Court File and Parties

Ontario Court of Justice

Date: 2016-07-18

Court File No.: Brampton 15-836

Between:

Her Majesty the Queen

— and —

Surinderjit Gill

Before: Justice J.W. Bovard

Heard on: January 27; June 22, 2016

Reasons for Judgment released on: July 18, 2016

Counsel:

• Ms. J. Goulin — counsel for the Crown
• Mr. B. Daley — counsel for the defendant Surinderjit Gill

Judgment

BOVARD J.:

Introduction

[1] These are the court's reasons for judgment after the trial of Surinderjit Gill on a charge of 'over 80'.

[2] The only issue is whether the police administered the breath tests as soon as practicable. I will refer only to the evidence that is relevant to this issue. The rest of the Crown's case is admitted.

The Evidence

[3] Officer Halfyard pulled over Mr. Gill to check his sobriety shortly before 10:14 a.m. on January 6, 2015, after seeing him leave an LCBO store with a purchase in his hand and get into his car and drive away. After speaking with Mr. Gill and observing his movements, he formed a reasonable suspicion that he had been driving with alcohol in his blood.

[4] At 10:15 a.m., Officer Halfyard made a demand on Mr. Gill that he provide a breath sample into an approved roadside screening device (ASD). He instructed Mr. Gill to get out of his car and go with him to his cruiser for the breath test.

[5] Right after making the ASD breath demand, Officer Halfyard demonstrated to Mr. Gill how to give a suitable breath sample.

[6] At 10:16 a.m., Mr. Gill failed the test. Officer Halfyard arrested him for 'over 80'. He called a tow truck to come pick up Mr. Gill's car. He also called to find out where the nearest Intoxilyzer technician was. He told Mr. Gill to get out of the cruiser. He put handcuffs on him and patted him down. Then he put him back into the rear of the cruiser.

[7] Between 10:20 a.m. and 10:22 a.m., Officer Halfyard read Mr. Gill his rights to counsel, made a breath demand, cautioned Mr. Gill and called again to see if an Intoxilyzer technician was available.

[8] At 10:25 a.m., another officer arrived to handle the towing of Mr. Gill's car. Officer Halfyard left the scene with Mr. Gill. They went straight to 22 Division for the breath samples.

[9] At 10:36 a.m., they arrived at 22 Division.

[10] At 10:45 a.m., Officer Halfyard took Mr. Gill to the booking area. The booking officer booked Mr. Gill into the station and asked him if he wanted to speak to a lawyer. Mr. Gill said that he did, but he did not specify a particular lawyer. Officer Halfyard explained to Mr. Gill what duty counsel was. Mr. Gill said that he wanted to speak to duty counsel.

[11] At 10:46 a.m., Officer Halfyard called duty counsel.

[12] At 10:57 a.m., duty counsel called the station.

[13] Between 10:57 a.m. and 11:00 a.m., Mr. Gill spoke to duty counsel. Then he went to the washroom. When he finished in the washroom, he and Officer Halfyard had to walk around the cell area to get to the breath room because there was another accused person in the area.

[14] At 11:02 a.m., Officer Halfyard and Mr. Gill entered the breath room. Officer Halfyard turned Mr. Gill over to the breath technician, Officer Okposio.

[15] At 11:07 a.m., Officer Halfyard gave Officer Okposio his grounds for arrest. This included a full account of everything that transpired from the time that he saw Mr. Gill leave the LCBO to when he made his breath demand after he arrested him.

[16] At 11:30 a.m., Officer Okposio completed the first breath test. Mr. Gill registered 190 milligrams of alcohol in 100 millilitres of blood.

[17] At 11:53 a.m., Officer Okposio commenced the second sample. Mr. Gill registered 200 milligrams of alcohol in 100 millilitres of blood.

[18] At 11:57 a.m., Officer Halfyard and Mr. Gill left the breath room.

