Court Information

Ontario Court of Justice

Date: February 23, 2017

Court File No.: Central East - Newmarket - 14-08374-00

Parties

Between:

Her Majesty the Queen

— and —

Parimah Parvinian

Before the Court

Justice: John McInnes

Heard: February 1, 2017

Reasons for Judgment Released: February 23, 2017

Counsel

For the Crown: P. Attia

For the Defendant Parimah Parvinian: A. Ross

Judgment

McINNES J.:

[1] The Charge

[1] Parimah Parvinian is charged with operating a motor vehicle with a blood alcohol level above the legal limit. On March 11, 2014, York Regional Police Constable Eon Lam was conducting a mobile RIDE near Yonge St. and McKay Dr. in Richmond Hill. At 1:50 a.m., PC Lam stopped the defendant after watching her drive out of a parking lot in front of a local pub. She denied having consumed alcohol but PC Lam detected a strong odour of alcohol on her breath and made a roadside screening demand. The defendant failed and was arrested for driving "over 80". Later breath tests measured Ms Parvinian's blood alcohol at 140 mg/100 ml.

[2] The defence raises only one issue, whether the breath testing was conducted "as soon as is practicable" after the demand was made in accordance with s. 258(1)(c)(ii) of the Criminal Code. Unless that requirement is met, the Crown cannot rely on the breath readings to prove the charge and Ms Parvinian must be acquitted.

I. The Relevant Facts

[3] The defendant provided the first sample at 3:08 a.m., about 78 minutes after the time of driving. The testimony of PC Lam and the breath technician, PC Morrison, establishes this timeline for the events after the demand was made:

Time	Event
1:51	PC Lam pulls over the defendant.
1:53	PC Lam reads the ASD demand.
1:54 → 1:56	After four failed attempts the defendant provides a suitable ASD sample which results in a "fail" reading and she is arrested for operating "over 80".
1:56 → 2:04	PC Lam advises the defendant of her s. 10(b) rights and attempts to determine if she wants to speak to a lawyer; without responding to his inquiry she repeatedly expresses various concerns including the impoundment of her vehicle and her mother finding out she has been charged. PC Lam answers her various inquiries while continuing to inquire whether she wishes to invoke her right to counsel. PC Lam radios for a female search officer, PC Richards, to attend the scene and for another officer to attend to arrange towing.
2:05	After the defendant finally advises PC Lam she wishes to speak to duty counsel he reads the standard right to silence cautions and the s. 254(3) breath demand.
2:09	PC Richards arrives and searches the defendant.
2:12	PC Lam retrieves the defendant's belongings from her vehicle.
2:15	PC Lam contacts dispatch to find out where closest breath tech is located; he is advised to proceed to 2 District.
2:21	PC Lam and the defendant arrive at 2 District.
2:24 → 2:29	The defendant is paraded before the Staff Sergeant who re-conducts the s. 10(b) caution and confirms she wishes to speak to duty counsel; he also answers her various questions.
2:28	Qualified breath technician PC Morrison arrives at 2 District and readies the approved breath testing instrument.
2:29 → 2:32	PC Lam waits with the defendant pending arrival of PC Richards to conduct a "level 2" [i.e. more extensive] personal search of the defendant.
2:32 → 2:41	PC Richards conducts personal search, provides tissues for the defendant who is crying and returns her to Cell 2D11.
2:42	PC Lam locks cell after responding to further inquiries and protestations from the defendant regarding vehicle impoundment and her mother learning of her charges.
2:44	PC Lam places a call for duty counsel.
2:50	Duty counsel calls back.
2:53	PC Lam takes the defendant from her cell to room for private consultation with duty counsel.
2:55	The approved breath testing instrument is ready for use.
2:56	The defendant finishes speaking to duty counsel. She is escorted back to her cell instead of the breath room because PC Morrison has advised PC Lam he requires him to fill in his grounds for arrest on the Certificate of Analysis.
2:56 → 3:08	PC Lam completes his written grounds on the Certificate of Analysis and brings the form and the defendant to the waiting breath technician.

