Court File and Parties

Court File No.: Central East - Newmarket 16-01645 Date: January 12, 2017 Ontario Court of Justice

Between: Her Majesty the Queen — and — Sandy Viveiros

Before: Justice P.N. Bourque

Counsel:

• B. Juriansz, for the Crown
• A. Ross, for the defendant Sandy Viveiros

Heard: In Writing

Reasons for Judgment

Released on January 12, 2017

BOURQUE J.:

The Facts

[1] After having been stopped at 01:52 on the morning of February 21, 2016, the defendant was investigated for impaired driving and was arrested for driving with excess alcohol at 01:59.

[2] The defendant brings several Charter challenges, including lack of grounds for arrest, breach of rights to counsel and a failure to have the breath tests taken "as soon as practicable".

Scott Vincent

[3] …is a York Regional Police constable with some 6.5 years' experience. He noticed a vehicle moving about in the parking area of a mall and the driver seemed confused about which direction she wished to take the car. The officer stopped the vehicle to check for sobriety at 01:52. The officer spoke to the driver who stated that she had been drinking earlier at a wedding. The driver stated it was more than 15 minutes before the stop. The following is a timeline of events:

Time	Event
01:56	The officer formed a suspicion that the defendant had alcohol in her body and made the ASD demand. The officer had tested the device at the beginning of his shift and noted that it had been checked on February 14, 2016. He believed that it was in proper working order.
01:59	After the second attempt, the defendant provided a suitable sample and it registered a fail which the officer described as indicating that the person had more than 100 milligrams of alcohol in 100 millilitres of blood. The officer arrested the defendant for driving with excess alcohol. The defendant was handcuffed and placed in the cruiser.
02:02	The officer began to read the caution, rights to counsel and breath demand. He was interrupted several times by the defendant who wanted to know why she was stopped and arrested and it had to be explained to her several times. She continued to insist that she "could walk a straight line". These were finished at 02:06.
02:06 to 02:18	The officer was dealing with the items needed for the tow. That included filling out a form and getting and giving the key to the tow truck operator when he arrived. The officer did not call for a backup officer to do these tasks. Other than saying it was a busy Saturday night/Sunday morning, he did not give an explanation. The officer leaves for the station at 02:18.
02:23	The officer arrives at 4 District. He has to wait for the sally port to clear from a previous arrest.
02:35	She is taken inside and paraded.
02:53	At the completion of the booking, she is taken to a cell. The officer removes his car from the sally port.
03:03	The officer calls duty counsel. He did not make note of the conversation with the defendant about calling duty counsel but says he would not have done so unless the defendant wanted to speak to duty counsel.
03:13	The defendant was taken to speak to duty counsel.
03:20	The conversation completed. The breath technician was completing another breath test so the defendant was not taken to the breath tech until 03:40.
03:46	Completion of the first breath test.
04:08	Completion of the second breath test.

[4] The officer stated that he was aware that there was more than one test being done that night. He admitted that by taking his car out from the sally port before calling duty counsel that may have allowed the other test to have gone before the defendant. He also stated that sometimes when he calls duty counsel they are there, so that was one reason he decided to move his vehicle first.

[5] The officer was questioned about the fact that in his notes, he says that when he asked the defendant what she had to drink she said "a bunch". The video was played and this reply cannot be heard, although during that initial interaction at the police vehicle, the audio is very garbled and nothing can be heard.

John Paterson

[6] …is the breath technician. He had been at the station earlier as there was an earlier call for a breath test on another subject. He was shown the breath and station video as he gave his evidence in-chief. It was clear that this was a busy night. The video shows at least 3 separate arrests and the officer stated he did 3 breath tests that evening. He stated that it can be difficult to split breath tests and start another during the 17 minute interval, as sometimes the new test takes a long time where there are many attempts or indeed a refusal.

[7] At 03:39, the officer was approached by Officer Vincent and given the Alcohol Influence Report which Vincent had filled out. That happened as the officer had just finished doing another breath test at 03:38.

[8] The defendant was brought to him at 03:40.

Did the officer have reasonable grounds to arrest and give the breath demand?