[19] Next, Officer Halfyard served Mr. Gill with the certificate of a qualified technician and with the intention to produce the certificate at trial.

[20] That was all of the evidence.

The Position of the Parties

[21] The defence abandoned the Charter application. Therefore, I dismiss it.

[22] The only issue is whether the police administered the breath tests as soon as practicable.

[23] Mr. Daley very clearly isolated the time period that he argued undermines the Crown's case that the breath tests were taken as soon as practicable. This time period begins at 11:07 a.m. when Mr. Gill is in the breath room and Officer Halfyard is giving Officer Okposio his grounds for the arrest. The time period ends at 11:30 a.m. when Officer Okposio completed the first breath test. He has no quarrel with the time expended between the two tests.

[24] Mr. Daley calculates the time between the arrest and the first breath test as being 1 hour and 16 minutes. The Crown accepted this calculation and so do I. Therefore, I find as a fact that the overall delay in administering the first breath test was 1 hour and 16 minutes.

[25] Mr. Daley states that the as soon as practicable problem occurs during the 23 minutes between 11:07 a.m. and 11:30 a.m. when the first breath test was completed. He maintains that there is no evidence as to what happened during this time and that this undercuts the Crown's case that the breath samples were taken as soon as practicable.

[26] This is not completely correct. Officer Halfyard gave evidence that at 11:07 a.m. he gave Officer Okposio his grounds for arrest. As stated above, this involved an accounting of everything that transpired from the time that he saw Mr. Gill leaving the LCBO to the time that he gave him the Intoxilyzer breath demand. This could have easily taken 1 – 2 minutes. Therefore, this reduces that time period in question to 21 – 22 minutes.

[27] In addition, there is a clear and reasonable inference from the evidence that another thing that occurred during this time was that Mr. Gill was giving his breath sample and that the Intoxilyzer was analyzing it. This obviously took some time.

[28] The Crown argued that the court may take judicial notice that what happened in the breath room between when Officer Halfyard gave his grounds for arrest to Officer Okposio and when the first breath test was completed: it is what on a routine basis the court hears always occurs during this time period and that, therefore, there is evidence to prove beyond a reasonable doubt that the breath tests were taken as soon as practicable.

[29] Mr. Daley argued emphatically that the court cannot take judicial notice of what happens in the breath room once an accused person is turned over to the breath technician in order to account for this time period.

The Law

[30] The relevant parts of s. 258(1)(c) of the Criminal Code provide that:

(c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if

(ii) each sample was taken as soon as practicable after the time when the offence was 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 fifteen minutes between the times when the samples were taken, (emphasis added)

(iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and

(iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician,

evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused's blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things…

[31] R. v. Vanderbruggen held that the phrase "as soon as practicable" does not mean as soon as possible. It means "nothing more than that the tests were taken within a reasonably prompt time under the circumstances." The "touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably".

[32] The court held further that:

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… (citations omitted)

[33] In R. v. Blacklock, E.B. Fedak J. summarized and agreed with the holding in R. v. Craig that "while the Crown does not have to account for every moment of time, there is a burden on the Crown to account for the time in order to meet the evidentiary burden of proving that a test is taken 'as soon as is practicable'".

[34] Whether the samples were taken as soon as practicable is an issue of fact for the trial judge. See: R. v. Lightfoot (1980), 4 M.V.R. 238 (Ont. C.A.) and R. v. Renda, [2005] O.J. No. 1453 (C.A.).

Judicial Notice

[35] In R. v. Vanderbruggen, the court left open the question of taking judicial notice of the workings of the Intoxilyzer. This is based on the following statement by Rosenberg J.A.:

The appellant submits that the trial judge also erred in taking judicial notice of the time taken to prepare the breathalyser. This submission is based on the statement set out above where the trial judge noted that the machine was a breathalyser rather than an Intoxilyzer. In my view, this is not an indication that the trial judge took judicial notice of the workings of the breathalyser, assuming that the trial judge was not entitled to take judicial notice of that fact. It seems to me that this is merely a comment by the trial judge and an answer to a question he posed to Constable Barr at the end of her testimony. At that time, he asked the officer if she knew what kind of machine Constable Foley was using. The officer did not know. However, examination of the qualified technician's certificate discloses that the machine was in fact a Breathalyzer Model 900A.

