Court File and Parties
Ontario Court of Justice
Date: 13 September, 2016
Court File No.: 15-09749 Newmarket
Between:
Her Majesty the Queen
— and —
Hamad Mahmood
Judgment
Heard: 13 September, 2016
Before: Justice Joseph F. Kenkel
Delivered: 13 September, 2016
Counsel:
- Ms. Ivana Denisov — counsel for the Crown
- Mr. Malcolm McRae — counsel for the defendant
KENKEL J.:
Facts and Charges
[1] Mr. Mahmood was stopped at a RIDE spot check during the December holiday season. An odour of alcohol and his admission of drinking led Sgt. Sidenberg to form a reasonable suspicion that he had alcohol in his body. Failure of an Approved Screening Device (ASD) test led to an arrest for Over 80mg. The Intoxilyzer in the RIDE truck was not following the proper test sequence so Mr. Mahmood was transported to 4 District where Approved Instrument (AI) tests showed his blood alcohol level was more than double the legal limit.
[2] The Impaired Driving charge was dismissed during submissions given the lack of evidence of impairment. On the Over 80 count, counsel have identified the following issues:
ASAP – Has the Crown shown that the breath samples were taken "as soon as practicable" as required under s.258(1)(c)?
s.7 ABUSE OF PROCESS – The failure of the York Regional Police to videotape the roadside interaction during the RIDE program was a deliberate attempt to hide evidence and a s.7 abuse.
s.7 LOST EVIDENCE – The failure of Sgt. Sidenberg to retain the records from the first approved instrument that was not used to test the accused was a s.7 breach and the court should exclude the evidence as a s.24(1) remedy or stay the proceedings.
s.8 REASONABLE GROUNDS – The Crown has not proved that the warrantless search breath tests were conducted upon reasonable grounds.
s.10 RIGHT TO COUNSEL – When the Impaired charge was noted on the accused's release form the failure to provide the accused with a third call to a lawyer was a "flagrant breach".
S.24(2) EXCLUSION OF EVIDENCE – the breaches in this case due to police negligence should result in exclusion of the breath test evidence.
As Soon As Practicable
[3] The parties agree the evidence shows the following times:
- 08:50 pm — Sgt Sidenberg testified he prepared the AI
- 10:05 pm — Accused was stopped and investigated, ASD Fail
- 10:06 pm — Arrest by PC Petola
- 10:08 pm — RTC – Counsel of choice requested
- 10:09 pm — 254(3) Demand
- 10:20 pm — RTC call completed
- 10:29 pm — Sgt Sidenberg directs accused be transported to 4 District
- 10:33 pm — PC Petola departs scene with accused
- 10:42 pm — PC Petola and accused arrive at 4 District
- 10:48 pm — Accused booked by Acting Staff Sgt.
- 11:00 pm — Second RTC call
- 11:02 pm — Second RTC call completed
- 11:08 pm — First Test complete – 197mgs/100ml
[4] The defence submits that there are two unexplained gaps of 13 minutes and 6 minutes and that overall police were negligent in their duties. The Crown has failed to conduct the tests "as soon as practicable". With respect to the first 13 minute period the defence submits that the fact that the approved instrument wasn't following the proper test sequence should have been discovered earlier. The Sergeant's negligence created the 13 minute delay. The six minute wait at the station for the booking Staff Sergeant was not sufficiently explained as the Crown did not call the Staff Sergeant to explain why he was not there waiting for the accused on arrival.
[5] The breath demand was at 10:09 pm and the first approved instrument test was completed one hour later. The evidence as a whole shows that the police acted with dispatch throughout. The six minute delay on arrival at the station is fully explained by the wait for the Staff Sergeant to arrive. The arresting officer explained he was not authorized to start the booking process without a supervising officer. The Crown is not required to provide further details for such a brief period.
[6] With respect to the delay at the scene, the defence submits that the approved instrument was not prepared on arrival at the RIDE checkstop and that caused almost 13 minutes of delay. Sgt. Sidenberg testified that he did set up the approved instrument on arrival. He went through the setup and conducted a self-test and all was in order. He did not realize that the approved instrument was not following the strict Ontario protocol until he started a subject test and found that it missed a step in the sequence. The machine had just returned from manufacturer service. It was functioning properly as shown by correct calibration against a known external standard and the officer's self-test, but when it did not allow input of the accused's information the officer rightly stopped the test. He did not keep the records from that sequence as no subject test was conducted and he didn't think them relevant. In an email shortly afterwards to a colleague he complained about the fact that the AI was not ready to go in a RIDE truck during the holiday season. He agreed in cross-examination that his brief email seems to say that he setup the instrument just prior to the accused's test. He explained that he wasn't trying to log case times in the email so was not careful about how he put it as the point was the problem with the machine.