[9] The officer stated that he had seen a vehicle driving strangely and he stopped the vehicle to check for sobriety. The vehicle did not stop right away and he needed to sound his siren to get the vehicle to stop. The driver had a smell of alcohol on her breath. She stated she had been drinking earlier that evening. The officer said he had a reasonable suspicion that she had alcohol in her body. I accept the officer's evidence in this regard. I do not believe he made an error in relating his discussion with her at the roadside. Even if he did make an error, I do not accept that as affecting the general credibility of his evidence.

[10] The defence argues that the officer could not rely upon the "fail" on the ASD device as he did not note the name of the device and while he noted maintenance on February 14, 2016, he did not know the details of the maintenance. I reject this submission. The officer testified that it was a working ASD device. He testified that he had tested it that evening and it was working. He testified that it had received maintenance. He testified that he could and did rely upon the results. I believe that nothing more is required: see R. v. Gundy, 2008 ONCA 284, [2008] O.J. No. 1410 at paragraph 50 (C.A.).

[11] After the fail, he made the arrest. I believe he had more than sufficient subjective and objective grounds to arrest for the offence of driving with excessive alcohol after the defendant failed the roadside test.

[12] I dismiss the application under Section 8 and 9 of the Charter.

Were the defendant's 10(b) Charter rights infringed?

[13] The defendant states that the defendant's 10(b) rights were infringed in that she was not allowed to consult with counsel of choice. In my opinion, the evidentiary record does not disclose any such breach.

[14] In making my determination I find the following:

(i) the defendant was read her rights to counsel in the usual form and while this included the option to consult with the free duty counsel service, it also indicated that she could consult with her counsel of her choice;

(ii) the defendant never stated to anyone that she wished to consult with any specific counsel and never provided any information whatsoever that would allow the police to assist her in contacting counsel;

(iii) the officer was not sure when and how the defendant asked to speak to duty counsel (he did not make note of it) but he arranged for duty counsel and he stated that he would not have done that if the defendant had not asked for it;

(iv) the defendant spoke to duty counsel and expressed no dissatisfaction with the conversation and in fact when speaking with the breath tech spoke about not answering some questions "on her lawyers advice";

(v) the defendant did not indicate in any evidence (she did not testify at all on the application) that she would have sought out private counsel if the police were more "forceful" in recommending that she consult with some other private counsel;

(vi) I specifically do not find that the police "defaulted" to duty counsel and somehow foreclosed the defendant from considering her own counsel.

[15] As stated in R. v. Zoghaib, [2006] O.J. No. 1023 (C.A.), "an accused unexpressed desire to speak with his or her own lawyer cannot result in a breach of 10(b)".

[16] Certainly there are situations where special circumstances exist where the police must go beyond the standard rights to counsel (language or comprehension issues et cetera) and explain the rights either with the use of interpreters or in language more appropriate to the comprehension of the defendant. There are situations where a defendant seeks the assistance of some friend or family member in getting in touch with a lawyer. Clearly the police cannot just dial the phone without asking and put the defendant in touch with duty counsel. I do not find that any of these situations existed in this case.

[17] I dismiss the 10(b) application.

Were the breath tests taken as soon as practicable?

[18] The last time of driving of the defendant was at 01:52. The first breath test was taken at 03:46, which is 1 hour and 54 minutes apart.

[19] With regard to the sequence of events noted above in Officer Vincent's testimony, the defence states that the following issues and times make it impossible for me to find that the tests were taken "as soon as practicable" and thus the presumption of identity is not available to the Crown.

Wait for the Tow

[20] The officer had completed the arrest and provided rights to counsel and had given the caution and breath demand by 02:06. He did not leave for the station until 02:18. His explanation was that he needed to complete the issues of dealing with the defendant's car. The defence points out that he could have called for another officer to assist and perform those duties. The officer had no other reason for not calling another officer other than a general statement that it was a busy Saturday/Sunday. Some 12 minutes could have been saved.

Wait For the Sally Port to Clear

[21] The officer had to wait in the car with the defendant for some 12 minutes for another officer (I presume dealing with another arrested person) to clear his vehicle out from the sally port.

Delay calling duty counsel until officer cleared his vehicle from the sally port

[22] The officer took some 10 minutes to clear the sally port before making the call to duty counsel. The officer explained that sometimes when he calls duty counsel they are right there and he could not have cleared his vehicle away until it was completely finished. He made a choice.

