officer testified that between 1:41 a.m. and 2:07 a.m. paperwork had been completed, various questions were asked of the accused and he had been placed in an interview room awaiting duty counsel to call back.

[22] The officer did not recall nor note how long the conversation with duty counsel took place and notwithstanding an invitation by the Crown, refused to "guess at it". He did testify he provided the grounds "to the breath tech" while Mr. Juniper was in contact with duty counsel.

[23] He could not recall specifically when Mr. Juniper was brought into the breath room, but did note that the first suitable breath sample was obtained at 2:45 a.m. during which time he was present, with the second sample at 3:08 a.m.

[24] Following the completion of the tests Mr. Juniper was returned to the interview room and ultimately "served all documents" at 3:45 a.m.

[25] In cross-examination the officer confirmed he had not noted a delay in the vehicle coming to a stop after his emergency lights on his cruiser had been activated to initiate the stop. He also could not recall if the turn signal had been properly activated prior to the turn after the red light changed. The officer agreed the stop was a "fairly ordinary traffic stop" in the manner in which the vehicle was pulled over.

[26] The officer testified it was at 1:14 a.m. when he noted that the accused when responding to the question with respect to an alcoholic beverage had answered "no" in a "lightly slurred fashion". He noted that form of speech continued while discussions were taking place concerning the approved screening device and throughout his contact with Mr. Juniper including while the accused was in the presence of the qualified technician at the detachment.

[27] The officer agreed there had been no problem with Mr. Juniper exiting his vehicle when requested nor with his balance. He also did not note any difficulty walking and, although while outside the cruiser the accused was "constantly moving", the officer fairly noted it was cold and windy. Further, the officer had observed no difficulty with Mr. Juniper walking while entering the detachment nor any unsteadiness at any point at the detachment in the walking or movement of Mr. Juniper and specifically testified as follows:

Q: Okay throughout the whole time he is with you, you don't see any signs of a difficulty with his manual dexterity or his ability to walk a straight line?

A: I don't think there is a straight line written on the ground there, but no.

[28] The officer did confirm when it was put to him by Mr. Juniper's counsel that Mr. Juniper was acting like a "bit of a jerk" and was somewhat unco-operative initially at least with this officer as well as the desk sergeant. With respect to the issue of duty counsel, although on the detain sheet it had been written that duty counsel had been contacted, there was nothing on that particular document to indicate that Mr. Juniper had requested duty counsel. The officer agreed that he had not noted the request either on the sheet or in his notebook, but did remember when he had asked Mr. Juniper that. The officer confirmed while in the cruiser Mr. Juniper never requested to speak to counsel as he "just kept fooling around". The accused however was asked in the cellblock about a lawyer and that is "how we get to calling a duty counsel".

[29] In his notebook the officer had noted at 1:41 a.m. as follows:

A: Detainee indecisive with cell sergeant and it says duty counsel yes, pat down wand, interview room one.

Q: So duty counsel yes means he asked for duty counsel?

A: He said yes to duty counsel.

[30] This had been stated to the sergeant but this officer was present when that was said. The following exchange then took place:

Q: And you have a recollection that he said I want to speak to duty counsel or said yes I want to speak to duty counsel?

A: I wrote down in my book yes to duty counsel.

Q: But you don't say that he said it or you don't say he was asked that question do you?

A: I'm going to say that he said yes to the answer do you want duty counsel, I'm going to say that he said yes.

[31] Again, the officer in cross-examination stated that he was not certain when the accused had actually been turned over to the breath tech, but noted it to be sometime "prior to 2:45 a.m."

[32] In questioning by the court the following exchange took place:

The Court: Can I just clarify one part of your evidence? Mr. Caroline was questioning you with respect to the duty counsel and you referred to your notes. And where it says duty counsel yes.

A: Yes.

The Court: Am I understanding your evidence that you have no independent recollection of how that came to be noted or do you have an independent recollection of how you came to write down duty counsel yes.

A: The way I make my notes is I write down duty counsel, I then ask the question there – in that station I'm taking that from the sergeant asking the question.

The Court: So you're just taking it from somebody else asking the question. Do you have an independent recollection of that?

A: Of the interview down there, yes.

The Court: And with respect to the duty counsel issue?

A: I'm going to say no.

[33] It is of note that during the examination of Cst. VanKuik the Crown attempted to lead evidence to support the admissibility of a certificate of a qualified technician. An issue arose with respect to the service of that document being properly proven and a voir dire was entered into. After hearing further evidence and submissions on the voir dire the court ruled the certificate inadmissible. Reasons for that ruling were provided during the course of the trial and included among other things the failure of the Crown to prove beyond a reasonable doubt that a true copy of the certificate had been served on the accused. As a result of the ruling the Crown indicated they would not be relying on the certificate and would be thereafter calling the "qualified breath technician".

