Court File and Parties

Court File No.: Toronto Information No. 15-55006091-00 Date: January 11, 2017 Ontario Court of Justice

Between: Her Majesty the Queen — and — Andrew Dinner

Before: Justice David A. Fairgrieve

Heard on: November 23 and 24, 2016

Reasons for Judgment released on: January 11, 2017

Counsel:

• Keisha Athanas, counsel for the Crown
• Barry Fox, counsel for the defendant Andrew Dinner

Judgment

FAIRGRIEVE J.:

Introduction

[1] Andrew Dinner was originally charged with impaired driving and "over 80" as a result of a motor vehicle collision that occurred on July 19, 2015 in Toronto. The allegation is that, at about 12:28 a.m., he was driving from Bloor St. W. onto southbound Kipling Ave., when he suddenly accelerated, lost control of his car, crossed the median and crashed into a northbound vehicle.

[2] After the evidence was heard at this trial, the impaired driving charge was withdrawn by Ms. Athanas, counsel on behalf of the Crown, because, she stated, there was no reasonable prospect of conviction.

[3] I think it fair to say that a number of peculiar issues remain concerning the "over 80" charge that must still be considered. The difficulties, it seems to be agreed, arise mainly from the unanticipated and sometimes bizarrely inconsistent nature of much of the police evidence led by the Crown. Indeed, during the course of submissions, the Crown conceded a s. 8 Charter breach that was alleged by Mr. Fox, counsel for Mr. Dinner, for the first time only during the course of his oral submissions.

[4] I think it would make sense to outline first the nature of the issues pursued by the defence, summarize the somewhat perplexing evidence in relation to them, make the necessary findings of fact, and then address the legal submissions made by both counsel in relation to the exclusion of evidence under the Charter and the ultimate verdict at trial.

The Original Charter Application

[5] On October 20, 2016, a month before the trial was scheduled, Mr. Fox, counsel for the defendant, filed a Charter application, apparently in compliance with the Rules, alleging that Mr. Dinner's constitutional rights had been violated. According to the Application, a stay of proceedings was sought, presumably under s. 24(1), because of an alleged breach of s.7 that occurred, it was stated, because the notes made by the arresting officer had not disclosed how he had determined that Mr. Dinner had been one of the drivers involved in the accident. The result, according to the application, was "denial of full answer and defence" [ sic ].

[6] The Charter application also sought the exclusion of "evidence obtained and observations made," presumably under s. 24(2), because, it was stated, the officer had insufficient evidence to justify the approved screening device ("ASD") breath demand he made to Mr. Dinner. The application claimed that the defendant's s. 8 right was infringed when the officer conducted the screening test pursuant to a breath demand made in the absence of any evidence that Mr. Dinner had been driving at the relevant time and because the officer's observations of Mr. Dinner pointed to no consumption of alcohol, apart from "a faint odour of alcohol coming from his mouth" observed when the defendant was talking on his cellphone.

[7] In a detailed response to the bare-bones Notice of Application, Thomas Mack, an articling student with the local Crown Attorney's Office, prepared what was essentially a full factum. Mr. Mack carefully summarized the evidence anticipated by the Crown and made legal submissions concerning the points raised in the defence application, referring to the law with respect to s. 24(1) and (2) of the Charter and citing the appellate authorities on which the Crown intended to rely.

The Procedure Adopted by the Parties

[8] At the commencement of the trial on November 23, 2016, both parties agreed that the case should proceed as a so-called "blended" hearing, with the evidence both on the Charter application and the trial proper being called at the same time.

[9] The Crown then proceeded to call four witnesses to testify. Unfortunately, their evidence was not elicited in the manner normally adopted during examination-in-chief in a criminal case. I considered it necessary to intervene on repeated occasions to urge Crown counsel to ask actual questions of the witnesses to direct their testimony to areas of relevance, to confine the testimony to admissible evidence rather than disjointed, spontaneous narratives (often difficult to understand, in any event, without clarification of what the particular officer meant to convey), and, in one instance, to suggest that asking questions of the arresting officer might be more productive than simply playing an inaudible video recording made by his in-car camera that failed to capture matters of relevance. Two of the Crown witnesses, P.C. Colucci (an off-duty police officer who witnessed the accident) and P.C. Schulze (the officer who made the ASD breath demand and the subsequent arrest) were cross-examined by Mr. Fox, after they gave remarkably inconsistent versions of the material facts.

[10] At the conclusion of the evidence given by the Crown witnesses, Mr. Fox stated that the defence was not calling evidence with respect to either the Charter application or the trial itself.

[11] As already noted, Ms. Athanas then stated that the Crown was withdrawing the impaired driving charge and was granted leave to do so. The "over 80" charge remains.

[12] Counsel then began their submissions. At the end of the afternoon, the matter was adjourned for continuing argument the next day and to allow any reference to pertinent case law that the parties might wish to make. The next afternoon (after an unrelated case involving an accused in custody took all morning), Mr. Fox raised a new Charter issue without having given any prior notice. Crown counsel expressly consented to the defence raising this additional ground, presumably because it was an issue that arose as a result of the police officers' testimony that could not have been anticipated earlier. Given the officers' sketchy notes and the discrepancies in their respective evidence, it was not surprising that the pre-trial disclosure provided to the defence had not alerted the parties to what became the significant factual issues here.

The Additional Charter Issue

[13] For the first time, defence counsel submitted that there was also a violation of his client's s. 8 Charter right because P.C. Colucci, the off-duty officer who witnessed the accident, had acted as though he were on duty when he told Mr. Dinner at the roadside that he was being detained for an investigation concerning "a suspicion of impaired operation," read him his rights to counsel under 10(b), but then failed to make the ASD breath demand "forthwith" after he himself had detected the odour of alcohol on the defendant's breath. P.C. Colucci testified that, instead, he left the investigation to be conducted by the Traffic Services officer he expected to attend.

[14] P.C. Schulze, the Traffic officer dispatched to the accident scene, arrived at 12:39 a.m., likely 8 or 9 minutes after P.C. Colucci phoned 911, and 6 or 7 minutes after P.C. Colucci testified he had detected the odour of alcohol on the defendant's breath. Mr. Fox argued that the ASD breath demand made by P.C. Schulze, at 12:48 a.m., was accordingly not one authorized by s. 254(2) of the Criminal Code, and that the screening test was an "unreasonable" seizure in violation of s. 8 of the Charter.

