Court File and Parties
Ontario Court of Justice
Date: January 20, 2017
Court File No.: 15-35006060
Between:
Her Majesty the Queen
— and —
Justin Quilang
Before: Justice M. Speyer
Heard on: November 30, 2015, April 15, 2016 and November 1, 2016
Reasons for Judgment released on: January 20, 2017
Counsel:
Paul Kelly — counsel for the Crown
Peter Lindsay — counsel for the defendant Justin Quilang
SPEYER J.:
INTRODUCTION
[1] Justin Quilang is charged with operating a motor vehicle with a blood alcohol concentration of over 80 milligrams of alcohol in 100 millilitres of blood.
[2] The charge stems from a traffic stop that occurred at approximately 01:46 on January 25, 2015. Toronto Police Constable Darryl Norman had been driving a marked police car eastbound on Progress Avenue in the area of Scarborough Town Centre, when he observed ahead of him, a silver Acura travelling at about 80 kilometers per hour in a 60 kilometer per hour zone. The officer stopped the car and Mr. Quilang identified himself as the driver. He was the sole occupant of the vehicle. Constable Norman observed what appeared to him to be a glass with rum and coke in the front center console. Constable Norman testified he smelled alcohol but was not sure if it was from the car or the driver. He asked Mr. Quilang if he had been drinking, and Mr. Quilang denied it, saying he had come from a function where there was no alcohol. The officer questioned him about the drink in the car and Mr. Quilang admitted it was a rum and coke.
[3] Constable Norman testified he was suspicious that Mr. Quilang had consumed alcohol and at 01:50, he made a demand pursuant to s. 254(2)(b) of the Criminal Code, demanding that Mr. Quilang provide a sample of his breath into an approved screening device. He asked Mr. Quilang to sit in the rear seat of the police cruiser for the purpose of taking the test. Mr. Quilang complied and at 01:52 his breath registered a "fail" on the approved screening device.
[4] As a consequence, at 01:53, Constable Norman arrested Mr. Quilang for operating a motor vehicle with a blood alcohol concentration in excess of 80 mg of alcohol in 100 ml of blood. After advising him of his right to counsel and caution, the officer made a demand pursuant to s. 254(3)(a) of the Criminal Code, demanding that Mr. Quilang provide a sample of his breath into an approved instrument for the purpose of determining the level of alcohol concentration in his blood. At 02:05, Mr. Quilang was taken to 41 Division where, after speaking to duty counsel, he provided two breath samples directly into an approved instrument. The first sample was taken at 03:15 and was analysed as containing 150 mg of alcohol in 100 ml of blood. The taking of the second sample was completed at 03:38 and was analysed as containing 140 mg of alcohol in 100 ml of blood.
[5] Mr. Quilang objects to the admission of the Certificate of a Qualified Technician into evidence at this trial on the basis that his rights under s. 8 and 9 of the Charter of Rights and Freedoms were violated. He seeks to exclude this evidence pursuant to s. 24(2) of the Charter. As this was a warrantless seizure of Mr. Quilang's breath, both at the roadside and at the police station, the Crown bears the onus of proving that the seizures were in accordance with the provisions of s. 254(2) and s. 254(3) of the Criminal Code. In this regard, Mr. Quilang points to three deficiencies in the Crown's evidence.
[6] First, Mr. Quilang submits there is no evidence that Constable Norman had the requisite suspicion that the accused had alcohol in his blood when he made the roadside screening demand. He argues that the officer's suspicion that Mr. Quilang "had been drinking" does not conform to the requirements of s. 254(2) of the Code.
[7] Second, the defendant argues that the result from the approved screening device was unreliable and Constable Norman ought not to have relied on it to formulate his grounds to make a breath demand under s. 254(3)(a) of the Code. Mr. Quilang argues that the officer ought to have turned his mind to the potential that residual mouth alcohol from recent alcohol consumption might result in a false "fail". In addition, there were two unspecified error messages during the screening test which further undermined the reliability of the "fail" result. Accordingly, the officer could not, objectively, have had reasonable grounds to make a s. 254(3) demand and the seizure of the breath samples at the police station was unlawful.
[8] Third, Mr. Quilang argues that his s. 8 and 9 rights were violated when he was detained in the rear of the police cruiser to perform the roadside screening test. He argues that this was not necessary and therefore not in accordance with s. 254(2)(b) of the Criminal Code.