2. Evidence of Cst. Jeremy Green

[34] Constable Green is a member of the Waterloo Regional Police Service and was also on duty on May 8, 2014. During his examination in-chief the following question and answers were given:

Q: Alright are you a qualified breath technician?

A: I am.

Q: How long have you been a qualified breath technician officer?

A: Since January 2012.

Q: Alright. How many times in the course of your employment with the Waterloo Regional Police have you conducted breath tests?

A: To date approximately, I completed approximately 250 tests.

[35] Constable Green went on further to testify that he was dispatched while on duty at another location to attend at Central Division and did so at 1:28 a.m. on May 8, 2014.

[36] He arrived at 1:40 a.m. and noted as follows:

A: When I arrived I attended at the breath room. I observed the Intoxilyzer 8000C, serial number 8005096. It's the approved instrument pursuant to s. 254 of the Criminal Code. I completed the test to confirm that it was working properly. I completed the calibration test at 1:47 a.m. The result of that was 93 milligrams of alcohol in 100 millilitres of blood which was in the acceptable range. I completed a diagnostic test at 1:48 a.m. All eight tests passed.

Q: Okay.

A: And I completed the breath technician sample at 1:51 a.m. and the sample was 0 milligrams of alcohol in 100 millilitres of blood and at that time I was confident that the instrument was in proper working order.

[37] Constable Green testified that Cst. VanKuik turned Mr. Juniper over to him at 2:25 a.m. The accused was brought into the breath room at which time this officer observed the accused had an odour of an alcoholic beverage on his breath, his eyes were red around the eyelids and were glassy. He had some redness on his forehead as well.

[38] The officer received the grounds from Cst. VanKuik at 2:19 a.m. and based on those grounds and his own observations he formed the opinion that Mr. Juniper's ability to operate a motor vehicle was impaired by alcohol. The officer went on to describe the Intoxylizer 8000C and what it was designed to be used for and noted that it was an approved instrument. He provided instructions on how to provide a sample to Mr. Juniper and after numerous attempts a suitable sample was provided at 2:45 a.m.

[39] When asked why it took so long the officer described Mr. Juniper appeared to be intentionally trying to prevent air from going into the Intoxilyzer and had to be coached on numerous occasions as to how to provide the sample. When a sample was finally obtained the reading was 105 milligrams of alcohol in 100 millilitres of blood.

[40] Mr. Juniper then left the breath room at 2:46 a.m. while the officer waited the required 17 minutes. Mr. Juniper was returned at 3:03 a.m. and a second sample was obtained, again directly into the Intoxilyzer resulting in a reading at 3:08 a.m. of 96 milligrams of alcohol in 100 millilitres of blood.

[41] A copy of the test record detailing the sequence completed by the Intoxilyzer 8000C is marked as Exhibit 1.

[42] In cross-examination the officer confirmed he had not seen Mr. Juniper at the detachment until he was presented in the breath room at 2:25 a.m. He had not noted anything obvious about Mr. Juniper's "walking" and had not made any notes with respect to "slurred speech", although he did note that in response to some of the questions there was "hesitation" which the officer candidly acknowledged could be a sign of impairment of alcohol or could just be his "natural thinking".

[43] The officer testified his opinion with respect to the impairment of Mr. Juniper was based on the evidence of "everything that I saw", the grounds that had been provided as well as the readings. The officer agreed there had been no physical tests conducted to gauge impairment.

ISSUES TO BE DETERMINED

[44] The issues to be determined in this matter are as follows:

1. Has the Crown proven beyond a reasonable doubt that on May 8, 2014 Mr. Juniper's ability to operate a motor vehicle was impaired by alcohol?

2. Has the Crown proven the essential elements beyond a reasonable doubt with respect to the over 80 count and specifically has the Crown proven that Cst. Green was a qualified technician qualified to operate the Intoxilyzer 8000C? and,

3. Were the breath samples provided into the approved instrument taken as soon as practicable in all the circumstances?

ANALYSIS AND RULING

1. Has the Crown proven to the degree required all essential elements of the charge of ability to operate a motor vehicle while impaired by alcohol?

[45] The Criminal Code itself does not set out any particular tests for determining impairment. Impairment of one's ability to drive is generally understood to mean the alteration of one's judgment and a decrease in one's physical abilities. Further, to come within s. 253(a) impairment does not have to reach any particular level and evidence which establishes any degree of impairment of ability to drive is proof beyond a reasonable doubt.

[46] On the case law it is clear that the onus of proving the ability to operate a vehicle was impaired to some degree by alcohol is on the Crown and is proof beyond a reasonable doubt. The case law also indicates the impairment must relate to the ability of the individual to drive and must be caused by the consumption of alcohol or a drug.