[15] On behalf of the Crown, Ms. Athanas chose not to make any argument in opposition to the additional position taken by defence counsel. Instead, she conceded a s. 8 infringement on the basis that P.C. Colucci should have made the ASD breath demand himself several minutes earlier. No case law was cited by either counsel on the issue. In the circumstances, I felt bound simply to accept the Crown's concession, without giving the matter further consideration.

[16] Since it was the end of the day in any event, I requested written submissions from both counsel with respect to the s. 24(2) issue arising from the s. 8 breach now admitted by the Crown and addressing the other matters raised in the earlier Charter application that had been filed.

[17] In addition, Mr. Fox indicated his intention to argue, should the Intoxilyzer breath test results not be excluded as a result of the Charter breach or breaches, that the Crown had failed to prove beyond a reasonable doubt that the breath samples tested by the approved instrument were taken "as soon as practicable," within the meaning of s. 258(1)(c)(ii) of the Code. The result, he submitted, was that, in the absence of that statutory presumption, there was no evidence of Mr. Dinner's blood alcohol concentration at the time of the accident, and the "over 80" charge should be dismissed. The Crown was to address this point in her written submissions as well.

The Evidence

[18] In order to provide the proper context for the findings of fact, either on a balance of probabilities in relation to the Charter issues (and the admittedly warrantless seizure of the defendant's breath), or beyond a reasonable doubt on the trial proper, it would be helpful to refer to the evidence. It should be pointed out that neither counsel's submissions, nor these reasons, were prepared with the benefit of a transcript of the evidence; rather, we all relied on our respective notes made during the trial.

(i) Stefano Somma

[19] Although Mr. Somma was asked by the Crown about the evening of July 17, 2015, it later became apparent that the accident occurred shortly after midnight on the morning of July 19, 2015, the date specified in the charges, and no one was misled by the inadvertent error concerning the date made initially.

[20] Mr. Somma testified that immediately before the accident, he was driving somewhere in Etobicoke (it was apparent that he did not know the street names), when he saw an oncoming car going very fast around "a bend in the road," then lose control, go over the "island" and strike the side of his car. The collision caused Mr. Somma's car to spin and to strike a lamppost.

[21] Mr. Somma testified that there was very little traffic at the time, and that apart from the car that struck him, which he believed was a silver-coloured Honda, the only other car was the one behind him driven by an off-duty police officer.

[22] Mr. Somma testified that he saw the driver of the car that hit him after the other driver got out of his car. He described him as having a beard, "a pretty young guy," about 5'10" or 6', white, with an "average build." He was not asked if he could identify anyone in the courtroom. It might be observed that, apart from the beard, Mr. Somma's description of the driver of the Honda was not inconsistent with Mr. Dinner's general appearance, although he might actually be taller than 6 feet. In any event, it was clear that Mr. Somma's evidence did not advance the Crown's case with respect to the identity of the driver of the other car. Mr. Somma testified that he told the police officer who came to the scene of the accident afterwards, as well as the off-duty officer, what he saw, but was not asked by the Crown for any further details concerning the matter.

[23] Mr. Fox had no questions of the witness in cross-examination.

(ii) P.C. Mark Colucci

[24] P.C. Colucci testified that he was off-duty at the relevant time, driving his own private vehicle, but was wearing a full Toronto Police uniform because of voluntary overtime work that night. He testified that, as he was driving northbound on Kipling behind a Jeep (evidently Mr. Somma's vehicle), he observed a southbound vehicle, a Honda Civic, merging onto Kipling from the on-ramp from Bloor Street. According to the officer's evidence, he could see that the Honda was moving faster than normal, that it appeared to accelerate rather than slow down (with the driver seeming to apply the gas pedal instead of the brake), and that it then suddenly went eastbound, jumping the median separating the north and southbound lanes, and striking the Jeep in front of him. P.C. Colucci testified that the Jeep then hit a lamppost, causing it to fall onto the Bloor St. Bridge.

[25] After the collision, according to P.C. Colucci's evidence, the Honda appeared to be irreparably damaged, with its air bags deployed and the car unable to be driven, although the driver was trying to reverse it. P.C. Colucci testified that he stopped his own vehicle, positioning it so that it blocked the road at the accident scene, and he approached the driver of the Honda. He testified that he asked the driver if he was hurt, and told him to stop trying to reverse and put it in park. Although the officer's testimony was not always given in a chronological way, he apparently checked that the other driver (Mr. Somma) was also not injured, then returned to the driver of the Honda who, by that point, had stepped out of his vehicle and was standing facing him. P.C. Colucci identified Mr. Dinner in the courtroom as the driver of the Honda. The off-duty officer testified that the defendant had had longer hair and a beard at the time of the accident (16 months earlier), but his evidence identifying Mr. Dinner was neither the subject of any challenge in cross-examination nor of any dispute in later submissions.

[26] P.C. Colucci explained that since he was not on duty, he did not record the precise times of the events he witnessed, but rather assumed that the officer investigating the matter would be the one to make proper police notes. P.C. Colucci's own times were, he implied, simply his best estimates of when events occurred between the accident, which he said happened at 12:28 a.m., and his own departure from the scene at 1:10 a.m., after he had prepared a handwritten witness "will say" form for the investigating officer (whose name and badge number he could not recall).

[27] P.C. Colucci testified that the Traffic officer arrived at the accident scene about 15 minutes after he, P.C. Colucci, had detained the defendant and told him to wait at the curb. In cross-examination, he agreed with Mr. Fox that he had written in his notes "Traffic units [plural] now on scene," although he could not actually recall if there was more than one Traffic officer who attended.

[28] P.C. Colucci testified that he did speak to the police officer who arrived at about 12:45 a.m., around 15 minutes after he made the 9-1-1 call to report the accident, which was itself a couple of minutes before he returned to speak to Mr. Dinner. It was at that point, he testified, at about 12:32 a.m. when speaking with the defendant, that he detected the odour of an alcoholic beverage on his breath. According to P.C. Colucci's evidence, this led him to tell Mr. Dinner then that he was being detained for investigation of impaired operation and, at about 12:33 a.m., to inform him of his rights to counsel. He testified that he told Mr. Dinner, still standing at the side of the road, that another officer would be arriving to conduct the investigation.

[29] P.C. Colucci testified as well that when the Traffic officer arrived, he told him that he had witnessed the collision, that there were no severe injuries involved, and that he (P.C. Colucci) had noticed the odour of alcohol on the breath of the driver of the Honda. P.C. Colucci also testified that he told the same officer that he had placed him "under investigative detention" and that he had given him "rights to counsel." In cross-examination, P.C. Colucci repeated that he could not say which officer he spoke to, but that, as apparently he wrote in his notebook, he "advised him of all the information up to this point."

