Court Information

Ontario Court of Justice

Date: April 28, 2016

Between:

Her Majesty the Queen

— and —

Sung Hee Kim

Before: Justice R. Shandler

Trial Evidence Heard: May 14, September 30, 2015

Submissions: March 22, 2016

Reasons for Judgment Released: April 28, 2016

Counsel

Mr. I. Shaikh — Counsel for the Crown

Mr. P. Lindsay — Counsel for the Defendant Sung Hee Kim

Judgment

Shandler J.:

Facts

[1] Sung Hee Kim is charged with operating a motor vehicle while her blood alcohol level exceeded the legal limit contrary to s. 253(1)(b) of the Criminal Code. She was pulled over by an officer with the Toronto Police Service, who was investigating an expired validation tag on her license plate. During the course of his interactions with the defendant, the officer detected the odour of alcohol. After questioning the defendant, the officer formed the suspicion that there was alcohol in her system. The officer made an approved screening device (ASD) demand and had the defendant provide a sample of her breath into that device.

[2] The device registered a fail and the officer arrested the defendant for the offence of driving "over 80." The defendant was taken to the 32 Division station where she provided samples of her breath into an approved instrument. Her blood alcohol concentration was analyzed at 160 milligrams of alcohol in 100 milliliters of blood on both the first and second readings.

[3] Defence counsel has raised the following issues:

1. Whether the Crown has proven that the breath samples were taken "as soon as practicable" as required by s. 258(1)(c) of the Criminal Code?; and

2. Whether the officer could rely on the result of the ASD demand?

Issue 1: Has the Crown Proven That the Breath Samples Were Taken "As Soon as Practicable"?

[4] Where the Crown seeks to rely on the presumption relating to the breath samples taken and the commission of an offence, it must meet certain conditions including that each breath sample be "taken as soon as practicable after the time when the offence was alleged to have been committed." The legal test for determining whether breath tests were administered 'as soon as practicable' is well established. The obligation on the police is to take samples "within a reasonably prompt time under the circumstances." As stated by Rosenberg, J.A. in R. v. Vanderbruggen:

In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The "as soon as practicable" requirement must be applied with reason. In particular, while the Crown is obligated to demonstrate that -- in all the circumstances -- the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody.

[5] In this case, the first breath sample was taken one hour and thirty-six minutes after the initial observations made by the arresting officer. The Crown submits that the police acted reasonably throughout their time with the defendant and there were no unnecessary or unreasonable delays.

[6] The defence relies on three periods of delay: a five minute delay where the officer was writing notes before he left the scene; a fifteen minute delay occasioned by the Versadex system; and, a three minute delay waiting for the booking sergeant to arrive at the front desk.

Timeline of Events

[7] Officer Daryaram was the arresting officer. He testified that he made his initial observations of the defendant driving at 2:40 a.m. There was a brief period of investigation while he stopped the vehicle due to the expired validation tag and had a conversation with the defendant. Officer Daryaram explained to the defendant why he stopped her and requested her license and registration documents. Officer Daryaram could detect the odour of alcohol coming from the defendant, advised her of that fact and asked if anyone was drinking. The defendant replied, "not at all." There were three other occupants in the car, so he requested that the defendant bring her unattached validation tag to the back of her car so he could confirm his suspicion.

[8] At the back of the car, PC Daryaram confirmed, with the defendant, that she had not been drinking and asked her where she was coming from. She stated a friend's house. PC Daryaram continued to smell alcohol coming from the defendant while at the back of the car, advised her of that and made an ASD demand at 2:45, or approximately 5 minutes after the initial stop. PC Daryaram again asked about drinking and the defendant told the officer that she had one glass of alcohol earlier in the evening.

[9] PC Daryaram had an ASD device with him and he explained to the defendant how it would be used. The defendant provided a suitable sample on her second attempt. The ASD registered a Fail and at 2:50, the officer arrested the defendant for driving over 80. The officer explained the charge to the defendant, patted her down and then went back to the defendant's vehicle to retrieve her car keys and explain to her passengers that she was being arrested.

[10] After that was done, PC Daryaram read rights to counsel to the defendant at 2:56 and at 2:57, he made an approved instrument demand. The defendant did not understand the demand, so the officer explained the demand in simpler terms and answered various questions posed by the defendant about the test procedures and the impounding of her car.