[47] Dealing with the issue of impairment, the court must look at the totality of the evidence including observations of both police officers. Those observations would have to establish beyond a reasonable doubt that Mr. Juniper's conduct departed from normal behaviour. A person that has anything to drink and drive does not commit an offence. It is not necessary for the Crown to establish a marked degree of impairment of one's ability to drive and any degree of impairment of that ability, if proven beyond a reasonable doubt, is supportive of a finding of guilt.

[48] Where the evidence indicates that an accused's ability to walk, talk and perform basic tests of manual dexterity is impaired by alcohol the logical inference may be drawn that the accused's ability to drive a vehicle is also impaired. In most cases where the conduct of the accused is a slight departure from the normal conduct it would be unsafe to conclude beyond a reasonable doubt that his or her ability to drive a motor vehicle was impaired by alcohol. Ultimately the conduct observed must satisfy the court beyond a reasonable doubt that the ability to drive was impaired to some degree by alcohol.

[49] In this case after looking at the evidence in its entirety I find I am not satisfied beyond a reasonable doubt that the Crown has established the essential elements of this particular charge and the accused will be found not guilty on this count.

[50] I have come to that conclusion fully appreciating the Crown does not have to establish a marked degree of impairment and for the following reasons:

1. The evidence of operation of the vehicle is minimal and equivocal. The attention of Cst. VanKuik was drawn to the motor vehicle operated by the accused when the officer observed the vehicle approaching at a high rate of speed. That rate of speed was never quantified but whatever it was caused the officer to make a U-turn at one o'clock in the morning to follow the vehicle. While following the vehicle there were some observations made of variation in speed but no other driving was noted of any concern when the vehicle was initially followed. It is my understanding from the officer's evidence that he followed the subject vehicle at a relatively short distance and the variation in speed might have alternative explanations other than ability to operate being impaired.

In any event, the officer noted the vehicle to stop appropriately at a red light, although a "short distance back of the stop bar". The light changes and a left hand turn is initiated. There is nothing in the evidence of the officer to indicate a proper signal had not been activated. One would assume if a signal had not been activated the officer would have noted that as part of a concern about the driving. The vehicle made what the officer described as a wide left turn but did change lanes into the curb lane and then properly responded to the activation of the officer's emergency lights and comes to a stop. The officer himself describes the stop was made without difficulty and noted it to be "a fairly ordinary traffic stop". All of these observations concerning the operation of the vehicle take place within a very short period of time as the vehicle was first observed at "approximately 1:00 a.m." and the traffic stop was initiated at 1:01 a.m.

2. On stopping the vehicle the interaction of the officer with the accused while the accused was in the vehicle would indicate some difficulty in holding some of the documentation the right side up but otherwise it appears the documentation was produced and, although expired, appears to have been acknowledged to be so by the accused. The officer notes that the accused did not look at him which is his usual experience when someone is stopped, but simply stared straight ahead. When asked with respect to consumption of alcohol, the officer testified the accused answered "no" in a "slightly slurred" manner which the officer indicates meant the response was not "clear and crisp but dragged on". This is rather confusing evidence as it is hard to understand how the answer "no" could be slurred or dragged on. The officer also testified that this "slight slurring" continued at the scene and at the detachment. However, Cst. Green seems to have noted nothing about the nature of the speech of the accused, save and except that there was some hesitation which that officer reasonably noted could have been simply a normal manner of speech or thought on the part of Mr. Juniper.

3. Constable VanKuik then made a demand for an approved screening device. Although there is no issue about the grounds for the arrest or the demand being made, it would seem evident that the officer at that point up to the time of the demand did not feel he had sufficient grounds to arrest for impaired driving and the court would agree that that would be an appropriate decision on his part. Given the circumstances which seem to have led to the demand being made, there could be a reasonable suspicion on the officer's part that Mr. Juniper had alcohol in his body. During the administering of the approved screening tests the accused was unco-operative, did not blow properly in the officer's view and the officer agreed with defence counsel's comment that the accused was effectively acting like a "bit of a jerk". Crown counsel makes quite a point of saying that the actions of the accused speak of impairment but the actions of the accused, in my view, speak equally of the accused's desire simply not to provide a sample because he was concerned about the whole procedure as evidenced by his pleas with the officer thereafter to allow him to take the test. Still, there is no charge of refusal or failure to provide here and there is nothing in the description of the administering of the tests by Cst. VanKuik that would indicate the inability to provide a sample was as a result of impairment.