[30] Specifically, P.C. Colucci testified in cross-examination once again that, at about 12:48 a.m., he told the unnamed officer that he had witnessed the accident, he told him that there were no significant injuries, he told him that he had detected the odour of alcohol on the breath of one of the drivers, and he pointed out Mr. Dinner to the officer as the driver of the Honda who was "under investigative detention with regard to the impaired operation of a motor vehicle."

[31] P.C. Colucci testified in-chief that the officer he spoke to took his information, as well as his name and badge number, and wrote it down. The Crown did not ask further questions of P.C. Colucci, perhaps unaware that Mr. Fox had identified in his Charter application the information (or absence of information) that the officer who made the ASD demand received as one of the issues to be argued by the defence. In cross-examination, P.C. Colucci again stated explicitly that the officer he spoke to was "fully aware" that he (P.C. Colucci) had suspected alcohol in the defendant's system and that that was the reason for Mr. Dinner's "detention."

[32] After P.C. Colucci conveyed his information to the Traffic officer, P.C. Colucci testified, he observed that officer talking to Mr. Dinner. Since P.C. Colucci was then distracted by writing up his own witness "will say" statement, he did not see or recall whether Mr. Dinner used a cellphone at some point at the roadside, nor, apparently, did he make any other relevant observations.

[33] Also in cross-examination, P.C. Colucci agreed that his "will say" did not record the information he said he conveyed to the other officer, nor did it make any reference to the odour of alcohol that P.C. Colucci testified he had detected on Mr. Dinner's breath. He testified that, at least from his perspective, the "will say" was just meant to be in relation to the accident he had witnessed. He added that he could not say whether he thought the officer he spoke to was there to continue the investigative detention or simply to investigate the accident.

(iii) P.C. Schulze

[34] Although P.C. Schulze actually testified at trial after the Intoxilyzer technician, in order to continue with the evidence in chronological order, and to contrast it with the testimony of P.C. Colucci, it makes sense to refer to P.C. Schulze's evidence first.

[35] P.C. Schulze testified that, as a Traffic Enforcement officer with 10 years' experience with the Toronto Police Service, he was in uniform operating a marked cruiser when, at 12:33 a.m. on July 19, 2015, he received a radio call to attend the scene of a motor vehicle collision on Kipling Ave., just south of Bloor St. West. He testified that he immediately turned on his emergency equipment, which also had the effect of turning on the in-car camera on his windshield, so that the video which the Crown started to play at trial recorded his drive to the accident scene and, after his arrival, whatever was visible ahead of where he stopped his car. It turned out to be of little use.

[36] P.C. Schulze testified that when he arrived at the accident scene, at 12:39 a.m., he observed two vehicles that had evidently been involved in a collision, as well as a third vehicle belonging to a witness. There were, he testified, at least 3 (and possibly as many as 6 or 7) people standing on the sidewalk near the vehicles. P.C. Schulze then talked to one of them, an off-duty police officer he apparently noted as "Mike", with TPS Badge No. 9512. P.C. Schulze implied that he did not take careful notes because he assumed that the in-car camera in his cruiser and his own police microphone would record all the relevant events. When Ms. Athanas started to play the video recording as, she stated, "the best evidence," the video did not show anything and the audio portion of the recording was essentially amplified traffic noise that made it impossible to understand what the muffled, inaudible voices might have been saying. After the Crown abandoned the use of the video and started asking actual questions of P.C. Schulze, it quickly became apparent that the officer had only minimal notes and an unclear recollection of the investigation he had conducted.

[37] P.C. Schulze testified that the off-duty officer in uniform he spoke to (whose surname he could not remember) told him that he had witnessed a car cross the median and sideswipe the other car. Mr. Dinner, he testified, was beside the off-duty officer, so he (P.C. Schulze) drew the inference that he was one of the drivers involved in the collision, but, he also testified, he did not know whether he was allegedly the driver who caused the accident or whether he was the one who had been struck by the car crossing the median. P.C. Schulze simply asked Mr. Dinner for his driver's licence and documents, recording in his notes the pertinent information concerning the defendant's name and date of birth.

[38] P.C. Schulze testified that at this time Mr. Dinner was steady on his feet, with no injuries, with no obvious odour of an alcoholic beverage, and his eyes were not red or glossy. Although the Crown did not elicit any details of exactly what the officer was doing at this point, P.C. Schulze referred vaguely to standing there, waiting for another Traffic car to arrive, when he noticed that Mr. Dinner had started talking on his cellphone. It was then, P.C. Schulze testified, that he "got a very faint odour of alcohol on his breath" as he spoke on his phone.

[39] As a result, P.C. Schulze testified, at 12:47 a.m., he formed the suspicion that the defendant had alcohol in his body, based on the odour of alcohol he had himself just detected. At 12:48 a.m., he stated, he read the ASD breath demand to Mr. Dinner, who then accompanied him to the police cruiser. P.C. Schulze then proceeded to remove the Alcotest 6410, noted that it had been calibrated 4 days earlier and confirmed that it was in proper working order (by testing his own breath and obtaining a "zero" reading). At 12:50 a.m., on the third attempt to obtain a suitable breath sample from Mr. Dinner, the defendant blew into the device and produced an "F" for "Fail," which connoted a blood alcohol concentration exceeding 100 mgs of alcohol per 100 ml of blood.

[40] P.C. Schulze testified that he then immediately arrested Mr. Dinner for "over 80," placed him in the rear seat of the cruiser, read him his rights to counsel and then read the "approved instrument" breath demand at 12:51 a.m.

[41] With respect to the breath tests conducted afterwards, P.C. Schulze testified that he took the defendant to 22 Division, the nearest police station, arriving at 1:03 a.m.. The defendant was booked and taken to the C.I.B. at 1:05 a.m.. At some unspecified time (whether earlier or then at the station, was not asked), Mr. Dinner said he wanted to speak to duty counsel. Although Mr. Fox had earlier identified the "timing" of the breath tests as an issue at trial, the Crown did not ask any further questions as to what, if anything, happened before P.C. Schulze placed the call to duty counsel at 1:25 a.m.. Duty counsel called back at 1:36 a.m.. After Mr. Dinner completed his private consultation with duty counsel at 1:44 a.m., he was turned over to P.C. Sanders, the qualified technician, at 1:45 a.m.

[42] P.C. Schulze testified that he remained in the breath room and observed the Intoxilyzer tests of apparently suitable breath samples at 1:53 a.m. and 2:14 a.m.. While the Crown elicited non-truncated hearsay evidence from P.C. Schulze as to what P.C. Sanders told him the breath test results were, it seemed to be agreed that the hearsay evidence should be disregarded. P.C. Schulze served copies of the relevant documents on Mr. Dinner at 3:03 a.m.

