Court File and Parties

Court File No.: Brampton -15-7573 Date: 2016-10-20 Ontario Court of Justice

Between:

Her Majesty the Queen

• and -

Sukhrah Grewal

Before: Justice James Stribopoulos

Heard on: April 4, 5 and August 26, 2016

Reasons for Judgment Released on: October 20, 2016

Counsel:

• Mr. D. D'Iorio for the Crown
• Mr. D. Lent for Mr. Grewal

STRIBOPOULOS, J.:

Introduction

[1] The defendant, Sukhrah Grewal, is charged with operating a motor vehicle with a blood alcohol concentration in excess of the legal limit, contrary to s. 253(1)(b) of the Criminal Code.

[2] The Crown's case against Mr. Grewal depends upon the presumption of identity found in subsection 258(1)(c) of the Criminal Code. To rely on that presumption, the Crown must establish beyond a reasonable doubt that the samples of the defendant's breath were "taken as soon as practicable after the time when the offence was alleged to have been committed." [1] At the end of the trial, the Crown submitted that it discharged its burden in that regard. The defence argued that it had not. As a result, a careful review of the evidence, especially as it relates to the chronology of the relevant events, is necessary to decide this case.

Evidence at Trial

[3] There was only a single witness at trial, the arresting officer, Constable Duggan. He testified that on June 17, 2015, at approximately 11:02 p.m., he stopped the defendant for speeding in the City of Brampton.

[4] Events at the roadside transpired relatively quickly. Some indicia of alcohol consumption led to an approved screening device demand at 11:04 p.m. That device was readied and a breath test was then administered at 11:06 p.m. The result was a "fail". Given this, at 11:08 p.m., Mr. Grewal was arrested for operating a vehicle with a blood alcohol level in excess of the legal limit.

[5] Following his arrest, Mr. Grewal was immediately apprised of his rights to counsel; this included information regarding the toll-free number for free and immediate legal advice from a duty counsel lawyer. He was also given the common law cautions. All of this took place between 11:08 p.m. and 11:10 p.m. After being apprised of his rights, Mr. Grewal was specifically asked: "Do you want to call a lawyer now?" He responded: "I don't have one".

[6] At 11:11 p.m., Constable Duggan read Mr. Grewal the approved instrument breath demand. After that, they remained at the roadside for a short period while waiting on another police officer to arrive in order to deal with the defendant's vehicle. (I note that immediately after arresting Mr. Grewal, Constable Duggan had called dispatch requesting a second officer to attend the scene for this purpose.)

[7] A second officer arrived at 11:20 p.m., at which point Constable Duggan left the scene with Mr. Grewal. They travelled directly to 21 Division, where they arrived at 11:33 p.m. Mr. Grewal was ultimately delivered to the breath room and into the custody of a qualified breath technician at 11:49 p.m.

[8] Constable Duggan testified regarding the events that transpired during the sixteen-minute interval between their arrival at the division and Mr. Grewal's transfer into the breath room.

[9] According to Constable Duggan, after they arrived at the division, he brought Mr. Grewal into the booking area and removed his handcuffs. Thereafter, both the cells officer and the officer in charge of the division dealt with Mr. Grewal in order to complete the process of lodging him as a prisoner in the division.

[10] Constable Duggan described this process generally, and confirmed that he was present for it in Mr. Grewal's case. He testified that it includes asking the prisoner whether or not he has any injuries or any medical conditions, collecting information from him regarding his particulars in order to enter those into the police computer system, as well as collecting and then inventorying any property in Mr. Grewal's possession. This last step would have included counting any money that Mr. Grewal had with him at the time.

[11] At 11:40 p.m. Constable Duggan placed a call to the toll-free number for duty counsel. He followed the various prompts to request a call back. This took a couple of minutes.

[12] At 11:43 p.m. duty counsel called back and had a brief conversation with Constable Duggan, who shared with him some basic information about Mr. Grewal's legal situation. After that, Mr. Grewal entered the private room where detainees speak with counsel. He was left alone in that room, where he spoke with duty counsel, until 11:47 p.m.

[13] At some point after Mr. Grewal arrived at the division, either when the cells officer and the officer-in-charge were dealing with him, or while he was on the phone with duty counsel, Constable Duggan apprised the qualified technician of his grounds for arrest and for making an approved instrument breath demand.

[14] After the call with duty counsel, Mr. Grewal was briefly returned to the lodging area before being moved to the breath room and the custody of the qualified breath technician, Constable Holmes. This took place at 11:49 p.m.