Still, at this point the officer then now says he detects the odour of alcoholic beverage on Mr. Juniper's breath and notes his eyes to be red-rimmed, glossy and glassy. He then decides he now has grounds for the arrest for impairment and makes the arrest. Of note Cst. Green, although perhaps experiencing some of the same lack of co-operation from Mr. Juniper when conducting the intoxilyzer tests makes no note of slurred speech and, although he notes the odour of an alcoholic beverage on the breath of Mr. Juniper, notes Mr. Juniper's eyes to be red "around the eyelids" and glassy with some redness on the forehead as well. I am not certain how red around the eyelids equates with red-rimmed but there seems to be inconsistency in the description of the observations of both officers with respect to Mr. Juniper's "eyes".

4. At the scene there is nothing in the evidence to indicate that Mr. Juniper had any difficulty exiting his vehicle or walking to the police cruiser. Further, there is no indication at all of any difficulty with balance or walking while entering the detachment or the breath room. In fact, it would seem that the signs noted to be signs of impaired ability by alcohol ceased virtually upon leaving the scene following the arrest at 1:14 a.m. The evidence thereafter is minimal with respect to that issue. The evidence at the detachment would certainly indicate that Mr. Juniper appears to have been continuing to be unco-operative but there is nothing else in the evidence that would satisfy the court beyond a reasonable doubt that his ability to operate the vehicle was impaired by alcohol. Indeed, the evidence that is available through Cst. Green's testimony would be somewhat inconsistent with observations made by Cst. VanKuik.

[51] As a result of the above, the court is not satisfied, as noted, that this charge has been proven to the degree required and it will be dismissed.

Charge of Over 80

[52] In dealing with the remaining charge I am mindful that the issues have been narrowed to two. The issues are whether the Crown has proven to the degree required that Cst. Green was a qualified technician qualified to operate the approved instrument and whether the breath tests taken were taken as soon as practicable. Written submissions have been received from both counsel and I have had an opportunity of reviewing those submissions which have been helpful.

[53] Prior to determining the issues themselves, I would just briefly address the written submissions of the Crown with respect to comments relating to the "just result". Crown counsel apparently takes the view that the issues raised by defence counsel concerning this particular charge are effectively "technicalities". Crown counsel suggests that it is appropriate for "a court to disregard probative evidence in the interests of justice" and that there are "times when it is right and just for a guilty person to escape conviction because other compelling interests must triumph over public interest to see offenders prosecuted on the merits. This is not one of those times".

[54] Crown counsel goes on to state that if "technicalities triumph over logic in evidence it will play into the hands of those who see the court process as an elaborate and incomprehensible game rather than an orderly search for the truth".

[55] In my view, those comments are misplaced in the context of the issues raised with respect to the remaining count. These issues have nothing to do with "technicalities" and in fact deal with essential elements of the offence that must be proven to the degree required by the Crown. The results on an approved instrument have no meaning unless the instrument was operated by a properly qualified technician. The presumption the Crown relies upon with respect to the breath samples is not available if in fact the tests are not taken as soon as practicable. These are not technical issues but are elements that must be proven by the Crown. If my ruling in any way is unfavourable to the Crown, the reasons will clearly indicate an essential element has not been proven and the absence or insufficiency of evidence which could have been led to address those issues falls at the feet of the Crown not the court.

(a) The Issue of the Qualified Technician

[56] Constable Green was called by the Crown as he is the officer who administered the tests on the approved instrument at the detachment. There is no issue taken with the results of those tests, the workup of the machine, the fact that the machine was in proper working order, nor with the administering of the breath tests. The issue has evolved to the narrow point that during the course of his evidence, although Cst. Green indicated he was a "qualified technician", there is nothing in the evidence to indicate he was a technician qualified to operate the Intoxilyzer 8000C, the approved instrument utilized on the evening in question.

[57] Section 258(1)(c)(iii) of the Criminal Code sets out prerequisites that must be proven beyond a reasonable doubt to permit the Crown to rely on the presumption of identity. One of those requirements is that the samples of breath and the analysis of each sample must be taken "by means of an approved instrument operated by a qualified technician".

[58] Section 254 of the Code defines "qualified technician" in respect of breath samples as "a person designated by the Attorney General as being qualified to operate an approved instrument". Within the same section "approved instrument" is defined as "an instrument of a kind that is designed to receive and make an analysis of a sample of the breath of a person in order to ensure the measure of concentration of alcohol in the blood of that person and is approved as suitable for the purposes of s. 258 by order of the Attorney General of Canada".

[59] Here, the defence argues that there are currently seven instruments approved of by the Attorney General for use, one of which instrument is the Intoxilyzer 8000C, the instrument utilized by Cst. Green with respect to the samples received from Mr. Juniper. The gist of the submission of defence is that, although there is no issue that an "approved instrument" was utilized here, there is no evidence before the court that Cst. Green was qualified with respect to that approved instrument. In passing I would note the requirement that a qualified technician be qualified to operate a specific instrument is clearly evident from a certificate of a qualified technician which is often filed in matters such as this and which specifically sets out that particular requirement. Here, of course, such certificate is not before the court as admissible evidence and the court must look to the evidence of Cst. Green with respect to that issue.