[36] R. v. Price is a summary conviction appeal decision by Justice Durno. The defence in Price submitted that a "32 minute delay from [the accused's] arrival at the division until the first sample was taken was unexplained". The evidence regarding this 32 minute delay was:

The appellant and P.C. Genoe arrived at the station at 12:15 a.m. The officer asked the appellant if he wished to speak to counsel and was told that he did not. The appellant was placed in the cell area. Constable Genoe gave the technician his reasonable and probable grounds for arresting the appellant and making the breath demand. At 12:29 the appellant was taken to the breath room and turned over to the technician. The first breath sample was taken at 12:47 a.m.

[37] Justice Durno said that the trial judge, Justice Duncan, "identified the appellant's contention that there was no evidence accounting for what occurred between 12:15 a.m. when they arrived at the division and 12:46 when the first sample [w]as taken". He cited the following passage from Duncan J.'s judgment:

Even focusing on the alleged gaps - it is obvious that some period of time would be consumed at both stages: that it cannot be expected that an individual will be tested immediately on arrival at the police station. Movement through the station, booking, contacting counsel or ensuring a valid waiver of the same, visits to the washroom, preparation of the Intoxilyzer, entry of data into it, giving and receiving grounds for arrest, setting up of video recording, explanation to the subject of the procedures and requirements for providing samples - all, most, or some of these things can be assumed to occur and to occupy time. (emphasis added)

[38] Justice Durno upheld Justice Duncan's decision. He held in paragraphs 15 – 19 that:

Here, the trial judge had some evidence of the events that occurred at the station. Vanderbruggen left open the issue of whether a trial judge can take judicial notice of the workings of the Intoxilyzer.

It must also be remembered that focusing on one aspect of the total time is not the appropriate way to determine if the tests were taken as soon as practicable. Rather, it is the entire time period that must be examined. Here, the time span from the arrest to the first sample was 1 hour and 7 minutes. I agree with the trial judge that period was reasonably prompt under the circumstances.

His Honour had evidence that after the arrest the officer gave the appellant his rights to counsel, caution and breath demand. He drove to the division, took the appellant inside to the cell area, again gave the appellant his rights to counsel and was told he did not want to contact counsel, gave his grounds for arrest to the technician and brought the appellant to the technician.

His Honour also considered other things that may have occurred during the 32 minute period, citing events that could occur in drinking and driving offence arrests after the accused arrives at the police station. Some of those events had to have occurred in this case such as moving about the station, booking, obtaining the waiver of counsel, entering the data into the Intoxilyzer, and explaining the Intoxilyzer procedure. I appreciate that no fixed times can be assigned to these events, but that is not what Vanderbruggen requires. See also: R. v. Tornsey, [2009] O.J. No. 2638 (C.A.). (underlined emphasis added)

In addition, I am not persuaded the trial judge erred in taking judicial notice of events that had to have occurred in this case. Trial judges routinely hear evidence of the procedures at the police station in drinking and driving cases: R. v. Potts (1982), 66 C.C.C. (2d) 219 (Ont. C.A.); R. v. Miller (1971), 4 C.C.C. (2d) 70 (N.S.Cty.Ct.); R. v. Mastromartino (2004), 4 M.V.R. (5th) 198 (S.C.J.). There is no suggestion that those events did not occur in this case. (emphasis added)

[39] Price's authoritative weight does not depend on cases in the OCJ that have followed it, but it is noteworthy that the following cases followed Price: R. v. Hernandez; R. v. Kumarasamy; R. v. Bennett-Morgan; R. v. Buttigieg.