[4] PC Lam testified in-chief that the defendant consulted with duty counsel from 2:53 until 3:08 as he had recorded in his notes. When shown the CCTV video of the breath room, cell and surrounding hallways during cross-examination, however, he readily acknowledged the call ended at 2:56 at which time he returned the defendant to her cell and spent the next 15 minutes recording his grounds for the arrest and breath demand in the designated box on the Certificate of Analysis form. Apart from this one error, PC Lam was a conspicuously precise, meticulous and even-handed observer and recorder of his interactions with the defendant. This was an honest error and defence counsel did not seriously contend otherwise.

II. The Issue

[5] Defence counsel focuses on the approximately 13-minute period between the time the approved instrument was ready (2:55 a.m.) and the time the defendant was brought into the breath room (3:08 a.m.). He submits delaying the testing for these 13 minutes so PC Lam could complete his written grounds was unnecessary and unreasonable. PC Lam took an inordinately long time to write down his grounds, he argues, and he should have completed this task before the call to duty counsel so the defendant could be taken straight to the breath room once the call ended. In any event, PC Morrison should not have required this step to be completed before starting the breath testing; PC Lam had already conveyed his grounds orally and since the ASD failure alone furnished grounds for a breath demand no elaboration or analysis was required.

III. Analysis

[6] PC Lam's grounds for making the s. 254(3) breath demand crystallized when the defendant failed the ASD test at 1:56 a.m. The first breath sample was taken 72 minutes later, at 3:08 a.m., 78 minutes after the defendant operated the vehicle and well within the 120 minute maximum delay.

[7] PC Lam spent the 72 minutes between the breath demand and the first breath test doing these things:

• reading the defendant her rights, a process considerably protracted by Ms Parvinian's repeated questioning and entreaties in relation to the impoundment of her vehicle and the possibility of her mother would find out about her charge;
• awaiting the female PC Richards to conduct the search of the defendant;
• transporting the defendant to 2 District;
• remaining with the defendant during the booking and related procedures;
• lodging the defendant in her cell;
• calling, and awaiting a return call from, duty counsel;
• facilitating the private call between the defendant and duty counsel; and,
• completing the written grounds in the designated section on the Certificate of Analysis form.

[8] While PC Lam was attending to these matters, PC Morrison arrived at 2 District Station at 2:28 a.m. and readied the approved breath testing instrument. By 2:55 he was ready to proceed but for one step: he required PC Lam to write out the grounds for the demand in the designated section of the Certificate of Analysis. PC Morrison testified this was his practice, a routine that helps ensure he never proceeds with breath testing absent the requisite grounds.

[9] The phrase "as soon as is practicable" means "nothing more than that the tests were taken within a reasonably prompt time under the circumstances" and does not mean "as soon as possible". "The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably": R v Vanderbruggen, [2006] OJ 1138, 206 CCC (3d) 489 (CA) at para. 12 [emphasis added].

[10] In my view, both PC Lam and PC Morrison "acted reasonably" throughout and the breath tests were taken "within a reasonably prompt time under the circumstances". Neither officer gave unreasonable priority to any other task. It may be that PC Morrison could have proceeded on the basis of the grounds PC Lam conveyed to him orally. This does not mean, however, that he had to do so to comply with the "as soon as is practicable" requirement. Adhering to procedural routines of this nature can be a useful safeguard against human error and can assist in ensuring the rights of detained motorists are respected.

[11] I respectfully disagree with defence counsel that PC Lam took too long to fill in his grounds on the Certificate of Analysis. He recorded his grounds in the meticulous and thorough manner that he recorded and related all of his investigative activities for this incident. Such professionalism and attention to detail benefits the administration of justice.

[12] It may be that PC Lam could have completed the written grounds at an earlier point that evening. This possibility was not explored in detail in cross-examination, however, and it is unclear whether PC Lam forgot, had no opportunity or was simply unaware of PC Morrison's practice. Whatever the case, I am satisfied that PC Lam was alive to the requirement that the testing be conducted with reasonable promptitude and he conducted himself accordingly throughout. Compliance with the "as soon as is practicable" is not something to be measured with a stopwatch nor does it oblige police officers to proceed with robotic efficiency. Modest delays to fill in reports can generally be accommodated within the "as soon as is practicable" requirement: R v Payne, [1990] OJ 639 (CA); R v Steeves, [1986] BCJ 2513 (Co Ct).

[13] Accordingly, I find the breath tests were conducted as soon as is practicable, the presumption of identity applies, the case is proven beyond a reasonable doubt and the defendant is guilty as charged.

Released: February 23, 2017

Signed: Justice John McInnes