Information and Parties

Information No.: 13-1152

Ontario Court of Justice

Her Majesty the Queen v. Steven J. Natywary

Reasons for Judgment

Before the Honourable Justice D.A. Harris

Date: December 9, 2015 at Burlington, Ontario

Appearances

• L. Jago – Counsel for the Crown
• B. Daley – Counsel for Steven Natywary

Judgment

HARRIS J. (Orally):

Steven James Natywary was charged with operating a motor vehicle 1) while his ability to operate that vehicle was impaired by alcohol and 2) when his blood alcohol concentration exceeded 80 milligrams of alcohol per 100 millilitres of blood.

Crown counsel elected to proceed summarily in this matter. Mr. Natywary pled not guilty.

The trial began. At the conclusion of the evidence of Police Constable Catherine Robertson Crown counsel invited me to dismiss the impaired driving charge and I did dismiss that charge. The trial was then adjourned until today for completion.

When we resumed this morning no further evidence was called by either Crown or defence. Rather, certain agreed facts were placed before me and we proceeded to submissions.

I note at the outset that there is no issue that Mr. Natywary was operating a motor vehicle at the time and place specified in the information. There is no issue that he provided samples of his breath into an approved instrument and the results were 210 and 190 milligrams of alcohol per 100 millilitres of blood respectively.

Issues Before the Court

Counsel for Mr. Natywary reduced the issues before me to two.

The first of these is a Charter application asking me to exclude from evidence the results of the breath tests.

The second argument is that the presumption relating the readings back to the time of driving does not apply here in that the tests were not taken as soon as practicable.

Charter Application – Section 8 Rights

With respect to the Charter application, simply put, counsel argued that the approved screening device demand made by Constable Robertson was not made forthwith and therefore was not a valid demand. As a result Mr. Natywary's section 8 Charter right to be secure against unreasonable search and seizure was infringed here. Counsel relied upon the decision of the Ontario Court of Appeal in R. v. Quansah 2012 ONCA 123, [2012] OJ, No. 779.

I find that Mr. Natywary's section 8 rights were not infringed here.

The court in Quansah makes it clear that an approved screening device demand must be made "forthwith". "Forthwith" does not mean "within a reasonable time". However, I disagree with counsel that Quansah stands for the proposition that the demand must be made "immediately" once the police officer forms the necessary reasonable suspicion. It is to be a "prompt" demand and in certain circumstances that may mean "immediately".

However, at paragraph 52 in Quansah LaForme J.A. states:

"In my respectful opinion articulation of the precise linguistic equivalent for 'forthwith' is less important than a careful consideration of all the circumstances of the particular case. The legal context for this consideration is the objective that 'forthwith' sets out, namely a prompt demand and an immediate response, ultimately taking no more than the time reasonably necessary for the prompt performance of the steps contemplated by s. 254(2)."

Earlier at paragraph 48 he sets out certain specific circumstances:

"These may include a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed to ensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns. These are examples of delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty. Any delay not so justified exceeds the immediacy requirement."

I note the words, "These may include", and, "These are examples", and interpret those to mean that this may be a comprehensive list, but not an exhaustive one.

I note further at paragraph 40 Justice LaForme refers to a decision by Hill, J. of the Superior Court of Justice, where several additional examples are recited where, despite a short delay, the immediacy requirement would be met.

The three examples given are:

(1) Where the police officer takes further reasonable steps (such as sobriety and physical coordination tests) to determine whether there are reasonable grounds for an intoxilyzer demand;

(2) Where the officer asks questions to learn the amount of alcohol said to have been consumed – with confidence that only one drink was consumed, the constable may direct the motorist on his or her way;

(3) Where legitimate public safety or similar exigencies arise justifiably explaining a brief delay preventing immediate communication of a formed intention to demand and undertake ASD testing.

Justice LaForme goes on in paragraph 41 to say:

"In my view, all these examples are instances where the assessment of the "forthwith" requirement is based on whether a short delay is reasonably necessary to accomplish the objectives of s. 254(2)."