[15] Constable Duggan was present in the breath room while the breath testing took place. He gave evidence regarding what transpired in that room, prior to the collection of the first breath sample at 11:59 p.m. For example, he testified that Constable Holmes began by telling Mr. Grewal that everything inside the breath room was being audio and video recorded, he re-read Mr. Grewal's rights to him, he confirmed that he had spoken with duty counsel, and explained the breath testing procedures that were going to take place. Constable Duggan testified that during this period Constable Holmes also appeared to be readying the approved instrument for the breath testing procedures and also completed a self-test on the instrument.

[16] A very detailed summary of the various internal tests that the approved instrument was completing between 11:53 p.m. and 11:59 p.m., when the first breath sample was collected and analyzed, is set out in the Test Record Card that became an exhibit at trial.

[17] The Certificate of a Qualified Technician, which also became a trial exhibit, establishes that at 11:59 p.m. on June 17, 2015 the first breath sample was collected from Mr. Grewal, and that an analysis of that sample revealed a blood alcohol concentration of 120 milligrams of alcohol in 100 millilitres of blood. The certificate also establishes that at 12:20 a.m. on June 18, 2015, a second sample was also collected and analyzed, revealing a blood alcohol concentration exactly the same as that obtained from the first sample.

Law and Analysis

[18] As noted above, in its effort to prove that the defendant's blood alcohol concentration was in excess of the legal limit at the time of driving, the Crown relies exclusively on the presumption of identity found in s. 258(1)(c) of the Criminal Code.

[19] To engage that presumption, the Crown must establish beyond a reasonable doubt that the samples of the defendant's breath were "taken as soon as practicable after the time when the offence was alleged to have been committed." [2]

[20] The Court of Appeal has explained this requirement. [3] The Court's decisions make clear that this phrase does not mean that the breath samples must be taken as soon as possible. According to the Court, the phrase means nothing more than that the tests were taken within a reasonably prompt time in the overall circumstances. [4] The Court has noted that the "touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably." [5]

[21] In making this assessment, I am required to consider the whole chain of events, remembering that the Criminal Code permits an outside limit of two hours from the time of the alleged offence to the taking of the first sample. In establishing this requirement the Crown is not required to provide a detailed explanation of what occurred during every minute that the accused was in custody. Rather, the Court of Appeal has instructed that the "as soon as practicable" requirement must be applied with reason. [6]

[22] As noted, the Crown submits that it has discharged its burden in this case. In contrast, the defence submits that it has not. Of particular concern, Mr. Lent submits, is the 26-minute period following Mr. Grewal's arrival at the police division at 11:33 p.m. and the collection of the first breath sample from him at 11:59 p.m. Mr. Lent argues that this is a significant period of time for which the Crown has failed to account.

[23] More importantly, Mr. Lent contends that to the extent that there is evidence explaining at least some of the delay, it serves to raise a doubt about its reasonableness. In that regard he points specifically to the time taken to facilitate Mr. Grewal's contact with duty counsel. He argues that Mr. Grewal never invoked his right to counsel. Therefore, he contends that the delay that resulted when the police required Mr. Grewal to speak with duty counsel was entirely unreasonable. In support, he relies upon R. v. MacCoubrey, [7] submitting that the circumstances in that case are analogous to the situation here.

[24] I turn next to an analysis of the evidence in this case in light of the governing legal principles.

[25] It will be remembered that on the evening in question Mr. Grewal was stopped at 11:02 p.m. and the first breath sample was collected from him at 11:59 p.m. The second sample was collected at 12:20 a.m. As a result, both samples were collected within 80 minutes of Mr. Grewal operating his vehicle and therefore well within the two-hour outer limit set down by the Criminal Code. Of course, this does not foreclose a finding that the collection of the samples was unreasonably delayed or, alternatively, the existence of a reasonable doubt in that regard. Again, the case law makes clear that the entire sequence of events must be carefully considered.

[26] Based on the whole of the record, I am satisfied that the evidence adduced by the Crown does account for the entirety of the 26-minute period following Mr. Grewal's arrival at the division at 11:33 p.m. and the collection of the first breath sample from him at 11:59 p.m. By way of summary:

• The period from 11:33 p.m. to 11:40 p.m. was essentially taken up by what can fairly be described as booking or intake procedures.

• The period from 11:40 to 11:47 p.m. was spent facilitating contact between Mr. Grewal and duty counsel.

