Court File and Parties
Date: February 7, 2017
Court File No.: Central West Region 15-3163
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Gary Zardo
Before: Justice Alan D. Cooper
Heard on: November 10, 2016
Reasons for Judgment released on: February 7, 2017
Counsel:
- Amy M. Stevenson for the Crown
- David Holmes for the accused Gary Zardo
Reasons for Judgment
The Evidence of the Arresting Officer
[1] On October 1, 2015, Gary Zardo was charged in Halton Hills with operating a motor vehicle after having consumed alcohol in excess of the legal limit.
[2] At 10:08pm Ontario Provincial Police officer Justin Maguire was in police uniform and driving from his home in Halton Region to the Ontario Provincial Police detachment in Port Credit to report for duty.
[3] As he was driving southbound on Trafalgar Road south of number 10 Side Road, a rural area in Halton Hills, he saw a blue Chevrolet van weaving from side to side on the roadway. The van was about 3 car lengths ahead of officer Maguire.
[4] The van was stopped and a slight odour of alcohol was coming from the breath of the driver, who was the defendant Mr. Zardo. He said he had one glass of wine when he had dinner with his partner in Erin. At 10:10 pm, the officer formed a reasonable suspicion that Mr. Zardo had been operating a motor vehicle after consuming alcohol. A screening device demand was made and the defendant provided a sample of his breath into the device and a fail result was obtained. He was charged with operating a motor vehicle after consuming alcohol in excess of the legal limit and was arrested at 10:17 pm.
[5] The officer confirmed that a breath technician was available in Port Credit and after waiting for a tow truck to arrive at 10:30 pm, he left the scene at 10:31 pm and arrived at the Port Credit detachment in Mississauga at 11 pm. At 11:49 pm, he turned the defendant over to the breath technician officer Menjit Singh. At 1:15 am, the defendant was released from custody on a promise to appear and sent home in a taxi.
[6] In cross-examination, officer Maguire agreed that there are police stations in Georgetown, Acton, and Milton, all of which are in Halton Region and closer than the Port Credit detachment, which is in the separate Region of Peel. These stations are operated by the Halton Region Police Service. He relied on his dispatcher who told him a breath technician was available at Port Credit. He assumed breath testing facilities and operators were available in Georgetown, Acton, and Milton, but made no enquiries. They are operated by a different police force and in his experience it could take 15 to 20 minutes, and sometimes up to an hour, for the Ontario Provincial Police dispatcher to contact the Halton Regional Police dispatcher to line up a breath technician.
[7] After office Maguire testified, both counsel agreed on the record that the Acton police station was not open at the time of this investigation. As well, an email was introduced by the Crown, which indicated that the Halton Police do not staff the Georgetown station, or any of its stations with a qualified breath technician at all times of day, and every day. "QBTs are part of the uniform patrol and the only way to determine if one is available would be for the OPP to call us each time."
The Evidence of the Breath Technician
[8] Constable Singh was the breath technician at the Port Credit detachment who tested the defendant. At 11:58 pm, the first sample of 130 milligrams in 100 millilitres of blood was obtained. At 12:29 am, the second sample of 130 was obtained. Although a minimum of 17 minutes has to expire between tests, the second sample was obtained approximately 30 minutes after the first one because of a conversation between Mr. Zardo and the technician.
[9] No evidence was called by the defence.
As Soon As Practicable
[10] Section 258(1)(c) of the Criminal Code reads as follows:
258 (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2),
(c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if
(i) [Repealed before coming into force, 2008, c. 20, s. 3]
(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,
(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 — that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused's blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused's blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed;
[11] The defence submits that the breath tests were not taken as soon as practicable because no efforts were made by officer Maguire himself, or through the Ontario Provincial Police dispatcher, to see if the defendant could be tested at a police station in Halton, which would be closer than Port Credit. It is also contended that it took far more time than necessary for the second breath test to be taken by the breath technician at the Port Credit station. Engaging in conversation with the defendant may have been compassionate, but it was unnecessary.