[40] In Price, the court dealt with a 32 minute period where the trial Judge took judicial notice of the common goings-on at the police station when a person charged with drinking and driving comes to the station to be processed and to give breath samples.

[41] Although Price dealt with events that occur outside of the breath room as well as events that occur in the breath room, Justice Durno mentioned "entering the data into the Intoxilyzer, and explaining the Intoxilyzer procedure" as some of the events that he considered as routinely occurring in drinking and driving cases, which trial judges routinely hear when trying these cases. These things clearly occur in the breath room.

[42] In addition, as shown above in the excerpt from Justice Duncan's judgment cited by Justice Durno, Justice Duncan accepted that other events occurred in the breath room, such as, "preparation of the Intoxilyzer, entry of data into it, giving and receiving grounds for arrest, setting up of video recording, explanation to the subject of the procedures and requirements for providing samples".

[43] I find that this clearly imports Justice Durno's holding about judicial notice into the breath room and that it applies to the procedures that trial judges routinely hear occur in the breath room in drinking and driving cases.

[44] Mr. Daley submits that this holding is contrary to what the Ontario Court of Appeal said in R. v. Potts and by which I am bound. In Potts, the court stated the issue as follows:

The issue in this appeal is whether a justice of the peace, on the trial of an information charging a speeding offence on a driveway in the City of Ottawa, was entitled to take notice of the fact that the place where the offence occurred was a driveway under the control and management of the National Capital Commission ("N.C.C."), without that fact having been proved at the trial.

[45] Potts defined judicial notice as:

Judicial notice…is the acceptance by a court or judicial tribunal, without the requirement of proof, of the truth of a particular fact or state of affairs that is of such general or common knowledge in the community that proof of it can be dispensed with…

Thus it has been held that, generally speaking, a court may properly take judicial notice of any fact or matter which is so generally known and accepted that it cannot reasonably be questioned, or any fact or matter which can readily be determined or verified by resort to sources whose accuracy cannot reasonably be questioned.

[46] Although Potts was not a drinking and driving case, as part of its deliberations the court mentioned judicial notice with regard to the procedures involved in taking breath samples. It said:

Where judicial notice of some matter is taken by a trial court, the trier of the facts … may or may not share the knowledge that is said to be common knowledge in the community or in a particular class of the community. If it happens that the court does share a personal knowledge of that which is commonly known in the community, well and good. If not, however, the matter may still be judicially noticed, but the court is put on its inquiry as to whether the matter is or is not one which may properly be made part of the case before it without formal proof thereof. Conversely there is the situation where the knowledge that the court has about a particular matter is knowledge of a kind which the court is required to apply repeatedly in the cases that come before it day by day. In R. v. Miller (1971), 4 C.C.C. (2d) 70, the learned County Court judge, speaking of the procedures that are involved in taking samples of a person's breath for breathalyzer testing, concluded that, on the authorities he had reviewed, "it is possible for a Court to take judicial notice of matters that are repeatedly before it" (p. 80 C.C.C.). While in principle this appears to make a good deal of sense, at least where the matters being noticed are not really disputed, it is nevertheless clear that a trial court is not justified in acting on its own personal knowledge of or familiarity with a particular matter, alone and without more. (emphasis added)

[47] Mr. Daley argued that:

The point is the Court of Appeal has said in Vanderbruggen – they haven't said you can take judicial notice, they haven't said that you can't. Potts is the last word on that, that I'm aware of, in terms of what you – of the basic principle, and on the basic principle Potts in my respectful submission, stands for the contrary proposition of what Justice Durno cites it for. In other words you walk outside of this courtroom – this is not – what would happen in the breath room, which is the big problem here, approximately 23 minutes, whether or not the instrument has to be warmed up, whether – that's not something the community is aware of. That's something that most justices who've sat for a while in criminal court would be. (emphasis added)

[48] I would point out that in Potts the court referred to "the community or in a particular class of the community". I think that it is correct to say that in drinking and driving cases, the police, the Crown and the judge form a "particular class of the community" that is aware of what happens in the breath room. Therefore, the "community" in question in drinking and driving cases is aware of the goings-on in the breath room. Mr. Daley, perhaps unknowingly, admitted as much when he said: "that's not something the community is aware of. That's something that most justices who've sat for a while in criminal court would be".