• The period between 11:47 p.m. and 11:49 p.m. involved transferring Mr. Grewal out of the room where private consultations with counsel take place, then briefly into the booking hall, before finally moving him into the breath room.

• And, finally, the period between 11:49 p.m. and 11:59 p.m. was essentially taken up by the qualified technician explaining the testing procedures to Mr. Grewal, re-apprising him of his rights, and readying the approved instrument to receive the first breath sample.

[27] In my view, on this record, the Crown has discharged its burden. There was nothing unreasonable about any of the delay in the administration of the breath testing in this case.

[28] In that regard, I have rejected the submission that this case is analogous to MacCoubrey. In my view, there are two material differences between that case when compared to the circumstances here.

[29] First, in MacCoubrey, the trial judge found that the defendant had expressly waived his right to speak with counsel. In that case, when specifically asked if he wanted to call a lawyer, the defendant said: "I am not impaired". The trial judge found this to be a clear waiver; which meant that the police essentially foisted duty counsel upon a defendant who had expressed a desire to forego his right to consult with a lawyer. The circumstances here are different.

[30] When specifically asked if he wanted to call a lawyer, Mr. Grewal responded: "I don't have one". In the circumstances I think this response was rather equivocal. I say this because it was capable of being understood in two different ways. It could be taken to mean, "I don't have a lawyer, and therefore I don't want to speak with one." Alternatively, it could be understood as meaning, "I would like to speak with a lawyer, but I don't have one and I'll therefore go with duty counsel." The latter interpretation is buttressed, somewhat, in my view, by the fact that Mr. Grewal had just been told about the availability of the 1-800 number by which he could contact duty counsel for free legal advice.

[31] Unfortunately, Constable Duggan did not follow up on Mr. Grewal's response to determine what he precisely meant by it. At this stage, however, it is not my function to decide whether or not it would have resulted in a breach of section 10(b) of the Charter if this were where things had been left and Mr. Grewal was never afforded a chance to speak with a lawyer. Ultimately, Constable Duggan erred on the side of caution and facilitated Mr. Grewal's contact with duty counsel. I am not prepared to conclude that this decision was unreasonable in all of the circumstances.

[32] This brings me to the second material difference between the circumstances in MacCoubrey and this case. Even assuming I am wrong about the reasonableness of Constable Duggan's decision to put Mr. Grewal in contact with duty counsel in this case, that decision ultimately occasioned a delay of only 7 minutes. Again, this is very different than the situation in MacCoubrey, where the trial judge essentially found that despite the defendant not wanting to speak with a lawyer, it was the police who insisted that he must, with the result being a 33 minute delay in the administration of the breath tests.

[33] Ultimately, when I consider the explanations provided by Constable Duggan for the entire chain of events in this case, remembering that the first breath sample was collected within 57 minutes of Mr. Grewal being stopped, and the second within 78 minutes, I am satisfied beyond a reasonable doubt that the breath samples were taken within a reasonably prompt time in the overall circumstances. Accordingly, I am satisfied to the requisite standard that there was no unreasonable delay in the collection of the breath samples in this case. The Crown is therefore entitled to take advantage of the presumption of identity found in subclause 258(1)(c) of the Criminal Code.

Conclusion

[34] When the blood alcohol readings set out in the Certificate of Analysis are considered in conjunction with the presumption of identity, along with all of the other evidence, I am satisfied beyond a reasonable doubt that on the evening of June 17, 2015, the defendant was operating a motor vehicle with a blood alcohol concentration in excess of the legal limit. The defendant is therefore found guilty of that offence.

Released: October 20, 2016

Justice James Stribopoulos

Footnotes

[1] Criminal Code, s. 258(1)(c). See also R. v. Egger, [1993] 2 S.C.R. 451 at pp. 474-75, making clear that in order to rely upon the presumption of identity the Crown must establish the preconditions for engaging it on the criminal standard of proof beyond a reasonable doubt.

[2] Supra note 1.

[3] See R. v. Vanderbruggen (2006), 206 C.C.C. (3d) 489 at paras. 12-13 (Ont.C.A.) and R. v Singh, 2014 ONCA 293 at paras. 14-15.

[4] See Vanderbruggen, supra note 3 at para. 12; Singh, supra note 3 at para. 14.

[5] Vanderbruggen, supra note 3, at para. 12.

[6] See Vanderbruggen, supra note 3 at para. 13; Singh, supra note 3 at paras. 14-15.

[7] 2015 ONSC 3339.