ONTARIO COURT OF JUSTICE
DATE: 2016·03·09
COURT FILE No.: Halton 14-488
CITATION: R. v. Hayman, 2016 ONCJ 130
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
John Evan HAYMAN
Before Justice D.A. Harris
Heard on January 18, 2016
Reasons for Judgment released on March 9, 2016
Erinn O’Marra .......................................................................................... counsel for the Crown
Bruce Daley ............................................................ counsel for the defendant John Hayman
HARRIS J.:
[1] John Evan Hayman is charged with operating a motor vehicle in the Town of Oakville on February 13, 2014 when his blood alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of his blood.
[2] Crown counsel elected to proceed summarily.
[3] Mr. Hayman pled not guilty and a trial was held.
[4] Mr. Hayman had applied for an order that all evidence of the results of any Intoxilyzer tests should be excluded pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms.
[5] Counsel agreed that we should proceed with a “blended” hearing in which all of the evidence would be applicable to both the Charter application and to the trial.
[6] Police Constables Goran Zivkovic, John McMullan and Tim Radley testified for the Crown. No evidence was led by the defence.
[7] There is no issue that Mr. Hayman was operating his motor vehicle in Oakville on February 13, 2014 or that the two Intoxilyzer tests showed respectively results of 150 and 140 milligrams of alcohol in 100 millilitres of his blood.
[8] The issues before me are:
whether the evidence referred to above should be excluded pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms; and
whether the presumption set out in section 258(1)(c)(ii) of the Criminal Code does not apply since the breath tests were not conducted as soon as practicable.
[9] More particularly with respect to the Charter application, counsel for Mr. Hayman argued that the approved screening device demand was not made “forthwith” and therefore was not a valid demand. This was a violation of Mr. Hayman’s right to be secure against unreasonable search and seizure as guaranteed by sections 8 of the Charter.
[10] I will deal with that Charter application first.
WAS THE APPROVED SCREENING DEVICE DEMAND MADE FORTHWITH?
[11] Section 254(2) does not explicitly require that the police officer's demand be made "forthwith". It only specifically requires that the motorist provide a breath sample "forthwith". However, the Ontario Court of Appeal has held that "it is implicit that the demand must be made by the police officer as soon as he or she forms the reasonable suspicion that the driver has alcohol in his or her body."[^1]
[12] This does not mean “within a reasonable time”. However, it also does not necessarily mean that the demand must always be made immediately once the police officer forms the necessary suspicion. It is to be a prompt demand and in certain circumstances, that may mean that it must be made immediately.
[13] I note however the comments of LaForme J.A. in R. v. Quansah, supra where he stated that:
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).[^2]
[14] Earlier, he set out certain specific circumstances that must be taken into account:
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.[^3]
[15] I note particularly the words “these may include” and “these are examples” and interpret them to mean that this may be a comprehensive list, but not an exhaustive one.
[16] In that regard, I note further that Justice LaForme refers, at paragraph 40, to R. v. Fildan,[^4] where Hill, J. of the Superior Court of Justice lists several other examples of circumstances 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, or
(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, or
(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.[^5]
[17] Justice LaForme goes on to say in the next paragraph that:
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).[^6]
[18] The relevant facts in this case are as follows.
[19] Constable Zivkovic set up a RIDE program that night. He did not have an approved screening device with him but his partner Constable McMullan did.
[20] Constable Zivkovic saw Mr. Hayman driving a motor vehicle at approximately 1:00 a.m. The rear lights were not illuminated on that vehicle. Constable Zivkovic stopped the vehicle at 1:05 a.m.
[21] He went to the driver’s side of the vehicle, identified himself and informed Mr. Hayman that he was operating a RIDE program and asked if Mr. Hayman had consumed any alcohol. Mr. Hayman replied that he had one beer, one drink in four hours. He then produced his driver's licence upon being requested to do so.
[22] Constable Zivkovic smelled the odour of alcohol coming from the vehicle. He noted that Hayman eyes were glossy and he had rosy cheeks. His speech was fine.
[23] Constable Zivkovic asked him to get out of his vehicle to perform other roadside sobriety tests and he did so. Constable Zivkovic then smelled alcohol coming specifically from his breath.
[24] He then formed the “actual suspicion” that Mr. Hayman had alcohol in his body. He requested that Constable McMullan bring the approved screening device to him. He told Mr. Hayman that he would be asked to blow into a machine.
[25] Constable McMullan arrived with the approved screening device at 1:12 a.m. The transfer of this device to Constable Zivkovic took about two minutes and at approximately 1:14 a.m., Constable Zivkovic read the formal approved screening device demand to Mr. Hayman.