[43] Not surprisingly, given the issues identified in even the original written Charter application, in cross-examination, defence counsel revisited the questions concerning what information P.C. Schulze had received from the off-duty TPS officer and what exactly was in P.C. Schulze's mind at the time he read the ASD breath demand to Mr. Dinner.

[44] P.C. Schulze repeated that when he arrived at the accident location, he was approached by the off-duty officer, Badge 9512, who had been standing with some other people near the two vehicles that had apparently been involved in the collision. The off-duty officer told him that the southbound vehicle had crossed over the median and sideswiped the other vehicle. Although P.C. Schulze evidently wrote in his notes that he required "all parties" [plural] to produce their driver's licence, ownership and insurance, he testified that he actually only demanded and received those documents from Mr. Dinner. Similarly, I gather, although his notes indicated that "all parties" were steady on their feet, that there was no odour of alcohol, and that there were no red or glossy eyes – observations P.C. Schulze said he made after he had already asked the defendant for his documents – the notation was intended to refer to only Mr. Dinner alone.

[45] Mr. Fox referred further to the contents of P.C. Schulze's notes, which were, of course, not before the court, but which had to be gleaned from defence counsel's questions and the witness's answers. P.C. Schulze agreed that his notes stated "10-7," meaning standing by, and "Traffic Services," evidently meaning he was waiting for another Traffic squad car to arrive. At that point in his notes, he agreed, he made the following entry: "male speaking on phone" and "I began to smell faint odour of alcohol on his breath."

[46] In answer to defence counsel's questions, P.C. Schulze clarified that prior to his observation of the defendant speaking on his cellphone, he had no "inkling" or suspicion that alcohol might be involved. The officer repeated once more that the first indication that alcohol might be a consideration was when he began to detect the faint odour of alcohol on Mr. Dinner's breath as the defendant was speaking on his phone. P.C. Schulze stated explicitly that he had not detected any such odour prior to that.

[47] P.C. Schulze also agreed that, having detected the odour, he did not ask Mr. Dinner if he had consumed alcohol. The officer also agreed that he observed no signs of impairment, and that smelling alcohol on a person's breath was merely a sign of alcohol consumption, not impairment. P.C. Schulze added that what he smelled was "somewhat of a stale odour, as if it had been in the person's lungs for some time before he exhaled." The officer also testified that while he thought about when it was that Mr. Dinner might have consumed alcohol, he did not specifically ask him, since he did not think that 15 minutes elapsing after the last drink could be an issue in the case.

[48] Finally, P.C. Schulze agreed that he made no note of Officer 9512's having told him that Mr. Dinner had been one of the drivers involved in the accident. P.C. Schulze testified, however, that he would not have asked the defendant for his driving documents unless he had been told that.

(iv) P.C. Neil Sanders

[49] When the qualified technician, P.C. Sanders, was called as a Crown witness, defence counsel stated expressly that the conduct of the breath tests was not an issue.

[50] P.C. Sanders testified that he had been designated as a qualified Intoxilyzer technician in 2007 and that he had conducted over a thousand breath tests since then. At 12:56 a.m., he received a radio call to go to 22 Division for the purpose of conducting breath tests, and he arrived at the police station at 1:03 a.m.. Although he testified that there was a video recording of everything that happened in the breath room when he dealt with Mr. Dinner that morning, given the defence concession that the tests were not in issue and the concern that the video would include potentially inadmissible evidence, such as conversations between the defendant and P.C. Sanders, a person in authority, the Crown did not in the end find it necessary to play the video.

[51] On consent, pursuant to s. 258(1)(g) of the Criminal Code, Ms. Athanas filed as an exhibit the certificate of a qualified technician. It stated that breath tests were conducted at 1:53 a.m. and 2:14 a.m. and produced readings of 150 and 140 mgs of alcohol per 100 ml blood, respectively.

[52] The Crown did not ask P.C. Sanders about any observations he made, or any opinion he might have formed, concerning Mr. Dinner's condition or the effects, if any, of alcohol.

[53] Mr. Fox had no questions of the officer by way of cross-examination.

The Withdrawal of the Impaired Driving Charge

[54] As already stated, at the close of the Crown's case, the Crown withdrew the impaired driving charge, contrary to s. 253(1)(a) of the Code. Only the "over 80" count remained.

No Witnesses Called by the Defence

[55] Similarly, to repeat it, Mr. Fox indicated that no additional witnesses were being called by the defence with respect to either the Charter application or the trial itself.

Relevant Findings of Fact

[56] It is important to bear in mind, even if it is self-evident, that different standards of proof apply to each of the two aspects of this trial. With respect to the Charter motion, the Court is required to make findings of fact on the basis of a balance of probabilities. Since the breath tests, both the ASD test at the roadside and later the approved instrument tests at the police station, involved warrantless seizures, the burden is on the Crown to establish that they were "reasonable," i.e., authorized by the specific Criminal Code provision that applied. With respect to whether the Crown has ultimately discharged its burden of proof at trial, the question, of course, is what facts have been proved beyond a reasonable doubt by the evidence which is accepted, and whether those facts make out the offence charged beyond a reasonable doubt.

[57] I think it safe to say that what distinguishes this case from most is the abnormally vague and inconsistent nature of much of the evidence given by the two essential Crown witnesses, P.C. Colucci and P.C. Schulze. I am inclined to think that both officers testified honestly, in the sense that each of them made his best effort to testify truthfully concerning the matter. The difficulty, however, arises from the inept note-taking and the clearly faulty recollections on the part of both of them. In the case of P.C. Schulze, while it might be that he was merely having an inarticulate or fuzzy-minded afternoon when he was called to testify, it was astounding that he had such a poor memory concerning the precise details of what he must have known could potentially be the object of scrutiny and examination by a trial court. While there can often be inconsistencies between the evidence of two witnesses concerning peripheral matters or facts involving differing perceptions or interpretations, it seemed very strange that there would be such glaring differences between two police witnesses concerning the basic chronology of the case and the essential facts of predictable relevance in a drinking and driving case.

[58] Having said that, I also think it is possible to make relevant findings of fact according to the balance of probabilities standard and, at the same time, avoid mere speculation or guessing about what might actually have happened.