Delay at the booking area

[23] The defendant alleges that since the officer stated that the defendant was taken to the booking area at 02:35 and was not lodged into the cells until 02:53, that means that the booking took some 28 minutes which was much longer than the officer's estimate of 5 to 10 to 15 minutes in the usual case. The officer also mentioned that this defendant was given a white paper jumpsuit to wear before the booking process started. I have looked at the station video (Exhibit 3) and it shows the defendant sitting for several minutes as the sergeant is dealing with some property issues. I can't say whether this was the defendant's property or one of the other persons arrested that night.

Delay in having the breath test

[24] The defendant had finished her call to duty counsel 03:20. Because of another person completing his breath test, she was not taken to the breath technician until 03:40 and therefore there is another delay of some 20 minutes.

[25] The defendant says that these cumulative delays make it impossible for me to make a finding that the tests were taken as soon as practicable. The total delay according to the defence is over an hour.

[26] As I review the evidence, I make the following findings:

(i) The officer was always attentive to his duties. He did not do something else that was not appropriate to the tasks that he had to perform;

(ii) It is clear that if he had made some different decisions, the matter could have proceeded faster, such as attempting to summon another officer to deal with the tow of the defendant's vehicle. He could have called duty counsel before dealing with the moving of his car;

(iii) The detachment was very busy that evening. The breath tech did a total of 5 breath tests that evening. He did them one after another. While he admitted that it was possible to attempt to "stagger" them, that may have resulted in more delay.

[27] With regard to the delay for the tow, I do find that it was probably unnecessary.

[28] However, taking into account the fact that it was a very busy evening, I cannot say that he would have saved any time.

[29] With regard to the delay at the sally port, that is just attributable to the busy evening. I can see how it is appropriate to use the sally port for all sorts of reasons. By the same token, it is clear that the officer was under a duty to remove his vehicle from the sally port to allow other possibly arrested persons to be taken into the station. I do not find that anything about that procedure, or the fact that the officer felt it was part of his job that evening, was in any way unreasonable. It may be that in doing that he may have lost his place in the "line up" of people waiting for a breath test that evening. Even if that were the case, I still do not find that his action was unreasonable.

[30] The choice to do it before calling duty counsel was just that, a choice. I do not know if it would have resulted in a speedier test. It may have, and it may not have. Again, it does not appear to be an unreasonable decision.

[31] Upon my review of the video evidence, I do not find that there was any excessive delay in the booking area. The busy nature of the evening certainly contributed to the longer time but that was to be expected. The additional need to provide her with the paper overalls also led to some delay.

[32] The choice to wait the 20 minutes to finish the breath test in its entirety for one person before starting the test of the defendant was also a choice. It was made by the breath technician. How could it be said to be unreasonable? It seems a reasonable choice. Clearly with the crush of work that evening, some tests would be delayed. Perhaps a staggering would have helped, but it could have resulted in just the opposite as well.

[33] While I admit that this all took a long time, I must consider this issue in light of the situation as it existed that night. I do not think that the police can be faulted for the general way in which there procedures and for and resources allocated to the processing of people charged with drinking and driving offences; see R. v. Price, 2010 ONSC 1898, [2010] O.J. No. 1587 (S.C.J.). There was just a lot of people that night.

[34] I particularly note that there are not large portions of time which are unaccounted for. All of the times noted above were filled with the arresting officer or the breath technician carrying out their duties. In hindsight, it may be that if different decisions were made (i.e. the calling for duty counsel before moving his vehicle out of the sally port area), then the defendant's breath test would have been taken earlier. I do not think that is the test. As per R. v. Vanderbruggen, [2006] O.J. No. 1138, the test is not one of perfection and it is not taking the test "as soon as is possible".

Conclusion

[35] I find that the Crown has proven beyond a reasonable doubt that the tests were taken as soon as practicable. I find that the Crown can rely upon the presumption of identity and the breath readings taken at the station reflect the proportion of alcohol in the blood of the defendant at the time of last driving.

[36] Having rejected the Charter applications, I need not do a section 24(2) analysis, and I find the defendant guilty of the offence of driving with excess alcohol.

Signed: "Justice P.N. Bourque"

Released: January 12, 2017