Ontario Court of Justice

Date: 2015-10-30

Court File No.: Sudbury 14-3633

Between:

Her Majesty the Queen

— AND —

Cameron Day

Before: Justice A.L. Guay

Heard on: September 18, 24 and 28, 2015

Ruling on Application to Exclude Breath Test Evidence

Released: October 30, 2015

Counsel:

K. Ludgate — counsel for the Crown

P. Berk Keaney — counsel for the accused Cameron Day

GUAY J.:

The Issue

[1] The accused is charged with having care and control of a motor vehicle while his blood alcohol level was in excess of 80 mg in 100 mL of blood pursuant to section 253(1)(b) of the Criminal Code. The alleged offence occurred on November 27, 2014 in the Chelmsford area of the City of Greater Sudbury.

[2] The accused alleges that on that occasion, and contrary to section 254(3)(a) of the Code, the required breath tests were not taken "as soon as practicable" within the allotted time period of 2 hours. This is the only issue to be determined on this application.

The Case Law

[3] The case law with respect to this issue indicates that whether or not the required breath tests have been taken "as soon as practicable" depends on the circumstances of each case and, in particular, whether the conduct of the investigating officers in carrying out the tests was reasonable. The case law indicates that the onus is on the Crown to establish that the testing was done "as soon as practicable".

[4] The leading case on the matter is that of R. v. Vanderbruggen, a decision of the Ontario Court of Appeal handed down on March 23, 2006. In Vanderbruggen, it took the police one hour and 15 minutes after stopping the accused to take the first breath sample. The accused, Vanderbruggen, argued that the 46 minutes which elapsed between 3:10 a.m. and 3:56 a.m. constituted a period for which the Crown failed to offer an explanation for the delay in taking the first breath test. The investigating officer's evidence indicated that she had a general recollection of what had occurred during this period, allotting this time to observing the breath technician, completing her paperwork and providing to the breath technician her grounds for making the breath test demand. The trial judge had no difficulty with the sufficiency of her evidence to explain how she had used that time. Indicating that it and other courts had found that the phrase "as soon as practicable" meant "nothing more than that the tests were taken within a reasonably prompt time under the circumstances", (see paragraph 12) the Court pointed out:

There is no requirement that the test 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.

The Court went on to note:

Whether the samples were taken as soon as practicable in this case was an issue of fact for the trial judge. In my view, the Crown adduced sufficient evidence before the trial judge from which he could conclude that the police acted reasonably and that the breath samples were taken as soon as practicable in all the circumstances. ... There was no evidence that either the arresting officer or the technician acted unreasonably. 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. (see paragraph 14)

[5] The Ontario Court of Appeal went on to reconsider Vanderbruggen in R. v. Singh in 2014 (2014 ONCA 293, [2014] O.J. No.1858; 120 O.R.(3d)76; 310 C.C.C(3d)285). In Singh, the accused sought to establish that a 28 minute delay in taking the second required breath sample meant that it had not been obtained as soon as practicable. The trial judge reviewed all the circumstances in the matter and determined that the police had acted as soon as practicable. The conviction was overturned by the summary conviction appeal court which found that the Crown had not met the onus of showing that the breath samples had been taken as soon as practicable, partly because the Crown had not offered evidence with respect to an 8 to 11 minute segment of the 40 minutes at the heart of the accused's complaint. Allowing the Crown's appeal, Juranz J.A. speaking for the Court affirmed that Vanderbruggen was the governing authority on this point of law in Ontario. Jurianz J.A. cited Rosenberg J.A. in Vanderbruggen for the proposition that the question at the heart of the appeal was the meaning of "as soon as practicable". Having discussed the meaning of that phrase, Jurianz J.A. said Rosenberg J.A. had stressed that the Crown "was not required to provide a detailed explanation of what occurred 'during every minute that the accused is in custody'". (see para 13) In Vanderbruggen, Rosenberg J.A. had made clear that "as soon as practicable" did not mean "as soon as possible." It meant "nothing more than that the tests should be administered within a reasonably prompt time in the overall circumstances", with the trial judge looking at the whole chain of events, keeping in mind the outside limit of two hours allotted by the Code for carrying out the tests. (see para 14)