[59] I am of the view that P.C. Colucci was a considerably more observant and reliable witness than P.C. Schulze. P.C. Colucci's evidence, while defective in certain respects, may partly be explained by his off-duty status at the time and his assumption that another officer would be conducting the real investigation, allowing him to "tune out," both in terms of his note-taking and his paying attention at the time to what occurred after the arrival of the Traffic officer, P.C. Schulze. P.C. Colucci's testimony concerning what he told the traffic officer certainly seems consistent with the inherent probability that events happened as he described them. It defies belief to think that he, having initiated an investigative detention and having informed Mr. Dinner of his s. 10(b) rights, both of which seem not to be disputed, would not then have informed the Traffic officer of his observations of the accident, who the respective drivers were, and the reason why he felt compelled to "detain" Mr. Dinner for further investigation. It does not adequately explain P.C. Colucci's failure to make any note of having detected the odour of alcohol on the defendant's breath or to have recorded the information he conveyed to the officer, but these lapses might be understandable in the overall context of an off-duty officer working voluntary overtime who was anxious not to be burdened with the primary responsibility of investigating Mr. Dinner's unfortunate collision.

[60] With respect to P.C. Schulze, it may be that he reasonably believed at first when he arrived at the scene that he was dealing simply with a routine motor vehicle collision of the kind he often encountered, and that his in-car camera would sufficiently capture the details to save him the effort of making precise notes. Moreover, he might have initially dismissed the road accident as a minor matter not to be regarded as particularly significant or memorable. Once, however, he detected the odour of alcohol on Mr. Dinner's breath and embarked on a Criminal Code drinking and driving investigation, his failure to make proper notes to record his observations and the chronology - not only to refresh his memory later, but also to allow potential disclosure - bordered, to put it as charitably as one can, on the inexplicable.

[61] Despite those caveats, I am satisfied that the following facts have been established, at least on a balance of probabilities:

(a) The collision occurred, essentially as Mr. Somma and P.C. Colucci described it, at about 12:28 a.m. Although P.C. Colucci's time estimates were evidently rough ones, based probably on referring to his own watch to note the time of the accident and thereafter on his subjective assessment of how many minutes elapsed between events, I consider his evidence to be generally reliable and to permit factual findings concerning the general timeframe;

(b) The uncontradicted and unchallenged evidence given by P.C. Colucci identifying Mr. Dinner as the driver of the Honda at the time it lost control and caused the accident can be readily accepted, and a finding can be made that the defendant was in fact operating a motor vehicle at about 12:28 a.m.;

(c) After checking that both drivers were not injured, P.C. Colucci called 911 to report the accident to the police;

(d) P.C. Colucci then went back to where Mr. Dinner, now out of his car, was standing at the roadside a little to the north and upwind of where P.C. Colucci stood facing him. I accept P.C. Colucci's evidence that at this point he detected an odour of alcohol on the defendant's breath. He put the time at which he made this observation at about 12:32 a.m. I accept the officer's evidence that he detected this odour of alcohol, despite his failure to specifically record it in his "will say" statement or in his notebook. I say this both because P.C. Colucci struck me as an honest and generally trustworthy witness, with no reason to fabricate such an observation, but also because there would have been no reason otherwise to have imposed the inconvenient (to P.C. Colucci) "investigative detention" concerning a suspicion of impaired driving by Mr. Dinner. That "detention" seemed to be accepted by both parties and, indeed, founded the defendant's primary Charter complaint;

(e) I also accept P.C. Colucci's evidence that he then informed Mr. Dinner of his s. 10(b) right to counsel and told him that another police officer would be arriving to conduct the investigation for which Mr. Dinner had been informed he was "detained." Again, the officer's evidence was not disputed, and seems consistent with what one would likely expect of an off-duty officer anxious to avoid taking responsibility for conducting an investigation and to be on his way;

(f) Similarly, there is no reason to doubt P.C. Schulze's testimony that he received a radio call at 12:33 a.m. to attend the accident scene, and that he arrived there about 6 minutes later, at 12:39 a.m.;

(g) I accept the evidence of both officers that each of them had a conversation with another officer, and in the circumstances, despite the sloppiness in failing to note or recall the name of the other, I am entirely satisfied that P.C. Colucci in fact spoke to P.C. Schulze and conveyed to the latter officer what had happened up until that point. P.C. Schulze's reference to "Mike," as opposed to "Mark," P.C. Colucci's actual first name, can be regarded as reflecting his regrettably typical imprecision, perhaps simply resulting from not having heard it clearly when P.C. Colucci told him. The accurate reference to Badge 9512, however, in my view, eliminates any possibility that P.C. Schulze could have talked at the relevant time to any other off-duty officer in uniform apart from P.C. Colucci, evidently the only person there fitting that description. Moreover, P.C. Colucci's note referring to "Traffic units [plural] now on scene," while raising the possibility that other Traffic officers also arrived at some unstated time, does not give rise to any concern that it could have been anyone other than P.C. Schulze to whom P.C. Colucci spoke;

(h) I am also satisfied by the evidence of P.C. Colucci, the more alert and less muddled of the two officers, that in fact he told P.C. Schulze explicitly that he had witnessed the accident, that Mr. Dinner was the driver of the Honda, that he had noticed the odour of alcohol on his breath, and that that had led him to place Mr. Dinner "under investigative detention," obviously because of a reasonable suspicion of impaired driving contributing to the accident, and that he had also informed the defendant of his s. 10(b) right to counsel. To repeat what I have already said, it is practically inconceivable that a reasonable officer in P.C. Colucci's situation, and I am satisfied that P.C. Colucci is a reasonable person, would have done otherwise. I am certain that based on what P.C. Colucci told P.C. Schulze, P.C. Schulze was, as P.C. Colucci stated, "fully aware" that P.C. Colucci suspected alcohol in the defendant's system and that that was the reason for his detention. That P.C. Schulze not only failed to recall any such information being conveyed to him, but testified expressly that he had no idea which vehicle the defendant had been driving and that the first "inkling" he had that alcohol might be involved came only with his own detection of the odour of alcohol himself some minutes later, naturally raises concerns in my mind, but not with respect to what actually happened, only with respect to the reliability of P.C. Schulze's testimony in this regard. I am quite satisfied that P.C. Schulze was a remarkably confused witness, for reasons I cannot explain, and that his testimony, to the extent that it is contradicted by P.C. Colucci in this regard, can safely be rejected;