[11] The officer then gathered up his equipment and waited for another unit to arrive, in order to hand over the custody of the car. PC Daryaram made up his notes at this time as he likes to keep on top of them. The officer then left for 32 Division at 3:11.

[12] At this point, there has been a thirty-one minute period of delay. Approximately twenty minutes of that time was taken up with the initial investigation, the administration of the ASD, the arrest and answering the defendant's questions. The officer also gathered the defendant's belongings, dealt with the passengers, waited for another unit to arrive and take custody of the car and wrote up his notes. The officer's testimony is confirmed by the in-car video. In my view, the officer acted reasonably and promptly throughout his interactions with the defendant and there is no unreasonable period of delay.

[13] The officer transported the defendant to 32 Division, which was approximately two minutes away. They entered the gates of 32 Division at 3:12 a.m. Once at 32 Division, the officer had to complete a Versadex report, which had to be "published" before the booking officer could initiate the booking process. That process took until 3:26.

[14] PC Daryaram explained the process and the information that he had to enter into the system. The delay of approximately fourteen minutes, before the officer could have the defendant booked into the station, was taken up entering information into the Versadex system and waiting for the report to be "published." The officer also re-explained duty counsel to the defendant, at this time, and answered the defendant's questions about duty counsel and the absorption of alcohol.

[15] PC Daryaram testified that the delay, caused by the Versadex system, was necessary before the defendant could be booked and provide her breath samples. The system had been put into place in November 2013, approximately a month before this offence occurred. It was compulsory to use the system, in order to book any defendant at any station. He testified that the delay was "pretty fast" compared to other delays caused by the Versadex system. He testified that the defendant was booked "as quickly as I can do it."

[16] The fourteen-minute delay here was necessary and reasonable. There is no doubt that the Versadex system and its implementation caused some delay in the booking process. That delay, however, is accounted for by the booking system and, on the officer's unchallenged evidence, it was not unreasonable delay in the context of typical delays generated by the Versadex system.

[17] Once at the station, there was some delay in the booking and parade process, a substantial part of which was caused by sorting and counting the large amount of cash that the defendant had on her. There is a short period of delay of approximately three minutes waiting for the booking sergeant. PC Daryaram did not know what the booking sergeant was doing at this time. In my view, that short period of delay is satisfactorily accounted for. To require the Crown to demonstrate what task the booking sergeant was doing for the three minutes the parties waited for him, would run contrary to the established jurisprudence that the Crown does not have to account for "every minute."

[18] The booking and parade procedure took approximately twenty minutes from 3:26 to 3:52. PC Daryaram placed a call to duty counsel at the defendant's request at 3:55 and duty counsel called back at 4:04. That call was completed some three minutes later and at 4:07, the defendant was taken into the breath room in order to provide a sample. There were approximately 5 failed attempts to provide a sample and at 4:16, the defendant provided a suitable sample analyzed at 160 mg of alcohol per 100 ml of blood.

Conclusion on "As Soon as Practicable"

[19] In my view, the total period of delay of one hour and thirty-six minutes is fully accounted for by entirely legitimate and necessary procedures. I am satisfied on the basis of the evidence of PC Daryaram and the in-car and booking videos that the police acted reasonably and promptly throughout their dealings with the defendant. The Crown has proven that the breath samples were taken as soon as practicable.

Issue 2: Was There a Violation of s. 8 of the Charter Because the Officer Based His Grounds for Arrest on an Unreliable Result from the ASD Demand?

[20] Defence counsel raises two issues with respect to PC Daryaram's reliance on the Fail result of the ASD test. First, that the officer failed to turn his mind to the issue of fresh mouth alcohol and, as a result, could not rely on the result. Second, that the officer gave inconsistent evidence about the results of the defendant's initial attempts to provide a sample into the ASD and could not rely on the results. In either case, the defence submits that the defendant's s. 8 Charter rights were violated.

[21] The Crown responds that the officer was entitled to rely on the results as the officer believed the ASD performed a proper analysis and there was no basis to call into question the reliability of the result.