[26] Constable Zivkovic testified that he waited until Constable McMullan was present before reading the demand as it was safer to do so, in that he would be looking at the police card while reading the demand and not watching Mr. Hayman.
[27] Counsel for Mr. Hayman argued that this was not an objectively reasonable explanation for the delay. I disagree. Not all police officers might feel the way that Constable Zivkovic did, but that did not make his decision unreasonable. I am satisfied that his decision to wait for officer safety reasons was objectively reasonable. I note further that this is specifically approved of in R. v. Quansah, supra as an acceptable reason to wait for a short period of time.
[28] Accordingly, I find that he did not infringe Mr. Hayman’s rights in any way and the application to exclude the breath results is dismissed.
[29] In any event, even if I was satisfied that Mr. Hayman’s rights had been infringed, I would not have excluded the evidence pursuant to section 24(2) of the Charter.
[30] The test set out in R. v. Grant[^7] by the Supreme Court of Canada directs me to assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to:
the seriousness of the Charter-infringing state conduct,
the impact of the breach on the Charter-protected interests of the accused, and
society's interest in the adjudication of the case on its merits.
[31] I must balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.
[32] With respect to the first factor, any Charter breach here was not a serious one.
[33] Any delay was at most 8½ minutes.
[34] Throughout nearly all of that time, they were waiting for the approved screening device to arrive in any event. It would not have been unusual for a police officer to wait until the approved screening device was present before making the formal demand. In fact this is often the accepted practice. It is also specifically referred to as an acceptable practice in R. v. Quansah, supra.
[35] Constable Zivkovic had informally told Mr. Hayman that he would be asked to blow into a machine. I am not satisfied on the evidence before me that this could qualify as a formal approved screening device demand, but it is a factor that I would consider during my Grant analysis.
[36] The low degree of seriousness of any Charter-infringing conduct here favours inclusion of the evidence.
[37] With respect to the second factor, the detention and the ensuing breath tests were both minimally intrusive both in terms of what took place and the evidence obtained.
[38] In reaching that conclusion, I have taken note of the obiter comments in R. v. Grant, supra that:
While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused's privacy, bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability. On the other hand, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused's body may be admitted. For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive.[^8]
[39] Previously, it often seemed that any infringement of the rights of those accused of drinking and driving would result in the automatic exclusion of the breath results. This passage would appear to indicate that this will not always be the case now.
[40] As for the third factor, the offence is recognized to be a serious one. The societal interest in having a trial on the merits would usually favour admission here.
[41] I must also consider the fact that the evidence which Mr. Harrison seeks to have excluded, is reliable. "Subject to other evidence in any given case, breath samples and their testing by ASDs and intoxilyzers are generally considered reliable evidence."[^9]
[42] I find then that the truth seeking function would be better served by the admission of the evidence than by its exclusion.
[43] So, after considering all the circumstances here, I am satisfied that admission of the evidence would not bring the administration of justice into disrepute.
AS SOON AS PRACTICABLE
[44] The presumption of identity, set out in section 258(1)(c)(ii) of the Criminal Code, provides that the results of breath tests are, in the absence of evidence to the contrary, deemed to represent the blood alcohol level of the accused at the time of driving.
[45] Before this presumption can apply, the Crown must establish beyond a reasonable doubt that a number of preconditions have been met. These include the requirement that two breath tests must be conducted using an approved instrument operated by a qualified technician. The first test must occur not later than two hours after the offence was alleged to have occurred. The second test must occur at least 15 minutes later and both tests must occur as soon as practicable.
[46] In that regard the Ontario Court of Appeal has stated clearly that "as soon as practicable" does not mean as soon as possible. It means that the tests must be taken within a reasonably prompt time.[^10]
[47] In deciding whether the tests are taken as soon as practicable I must look at the entire chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The "as soon as practicable" requirement must be applied reasonably. The Crown is obligated to demonstrate that in all the circumstances the breath samples were taken within a reasonably prompt time, but there is no requirement that the Crown provide a detailed examination of what occurred during every minute that the accused is in custody.
[48] I must remember, however, that:
the "as soon as practicable" requirement in s. 258(1)(c)(ii) of the Criminal Code was enacted as a protection for accused persons which goes hand in hand with the presumption that the results of the breath tests are, in the absence of evidence to the contrary, deemed to represent the blood alcohol level of the accused at the time of driving. This presumption, often referred to as the presumption of identity, benefits the prosecution by eliminating the need to call additional evidence to relate the breath test results back to the time of driving. The as soon as practicable requirement assists in ensuring that the presumption operates fairly and leads to accurate results. Consequently, any delay impinges on a protection Parliament has enacted for the benefit of the accused.[^11]
[49] In this case, Mr. Hayman was stopped at or shortly after 1:05 a.m.