[9] Lastly, Mr. Quilang submits that even if the Certificate of a Qualified Technician is admitted into evidence, the Crown cannot rely on the presumption of identity as the breath samples were not taken as soon as practicable as required s. 258(1)(c) of the Criminal Code.
[10] For the reasons stated herein, I find that the police did not violate Mr. Quilang's rights under either s. 9 or 8 of the Charter and the Certificate of the Qualified Breath Technician is admissible at the trial of this matter.
REASONABLE SUSPICION
[11] Section 254(2)(b) of the Code states:
(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:
(b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.
[12] In R. v. Latour, Justice Charron described what a police officer must believe at the time of making the roadside screening demand:
The section simply provides that, prior to making the demand, the peace officer must reasonably suspect that a person who is operating a motor vehicle (or who is engaged in any one of the other named activities) has alcohol in his or her body. If the peace officer forms the required suspicion, he or she may make a demand that the person provide "forthwith" a sample of breath for analysis in an approved screening device.
[13] In R. v. Schouten, 2016 ONCA 872, the Court of Appeal summarized the law as it relates to the standard of reasonable suspicion:
[26] It is not necessary that a person show signs of impairment to found a basis for making a roadside breath demand. Nor is it necessary that a police officer suspect the person is committing a crime. All that is required is that the police officer making the demand has reasonable grounds to suspect that a person has alcohol in their body: s. 254(2) of the Criminal Code; Lindsay.
[27] Moreover, the standard of "reasonable grounds to suspect" involves possibilities, not probabilities: R. v. Williams, 2013 ONCA 772, at para. 22, citing R. v. MacKenzie, 2013 SCC 50, at para. 38; R. v. Chehil, at para. 27; R. v. Kang-Brown, 2008 SCC 18, at para 75.
[14] The law requires not only that the officer have a subjective belief that the person under investigation may possibly have alcohol in his body, but that such belief is grounded in "objectively discernible facts, which can then be subject to independent judicial scrutiny". Reasonable suspicion remains a concept of possibility not probability (see: R. v. MacKenzie, supra, paras. 38 and 41, R. v. Chehil, supra, para 26).
[15] In examination in chief Constable Norman testified that based on the presence of an alcoholic beverage in Mr. Quilang's car and the slight odour of alcohol emanating from either the driver or the car, he had a suspicion that Mr. Quilang may possibly have been drinking. The officer elaborated by saying, "I formed the opinion that he may have had alcohol in his blood stream"[1].
[16] In cross examination, Constable Norman was specifically asked by defence counsel what test he applied to make the approved screening device demand. The officer replied that he would make the demand if he had suspicion that the person had been drinking. He went on to say that if the person had mouth alcohol because he had been drinking, that would satisfy the requirement. Counsel submits that this is not the test set out in s. 254(2) as it does not take into account the timing of consumption or the possibility that alcohol was eliminated from the body.
[17] On the evidence before me, I am satisfied that Constable Norman understood the basis upon which he was legally permitted to make an approved screening demand. The officer's evidence must be considered in context and as a whole. He articulated the test differently in cross-examination and used the term "mouth alcohol", meaning that this was an indication that the person has ingested alcohol. In my view this does not diminish Constable Norman's earlier testimony where he correctly articulated the test to be a suspicion of alcohol in the person's body.
[18] The evidence in this case is distinguishable from that in R. v. Dignum, 2013 ONCJ 668 and R. v. Rahman, [2014] O.J. No. 5773 (O.C.J.), wherein the trail judge found that the investigating officer fundamentally misunderstood the test in s. 254(2). Moreover, in light of the recent Court of Appeal's decision in R. v. Schouten, supra, I am not persuaded by the correctness of the decision in R. v. Keats, [2013] O.J. No. 2336 (O.C.J.).
[19] Constable Norman's observations of an alcoholic beverage in Mr. Quilang's car and the odour of alcohol are objectively discernible facts which support the officer's suspicion that Mr. Quilang may possibly have consumed alcohol at some point before the stop and that he had alcohol in his body. I am satisfied that Constable Norman possessed the requisite reasonable suspicion to make a demand pursuant to s. 254(2) of the Code.
RELIABILITY OF THE SCREENING TEST RESULTS
1. Mouth Alcohol
[20] Defence counsel argues that the presence of an alcoholic beverage in the vehicle within easy reach of his client, ought to have alerted Constable Norman to the possibility that Mr. Quilang had recently consumed alcohol. He argues that the officer should have waited 15 minutes to eliminate the possibility that mouth alcohol would interfere with the reliability of the screening test.