Fresh Mouth Alcohol

[22] Dealing first with the issue of recent mouth alcohol, the applicable law in this area is well set out in R. v. Mastromartino where Durno, J. reviewed and summarized the law as follows:

1. Officers making ASD demands must address their minds to whether or not they would be obtaining a reliable reading by administering the test without a brief delay;

2. If officers do not, or reasonably could not, rely on the accuracy of the test results, the results cannot assist in determining whether there are reasonable and probable grounds to arrest;

3. Officers making ASD demands may briefly delay administering the test if, in their opinion, there is credible evidence which causes them to doubt the accuracy of the test result unless the test was briefly delayed;

4. Officers are not required to wait before administering the test in every case, where a driver may have been in a bar shortly before being stopped. The mere possibility that a driver has consumed alcohol within 15 minutes before taking the test does not preclude an officer from relying on the accuracy of the screening device;

5. Whether or not officers are required to wait before administering the screening test is determined on a case-by-case analysis, focusing on the officer's belief as to the accuracy of the test results if the tests were administered without delay, and the reasonableness of that belief;

6. The fact the driver is observed leaving a bar is a relevant circumstance in determining whether it was reasonable for the officer to delay the taking of the test in order to obtain an accurate sample. However, officers are not required to ask drivers when they last consumed alcohol;

7. If the officer decides to delay taking the sample and that delay is challenged at trial, the court must decide whether the officer honestly and reasonably felt that an appropriately short delay was necessary to obtain a reliable reading; and

8. If the officer decides not to delay taking the sample and that decision is challenged at trial, the court must decide whether the officer honestly and reasonably believed that he could rely on the test result if the sample was taken without delay.

[23] It is clear from PC Daryaram's evidence that he did not consider the issue of fresh mouth alcohol. He was very frank in his answers that it did not occur to him to ask the defendant in this case when her last drink was. He testified that "if there's a concern that alcohol may have been consumed recently, which very well may be the situation here….then I should bring that up and I should address it." He further stated, "If I have no reason to believe that the person may have consumed the alcohol recently, then there would be no reason. So… is it mandatory? No. It is something that I have to keep in mind? Yes. Could I have asked in this situation? Yes." He acknowledged the potential concern and agreed that he "probably should've" asked when the defendant's last drink was, as he also understood that recent mouth alcohol could render the ASD result unreliable.

[24] I accept PC Daryaram's acknowledgement that he should have asked the defendant when she last consumed alcohol if there was a reason to believe that the defendant had recently consumed alcohol. I further acknowledge that PC Daryaram stated that recent consumption of alcohol "very well may be the situation here", however; there was no articulation by PC Daryaram as to the basis for that concern.

[25] The issue here is not the accuracy of PC Daryaram's belief. If it was, I agree that he could have asked further questions about when the defendant's last drink was. But the issue here is whether PC Daryaram formed an honest belief, based on reasonable grounds, about whether a short delay was necessary to obtain a reliable reading. In the circumstances here with the information available to PC Daryaram — the defendant is driving at an hour well after bars have closed, she advised the officer that she was coming from a friend's house, there was no alcohol in the car, the defendant denied drinking and then claimed she had one drink earlier in the evening — there was no basis on which to delay the administration of the test. PC Daryaram testified that the strong odour of alcohol emanating from the defendant could simply mean heavy consumption of alcohol.

[26] PC Daryaram's evidence was clear that the issue of fresh mouth alcohol did not occur to him at the time he made the ASD demand. There was no basis, given the defendant's response that she had one drink earlier in the evening to delay the test in order to ensure the accuracy of the ASD result. I find that PC Daryaram believed, at the time he administered the test, that the results would be accurate if administered without delay and there is no basis to call into question the reasonableness of that belief. At most there was a "potential concern", but that potential concern does not render the officer's belief unreasonable.

[27] If I am wrong in that conclusion and PC Daryaram's reliance on the ASD was misplaced, there would be a clear violation of the defendant's rights under s. 8 of the Charter, however; I would admit the evidence of the breath tests nonetheless.

Charter Exclusion Analysis

[28] Applying the reformulation to section 24(2) set out by the Supreme Court in R. v. Grant, in determining whether evidence should be excluded, consideration is to be given to all of the circumstances while balancing three factors:

(1) the seriousness of the Charter-infringing state conduct;

(2) the impact of the breach on the defendant's Charter-protected interests; and

(3) the societal interest in an adjudication of the case on the merits.