[60] There is no dispute and the evidence is quite clear that, although Cst. Green testified he was a qualified breath technician after being led there by the Crown in questioning, he never specified he was a qualified technician with respect to the approved instrument used, i.e. the Intoxilyzer 8000C. What he did testify to is as follows:

1. He has been a qualified breath technician officer since January of 2012.

2. He has conducted approximately 250 breath tests since that time.

3. He described with precision, including the serial number, the Intoxilyzer 8000C as an approved instrument "pursuant to s. 254 of the Criminal Code.

4. He tested the instrument appropriately to confirm it was proper working order and described the completion of the calibration tests at 1:47 a.m. in detail as well as a diagnostic test which had been completed at 1:48 a.m. He testified that "all eight tests passed".

5. He provided a sample at 1:58 a.m. which resulted in a reading of zero milligrams of alcohol in 100 millilitres of blood and testified he was "confident that the instrument was in proper working order".

6. When Mr. Juniper was presented to him at 2:25 a.m. he testified he described the instrument to Mr. Juniper, what it was designed to be used for and provided instructions on how to provide a sample to Mr. Juniper. Ultimately with some apparent reluctance or issue on the part of Mr. Juniper two suitable samples were appropriately provided "directly into the intoxilyzer".

[61] At trial Cst. Green was not questioned or challenged on his qualifications. There was no questioning of the nature of the approved instrument that was utilized nor its operation. There was no issue with respect to the instrument being in proper working order or with respect to the diagnostic testing that took place leading ultimately to the samples being received. The test record has been filed as an exhibit and no issue is taken with respect to the contents of that record.

[62] Counsel have provided case law with respect to this particular issue and I have reviewed that case law as well as other cases.

[63] In Regina v. Fell, [2008] S.J. No. 112, the accused appealed his convictions for over 80 and impaired operation. One of the grounds of appeal was that at trial the Crown failed to prove the officer's qualifications to operate the Intoxilyzer 5000C which was utilized. The case is similar factually to the one before the court in that there, although the officer testified he was a "qualified technician", there was no proof that the technician was qualified on the particular instrument used. Additional evidence, however, clearly established the circumstances surrounding the workup on the instrument by the officer, the step-by-step check and the procedures that were followed, and a proper description of the instrument as an approved instrument.

[64] The trial judge found that this comprised appropriate proof that the officer was qualified to operate the approved instrument used and the appeal court upheld the trial court judge's decision. There, the appeal court noted at para. 10 as follows:

"Having regard to all of that testimony in the sequence in which it occurs, I am of the view that the Crown had tendered prima facie proof to the court that this witness was a qualified technician on the Intoxilyzer 5000C. From cases such as R. v. Adams (1986), 51 Sask. R. 161 (C.A.), and R. v. Minter, 2004 ABQB 748, we note that once the prima facie proof has been tendered, the burden shifts to the accused to negative the technician's appointment or qualifications. Nothing was tendered by the accused in this regard, and therefore the trial judge made no error and it was appropriate for the trial judge to find that officer Sabourin was a qualified technician to operate the Intoxilyzer 5000C."

[65] With respect to Regina v. O'Neil, [1996] O.J. No. 3944 (Gen. Div.), the finding of the court there that the expression "qualified technician covers all approved instruments whatever they may be" is questionable, in my view, but it is not necessary to rely on such comment for the purposes of this court's decision with regard to this issue. I also agree with the Crown that the case of Regina v. MacFarlane, 2014 ONSC 2749, is clearly distinguishable from the case at bar as, there, there was evidence the officer was specifically not qualified to conduct the tests on the approved instrument.

[66] In this particular case, fully appreciating the onus is on the Crown and again appreciating that Cst. Green's evidence was unchallenged, I am satisfied there is sufficient evidence from which the court can reasonably conclude Cst. Green was in fact qualified to operate the Intoxilyzer 8000C on the day in question.

[67] Constable Green's evidence was precise, save and except for the qualifications on a particular instrument. He referred to his designation, the date of his designation and the nature of the approved instrument. His evidence with respect to the workup of the instrument and the test record produced is uncontradicted and unchallenged. The evidence with respect to the workup of the instrument was detailed, indicated a knowledge of the instrument and the officer's experience (250 previous tests) clearly satisfy the court that he was qualified to operate the instrument that was utilized.