Facts Regarding the Approved Screening Device Demand

In this case Constable Robertson testified that she saw a red pick-up truck exit a plaza on Guelph Line in the City of Burlington. She noted that the rear taillights were not illuminated. There were no lights at all on the rear of the truck.

The truck travelled very slowly and swung out in a big looping turn into the left lane then back into the curb lane, and then proceeded back into the same plaza at the next entrance.

She followed and tried to stop this vehicle. The vehicle continued on before pulling into a parking space and stopping. Rear lights illuminated when the vehicle stopped. Clearly these were the brake lights and they were working.

Constable Robertson entered the licence number of the vehicle into her computer. She then went and spoke to the male driver. She identified Mr. Natywary as being that driver. He was alone in the vehicle. She spoke to him about the taillights. He made some comment about those lights being automatic. She suggested that might be a problem.

At this point she began to note a faint odour of alcohol coming from his breath. Some of his words were slurred. She asked further why he had driven out of the plaza and then back in. He made some comment about dropping people off. She noted some disconnect with this, because there was no one else in the vehicle. She asked where he was dropping people off. She did not recall the specific answer, but there was a reference to Palmer Drive. She pointed out to him that he had not come from Palmer, he had come out of the plaza.

She asked him for identification. He provided all of this with no delay. He indicated somewhere in the conversation that he had consumed no alcohol that night.

She formed the suspicion that he had alcohol in his blood based on the odour from his breath. She made an approved screening device demand and went, and got the approved screening device from her vehicle. She read the demand from her notebook.

I note here that it was not clear to me from the evidence whether she had actually gone back to the vehicle and retrieved the device before making the demand or in reverse order.

She noted that this took place right after Mr. Natywary had provided her with his documents. This was about 10 minutes after he had stopped driving.

I am satisfied that all of this took place in a period of no more than 10 minutes. Counsel for Mr. Natywary suggested that there was not a factual basis for such a conclusion, but I disagree.

Constable Robertson did not provide exact times for the beginning and end of the process, but she was not challenged on her time estimate during cross-examination. I note that no evidence was led to contradict her. She had sufficient information in her notes and there were details that she provided for me to be satisfied that these events did occur over a 10-minute period.

I am also satisfied that in the circumstances she made the approved screening device demand "forthwith". She was investigating the driver of a motor vehicle where the taillights were out and the driving was unusual. She only detected the odour of alcohol while she was speaking to the driver and receiving his explanations regarding both the taillights, and the driving. She finished that conversation, obtained his driver's licence, ownership papers and proof of insurance, and possibly retrieved the approved screening device from her cruiser before making the demand.

I disagree with the submission that Quansah stands for the proposition that she should have stopped what was happening as soon as she smelled alcohol and made her demand. That would defy common sense and potentially lead to some counsel arguing that Constable Robertson had made the demand prematurely.

I note further that during cross-examination it was brought out that she was aware of potential problems that could arise if residual mouth alcohol was present. She stated her belief that mouth alcohol would dissipate within 10 minutes. She did not say that she waited the 10 minutes for that reason. It is, however, a factor I have to consider in assessing the circumstances.

So I am not satisfied that there was a Charter breach. In fact I am satisfied that there was no infringement of his rights.

I note here had I found that Constable Robertson had infringed Mr. Natywary's section 8 rights after going through the process of analysis mandated by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009], S.C.J. 32 I would not have excluded the evidence in any event.

"As Soon as Practicable" Requirement

The other argument advanced by counsel for Mr. Natywary was that the timing of the breath samples did not comply with the requirements of section 258(1)(c)(ii). That section provides the presumption allowing for the breath results to be related back to the time of driving. The section sets out the requirements that must be satisfied in order for the breath test results to be admitted into evidence and used in that way.

It requires that each sample be taken "as soon as practicable" after the alleged offence, that the first sample must be taken within two hours of the alleged offence and that there be an interval of at least 15 minutes between the two samples.