The Alleged Delays

[6] In the present case, the accused takes issue with 3 time periods during which he is critical of delay by the investigating officers. The first period is the one occurring between 2:23 a.m. when the accused was stopped by the police, and 3:05 a.m., when he left with the investigating officers for police headquarters to complete the required breath tests. The second period about which the accused complains of delay is the one between 3:05 a.m. and 3:40 a.m., when he was paraded before the "booking-in" officer Sgt. Lefebvre after arriving at police headquarters. The third period complained of by the accused was the period between 3:40 a.m. and 4:09 a.m. when the first of the two required breath tests took place.

The Chronology

The First Period

[7] The evidence of the 2 investigating officers, Constable Kiviaho and Constable Kitchikake (also the officer who would be the breath technician for the purposes of this matter) is consistent, in particular with respect to most of the material times identified throughout this matter. In their evidence, the officers related how the accused had been stopped at 2:23 a.m. and how at 2:26 a.m. a roadside screening demand was made by Constable Kiviaho on the accused pursuant to section 254(2) of the Code. Their evidence indicated that at 2:32 a.m., the accused's sample into the roadside screening device produced a "Fail", giving, along with the other evidence, Constable Kiviaho reasonable and probable grounds to arrest him for driving with an excess of the legally permitted amount of alcohol in his blood. The officers agreed that at 2:34 a.m., the accused was arrested. They explained that in the period between 2:34 a.m. and 3:05 a.m., (when they left with the accused for police headquarters in Sudbury to administer the required breath tests), the accused was: (1) charged; (2) provided with his rights to counsel; (3) given the usual cautions; (4) a breath demand was made upon him pursuant to section 254(3) of the Code; (5) his vehicle was searched; and (6) they communicated with their dispatcher with a view to obtaining the assistance of another police cruiser and a tow truck to remove the accused's vehicle.

[8] When cross-examined on what he personally had done during this initial period, Constable Kitchikake testified that he completed the seven-day vehicle impound forms and asked the dispatcher to request someone at headquarters to turn on the Intoxilyzer instrument. Otherwise, he admitted, he spent the balance of the time simply waiting for the tow truck and the backup police cruiser to arrive.

[9] The accused argued that the police could have resorted to a different procedure in order to get him to police headquarters to administer his breath tests as soon as practicable, certainly well before his arrival there at 3:23 a.m. The evidence of the officers indicated that once called, it took the tow truck approximately 17 minutes to arrive at the scene, and that it would have taken them a similar period of time to get the accused to police headquarters for the purpose of administering his breath tests. In response to these suggestions, the officers testified that it was their practice (Cst. Kiviaho's specifically) to await the arrival of a backup cruiser or the tow truck for the purpose of ensuring that an accused's vehicle was not vandalized or stolen. The police explained that they had not inquired or been informed that the driveway in which the accused vehicle had come to a halt was on a property occupied by the accused's friend. The officers did not think that it was appropriate to awaken the occupant of that property at that hour of the morning so that he could give permission to leave the accused vehicle in his driveway.

The Second Period

[10] There was some confusion about the timing of events once the investigating police officers arrived at police headquarters with the accused. The time available from the sally port videotape was not consistent with the time available on the "booking-in" room videotape. Having considered this matter, I find that it is best to rely on the evidence of the police officers in determining relevant times as their evidence was consistent about the timing of events and was not shaken on cross-examination. According, then, to their evidence, the accused arrived at police headquarters at 3:23 a.m., it having taken them some 17 minutes or so to get from the area where the accused had been stopped and police headquarters. What is clear from the sally port video evidence is that there was another cruiser located in the sally port upon the arrival of Constables Kiviaho and Kitchikake. A review of that tape recording strongly suggests that some delay occurred in getting the accused into the adjoining "booking-in" room. The evidence, particularly that provided by the "booking-in" officer (on an agreed statement of fact basis) was to the effect that another accused had been paraded before him at about 3:05 a.m. and that it was not Sudbury Police practice to book in more than one accused at any given time. When the accused was finally brought into the "booking-in" room, that particular accused was no longer present and must be presumed to have been dealt with. By analogy with the evidence which can be deduced from the "booking-in" room videotape and the remarks provided by Sgt. Lefebvre, it is also reasonable to infer that the accused's entry into the "booking-in" room and his parade before the "booking-in" officer took place at approximately 3:35-3:40 a.m. I have also come to this conclusion because I find the investigating police officers and the accused arrived at headquarters at 3:23 a.m. and that there was a 10 minute or so delay in getting the accused into the "booking-in" room as result of having to complete the booking-in of the other accused between 3:05 a.m. and 3:35 or 3:40 a.m. There was no evidence that the police engaged in any unusual or collateral activity while awaiting the completion of the accused's booking-in. Given the time it took to book in the accused, which I estimate, then, to have been approximately one half hour or so, it is reasonable to conclude that these were the reasons for the second delay complained of by the accused.