[68] As a result, I am satisfied the Crown has proven to the degree required that Cst. Green was in fact a qualified technician. As an aside, I note, although not raised by the defence, that in addition to failing to lead evidence with respect to being qualified on the specific approved instrument, there was no evidence before the court with respect to who had in fact designated Cst. Green as such. I adopt the reasoning in Regina v. Adams, (1986) 30 C.C.C. (3d), a decision of the Saskatchewan Court of Appeal, and Regina v. Armbruster, again a decision of the Saskatchewan Court of Appeal, 2010 SKCA 25, and find that the evidence of being a qualified technician raised a rebuttal presumption that the technician was designated appropriately and that presumption was not challenged.

2. Were the tests taken "as soon as practicable"?

[69] With respect to this particular issue, I find the relevant times to be as follows:

• 1:01 a.m. – Traffic stop conducted by Cst. VanKuik
• 1:14 a.m. – Demand for the approved screening device
• 1:24 a.m. – Mr. Juniper arrested
• 1:28 a.m. – Rights to counsel and caution given. No evidence of responses or further questioning
• 1:34 a.m. – Breath demand provided
• 1:35 a.m. – En route to detachment
• 1:40 a.m. – Constable Green arrived at detachment
• 1:41 a.m. – Constable VanKuik arrived at detachment
• 1:48 a.m. – Constable Green completed diagnostic testing on the approved instrument
• 1:51 a.m. – Constable Green determined the approved instrument was in proper working order and ready to receive a sample
• 2:07 a.m. – Call placed to duty counsel
• 2:17 a.m. – Duty counsel returned call
• 2:19 a.m. – Grounds provided by Cst. VanKuik to Cst. Green
• 2:25 a.m. – Mr. Juniper turned over to Cst. Green by Cst. VanKuik (Constable VanKuik did not have the specific time of the turnover to Cst. Green and Cst. Green testified to that issue)
• 2:45 a.m. – First sample received
• 2:46 a.m. – Mr. Juniper left breath room
• 3:03 a.m. – Mr. Juniper returned to breath room
• 3:08 a.m. – Second sample received

[70] The determination of this particular issue really is narrowed down to the timeframe from when duty counsel was contacted by Cst. VanKuik at 2:07 a.m. (and perhaps as early as 1:51 a.m. when the approved instrument was ready for use) and the return call from duty counsel at 2:17 a.m. and then the turnover to Cst. Green at what it appears to be 2:25 a.m. according to Cst. Green's evidence which I accept. The timeframe referred to in defence counsel's written submission seems to indicate there is an unknown time period between the return of the call from duty counsel to the first breath test at 2:45 a.m. That is certainly true with respect to the evidence of Cst. VanKuik, but the evidence of Cst. Green, which I accept, indicates the turnover was at 2:25 a.m. The period in question then has been isolated to that period of time which appears to be something between 18 and 20 minutes from the time the call was placed to duty counsel or as much as a further 16 minutes from 1:51 a.m. to 2:07 a.m. which period is covered only generally by Cst. VanKuik's evidence.

[71] Section 258(1)(c)(ii) of the Criminal Code, when setting out again the requirements to be proven in order to permit the Crown to rely on the presumption of identity, requires that the breath tests be taken "as soon as practicable after the time when the offence is 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 15 minutes between the times when the samples were taken.

[72] The case law clearly establishes that the "as soon as practicable" requirement exists both for trial fairness and liberty interests. To ensure the statutory presumption of identity operates fairly and accurately, while at the same time the period of detention for individuals such as Mr. Juniper is minimized.

[73] Regina v. Vanderbruggen, [2006] O.J. No. 1138, and Regina v. Singh, 2014 ONCA 293, [2014] O.J. No. 1858, both decisions of the Ontario Court of Appeal, together with other cases establish that "as soon as practicable" means within a reasonably prompt time in all the circumstances and does not mean either immediately or as soon as possible. Those cases establish there is no onus on the Crown to account for every minute when considering the issue of "as soon as practicable" and the key issue is whether the Crown has proven the police acted both promptly and reasonably in all of the circumstances. Whether or not the police acted promptly and reasonably, of course, is a matter of evidence and facts established in each individual case where this issue is considered.

[74] In Singh, supra, the Court of Appeal stated that "as soon as practicable" does not mean as soon as possible and the court is to look at the entire chain of events, keeping in mind first of all that the Criminal Code permits an outside limit of two hours prior to the first sample. Again, the touchstone is whether the police have acted reasonably and promptly in all the circumstances.

[75] The "as soon as practicable" requirement must be applied with reason. While the Crown has to demonstrate in all the circumstances the breath tests were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailed explanation of what occurred every minute that the accused is in custody. There must, however, be some evidence showing that the officers were aware of the requirements of s. 258(1)(c) and that they acted reasonably and expeditiously in all of the circumstances. The test of practicality is reasonableness and the court must be satisfied the conduct of the police in the interval between the arrest and the tests was reasonable.