[29] Taking into account all of the circumstances, I decline to exclude the evidence of the breath tests for the following reasons:

• This was a technical breach of the Charter. As indicated, there was no basis in the evidence for PC Daryaram to be concerned about recent mouth alcohol. I note that in later conversation with the breath technician, the defendant repeated her claim that she had only drank earlier in the evening, stating "2 glasses about 9:00." Even if PC Daryaram had asked further questions, he would not have received information causing him to delay the test;

• As a consequence of the breach, the defendant was arrested, handcuffed, searched, taken to a police station and required to provide additional breath samples. That impact on the defendant was significant; and

• The evidence obtained from the defendant's breath samples is reliable and necessary in order to prove the serious offence of driving with a blood alcohol level above the legal limit.

[30] In my opinion, the overall reputation of the administration of justice, viewed in the long term, would not be adversely affected by the admission of this evidence.

Accuracy of the ASD Device

[31] Dealing next with the issue of the accuracy of the ASD device.

[32] PC Daryaram is trained in the use of an ASD. He checked the ASD — an Alcotest Drager 6810 — at the beginning of his shift to ensure that it was calibrated and in working order. The unit had been last calibrated on November 21, 2013, which he testified was within the time period. He understood that the ASD was calibrated to register a Fail at 100 milligrams of alcohol per 100 milliliters of blood. He tested the unit on himself and it registered a zero. PC Daryaram was further satisfied that the machine was in proper working order.

[33] PC Daryaram was challenged on his reliance of the Fail result, based on the failed attempts that the defendant gave before providing a suitable sample. PC Daryaram gave somewhat inconsistent answers as to the responses the ASD would give based on an unsuitable sample, however; he was clear and consistent in his evidence that the only errors the ASD registered from the defendant, prior to the Fail, was errors for insufficient air. PC Daryaram could not recall with any accuracy, what messages or noises the unit made, when the defendant's initial attempts failed but he was clear in his evidence that "On the night of the event, the only message that came up indicating an error was because of the lack of air." He acknowledged that other error messages could arise but reiterated that there were no other messages displayed on the ASD that evening.

[34] In Beharriell, Justice Durno summarized the legal principles applicable when a police officer uses an ASD to confirm his suspicions a driver has operated a motor vehicle having consumed excess alcohol and the accused alleges his or her s. 8 Charter rights were infringed, as follows:

1. The determination is made on a case-specific basis;

2. Breath samples taken pursuant to an Intoxilyzer demand, involve a warrantless search and the onus is on the Crown to establish, on a balance of probabilities, that the search was reasonable;

3. Police officers may, but are not required to, rely on 'fail' readings obtained on an ASD, as the basis or one of the bases upon which they conclude they have reasonable and probable grounds to make an Intoxilyzer breath demand;

4. Police officers using an ASD are entitled to rely on its accuracy, unless there is credible evidence to the contrary;

5. In doing so, the officer must have a reasonable belief the ASD was calibrated properly and in working order before relying on the 'fail' reading as a component of their reasonable and probable grounds to make an Intoxilyzer demand;

6. A relevant consideration is whether the record discloses that because of his or her training, the officer knows that in the circumstances in which the ASD is being used the results will be unreliable;

7. Whether an officer had that reasonable belief can be established by direct or circumstantial evidence;

8. There is no requirement that the Crown prove the instrument's calibration or that the ASD was working properly; and

9. There is a heavy onus on the accused to establish a high degree of unreliability in the specific facts of the case. That evidence may arise in the Crown's case or through defence expert evidence.

[35] I accept that PC Daryaram had a reasonable belief that the ASD was calibrated properly and in proper working order. I further accept PC Daryaram's evidence that the only error messages he received from the ASD that evening, before receiving a suitable sample from the defendant, were error messages related to a "lack of air." PC Daryaram was familiar in the operation of the ASD and familiar with this type of error. I have no doubt that if he had received any other kind of message, he would have noted it.

Verdict

[36] PC Daryaram had reasonable grounds to arrest the defendant for operation of a motor vehicle while her blood alcohol concentration exceeded the legal limit. The Crown has proved that the breath tests were taken as soon as practicable. The Certificate of Analysis, tendered as Exhibit A, is admitted into the trial proper as Exhibit 1. The defendant is found guilty of the offence of driving "over 80."

Released: April 28, 2016

Signed: "Justice R. Shandler"