(i) I accept P.C. Schulze's evidence, however, concerning the times he noted. As a result, I am satisfied that he spoke to P.C. Colucci within a minute of his arrival at the scene at 12:39 a.m., and that having been informed by P.C. Colucci that the accident was caused by a car crossing the median and sideswiping a southbound vehicle, and having witnessed P.C. Colucci's pointing out the defendant as the driver of the Honda (even if P.C. Schulze's testimony was initially unclear on the point), P.C. Schulze then reasonably suspected, and indeed reasonably believed, that Mr. Dinner had been driving at the time of the accident. Once again, while I do not regard P.C. Schulze as a reliable witness concerning many details, I do accept his evidence that he would not have asked Mr. Dinner for his driver's licence unless he thought at the time that he had been a driver involved in the accident. Although the officer agreed, as suggested by Mr. Fox, that his notes indicated that "all parties" [plural] were required to produce the usual documents, I accept P.C. Schulze's evidence that he actually only asked the defendant for his, and that the imprecision or carelessness of his notes does not give rise to any concern in this area. Further, while ordinarily one would be reluctant to ascribe to a witness a state of mind that he himself did not claim, I am sure that, contrary to what P.C. Schulze asserted in his evidence, Mr. Dinner was pointed out to him by P.C. Colucci as the driver of the Honda, and that P.C. Schulze's belief that Mr. Dinner was driving was based on the reliable information he received from P.C. Colucci, and not simply an inference he drew from where Mr. Dinner happened to be standing, next to P.C. Colucci, when P.C. Colucci described the accident he had witnessed minutes earlier. Once more, I reject P.C. Schulze's testimony on the point insofar as it is contradicted by P.C. Colucci, but I do accept P.C. Schulze's evidence that he did at the time believe that the defendant had been one of the drivers involved in the collision. Moreover, I am satisfied that P.C. Schulze's belief at the time was a reasonable one, both in the sense that it was honestly held by him (despite his many obvious frailties as a witness) and that it was objectively justified, given the reliable information provided by P.C. Colucci, the observations of the accident scene made by P.C. Schulze, and the location of Mr. Dinner who was under investigative detention at the time;

(j) I accept P.C. Schulze's evidence that initially he made no observations of Mr. Dinner that suggested any concern about the involvement of alcohol. A few minutes later, however, at 12:47 a.m., the officer detected the "faint odour" of an alcoholic drink on the defendant's breath as he spoke on his cellphone, and that, as a result, he formed the suspicion that there was alcohol in the defendant's body. Again, I am at a loss to explain why P.C. Schulze ignored or forgot or misheard what P.C. Colucci had told him, but I do accept that P.C. Schulze is a genuinely guileless witness, and that the suspicion he formed at 12:47 a.m. was based, as he stated, on the odour of alcohol he personally detected, rather than on some subconscious inferential seed planted by P.C. Colucci. Moreover, I find that P.C. Schulze's suspicion was subjectively reasonable, but also, for reasons I will explain when dealing with one of Mr. Fox's Charter arguments, one that was objectively justified in the circumstances;

(k) At 12:48 a.m., P.C. Schulze made the ASD breath demand, and Mr. Dinner accompanied the officer to the police car for purposes of the breath test;

(l) At 12:49 a.m., P.C. Schulze confirmed that the approved screening device was working properly;

(m) At 12:50 a.m., Mr. Dinner, on his third attempt, provided a suitable breath sample that registered a "Fail" on the Alcotest 6810, indicating a blood alcohol concentration greater than 100 mgs of alcohol per 100 ml of blood and causing P.C. Schulze to believe Mr. Dinner had been driving "over 80" at the time of the accident;

(n) P.C. Schulze, therefore, arrested Mr. Dinner for that offence, placed him in the rear of his cruiser, read him his rights to counsel, and read the "approved instrument" breath demand, all at 12:51 a.m.;

(o) Arriving at 22 Division, the closest police station, at 1:03 a.m., Mr. Dinner was booked in and taken to the C.I.B. office at 1:05 a.m.;

(p) At some point (when, exactly, was not asked), the defendant said (or had already said) he wanted to speak to duty counsel, so, at 1:25 a.m., P.C. Schulze placed the call;

(q) At 1:36 a.m., duty counsel called back, and Mr. Dinner had a private conversation with him that was completed at 1:44 a.m.;

(r) A minute later, at 1:45 a.m., Mr. Dinner was turned over to P.C. Sanders, the qualified Intoxilyzer technician;

(s) P.C. Schulze remained in the breath room and witnessed the two breath tests conducted at 1:53 a.m. and 2:14 a.m. The results were recorded on the Qualified Technician's Certificate, which, as already stated, was filed as an exhibit, with defence counsel's consent;

(t) There was no evidence as to what, if anything, happened at the police station between 1:05 a.m. and 1:25 a.m., when P.C. Schulze made the phone call to duty counsel, nor was there evidence of what occurred in the breath room between 1:45 a.m. and the first test at 1:53 a.m.

[62] With respect to the Charter application, I am satisfied that all of the above relevant facts have been established at least on a balance of probabilities. With respect to the trial proper, I am satisfied beyond a reasonable doubt by the unchallenged and uncontradicted evidence of P.C. Colucci that (a) Mr. Dinner was the driver of the Honda Civic that crossed the median and caused the collision at about 12:28 a.m., and (b) the breath test results were as stated in the Certificate filed as Exhibit 1.

The Charter Application

Issue 1: The Timing of the ASD Breath Demand

[63] Mr. Fox alleged a s.8 Charter violation, now conceded by the Crown, arising from, it was stated, the failure of P.C. Colucci to make the ASD breath demand "forthwith" after detecting the odour of alcohol on the defendant's breath. It was argued, and apparently accepted by Ms. Athanas, that if the off-duty officer acted as though he were on duty, at least to the extent of imposing an investigative detention and informing Mr. Dinner of his s. 10(b) right to counsel, then he also had the constitutional obligation to make the roadside screening breath demand immediately after forming a reasonable suspicion of alcohol in the defendant's body. It was not disputed that P.C. Colucci did not have a screening device with him and could not have known precisely when one would be brought to the accident scene.

[64] The result, according to the position apparently accepted by both counsel, was that P.C. Schulze's ASD breath demand was not authorized by s. 254(2), given the nearly 20 minutes delay after P.C. Colucci had formed his reasonable suspicion of alcohol in the defendant's body. The screening test and eventual Intoxilyzer tests actually administered, therefore, involved "unreasonable seizures" violating s. 8 of the Charter.