[76] Here, from the time of the traffic stop at 1:01 a.m. until the time of the completion of the first test at 2:45 a.m. there is a timeframe of approximately one hour and 45 minutes. Defence counsel here have not questioned nor taken issue with any of that period of time, save and except the time occasioned between the call being placed to duty counsel at 2:07 a.m. and the time of turnover to the breath tech, which the court has determined was 2:25 a.m. Defence takes the position the delay was unreasonable given the fact that there is absolutely no explanation in the evidence as to why duty counsel was called. The Crown agrees the evidence fails to establish that Mr. Juniper waived his right to counsel. There is no evidence from either officer, including surprisingly Cst. VanKuik, as to what, if anything, Mr. Juniper indicated in response when rights to counsel were read at any point in time. The evidence does indicate Mr. Juniper was afforded and took the opportunity to speak with duty counsel for some unknown period of time between the return call at 2:17 a.m. and the turnover to Cst. Green at 2:25 a.m.

[77] That would not satisfy the court to the degree required that Mr. Juniper in fact requested of Cst. VanKuik an opportunity to speak with duty counsel. There is virtually a complete lack of evidence or reliable or credible evidence on which the court could find such a request was made.

[78] Initially there was no evidence from Cst. VanKuik that Mr. Juniper did or did not wish to speak to duty counsel. There is a total absence of evidence as to any response as to whether or not Mr. Juniper understood his rights to counsel or made any response to any questioning with respect to rights to counsel. At one point in his evidence Cst. VanKuik testified he had written down in his book "yes to duty counsel". He then indicated he was going to say "yes to the answer do you want duty counsel, I'm going to say that he said yes". The latter evidence was given with some uncertainty.

[79] Indeed, although indicating that in-chief, in cross-examination it would appear he wrote down "yes" to duty counsel in his notebook after "taking that from the sergeant asking the question". This contradicts his evidence in-chief when he stated that it was he that asked the question.

[80] He further testified, when questioned by the court as to whether or not he had an independent recollection of exactly how he ended up noting "duty counsel yes" in his notebook, that he believed the sergeant asked the question. However, when asked if he had an independent recollection of that, i.e. someone else asking the question, the officer responded that he did not.

[81] At the end of the day then with respect to the issue of duty counsel, the court cannot find on the evidence to the degree required that in fact Mr. Juniper requested the opportunity to speak with duty counsel. The court then proceeds on the basis that the call to duty counsel was placed on the initiative of the officer in the absence of any waiver or any specific request.

[82] The question then is whether the Crown has adduced sufficient evidence to enable the court to conclude that the police acted reasonably and the breath samples were taken as soon as practicable in all of the circumstances. There is effectively an absence of evidence or reliable evidence if it does exist in order to allow the court to determine whether or not the call to duty counsel was made in circumstances that were reasonable. The Crown argues that even absent evidence as to how duty counsel came to be called the court should consider it was an appropriate and fair way for an officer to deal with an accused in a similar situation as Mr. Juniper by making sure that he gets legal advice and contacting duty counsel whether he requests it or not, or indeed whether he even waives the opportunity. In my view, this is a slippery slope and effectively would compromise to some extent the main reasons why the "as soon as practicable" requirement even exists, namely trial fairness and liberty interests. Specifically, the statutory presumption of identity might be compromised the longer the tests take and the period of detention is also compromised by increasing the length of such period.

[83] In looking at the total time and the various events that took place I note as follows:

1. The traffic stop was at 1:01 a.m. and the departure from the scene was not until 1:35 a.m., some 34 minutes later. During that period of time there was interaction between Mr. Juniper and Cst. VanKuik. The evidence would indicate, as defence counsel states, that Mr. Juniper was acting like a "bit of a jerk" during that period of time, but the evidence also indicates the officer conducted some initial questioning and then formed a suspicion that required the approved screening device to be produced. Efforts were made to provide a proper sample and during the course of that taking place the officer then decided to arrest Mr. Juniper at 1:24 a.m. It was only then rights to counsel and caution were provided and the transport to the detachment took place. Although not argued, it is unclear as to why the officer changed his tact as far as the arrest was concerned midway through the approved screening device process as the evidence obtained with respect to impairment, as noted by the officer during that process, is minimal.

2. I am satisfied that upon arrival at the detachment at 1:41 a.m. until 2:07 a.m. when the call was placed to duty counsel the officer was completing various documentation and had placed Mr. Juniper in an interview room awaiting the return call from duty counsel. It would appear from Cst. Green's evidence that the approved instrument was ready for use after the completion of the self-test at 1:51 a.m. Again, the evidence with respect to the specifics of what took place in what appears to be in excess of 20 minutes filling out a questionnaire has not been argued and I will accept there is no issue with respect to that period of time, although perhaps arguable. Counsel has conceded that the officer acted reasonably when completing the paperwork, although the evidence of Cst. VanKuik as to the specifics of what took place in that rather extended period of time, a portion of which was when the machine was ready for use, is not necessarily convincing.