Onus on the Crown
[12] The onus is on the Crown to prove beyond a reasonable doubt that the blood-alcohol tests were taken as soon as practicable. There are no issues other than this one.
Analysis
[13] In R. v. Vanderbruggen, [2006] O.J. No. 1138 (C.A.), there was a 46 minute gap between the time when the defendant was lodged in a cell at the police station and when he was turned over to the qualified technician for testing.
[14] At paragraph 8, Justice Rosenberg stated as follows:
Section 258(1)(c)(ii) of the Criminal Code is part of the scheme to ease proof of the concentration of alcohol in the accused's blood for inter alia proving the "over 80" offence in s. 253(b). Section 258(1)(c)(ii) provides that where the breath samples were 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" then, provided certain other conditions are fulfilled, the prosecution may rely upon the presumption of identity. This presumption simply deems the results of the breath tests to be proof of the accused's blood alcohol level at the time of the offence in the absence of evidence to the contrary. Thus, in this case, although the first test was not taken until more than one hour after the appellant drove the vehicle, that test is deemed to show what his blood alcohol level was at that time of the driving.
[15] At paragraph 12, the learned Justice said:
That leaves the question that is at the heart of this appeal -- the meaning of as soon as practicable. Decisions of this and other courts indicate that the phrase means nothing more than that the tests were taken within a reasonably prompt time under the circumstances. See R. v. Phillips (1988), 42 C.C.C. (3d) 150 (Ont. C.A.) at 156; R. v. Ashby (1980), 57 C.C.C. (2d) 348 (Ont. C.A.) at 351; and R. v. Mudry, R. v. Coverly (1979), 50 C.C.C. (2d) 518 (Alta. C.A.) at 522. There is no requirement that the tests be taken as soon as possible. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably. See R. v. Payne (1990), 56 C.C.C. (3d) 548 (Ont. C.A.) at 552; R. v. Carter (1981), 59 C.C.C. (2d) 450 (Sask. C.A.) at 453; R. v. Van Der Veen (1988), 44 C.C.C. (3d) 38 (Alta. C.A.) at 47; R. v. Clarke, [1991] O.J. No. 3065 (C.A.); and R. v. Seed, [1998] O.J. No. 4362 (C.A.).
[16] At paragraph 13, he said:
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. See R. v. Letford (2000), 150 C.C.C. (3d) 225 (Ont. C.A.) at para. 20; R. v. Carter, supra; R. v. Cambrin (1982), 1 C.C.C. (3d) 59 (B.C.C.A.) at 61-3, and R. v. Seed at para. 7.
The Delay Between the 2 Breath Tests
[17] In my view, Officer Singh was not acting unreasonably when he took part in a conversation with Mr. Zardo which resulted in the second test being delayed. Being in custody in a police station and undergoing an investigation would be stressful to any normal citizen. Officer Singh was simply being compassionate and had no intent to purposely delay the testing. I do not find the delay from 17 minutes to 30 minutes significant in these particular circumstances.
The Rationale for the As Soon As Practicable Requirement
[18] In R. v. St. Jean, [2012] O.J. No. 2684 (O.C.J.), Duncan J. said the following:
5 The phrase in question has generated an enormous amount of litigation and case law. Somewhat surprisingly however, there has been almost no discussion in the case law as to the purpose underlying the "as soon as practicable" requirement. Perhaps this is because in a sense it doesn't matter - the requirement must be applied regardless of its purpose. Still, identification of the purpose or purposes would be a helpful interpretive aid. Beyond that, determination of compliance or non-compliance, as the case may be, with the ASAP requirement may turn, as discussed below, on the question of prejudice. To assess prejudice, in my view it is necessary to identify what interests are intended to be protected by this requirement.
6 I think there are two possible rationales for the ASAP requirement - to minimize the "myth" of the presumption of identity and to minimize the period of detention for breath testing of suspected offenders.