[50] The first breath test was completed at 2:32 a.m. It therefore occurred about one hour and 27 minutes after the alleged offence, well within the two hour limit.
[51] The second test occurred more than 15 minutes later at 3:02 a.m. Both tests were conducted using an approved instrument operated by a qualified technician.
[52] The only issue before me is whether I am satisfied that both tests were conducted as soon as practicable.
[53] Constable Zivkovic formed his initial suspicion shortly after 1:05 a.m.
[54] He asked for an approved screening device to be brought to him and when it arrived, he read the approved screening device demand.
[55] At 1:16 a.m. Mr. Hayman provided a suitable sample that resulted in a “fail”.
[56] Constable Zivkovic arrested Mr. Hayman, and read him his right to counsel, the breath demand, caution and secondary caution. This was completed by 1:27 a.m. The female passenger approached him with the name of Mr. Hayman’s lawyer, Bruce Daley.
[57] Constable Zivkovic then drove Mr. Hayman directly to the Oakville police station, departing at 1:33 a.m. and arriving at 1:40 a.m. He turned Mr. Hayman over to the central lock-up staff and at 1:50 a.m. he called Mr. Daley. I heard no evidence as to when Mr. Daley spoke to Mr. Hayman or when that conversation ended. I was informed that Mr. Hayman did in fact speak to Mr. Daley before providing samples of his breath.
[58] Constable Radley testified that he was a police constable with the Halton Regional Police Service and that he was a qualified technician on duty in Burlington that night. At 1:32 a.m., he received a request to go to the Oakville station to conduct the breath tests in this case.
[59] He arrived in Oakville at 1:44 a.m. He went straight into the breath room there and began prepping the approved instrument. It was ready to receive a breath sample at 2:06 a.m.
[60] Mr. Hayman was brought to him at 2:10 a.m. He explained the process to Mr. Hayman. He read his right to counsel, caution, secondary caution and breath demand. All of this was video-recorded.
[61] It then took a further six to eight minutes to input the necessary information regarding Mr. Hayman into the Intoxilyzer so that it was ready to receive breath samples from him.
[62] Mr. Hayman failed to provide a suitable sample on his first two attempts. The first successful sample was received at 2:32 a.m.
[63] The second test was completed at 3:02 a.m. The extended gap between samples was the result of “an ambient fail” or an overly high alcohol level in the ambient air. Constable Radley took the necessary steps to correct the situation. That took about ten minutes. Mr. Hayman provided a suitable sample on his second attempt.
[64] Other than perhaps one or two periods of two or three minutes each, there are no unexplained delays here.
[65] I am satisfied that he police acted reasonably in what they did in this case.
[66] Accordingly, after considering all of the evidence, I am satisfied, beyond a reasonable doubt, that the breath tests were conducted as soon as practicable.
[67] I am therefore satisfied that the Crown has proven beyond a reasonable doubt that Mr. Hayman was operating his motor vehicle when his blood alcohol concentration was 140 milligrams of alcohol in 100 millilitres of blood. I find him guilty of the offence charged and enter a conviction.
Released: March 9, 2016
Signed: “Justice D.A. Harris”
[^1]: R. v. Pierman; R. v. Dewald (1994), 1994 CanLII 1139 (ON CA), 19 O.R. (3d) 704 (Ont. C.A.),per Arbour J.A. at para. 5; R. v. Quansah, 2012 ONCA 123, [2012] O.J. No. 779 (Ont. C.A.) per LaForme J.A. at para. 25.
[^2]: R. v. Quansah, supra at para. 52.
[^3]: R. v. Quansah, supra at para. 48.
[^4]: R. v. Fildan, [2009] O.J. No. 3604 (Ont. S.C.J.) per Hill J. at para. 39.
[^5]: R. v. Quansah, supra at para. 40.
[^6]: R. v. Quansah, supra at para. 41.
[^7]: R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32 (S.C.C.), at para. 71.
[^8]: R. v. Grant, supra at para. 111.
[^9]: R. v. Bryce, [2009] O.J. No. 3640 (Ont. S.C.J.) per Hill J. at paras. 64 and 65.
[^10]: R. v. Vanderbruggen, 2006 CanLII 9039 (ON CA), [2006] O.J. No. 1138 (Ont. C.A.) at paras. 12 and 13; R. v. Singh, 2014 ONCA 293, [2014] O.J. No. 1858 (Ont. C.A.) at paras. 14 and 15; R. v. Phillips, 1988 CanLII 198 (ON CA), [1988] O.J. No. 415 (Ont. C.A.).
[^11]: R. v. Davidson, [2005] O.J. No. 3474 (Ont. S.C.J.) per F. Dawson J. at para. 19.