3. At 2:07 a.m. a call was placed to duty counsel and that call was returned at 2:17 a.m. There is nothing of a reliable nature in the evidence to indicate that request was made, nor is there anything in the evidence to indicate Mr. Juniper was advised the call had been made and a return call was being anticipated. It is clear Mr. Juniper did have a conversation with duty counsel at 2:17 a.m. but the length of that conversation is not known and the evidence is again lacking completely with respect to that. We do know Mr. Juniper was then thereafter turned over at 2:25 a.m. to Cst. Green and we do know there is nothing in the evidence to indicate Mr. Juniper was questioning the advice received nor the opportunity to speak with duty counsel.

4. The breath tech received Mr. Juniper at 2:25 a.m. and it is 20 minutes thereafter that the first test is conducted. This period of time seems to have been subsumed in some lack of effort on the part of Mr. Juniper to provide a proper sample, which he ultimately did, and I am satisfied that period of time is accounted for by his inability or failure to provide the sample in a timely manner. The time thereafter is also accounted for as time properly in place as a result of waiting for a period of time as required between the two tests and the completion of the second test at 3:08 a.m.

[84] The case law, as I have noted, clearly establishes that "as soon as practicable" does not mean as soon as possible nor immediately but does require the tests to be administered within a reasonably prompt time in all the circumstances. In order to determine if there is a "reasonably prompt time" in place there must, in my view, be some evidence as to what took place. It is impossible to determine whether an officer acts reasonably and promptly in all of the circumstances unless the court receives evidence as to what those circumstances are.

[85] Here, I find ultimately there is an absence of sufficient reliable evidence to determine that the officer acted reasonably and promptly from the time the decision was made to call duty counsel until the time of the turnover to the breath tech. The breath tech at that point had been ready to receive Mr. Juniper for at least half an hour and the absence of evidence specifically as to how duty counsel came to be called is a concern to the court. Without evidence as to the circumstances in that timeframe and given the fact that the first test was administered approaching the two hour period it is difficult to conclude the Crown has established beyond a reasonable doubt that the tests were taken as soon as practicable. In this case the court simply does not know whether the officer (1) decided to call duty counsel on his own; or (2) called duty counsel after Mr. Juniper requested he do so, or (3) he overheard the sergeant have a conversation with Mr. Juniper where Mr. Juniper requested duty counsel be called, or (4) that Mr. Juniper was understanding of his rights to counsel and aware that duty counsel was being called. There is simply no reliable evidence available on which the court can find whose idea it was or how it came to be.

[86] I am aware of the case law provided by counsel and note in Regina v. Davidson, [2005] O.J. No. 3474, where there was a specific waiver of right to counsel and the placing of a call to duty counsel in any event, the justice in that case set out a delay is not reasonable where there is no legitimate basis to support the delay and that if the circumstances of a particular case do not show it was reasonable to take the time to contact duty counsel then provided the delay is of more than a very minor nature the tests will not be administered as soon as practicable. There, the court agreed with the reasoning in previous cases decided on a similar issue and stated as follows:

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

2. 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;

3. 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;

4. 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;

5. 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;

6. 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';

7. 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."

[87] In the circumstances here I cannot conclude that the 20-minute delay given all the circumstances and the entirety of the evidence occasioned as a result of what appears to be a call to duty counsel which was neither requested nor made in an informed fashion with notice to Mr. Juniper was reasonable in the circumstances.

[88] The Crown relies on Regina v. Litwin, [1997] O.J. No. 4242. In that case a similar situation existed with an opposite conclusion. However, in that case there was evidence that Mr. Litwin understood the breath tests were being delayed to wait for duty counsel, he did not insist the testing proceed nor did he repeat that it would not be necessary to call a lawyer. There was then at least some evidence of the circumstances surrounding the call, whereas here there is nothing and what evidence there is is conflicting and not convincing. Further, keep in mind that particular case was decided in 1997 prior to the amendments where part of the reasoning of the justice seems to have been that it would have been open to the accused if there was a concern about the absorption rate and the readings ultimately obtained to submit "evidence to the contrary" which could at that point in time be "readily presented to rebut the presumption". Given the state of the law today it is not likely a similar option that is "readily available" to the accused.

[89] As a result, I find the Crown has not proven to the degree required that the tests were completed "as soon as practicable", the Crown is unable to rely on the presumption of identity and has not established the elements of the charge of over 80 beyond a reasonable doubt. That charge will be marked dismissed as well.

Released: September 15, 2015

Signed: "Justice G. F. Hearn"