7 As for the first, a few relatively recent cases in Ontario have identified a single purpose behind the requirement - a purpose related to the presumption of identity, that is, the presumption that the blood alcohol level at the time of driving is identical to the BAC at the time of testing. Due to processes of absorption and elimination, this deemed identity is in fact untrue and the greater the time between driving and testing, the more untrue it is. It is therefore said that the requirement of testing "as soon as practicable" ensures that the presumption operates fairly and produces accurate results: R v Willette [2011] O.J. No. 504 (Ont Sup Crt); R v Davidson [2005] O.J. No. 3474 (Sup Crt). Accordingly, on these authorities, the interest engaged may be considered a fairness, or fair trial interest.
8 With respect, I think there are some weaknesses in the view that concerns about identity provide the only - or even the main - rationale for the ASAP requirement. While its inclusion as a pre-requisite to the presumption of identity in subsection (c) would favour linking its purpose to that presumption, the significance of that placement fades when one considers that neither of the other sub-paragraphs, iii or iv, have anything to do with the identity issue. Further, logically, the accuracy of the identity bridge is determined solely by the passage of time; it has nothing to do with the reasonableness of that passage of time. In other words, the BAC of a detainee who is tested 90 minutes after driving will change by the same biologically determined degree whether the delay was reasonable and "as soon as practicable" or it wasn't. Why should it be accepted as presumptively accurate and identical in the one case and not the other?
9 I think another, and perhaps main, purpose behind the "as soon as practicable" requirement is to minimize the period of detention of breath test subjects. The scheme of the legislation as originally enacted contemplated detention by demand for testing, without necessarily placing the driver under arrest. There were no roadside testing devices that could be used to screen those detained. I think Parliament foresaw that, notwithstanding that grounds for a demand might exist, a number of subjects detained for testing would in fact prove to be under the limit and innocent. To minimize the inconvenience and infringement on liberty, Parliament provided that the period of detention be kept to the functional minimum and that it be capped at 2 hours. On this view, the interest engaged by the ASAP requirement is a liberty interest.
10 Accordingly, while I agree with the statement from Davidson supra that the ASAP requirement was enacted for the benefit of the accused, I think it is not solely because prompt testing will benefit him by yielding results more accurately corresponding to the time of driving. In fact, the opposite will usually be the case; he will benefit from delay. In my view the requirement was enacted primarily to benefit the accused and all detainees by minimizing the period of detention to which they may be subject. The main interest at stake is a liberty interest with the fair trial interest playing a lesser role.
The Closest Police Station
[19] The 5 police stations in Halton Region are in Burlington, Oakville, Milton, Acton, and Georgetown. Acton and Georgetown are substations, but the other 3 are busy operations in large communities. Milton had 84,000 residents in 1984. In 2011, Burlington had a population of 175,000 people, and Oakville had 182,000.
[20] On reviewing the case law, it would appear that most cases involved a single police force and that closer stations were first approached and sought out, but were not suitable for one reason or another.
[21] In R v Deboice, [1987] 85 A.R. 170 (Alberta Prov. Ct), the defendant was not taken to the closest station in Canmore, but was taken to Banff. At para 7, the court stated as follows:
7 On February 4, the Canmore detachment was staffed with 18 regular members, 4 of whom were qualified technicians on the Borkenstein breathalyzer machine. All officers at Canmore are under specific policy orders from an unnamed superior to not summon off-duty qualified technicians to perform analyses when a qualified technician is not on duty during a regular shift. Rather, the orders are to convey suspected drinking drivers to the Banff detachment for the avowed reason of saving over-time expense at the Canmore detachment.
25 In short the Canmore detachment was ordered by a superior officer to use a procedure which was merely for the sole use or form of making costs appear to be within a budget. Rather an analysis shows the substance to be that of shifting costs from one detachment budget to another.
26 Therefore the samples of breath were not taken as soon as practicable as required by s. 241(1)(c)(ii) of the Criminal Code. Accordingly, even though the certificate of analyses has been admitted in evidence, the Crown is not entitled to the presumption of proof as to the concentration of alcohol in the blood of the accused at the time when the offence was alleged to have been committed.