[7] Sgt Sidenberg's explanation is reasonable in context and he's likely correct that he set up the instrument upon arrival on scene as he said. Constable Patterson's evidence in cross-examination as to likely setup times in a RIDE truck support the Sergeant's testimony on this point.
[8] Even if the defence is right that the setup was later, he would not have discovered the issue until the moment the accused was finished the call with his lawyer. That was the first subject sequence that revealed the software change. The defence points out that in hindsight this could have been discovered earlier by running a mock test at the station but the Sergeant reasonably explained that this had never happened before in 13 years of being a breath technician and it didn't occur to him. On the day in question, whether the Sergeant conducted the setup on arrival or after as the defence said, he would not have discovered the issue until the subject test after the accused was finished speaking with his lawyer. The resulting delay at most is 13 minutes until the accused left for 4 District for testing on another approved instrument.
[9] The Crown is not required to show that the tests were taken "as soon as possible". R v Vanderbruggen, [2006] OJ No 1138 (CA) at para 12. The Crown is simply required to show that the police acted reasonably and with dispatch. Considering the conduct of all of the officers from the moment the accused was stopped to the completion of the test sequence, in the context of the as soon as practicable direction in s.258 of the Criminal Code and the time limits therein, I find the Crown has proved that the breath samples were taken within a reasonably prompt time.
Section 7
[10] The alleged section 7 breaches relate to the officer's failure to keep the documents from the AI setup in the RIDE truck and to the failure of the police to video tape the roadway and the RIDE truck. The officer didn't keep the setup records because no subject test was conducted and he didn't anticipate that they might be relevant to a legal issue (ASAP) later on. It's not plain that the defence has proved that's a breach but if it is, nothing comes of it. The loss of the records didn't restrict the defence as counsel was able to cross-examine effectively on this point. Further, even on the defence timing the tests were taken as soon as practicable.
[11] There's no obligation on the police to videotape all interactions with a detained person. R v Moore-McFarlane, [2001] OJ No 4646 (CA), R v Mansingani [2012] OJ No 5474 (SCJ). There's no evidence that the failure to do so in this case was for any improper purpose or oblique motive. The lack of video evidence in this case related to the same issue – the timing of the AI setup in the RIDE truck – where the defence was able to show there was other evidence questioning the officer's stated timing. Even if the defence timing were accepted it would not show a failure to comply with the as soon as practicable requirement either alone or in combination with any other evidence. The defence has failed to prove this alleged breach.
Section 8
[12] The Crown has shown the required reasonable suspicion for the ASD demand and the required reasonable grounds for the AI demand. There's no evidence of a s.8 breach.
Section 10
[13] The defence submits that the failure to advise the accused of his right to counsel and provide him with a third call to counsel upon being served his release papers showing an impaired charge is a "flagrant breach" of sections 10(a) and (b) of the Charter. It's not.
[14] The investigation of the accused was complete. He'd spoken to a lawyer of choice at the RIDE truck and again in a second phone consultation at the station. The accused was not arrested or detained for impaired driving and the impaired charge was not a change in circumstance that would trigger a new right to counsel. Competent counsel would have advised the accused under arrest for Over 80 that failure of the breath test could lead to a further charge of impaired driving. Adding the Impaired charge to his release papers gave him fair notice that a second count would be added when the Information was sworn.
[15] There's no evidence of a s.10 breach. Even if that were a technical breach of s.10 it could not lead to a remedy under 24(2) as no evidence was obtained by the breach, the breach was far removed from the time and circumstances of the investigation, and there was no impact on the accused's Charter protected rights under the Grant test 2009 SCC 32, [2009] SCJ No 32. On release the accused was free to call his lawyer for a third time if he wished.
Conclusion
[16] I find that the defendant has failed to prove the Charter breaches alleged and those applications will be dismissed.
[17] Considering all of the evidence as a whole I find that Crown has proved that the breath samples were taken on reasonable grounds, as soon as practicable, and that the accused was operating his motor vehicle with a blood alcohol level over the legal limit as alleged. There will be a finding of guilt.
Delivered 13 September, 2016
Justice Joseph F. Kenkel