[21] The evidence establishes that there was a nearly full glass of rum and coke in the front console of the car. Constable Norman testified he did not know whether Mr. Quilang had consumed any of the drink prior to being stopped or if some of the drink had spilled from the top of the glass as the vehicle was moving. The officer testified he is aware that mouth alcohol can result in a falsely high breath test result on the approved screening device. He admitted that he is trained to ask a suspect about recent consumption of alcohol. Constable Norman testified that he did not ask Mr. Quilang about his last drink because Mr. Quilang had already denied drinking any alcohol. Constable Norman testified that based Mr. Quilang's response, he did not think mouth alcohol would be an issue and so he did not turn his mind to waiting 15 minutes. He testified that had Mr. Quilang not denied drinking, he would have asked about when he had his last drink.
[22] Mr. Quilang testified on the Charter application. He testified that he had been at a party earlier in the evening and had consumed 4 to 6 alcoholic drinks. Upon leaving the party, he drove to a bar called Jack Astor's where he ordered a rum and coke. He took a sip of this drink and decided he did not want to stay at the bar, so he left with the drink concealed under his coat. Mr. Quilang testified he went to his car, had another sip of the drink in the car and then drove out of the parking lot. He testified that he was stopped within minutes of leaving the parking lot. There is no evidence that Mr. Quilang told Constable Norman that he had a sip of the drink in the parking lot or that he had consumed any alcohol at any time prior to being stopped.
[23] Section 254(2)(b) of the Code requires that a roadside screening test be administered "forthwith". In R. v. Bernshaw, at para. 51, the Supreme Court of Canada held that an officer who is aware that a suspect has recently consumed alcohol and that a screening device test would be unreliable, in that circumstance is entitled to wait up to 15 minutes to ensure a proper test.
[24] In R. v. Einarson, the Court of Appeal dealt with a similar issue where the police stopped a driver shortly after she left a bar. The arresting officer suspected the driver had alcohol in her body because of the smell of alcohol on her breath and other indications of alcohol consumption. When the officer asked her, Ms. Einarson denied drinking. The officer did not know when Ms. Einarson had taken her last drink, but knew it was possible she had consumed alcohol within the 15 minutes preceding the demand. Justice Doherty, speaking for the Court of Appeal held at para. 35:
Bernshaw makes it clear that the mere possibility that a driver has consumed alcohol within 15 minutes before taking the test does not preclude an officer from relying on the accuracy of the statutorily approved screening device. Where an officer honestly and reasonably concludes on the basis of available information that he can form no opinion as to whether the driver consumed alcohol within the prior 15 to 20 minutes, the officer is entitled to rely on the accuracy of the statutorily approved screening device and administer the test without delay. That is not to say that another officer might not assess the same situation differently and have legitimate concerns about the reliability of a test administered without a brief delay and act accordingly. In each case, the officer's task is to form an honest belief based on reasonable grounds about whether a short delay is necessary to obtain a reliable reading and to act on that belief.
[25] In R. v. Mastromartino, [2004] 70 O.J. No. 1435 (S.C.J.), at para 23, Justice Durno summarized the essential points made in Bernshaw and Einarson:
Officers making ASD demands must address their minds to whether or not they would be obtaining a reliable reading by administering the test without a brief delay.
If officers do not, or reasonably could not, rely on the accuracy of the test results, the results cannot assist in determining whether there are reasonable and probable grounds to arrest.
Officers making ASD demands may briefly delay administering the test if, in their opinion, there is credible evidence which causes them to doubt the accuracy of the test result unless the test was briefly delayed.
Officers are not required to wait before administering the test in every case where a driver may have been in a bar shortly before being stopped. The mere possibility that a driver has consumed alcohol within 15 minutes before taking the test does not preclude an officer from relying on the accuracy of the screening device.
Whether or not officers are required to wait before administering the screening test is determined on a case-by-case analysis, focusing on the officer's belief as to the accuracy of the test results if the tests were administered without delay, and the reasonableness of that belief.
The fact the driver is observed leaving a bar is a relevant circumstance in determining whether it was reasonable for the officer to delay the taking of the test in order to obtain an accurate sample. However, officers are not required to ask drivers when they last consumed alcohol.