[49] What could the court in Potts have meant by "alone and without more" in the above citation? It cannot mean evidence about the very thing that is being judicially noticed. If it did, there would be no reason to take judicial notice of it. I find that it is reasonable to conclude that it is a reference to the circumstances of the case.

[50] I find support for this conclusion in the following underlined aspects of Justice Durno's judgment cited above where he specifies in detail the circumstances that Justice Duncan had before him when he took judicial notice:

His Honour had evidence that after the arrest the officer gave the appellant his rights to counsel, caution and breath demand. He drove to the division, took the appellant inside to the cell area, again gave the appellant his rights to counsel and was told he did not want to contact counsel, gave his grounds for arrest to the technician and brought the appellant to the technician.

His Honour also considered other things that may have occurred during the 32 minute period, citing events that could occur in drinking and driving offence arrests after the accused arrives at the police station. Some of those events had to have occurred in this case such as moving about the station, booking, obtaining the waiver of counsel, entering the data into the Intoxilyzer, and explaining the Intoxilyzer procedure. I appreciate that no fixed times can be assigned to these events, but that is not what Vanderbruggen requires. See also: R. v. Tornsey, [2009] O.J. No. 2638 (C.A.). (underlined emphasis added)

[51] I find that, although not stated explicitly, it is implicit in Justice Durno's judgment that given these circumstances, it was appropriate for Justice Duncan to have taken judicial notice of "events that had to have occurred in this case" because "Trial judges routinely hear evidence of the procedures at the police station in drinking and driving cases".

[52] It is hard to deny that what happens in the breath room when an accused person is turned over to the Intoxilyzer technician is a matter of routine that is repeated in case after case. But Mr. Daley argued that after a person is turned over to the Intoxilyzer technician "the plethora of things that can happen is far wider, so for example, the qualified technician could interrupt and go do something else…engage in a series of questions and answers…test another subject". It is safe to say that given the time period in dispute is 21-22 minutes in the case at bar, Officer Okposio did not go test another person. This would have taken much longer.

[53] Even Mr. Daley conceded regarding another event that takes place in the breath room that "We've probably all watched, and I'm sure maybe Your Honour has, maybe a thousand if not more videos where the qualified technician repeats the demand". Yet, he insists that there must be evidence that it occurred in the case at bar.

[54] Based on Price, and this court's trial experience in drinking and driving cases, I find that it is untenable to suggest, for example, that the court cannot take judicial notice that the technician instructed Mr. Gill on how to give a suitable breath sample. As Ms. Goulin, the Crown, argued "did the guy just take a lucky guess as to how to blow directly into the instrument as it says on the certificate or was he instructed how to do so?"

[55] Although unexplained periods of time can be problematical to the Crown, the whole context of the case with all of its circumstances must be considered in making the factual determination of whether the breath tests were taken as soon as practicable. As Justice Durno points out in Price "focusing on one aspect of the total time is not the appropriate way to determine if the tests were taken as soon as practicable. Rather, it is the entire time period that must be examined".

[56] In the case at bar, there is evidence that one of the things that occurred in the breath room between 11:07 a.m. and 11:30 a.m. was that Officer Halfyard gave his grounds of arrest to Officer Okposio. In the case at bar, there is nothing but speculation that anything occurred in the breath room other than what normally occurs there when a breath technician is administering breath tests to an accused person.