[65] The Crown's concession, I must say, did not strike me as necessarily inevitable. R. v. Woods (2005), 2005 SCC 42, clarifying the "forthwith" requirement for a valid ASD breath demand, is clearly distinguishable on its facts. Moreover, there are many appellate cases dealing with situations arising when more than one police officer was involved in such an investigation and there was a brief delay in the making of the ASD demand or conducting the screening test, either because the first officer who formed the reasonable suspicion did not personally have the device with him or for some other reason: see R. v. Quansah (2012), 2012 ONCA 123; R. v. Misasi (1993); R. v. Payne (1994); R. v. Padavattan (2007). Interestingly, in R. v. Moussavi, 2016 ONCA 924 (released December 8, 2016, a week after the oral submissions in this case,) MacPherson J.A. found no Charter breach where two separate police officers smelled alcohol on the defendant's breath, and the second officer waited 11 minutes after he reasonably suspected alcohol in the defendant's body before making the ASD breath demand that led to the "Fail" screening test result.

[66] On the other hand, I feel compelled to accept the Crown's concession and will proceed on the basis of the s. 8 breach that has been admitted. As Moldaver J. observed in R. v. Anthony-Cook, 2016 SCC 43 at para. 63, albeit in the context of a joint sentencing submission, a trial judge has only limited scope to substitute his or her own opinion for the shared considered agreement by counsel for both adversarial parties. In this case, I think I am obliged to defer to the concession made by the Crown.

Issue 2: The "Reasonable Suspicion" that the Defendant was Driving

[67] Mr. Fox also argued that when P.C. Schulze made the ASD breath demand, he had no evidentiary basis for reasonably suspecting that Mr. Dinner had been one of the drivers involved in the accident or that the accident had occurred within the preceding three hours. I reject this submission.

[68] I accept P.C. Schulze's testimony that he inferred from Mr. Dinner's proximity to the off-duty officer when he recounted his observations of the accident that the defendant had been one of the drivers involved in it. I also accept P.C. Schulze's evidence in cross-examination that the off-duty officer indicated to him expressly that Mr. Dinner had been driving. P.C. Schulze was entitled to act on this apparently reliable information he received.

[69] The sincerity of P.C. Schulze's belief (which obviously encompassed the requisite suspicion) at the time of the ASD demand was demonstrated, I am sure, by the undisputed evidence that he proceeded to require the defendant to produce his driving documents, something he would not otherwise have done. Moreover, I am satisfied that P.C. Schulze's belief was objectively justified. It makes little sense, in my view, that P.C. Colucci (nameless though he may have been from P.C. Schulze's perspective) would have directed the Traffic Services officer's attention to Mr. Dinner unless the defendant had in fact been the person P.C. Colucci had observed driving several minutes earlier.

[70] Having said that, I admit that I am at a loss to explain how the much more specific information likely (and almost certainly) conveyed by P.C. Colucci could have failed to register with P.C. Schulze, or been left out of the latter officer's notes, or been forgotten by him 16 months later when the case came to trial. I appreciate that since what was in P.C. Schulze's mind when he made the ASD breath demand is what is in issue, it would be wrong to ascribe to him grounds he himself denies having taken into account, unreliable though his evidence in this regard might appear. Even on the basis of P.C. Schulze's own evidence, however, by which, I acknowledge, I am constrained, I am satisfied that he had a reasonable suspicion at the time that Mr. Dinner had been driving when the collision occurred.

[71] The Crown did not specifically ask P.C. Schulze when, at the time he made the ASD demand, he thought the driving had occurred. I accept, however, that the only reasonable inference to be drawn is that P.C. Schulze believed, quite reasonably, that the accident had occurred only minutes earlier. As Rosenberg J.A. pointed out in R. v. Gundy (2008), 2008 ONCA 284, facts can be found on the basis of reasonable inferences, and witnesses are not required to use the language in a statutory provision to cover all of the requisite evidentiary bases. Given that P.C. Schulze received a radio call at 12:33 a.m., that he arrived at the scene 6 minutes later, in busy Central Etobicoke rather than a remote, untravelled location, that the off-duty officer who said he had witnessed the accident and other people apparently involved were standing at the roadside (regardless of P.C. Schulze's inability to say how many), the evidence leaves, in my view, no room for any uncertainty as to the demanding officer's honest and objectively reasonable belief that the accident had occurred just a few minutes earlier. I reject Mr. Fox's submission to the contrary.

Issue 3: The "Reasonable Suspicion" of Alcohol in the Defendant's System

[72] I am also satisfied that at the time he made the ASD breath demand, P.C. Schulze reasonably suspected that Mr. Dinner had alcohol in his body based on his own observation of the odour of alcohol on the defendant's breath. I accept the officer's evidence that he himself detected the odour, "faint" and "stale" (to use P.C. Schulze's words) though it might have been, and that this provided a sufficient evidentiary basis for both an honest subjective suspicion on the officer's part and also an objectively reasonable suspicion as well.

[73] Again, for purposes of this aspect of the argument, I will disregard P.C. Colucci's testimony concerning what he told P.C. Schulze. I will proceed simply on the basis that P.C. Schulze failed to hear or understand or retain or act on anything other than his own detection of the odour of alcohol on the defendant's breath at about 12:47 a.m., when Mr. Dinner was speaking on his cellphone at the roadside.

[74] I conclude, in all the circumstances, that the odour of alcohol was sufficient to ground the officer's reasonable suspicion at the time that the defendant had alcohol in his body.

[75] Although Mr. Fox inadvertently relied in his oral submissions on the judgment of a summary conviction appeal judge that had by then been reversed, there is no dispute that the applicable law is stated by Simmons J.A. in R. v. Schouten, 2016 ONCA 872 (released November 18, 2016). At paras. 25-28, Simmons J.A. stated the following:

[25] First, while acknowledging that an odour of alcohol alone would have been sufficient to found reasonable grounds to suspect the presence of alcohol, the summary conviction appeal judge agreed with the trial judge's view that the absence of indicia of impairment and the absence of additional evidence of consumption rendered the officer's suspicion unreasonable.

[26] It is not necessary that a person showed 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) ; R. v. Lindsay, (1999)

[27] Moreover, the standard of "reasonable grounds to suspect" involves possibilities, not probabilities…[case references omitted].

[28] The absence of the indicia of impairment even when combined with the fact that the respondent claimed to have consumed his last drink 10 hours earlier did not negate the possibility that the respondent had alcohol in his system, which was raised by the presence of an odour of alcohol on his breath and his admission of consumption.

[76] In this case, I realize that Mr. Dinner made no admission of any consumption, nor did P.C. Schulze consider the fact of the collision to have any bearing on his suspicion that alcohol could be involved. Nonetheless, I am satisfied that the odour of alcohol on the defendant's breath was enough. It was not suggested that there might be any other inference, apart from drinking, that could have accounted for it. Moreover, to repeat it, I am satisfied that P.C. Schulze was an honest, indeed guileless, witness, and that his suspicion was genuinely held. I am also satisfied that it was reasonable, objectively, for him to suspect at least the possibility of the presence of alcohol in the circumstances, based solely on the odour he detected.