The Third Period

[11] With respect to the third delay complained of by the accused, the period between 3:40 a.m. and 4:10 a.m., the evidence indicates that what basically transpired was the booking-in of the accused and his waiting to provide the two required breath samples to Cst. Kitchikake. In this half-hour period, Cst. Kiviaho appears to have assisted in the accused's booking-in, assisted the accused to contact his lawyer and prepared related paperwork. Simultaneously, Cst. Kitchikake, now acting as a qualified breath technician, prepared the Intoxilyzer instrument for use, carrying out the necessary calibration and quality assurance tests needed to ensure that the machine was functioning properly. While the investigating police officers were criticized for not proceeding more rapidly in the tasks associated with booking-in the accused and preparing a complicated machine for performing the required breath tests, under the circumstances I do not find much if any time at all was wasted by them in carrying out their duties in this case. I find that the evidence provided by the police officers offers us a satisfactory explanation of what they were doing during this third period of alleged delay.

Accused's Position

[12] In argument, the accused provided this court with a number of cases dealing with situations where breath tests were found not to have been carried out "as soon as practicable". In reviewing these cases, it was clear that the courts which had handed down those decisions believed the Crown had not met the onus on it to provide a sufficient explanation as to why there had been delay in carrying out required breath testing "as soon as practicable" within the two-hour period provided by the Criminal Code.

[13] In R. v. Jenkins ([2012]O.J. No. 2533; 2012 ONSC 3345; 101 W.C.B.(2d)589) the court dismissed the Crown's appeal in a drinking and driving case because it had offered no explanation for the 10 minutes it took to deliver a roadside screening device to the scene of the offence one minute away. Finding merit in the trial judge's ruling, the appeal court felt obliged to defer to the trial judge's findings on appeal.

[14] In R. v. Moiz ([2015] O.J. No.392; 2015 ONCJ 40; 328 C.C.R. (2d)40) a 20 minute delay in carrying out required breath testing was found to have been occasioned by a police officer's exaggerated concern for his own safety. The court found that this delay was not justified, noting (see paragraph 37):

My purpose in referencing the Supreme Court's decisions in Mann and MacDonald is to make a different point. Specifically, that although concerns about officer safety may license intrusions upon liberty and privacy interests, in order to do so those concerns must be grounded in the objective circumstances of a particular situation rather than vague and speculative concerns about "officer safety".

[15] In R. v. Makacek, [2015] O.J. No. 32, the court overturned a conviction and ordered a new trial in a not "as soon as practicable" case. It did so on the basis that the trial judge had made improper findings of fact with respect to the calculation of time periods of alleged delay, basing such findings on hearsay evidence. The court noted (see paragraph 10) that the Crown had conceded "that the trial judge's reliance on this evidence for the truth of its content constituted a misapprehension of the basis on which it was tendered" rather than using the same evidence to assess the reasonableness of the actions of the police.