Counsel for Mr. Natywary argued that in this case, although the first test was taken within 1 hour and 22 minutes of Mr. Natywary driving, the tests were not taken as soon as practicable. I agree.

In doing so I am mindful of the decisions of the Ontario Court of Appeal in R. v. Vanderbruggen, [2006] OJ No. 1138 and R. v. Singh, 2014 ONCA 293, [2014] OJ No. 1858.

The requirement that samples be taken "as soon as practicable" does not mean "as soon as possible". It means nothing more than that the tests should be administered within a reasonably prompt time in the overall circumstances. I should look at the whole chain of events keeping 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.

Further, the Crown is not required to call evidence to provide a detailed explanation of what occurred during every minute that the accused is in custody. These provisions of the Criminal Code were enacted to expedite the trial process by facilitating the introduction of reliable evidence to prove an accused's blood alcohol level.

I note further, however, that section 258(1)(c) expedites the trial process to the benefit of the Crown.

In R. v. Phillips, [1988] OJ No. 415, Blair, J.A., of the Ontario Court of Appeal stated at pages 12 and 13 that:

"The presumption is, in the absence of evidence to the contrary, that the BAC of a person accused of a driving offence is the same at the time of the alleged offence as the BAC established by a subsequent Breathalyzer test. The charge of driving over 80 overcomes the difficulties of proving impairment by conventional evidence of drinking based on the observation of an accused by witnesses. The presumption eliminates the problem of relating Breathalyzer test results, by expert evidence in every case, to the BAC of an accused at the time of a driving offence. The Parliamentary debate show that Parliament carefully selected the presumption contained in s. 241(1)(c) as a means of accomplishing its objective after considering scientific data and conclusions similar to those summarized above."

I am satisfied that because of the extraordinary nature of the presumption it requires strict compliance. That means that the breath tests must be completed not only with the first test being completed within two hours, the tests must first and foremost be taken as soon as practicable or "within a reasonably prompt time in the overall circumstances".

Had Parliament wished to make it as simple as taking the first test within two hours, Parliament could have said so. Parliament did not and the Crown is required to meet both pre-conditions.

Police Delay in This Case

In this case Constable Robertson chose not to proceed directly to the police station with Mr. Natywary, but rather chose to remain at the scene of the arrest and write out her notes there. This in and of itself is not that bad, except that had she taken Mr. Natywary directly to the station the process of putting Mr. Natywary in touch with duty counsel could have been started and she could have recorded her notes there while waiting for duty counsel to call back. Instead she waited at the scene until she was notified that the qualified breath technician was waiting at the station for her. Then and only then did she drive Mr. Natywary to the station. Only then was he processed and arrangements made to contact duty counsel.

I am satisfied that the actions of Constable Robertson delayed the taking of the breath tests by between 15 and 20 minutes.

Now, I will point out that based on the agreed facts that were put before me by counsel this morning it is clear that the qualified technician and the approved instrument were both ready to proceed earlier than was possible here as a result of these other actions.

I note also this is not unexplained delay. This is delay that occurred because of what I find to be an unreasonable decision by the police officer.

I find that the Crown has not proven beyond a reasonable doubt that the tests were taken as soon as practicable. The presumption does not apply. There is no evidence of the blood alcohol concentration of Mr. Natywary at the time that he was driving.

Disposition

The over 80 charge is dismissed.

...WHEREUPON THIS PROCEEDING WAS ADJOURNED

Certificate of Transcript

FORM 2

Certificate of Transcript

Evidence Act, Subsection 5(2)

I, Kendra Kelly certify that this document is a true and accurate transcription of the recording of R. v. Natywary in the Ontario Court of Justice held at 2021 Plains Road East, Burlington, ON., taken from Recording No. 1213-11-20151209-091845-6-HARRISDAV.dcr, which has been certified in Form 1.

December 29, 2015

Kendra Kelly

(Electronic Signature of authorized person)