[22] In R. v. Devlin, [1993] O.J. No. 3393 (O.C.J.-Gen. Div.), Leitch J. said the following:
5 The trial judge made the following findings on the issue of whether Mr. Devlin's breath test was taken as soon as practicable.
"In this case the occurrence took place on Highway 401, which may well be a busy highway, but at the same time it was a rural area, being in the Township of Dunwich, in the Southwest Region. Common sense and reason must be applied when considering the arrest at 11:43 p.m. in the service centre. In my view the time lapse between the arrest and the first test was very short by any standard, even in spite of the fact that the officer had to proceed some twenty miles in order to have the test carried out.
In my judgment the tests were, in fact, taken as soon as practicable."
6 I find that the trial judge applied the proper test and did not err in law in not considering what counsel for Devlin suggests is a policy of the O.P.P. to not staff the button detachment. In any event I find that there was no evidence at trial that there is such a policy of the O.P.P. There was only evidence that there was not a breathalyzer technician on duty at the relevant time on April 11, 1992.
7 Both the delivery of Mr. Devlin directly to an O.P.P. detachment in Glencoe, twenty miles from the situs of the offence and the time of the first breath test in relation to the time of the arrest were reasonable. I cannot find that the trial judge erred in holding that the tests occurred as soon as practicable.
[23] R. v. Bouchey, [1998] O.J. No. 5437 (O.C.J.-Gen. Div.), the motorist was not tested at the closer Thessalon station, but taken to the Blind River detachment because the first station was merely a regional administrative centre. Wright J. held that in those circumstances, the tests were taken as soon as practicable. However, he did make reference a case from the Alberta Court of Appeal which stressed the importance of the "liberty interest" in such situations:
27 As Harradence J.A. pointed out in R v. Van Der Veen (1988), 11 M.V.R. (2d) 251 at 255, we are dealing with a situation involving a statutorily authorized infringement on the liberty of the subject. The requirement that the breath samples be taken "as soon as practicable" should be strictly interpreted and applied so as to prevent intrusion of a detained person's liberty for no longer than is necessary.
[24] [R. v. MacMillan, O.J. No. 4523 (O.C.J.) is a case in which the police took a detainee to police stations in Long Sault and Winchester, where a breath technician or testing machine was not available. He was eventually tested in Kemptville. Renaud J. found that the tests were taken as soon as practicable:
39 Further, I find that though the defendant was taken to three different detachments of the OPP, and notwithstanding that some 150 minutes elapsed between the time of arrest and the stat of the testing, the Crown enjoys the benefits of the presumption found at s. 258 in that the testing took place "as soon as practicable." The officers acted with promptness throughout in responding to the difficulties they encountered and always sought to avoid any obstacle to a fair means of testing. At no time did they show bad faith and the "poor intelligence" that hindered their work was the product of happenstance and not of inadequate efforts or poor planning or design.
40 The testing that was administered was conducted fairly, within constitutional guidelines and in a fashion consonant with the requirements of the Code and in conformity with the appropriate allowance that may be made for rural detachments.
[25] In R. v. Birkhan, [2006] O.J. No. 2206 (O.C.J.), the police dispatcher directed the arresting officer to take the defendant to the station in suburban Kanata but the testing machine was not functioning properly. Mr. Birkhan was then taken to the downtown station on Elgin Street in Ottawa. The tests were held to have been taken as soon as practicable.
[26] R. v. Chrisjohn, 2011 ONSC 383 (Sup. C.J.) dealt with a situation in which the motorist was arrested in Waterloo, and was not tested at the police station there or in the nearby Kitchener, because no breath technicians were available, according to the police dispatcher. Ms. Chrisjohn was directed to be taken to the Cambridge station for testing.
Hambly J. stated the following:
5 The accused gave her first breath sample one hour and 16 minutes after she was arrested. During that period of time she was driven to the Cambridge police station, advised of her right to counsel, exercised her right to counsel and the breath test machine was prepared. There was no evidence that the police wasted any time, acted unreasonably or did anything other than to attend to their duties. The learned trial judge erred by focusing solely on the time between the arrest and the arrival of the accused at the police station. The officer explained that although breath technicians were usually available at two police detachments closer to the detachment where he took the accused he was advised by dispatch that they were not available at these detachments that evening. There is no independent right of an accused to know why they were not available. There is also no independent duty on the Crown to offer evidence why they were not available apart from his overall duty to offer evidence that the breath tests were taken as soon as practicable.