If the officer decides to delay taking the sample and that delay is challenged at trial, the court must decide whether the officer honestly and reasonably felt that an appropriately short delay was necessary to obtain a reliable reading.
If the officer decides not to delay taking the sample and that decision is challenged at trial, the court must decide whether the officer honestly and reasonably believed that he could rely on the test result if the sample was taken without delay.
[26] Justice Durno also addressed the question of whether the trial judge's assessment of the officer's grounds includes evidence given at trial but which was not known to the officer at the time of the arrest and Intoxilyzer demand. Based on a review of appellate decisions, Justice Durno concluded that the question of the existence of reasonable and probable grounds must be based upon facts known by or available to the peace officer at the roadside when he formed the requisite belief, not at the time of trial: see Mastromartino, supra, para 24 to 28.
[27] I find as a fact that Constable Norman did not consider whether to delay the test because Mr. Quilang denied drinking any alcohol. The officer testified, and I accept, that had Mr. Quilang admitted drinking, he would have asked him about when he had his last drink. Since the accused denied any alcohol consumption, the officer logically saw no point in asking any further questions about it. I am satisfied that the presence of open alcohol in the car led Constable Norman to reasonably and honestly suspect that Mr. Quilang had alcohol in his body, but based on the information available to him, he had no reason to believe that Mr. Quilang had consumed alcohol within 15 minutes of the stop. Any conclusion that the accused had consumed alcohol within 15 minutes of being stopped would be based on speculation and could have resulted in the test not being administered "forthwith".
[28] On all of the evidence before me, I find that arresting officer honestly and reasonably believed that the result from the approved screening device would be accurate and there was no basis to delay the testing. Based on the information available to the officer, there was no reason to doubt the accuracy of the test result. The mere possibility that Mr. Quilang had consumed some of the alcoholic beverage in his car within 15 minutes of the stop did not preclude the officer from relying on the accuracy of the screening device. Mr. Quilang's evidence that he had consumed alcohol within a few minutes of being stopped does not assist his argument as this information was not known to Constable Norman when he made the roadside screening demand.
2. The Error Messages
[29] Mr. Quilang argues that a second reason that Constable Norman ought not to have relied on the approved screening device test result is due to the fact that he did not satisfy himself that the device was functioning properly. He points to two unknown error messages from the device before the "fail" result. The Crown argues there is no evidence that the device was not working properly and the officer reasonably and honestly believed that it was.
[30] Constable Norman testified he believed the device was working properly based on a self-test that accurately resulted in a "0" reading indicating he had no alcohol in his body. Immediately after the self-test, he administered the test to Mr. Quilang. He testified that Mr. Quilang made three attempts to provide a suitable sample. On the first attempt, Mr. Quilang covered his mouth. On the second attempt, he stopped blowing before the machine could register a reading. On the third attempt, the officer coached Mr. Quilang by saying "blow, blow, blow" until the machine indicated it had received a suitable sample. This third attempt resulted in the "fail" message.
[31] In cross examination, Constable Norman acknowledged that there were two error messages from the device before the "fail" result. He did not recall whether he looked at those error messages and he did not make a note of what they were. He believed that the error messages resulted from insufficient air flow. Constable Norman testified he did not believe that either of the error messages indicated that the device was not working properly and should not be used. He relied on the fact that the device had worked properly during the self-test a minute before. He testified that if he believed the machine was not working properly, he would not have used it.
[32] It is not the task of this court to assess whether the evidence establishes that the approved screening device was in good working order. Rather the court must be satisfied that the officer had reasonable grounds for believing that the device was in good working order: see R. v. Topaltsis.
[33] On the evidence before me, I am satisfied that the two error messages were for insufficient air flow. The roadside screening test was performed inside Constable Norman's cruiser. There is an audio recording of the testing procedure: see Exhibit 2A. The audio tape confirms Constable Norman's evidence that Mr. Quilang made two failed attempts before successfully providing a suitable sample. The audio tape supports the officer's testimony that he believed the two error messages were as a result of insufficient air flow due to Mr. Quilang not providing suitable samples. There is no evidence before me to suggest that the error messages indicated that the machine should not be used. Indeed, there is no evidence that the device was not functioning properly or that Constable Norman could not rely on the test result.
[34] I am therefore satisfied on the evidence before me that based on the "fail" result from the approved screening device, Constable Norman had reasonable and probable grounds to believe that Mr. Quilang had a blood alcohol concentration in excess of 80 mg of alcohol per 100 ml of blood. He therefore had reasonable and probable grounds to make the s. 254(3) demand, and there was no breach of Mr. Quilang's rights under s. 8 of the Charter.