[77] I conclude that P.C. Schulze's suspicion of alcohol in the defendant's body was reasonable, and that the screening test breath demand he made was in compliance with this part of the requirements imposed by s. 254(2) of the Code.

The s. 24(2) Charter Analysis

[78] Given the s. 8 Charter breach conceded by the Crown, it is necessary to determine whether the defence has demonstrated that the admission of the evidence of the Intoxilyzer test results, obtained following the "Fail" screening test and the approved instrument breath demand made under s. 254(3), would bring the administration of justice into disrepute: see R. v. Grant, 2009 SCC 32, R. v. MacMillan, 2013 ONCA 109.

[79] With respect to the seriousness of the Charter-infringing state conduct, it is to be observed that, as framed by both parties, the breach occurred because of P.C. Colucci's failure to make an immediate ASD breath demand himself after he detected an odour of alcohol on Mr. Dinner's breath at about 12:32 a.m.. Instead, he left the matter to a Traffic Services officer to investigate, and that officer, P.C. Schulze, did not make the ASD breath demand until 16 minutes later, at 12:48 p.m., after he also detected the smell of alcohol on the defendant's breath.

[80] I think it is clear, adopting counsel's joint position, that it was an error made in good faith by an off-duty officer who failed to recognize that, if he imposed an investigative detention (albeit one at the roadside not involving any physical restraint), it was incumbent on him to make an immediate ASD breath demand as well. That P.C. Colucci informed Mr. Dinner of his right to counsel, in an apparent effort to comply with s. 10(b), indicates, I think, that the off-duty officer did not intentionally seek to interfere with the defendant's constitutional rights. Indeed, since P.C. Colucci did not have a screening device with him and was not in a position to facilitate a private consultation with counsel at the accident scene, it is perhaps understandable, at least from the off-duty officer's perspective, that he might have thought the investigation was better left to the Traffic officer he expected to arrive at the accident scene.

[81] In my view, the infringement can only be regarded as technical in nature, turning on the unusual facts and the interpretation of the requirements imposed by s. 254(2) adopted by counsel here. It hardly reflects any systemic abuse on the part of the police, much less any law enforcement practice that would harm the repute of the court process. Rather, it is apparent that P.C. Colucci treated the defendant with concern and courtesy after the accident, and that his omission, in very unusual circumstances, led to only a short delay in administering the screening test.

[82] Under the second Grant line of inquiry focusing on the impact of the Charter breach on the constitutionally-protected interests of the defendant, it can be safely said, I think, that the breath tests eventually conducted were not intrusive and involved a relatively innocuous procedure adopted after an only slightly-delayed screening test (in circumstances where Mr. Dinner had to remain at the accident scene, in any event) and after compliance with s. 10(b) at the police station (where the defendant availed himself of the opportunity to consult duty counsel before the breath tests were conducted.) The effect of the breach, given that the police otherwise adopted the procedure authorized by the Code in such circumstances, had only a very minor impact on the defendant's interests.

[83] With respect to the public interest in an adjudication of this case on its merits, the truth-seeking function of the trial would clearly be better served by admitting the reliable evidence sought to be excluded. The breath test results are essential to the Crown's case in proving the alleged serious offence.

[84] The required balancing of the three factors does not lead to the conclusion, in my view, that the Charter violation should result in the exclusion of any of the impugned evidence. To the contrary, none of the considerations favours exclusion, I am sure, since it was a minor, good-faith breach, with limited impact on the defendant's rights, and society's interest in an adjudication on the merits is a compelling one.

[85] The application to exclude the breath test results is, therefore, dismissed. Since no other valid complaints were advanced by the defence either in the original Charter application or the written submissions after the evidence was called, the Crown's case at trial consists of the evidence of the four witnesses to which reference has already been made.

The "As Soon as Practicable" Issue

[86] The only issue pursued by the defence on the trial proper was Mr. Fox's submission that the Crown had failed to prove beyond a reasonable doubt that the Intoxilyzer tests were conducted "as soon as practicable after the time when the offence was alleged to have been committed," within the meaning of s. 258(1)(c)(ii) of the Code. If the so-called "presumption of identity" relating the readings back to the time of driving is not available, then there would be no evidence of an excessive blood alcohol concentration at the relevant time, and the "over 80" charge would have to be dismissed.

[87] The leading appellate authority is clearly R. v. Vanderbruggen (2006), which dealt with an unexplained delay of 46 minutes from the time the accused was lodged in a cell at the police station until he was turned over to the qualified technician. In the course of dismissing the conviction appeal, Rosenberg J.A. stated at paras.12-13:

[12] 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. … 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. …

[13] 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.

[88] In this case, it is true that if the briefing of P.C. Schulze by P.C. Colucci at the roadside had been speedier or more clearly grasped, the ASD breath demand actually made might have been made a few minutes earlier. Similarly, the Crown did not ask P.C. Schulze to account for the delay between the arrival at the police station at 1:03 a.m. and placing the call to duty counsel at 1:25 a.m., but I think it is apparent that once Mr. Dinner said he wanted to speak to duty counsel – regardless of whether that happened when first informed of his right to counsel or later at the police station – the breath tests would have to be delayed until after the defendant completed his consultation with counsel. If the call had been placed earlier, presumably the consultation could have occurred earlier as well, but there is nothing I can see to indicate that the officer did not act reasonably after he made the ASD breath demand or that he failed to ensure that the breath tests were conducted promptly in the circumstances. While a video recording was evidently available with respect to the events that occurred in the so-called breath room, there was no evidence that the qualified technician did not administer the first breath test reasonably promptly after Mr. Dinner was turned over to him.

[89] I am satisfied, then, that the breath tests, with the first conducted within 90 minutes of the accident, met the "as soon as practicable" requirement, and there is nothing to preclude the Crown's reliance on the statutory presumption.

Conclusion

[90] I accept P.C. Colucci's undisputed evidence that he observed Mr. Dinner to be the driver of the Honda at the time of the accident. The Crown has also proved beyond a reasonable doubt that the defendant's blood alcohol concentration at that time was, relying on the statutory presumption, 140 mgs alcohol per 100 ml blood.

[91] Since the Crown has proved the elements of the "over 80" offence beyond a reasonable doubt, notwithstanding the concerning aspects of parts of the police officers' evidence, I am required to make a finding of guilt and enter a conviction on the charge.

Released: January 11, 2017

Signed: Justice David A. Fairgrieve