[16] In R. v. McDonald ([2014] O.J. No.83; 2014 ONSC 208; 2014 CarswellOnt 174) the court could not find evidence explaining a 16 minute period of delay. It found the evidence offered to explain another 20 minute period of delay unsatisfactory, noting that in the evidence "for two specific periods of time there is a complete absence of any detail as to what the officer was doing, and why he was doing it." He concluded that the breath tests had not been carried out "as soon as practicable". In order to determine that the breath tests had been taken as soon as practicable, the court indicated that it would have needed evidence having an "evidentiary foundation." (see paragraph 8) What is of note here is that the court was fully aware of and considered the principles outlined in Vanderbruggen (see paragraph 4), accepting the principle that in such cases as the one before it, the trial judge had to "look at the whole chain of events" and not isolated periods of events in deciding whether testing had taken place as soon as practicable.

[17] In R. v. Tran ([2013] O.J. No. 2466; 2013CarswellOnt 290; 107 W.C.B. (2d)116) the court found that the investigating officer could not recall what had occurred during one period of 17 minutes when the accused was being booked in. He found yet a further 7 minute delay, stating that the latter delay was "emblematic of an attitude that time is not important, when, in fact, it is." (see paragraph 22). "When I combine all of the periods of unexplained delay," the trial judge stated, "I conclude that the police did not act reasonably promptly."

[18] Lastly, in R. v. Keddy ([1995]N.S.J. No. 526; 147 N.S.R. (2d)17; 129 W.CB. (2d)322) the Court found that a 33 to 36 minute delay from the time of the breathalyzer demand until the time the investigating police officer actually left the scene was "too long a period of time to have elapsed given the statutory requirement that the tests be provided as soon as practicable." (see paragraph 1, page 4) While an explanation for the delay was given by police, the court found the explanation unsatisfactory, notwithstanding that it appears to have been for the purposes of waiting for a tow truck to arrive. Interestingly, and in contrast to the present case, there appeared to be a genuine and pressing danger in leaving the accused's vehicle unattended because a gun and shells were located in it. The Court found that the police policy of waiting for a tow truck was in conflict with the Criminal Code and should be reconsidered by the police.

Analysis

[19] If we examine the above cases and others dealing with the issue of breath testing not having been carried out "as soon as practicable", we can discern that where a defence based on delay has been made out, the courts have often been concerned that the evidence required to ground the Crown's onus to establish that the breath testing has been carried out "as soon as practicable" is lacking or simply not available. The decision of the court in the McDonald case is elucidating in this respect. The case talks about the need for "sufficient evidence" and about the requirement for an "evidentiary foundation" to the evidence needed by the Crown to establish that the police have complied with the Criminal Code's provision with respect to the "as soon as practicable" requirement.

[20] The case law does, however, instruct the trial courts seized with such matters to look at the conduct of the police and assess in any given situation whether they have acted reasonably in all of the circumstances. The trial courts are instructed not to become fixated on specific periods of delay and not to insist on a minute by minute account from the police in carrying out their duty in such matters.

Conclusion

[21] In looking at the conduct of the police in the present matter and assessing whether their conduct was reasonable in all of the circumstances, I have concluded that their conduct was reasonable. I find that they gave a good account of the time spent by them in carrying out their duties. All in all, their evidence demonstrated that they took their duties seriously and that they acted as quickly and reasonably as they could in carrying out those duties in this matter. Would not an accused arrested in circumstances in which the accused was arrested not want his or her vehicle to be safeguarded as they were led away from the scene in handcuffs? Are the police to be faulted for not banging on the door of the property owner or tenant where the accused's vehicle came to a halt to inquire whether they had permission to leave the vehicle on his property, particularly when the accused neglected to inform them that he knew this person? Could the police have insisted on priority for booking-in the accused when arriving at police headquarters at 3:30 a.m. and finding that someone else was being booked in and that two accused persons could not be booked in simultaneously? It is said that hindsight is wisdom. Even if that is so, it is hard to imagine that the police could have acted with greater dispatch under the circumstances prevailing during the early morning hours of November 27, 2014.

[22] I therefore find that the investigating police (Cst. Kiviaho and Cst. Kitchikake), the breath technician (Cst. Kitchikake) and the booking-in officer, to the extent that the latter was Sgt. Lefebvre, acted and carried out the breath testing required of the accused "as soon as practicable". Accordingly, I dismiss this application.

[23] Dated at Sudbury this 30th day of October, 2015

Justice A.L. Guay