DETENTION IN THE POLICE CRUISER FOR THE SCREENING DEVICE TEST
[35] Defence counsel argues that placing his client in the police cruiser for the purpose of administering the approved screening device test was not necessary and contrary to s. 254(2)(b) of the Code. He argues that this was a serious breach of Mr. Quilang's rights under s. 9 and 8 of the Charter. He seeks to exclude evidence of the approved screening device test result and the Intoxilyzer readings.
[36] Section 254(2)(b) states that a peace officer may demand that a motorist provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose (emphasis added).
[37] Constable Norman read the approved screening device demand to the Mr. Quilang at 01:50, while he was still seated in his car. The officer then asked Mr. Quilang to accompany him to his police cruiser for the purpose of administering the test. According to the in-car video, Mr. Quilang was taken to the rear passenger side of the police cruiser at about 01:50:30. The test was administered immediately. The "fail" result was received at about 01:53:20 at which time Mr. Quilang was advised he was under arrest for driving with more than 80 mg of alcohol per 100 ml of blood. The total length of time that Mr. Quilang was detained in the police cruiser prior to his arrest was less than three minutes.
[38] Constable Norman testified that it is usually his practice to conduct a roadside screening test either in front of his police car, or in the back seat of his car. He did not recall what specific training he had regarding where the test should be performed. He acknowledged that "they prefer you to do it in front of the car". He testified that in this particular case, he did the test inside his own car because it was bitterly cold outside. The in-car audio tape confirms that there was a discussion between Mr. Quilang and Constable Norman regarding how cold it was.
[39] Defence counsel argues that placing Mr. Quilang in the police cruiser was not necessary and therefore unlawful. He relies on R. v. Aucoin, [2013] 3 S.C.R. 408 wherein the court held that a search will be reasonable only if it is authorized by law, the law is itself reasonable and the manner in which the search was carried out is reasonable. In that case, Mr. Aucoin had been detained for a traffic infraction and placed in the rear seat of the police cruiser while the investigating officer completed paper work. The court held that in the circumstances of that case, placing Mr. Aucoin in the rear seat of a police cruiser was not necessary to the investigation of the traffic infraction and was therefore unlawful. Because the accused's detention in the back of the police cruiser was unlawful, it could not constitute the requisite basis in law to authorize a warrantless pat down search.
[40] In R. v. Azarnush, [2016] O.J. No. 3248 (O.C.J.) a police officer held the accused in the back of his police cruiser with the doors locked for 15 minutes while lecturing him on his manner of driving. When the officer opened the cruiser door to give the accused a ticket for careless driving, he smelled alcohol and made an approved screening demand. The accused failed the test and was charged with operating a motor vehicle with excess blood alcohol concentration. Justice Greene excluded the results of the approved screening device and the subsequent Intoxilyzer readings on the basis that the accused's detention in the police cruiser was not necessary to the officer's initial investigation into careless driving and was therefore arbitrary and unlawful.
[41] The evidence before me is distinguishable from that in Aucoin or Azarnush. In the case before me, Constable Norman had already formulated the necessary grounds to make a roadside screening demand before placing Mr. Quilang in his cruiser. Unlike the cases cited by the defence, Constable Norman did not obtain his grounds to make the s. 254(2)(b) demand as a result of an unlawful detention.
[42] Moreover, I am satisfied that in the circumstances of this case, Constable Norman's demand that Mr. Quilang accompany him to his police cruiser for the purpose of administering the approved screening device test was both necessary and reasonable. Given the frigid conditions, taking the sample in a warm cruiser was both necessary and manifestly reasonable. Mr. Quilang was not searched or handcuffed prior to being placed in the cruiser. He was in the police car for no more than 3 minutes to take the test. The test was performed at the site of the stop, within a few meters of the accused's car. Mr. Quilang was not taken to a distant location such as at a police station. The test was performed with dispatch, with no danger to Mr. Quilang's safety and with minimal interference with his liberty. In other words the manner in which the breath sample was obtained was entirely reasonable.
[43] In all of the circumstances I find that administering the approved screening device test in the police cruiser was in accordance with s. 254(2)(b) of the Code and not a violation of Mr. Quilang's rights under s. 9 or 8 of the Charter. Even if I had concluded otherwise, on a Grant analysis, I would not have excluded the results.