[27] R. v. St. Jean [supra], the previously mentioned decision of Duncan J., the detainee was taken to one police station but when the breath technician arrived, the machine was malfunctioning, and the defendant was taken to a station further away. The tests were held to have been taken as soon as practicable.
[28] R. v. Burwell, [2015] S.J. No. 172 (Sask. C.A.) the officer took the defendant to a station which was locked, and then to one further away, where a delay occurred because the testing device had to be calibrated. The court held that the tests were properly taken.
[29] In R. v. Scott, [1992] O.J. No. 924 (O.C.J.-Gen. Div.), a case which arose in Halton Region, Clarke J. said as follows:
My reasons will be succinct. The Appeal fails. I do not find that the delay of 37 minutes from the time of leaving the scene to the arrival at the Oakville station unreasonable. Moreover, the arresting officer, Constable Leoni acted reasonably and expeditiously. I find that he had reasonable grounds to believe that the closest available breathalyser operator in Halton Region, on the late evening of the 27th of September, 1990, was at the Oakville Detachment. Indeed Judge Sharpe accepted officer Leoni's testimony and it constitutes a finding of fact in his reasons. In cross examination, the officer explained that he obtained that information from his computer terminal. Although the reliability of the computer was not questioned at trial by defense counsel, Mr. McWilliams in his able argument contended that the information was hearsay and therefore, that the finding of fact of Judge Sharpe, has no legal foundation. I disagree.
While the information received may be hearsay, in the same way that a telephone communication would be hearsay, such information does not relate to the essential issue of the guilt or innocence of the accused on the charges. Moreover, it is relevant to demonstrate the reasonableness of the actions of Constable Leoni in transporting the accused to Oakville detachment. Taking into account the time of the trip, 37 minutes, the late hour of the night, and the non urban character of the region (in contrast to a densely populated centre such as Toronto), I cannot find that the Trial Judge erred in holding that the tests occurred as soon as practicable. I note too, that that expression does not signify as soon as possible. What may be practical in one set of circumstances, may be impractical in another situation. The facts in each case must be scrutinized.
[30] In R. v. Partridge, [2003] O.J. No. 5902 (O.C.J.), the only case found which involved separate police forces, the police dispatcher advised the arresting officer that a breath technician was not available at a Barrie Police Service station, and was told to go to a further South Simcoe Police Service station. The tests were found to have been taken as soon as practicable.
The Facts of the Case at Bar
[31] In the present case, officer Maguire was told that a breath technician was waiting at his Ontario Provincial Police detachment in Port Credit. He never asked his dispatcher to find out if Mr. Zardo could be tested at a Halton Police Service station which would be much closer than Port Credit. Nor did he try himself to contact the Halton Police for this purpose. Without actual enquiries, I find as a fact that he could not know, and did not know if such testing was available in Halton. Without doubt, it would have been more convenient to officer Maguire, who was on his way to work at Port Credit, to deal with his own force and at his own detachment.
[32] However, it is not mere convenience which should govern in these circumstances. The Criminal Code dictates that that the tests must be taken as soon as practicable. The Partridge case [supra] is an example of cooperation between 2 municipal forces, and I see no reason why there should not be that same cooperation between a municipal and a provincial force.
[33] From a "liberty interest" perspective, it is also important to note that Mr. Zardo was released in Port Credit at 1:15am and had to take a taxi home.
[34] As a result, I find that the Crown has not proven beyond a reasonable doubt that the tests were taken as soon as practicable, so that it cannot rely on the presumption of identity in Criminal Code section 258(1)(c).
Conclusion
[35] The defendant is found not guilty of operating his motor vehicle after having consumed alcohol in excess of the legal limit.
Released: February 7, 2017
Signed: "Justice Alan D. Cooper"