[57] If I understand Mr. Daley's submissions correctly, although he agrees that "focusing on one aspect of the total time is not the appropriate way to determine if the tests were taken as soon as practicable. Rather, it is the entire time period that must be examined", his position is that the Crown did not prove beyond a reasonable doubt that the police administered the breath tests to Mr. Gill as soon as practicable because there is no evidence as to what happened between 11:07 a.m. and 11:30 a.m. As he stated in his submissions:

…you have 23 minutes and you have no idea what happened…if you have 23 minutes with no evidence as to why it's 23 minutes before a sample is taken…you can't take a common sense approach. That's precisely what Potts says you can't do…you can't simply say well, I'm content that the entire period is reasonable anyway…there has to be some explanation for significant gaps, not for every minute but for significant gaps…Twenty three minutes…is significant and the only way that gets dealt with is if you take judicial notice of a number of things…which… Potts says…you can't.

[58] Although not stated explicitly, the Crown's argument implies that it has adduced sufficient evidence of the circumstances of the events surrounding the taking of the breath samples that the court should, pursuant to Price, take judicial notice that what occurred in the breath room during the period in question was what happens routinely, namely; making a breath demand on Mr. Gill, ensuring that he had his rights to counsel, performing the appropriate tests on the Intoxilyzer to make sure that it is in proper working order, in-putting the required information from Mr. Gill into the Intoxilyzer, instructing Mr. Gill on how to provide a suitable sample, Mr. Gill giving his breath sample and the machine taking time to analyse the breath sample.

[59] My reading of Price is that it does not say that the court must take judicial notice of these things. It states that Justice Duncan did not err when he took judicial notice of "events that had to have occurred", for example, procedures at the police station in drinking and driving cases that trial judges routinely hear evidence about.

[60] Mr. Daley asks me to find that Price was wrongly decided because Justice Durno misinterpreted Potts. I cannot do that because Justice Durno was sitting as a summary appeal judge and I am bound by his interpretation of the law.

[61] I find that the facts in Price are not sufficiently different that I can distinguish it from the case at bar. Therefore, I have no viable reason for refusing the Crown's request that I take judicial notice that what occurred in the breath room was what routinely occurs and that therefore, the Crown is not required in the circumstances of this case to provide any more evidence than it has to prove beyond a reasonable doubt that the police administered the breath tests as soon as practicable. In the circumstances of the case at bar it would be arbitrary to refuse the Crown's request.

[62] In Price, Justice Durno noted that "the time span from the arrest to the first sample was 1 hour and 7 minutes. I agree with the trial judge that that period was reasonably prompt under the circumstances".

[63] In the case at bar, the total time from arrest to the completion of the first sample was 1 hour and 14 minutes: the arrest occurred at 10:16 a.m. and the first sample was completed at 11:30 a.m.

[64] The total time from Mr. Gill's arrest and the commencement of the second sample at 11:53 a.m. was 1 hour and 37 minutes.

[65] I find that these times are "reasonably prompt under the circumstances". There is nothing in the evidence that would lead me to conclude that the police behaved unreasonably regarding the time that it took to take both samples.

[66] Based on Price, I take judicial notice that during the disputed period in the case before me Officer Okposio was taking all of the steps that are required in order to prepare for the administering of the Intoxilyzer breath tests. These would include, for example, making a breath demand on Mr. Gill, ensuring that he had his rights to counsel, performing the appropriate tests on the Intoxilyzer to make sure that it is in proper working order, inputting the required information from Mr. Gill into the Intoxilyzer, instructing Mr. Gill on how to provide a suitable sample and Mr. Gill giving his breath sample and the machine taking time to analyse the breath sample. I find that all of these procedures are reasonable and necessary.

[67] Therefore, I find that the Crown proved beyond a reasonable doubt that the police administered the breath tests to Mr. Gill as soon as practicable. I find him guilty of the charge of 'over 80' and register a conviction.

Released: July 18, 2016

Signed: Justice J.W. Bovard