[44] In conclusion, Mr. Quilang's application to exclude the Certificate of a Qualified Technician is dismissed and the evidence of the Intoxilyzer readings is admitted at trial.
AS SOON AS PRACTICABLE
[45] The requirement that the samples be taken as soon as practicable provides an evidentiary short-cut for the Crown. Section 258(1)(c)(ii) of the Criminal Code provides that if the samples are taken as soon as practicable, 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.
[46] In determining whether the tests were taken as soon as practicable, I am guided by the instruction given by Justice Rosenberg of the Ontario Court of Appeal in R. v. Vanderbruggen, at paragraph 12 and 13, wherein he stated that the phrase "as soon as practicable" means nothing more than that the tests were taken within a reasonably prompt time under the circumstances. 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. 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.
[47] Mr. Quilang submits that the samples of his breath at the police station were not taken as soon as practicable. He points to an unexplained delay of about 22 minutes from arrival at 41 division at 02:18 to the time he is brought before the officer in charge of the station at 02:40. Crown counsel argues that there are no unexplained delays and the samples were taken as soon as practicable.
[48] The video tape from the in-car camera is a reliable source of evidence to determine whether the breath samples were taken as soon as practicable. The evidence establishes that the officer arrived at 41 Division with Mr. Quilang at 02:18. The vehicle entrance to the sally port was closed. Constable Norman is observed on videotape getting out of the cruiser and going to the telephone outside the entrance to the sally port. Constable Norman testified that the door to the sally port can only be opened from inside the station. He testified that he went to the phone to announce his presence and returned to his cruiser to wait for the door to open. In his experience, when the door is closed, it means that there is already another car in the sally port and another person is being paraded before the officer in charge of the station.
[49] The video tape shows the sally port door opening at 02:31 and a police car backing out. Constable Norman's cruiser is seen entering the sally port at 02:32. Constable Norman exits the cruiser and walks to a door leading to the booking hall. Constable Norman testified he went to the booking hall to speak to the "booker", an officer who assists the officer in charge of the station. He testified that he gave the booker Mr. Quilang's name and property to facilitate the parading process.
[50] Constable Norman is next seen on the videotape returning to the car at 02:36 where he has a brief conversation with Mr. Quilang. He is heard telling Mr. Quilang that he is waiting for the officer in charge of the station. Constable Norman goes back inside the station and is off screen for about 4 minutes. He is seen returning to the cruiser just before 02:40 at which time he takes Mr. Quilang out of the cruiser and brings him into the booking hall. The booking process takes about six minutes and is completed by 02:46.
[51] Mr. Lindsay argues that the delay at the sally port is fatal to the Crown's ability to establish that the breath samples were taken as soon as practicable. He points out that there is no explanation of why the other police car was in the sally port or why Constable Norman could not have brought Mr. Quilang through another entrance. He argues that this lack of evidence raises a doubt that the tests were taken as soon as practicable.
[52] I do not accept this argument. I find that there were no unexplained delays. The first breath sample was taken at 03:15, well within the 2 hour limit set out in s. 258(1)(c)(ii) of the Code. On a review of the whole chain of events from the time Mr. Quilang was arrested to the time of the first test, I find that the police acted in a reasonably prompt manner.
[53] I accept Constable Norman's explanation that based on his knowledge of police procedure, he could not enter the sally port until the other police car left and the officer in charge was ready to receive Mr. Quilang. This conclusion is supported by the in car camera video showing Constable Norman entering the sally port immediately after the other cruiser backed out. It is also consistent with the conversation between the officer and Mr. Quilang in the sally port wherein Constable Norman advised Mr. Quilang that they were waiting for the officer in charge of the station. In my view it is not necessary for the Crown to call evidence of why the first cruiser was in the sally port or why the accused could not be paraded immediately. From the evidence before me, I can infer that the delay was for legitimate police procedure, as explained by Constable Norman.
[54] Accordingly, the presumption in section 258(1)(c)(ii) of the Code applies in this case. I am satisfied beyond a reasonable doubt that at the time Mr. Quilang operated his motor vehicle, his blood alcohol level was 140 mg of alcohol in 100 ml of blood, a level in excess of the legal limit. He is guilty as charged.
Released: January 20, 2017
Signed: "Justice M. Speyer"
[1] See transcript November 30, 2015, page 14 lines 26 to 30