Court Information

Ontario Court of Justice

Date: 2017-12-05

Court File No.: Ottawa 16-A12065

Parties

Between:

Her Majesty the Queen

— And —

David Moore

Judicial Officer and Counsel

Before: Justice P.K. Doody

Heard on: October 23, 2017

Reasons for Judgment released on: December 5, 2017

Counsel:

• Julien Lalande, for the Crown
• J. McGillivray, for the defendant

Judgment

DOODY J.:

Part 1: Background and Issue

Whether the Intoxilyzer Tests Were Taken as Soon as Practicable

[1] The defendant is charged with operating a motor vehicle having consumed alcohol in such a quantity that the proportion of alcohol in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood.

[2] The defendant was stopped on Highway 417 (the Queensway) just east of the Greenbank exit in the west end of Ottawa after he was seen driving at a high rate of speed with no headlights or taillights just before 2:28 in the morning on August 5, 2016. He told Cst. John Webster of the Ottawa Police Service that he had consumed 2 to 3 beers several hours before driving. Cst. Webster smelled alcohol on his breath. He had a reasonable suspicion that the defendant had alcohol in his body. He made an appropriate demand that the defendant provide a sample of his breath into an approved screening device. The defendant did so. The result was a "fail", indicating more than 100 milligrams of alcohol in 100 millilitres of blood. As a result of that, the officer formed reasonable and probable grounds to believe that the defendant had been operating his car with a blood alcohol level "over 80". He arrested him for that offence.

[3] Cst. Webster arranged for another officer to have the car towed from the side of the Queensway, and took the defendant to the police station on Elgin Street in downtown Ottawa.

[4] On the way to the station, Cst. Webster realized that he had neglected to make the formal demand for a breath test under s. 254(3) – that is, to enable a proper analysis to be made to determine the concentration, if any, of alcohol in his blood and to accompany him so that could be done. He had also neglected to advise him of his right to counsel, cautioned him that he need not give a statement, and give him the "secondary" caution. When he left the Queensway at the Metcalfe exit, less than a block from the police station, he pulled over and did all of those things.

[5] Cst. Webster then took the defendant to the Elgin Street station, had him processed, contacted counsel for him, allowed him to speak to counsel, and turned him over to the breath technician. He provided two breath samples. Both samples were analyzed by the Intoxilyzer to contain 110 milligrams in 100 millilitres of blood.

[6] The following chart sets out the times of the relevant events:

Time	Event
2:28 a.m.	Cst. Webster stops defendant on Queensway
2:29 a.m.	Cst. Webster makes ASD demand
2:30 to 2:32 a.m.	Cst. Webster retrieves ASD from cruiser, turns it on, demonstrates to the defendant how to provide a sample, and conducts a self-test to establish it was operating correctly
2:34 a.m.	Defendant provides sample of breath into ASD; fails
2:34 a.m.	Cst. Webster arrests defendant for driving "over 80"
2:45 a.m.	Cst. McDade arrives on scene to deal with vehicle on side of Queensway; Cst. Webster leaves scene with defendant in cruiser
2:58 a.m.	Cst. Webster pulls over on Metcalfe near police station and advises defendant of his right to counsel
2:59 a.m.	Cst. Webster cautions defendant that he need not give a statement
3:00 a.m.	Cst. Webster reads secondary caution
3:01 a.m.	Cst. Webster reads breath demand to defendant: he responds "yep"
3:03 a.m.	Cst. Webster gives s. 524 warning and explanation and defendant indicated he understood
3:05 a.m.	Cst. Webster arrives at Elgin Street station with defendant
3:18 a.m.	Defendant placed in private room to speak with counsel
3:20 a.m.	Cst. Webster makes unsuccessful attempt to contact one lawyer suggested by defendant
3:22 a.m.	Cst. Webster calls second lawyer suggested by defendant and reaches him; call transferred to defendant in private room
3:24 to 3:29 a.m.	Cst. Webster meets with breath technician
3:30 a.m.	Defendant's call with counsel ends
3:32 a.m.	Defendant turned over to breath technician
3:37 a.m.	First breath test: 110 mg/100 ml
3:58 a.m.	Second breath test: 110 mg/100 ml
4:02 a.m.	Defendant returned to Cst. Webster

[7] The defence takes no issue with any time after Cst. Webster arrived at the police station with the defendant. Counsel submits that the delay at the scene between the arrest and departure for the station, and the delay required to stop on Metcalfe Street and provide the defendant with his right to counsel, cautions, s. 524 warning, and breath demand meant that the breath samples were not taken "as soon as practicable".

Part 2: The Law

"As Soon as Practicable" Means "Within a Reasonably Prompt Time in the Overall Circumstances"

[8] Paragraph 258(1)(c) of the Criminal Code provides that evidence of the results of the analyses by an Intoxilyzer of samples of breath of a defendant are conclusive proof of the concentration of alcohol in his or her blood at the time of the alleged offence if each breath sample was taken "as soon as practicable after the time the offence was alleged to have been committed".

[9] In order to take advantage of this statutory presumption the Crown must prove beyond a reasonable doubt that each of its requirements have been met. As Justice Hill held in R. v. Walker, [2006] O.J. No. 2679:

Compliance with the statutory scheme must be strictly construed where the prosecution is relieved of the obligation of adducing expert evidence on the subject.

[10] As the Court of Appeal has held in R. v. Vanderbruggen, [2006] O.J. No. 1138, 206 C.C.C. (3d) 489, there is no requirement that the tests be taken as soon as possible. Nor does the provision require an exact accounting of every moment in the chronology. As the Court held:

• The provisions of s. 254(2) should not be interpreted to require an exact accounting of every moment in the chronology.
• The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably.
• 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.

[11] In R. v. Singh, 2014 ONCA 293, [2014] O.J. No. 1851, the Court of Appeal reiterated the Vanderbruggen decision, holding that the requirement that the samples be taken as soon as practicable means "nothing more than that the tests should be administered within a reasonably prompt time in the overall circumstances."

[12] These notes of caution by the Court of Appeal do not, however, diminish the requirement of s. 254(2). The analysis which trial courts are required to undertake is not one in which every unjustified minute of delay is totted up, with the resulting sum being analyzed to determine whether the requirement has been met. At the same time, however, the analysis is not whether the total delay seems reasonable without analysis of the reasons therefor. The inquiry is fact-specific. Just as the Court of Appeal held in Quansah that there is not a rule of a standard 15 minute allowable period of delay in administering the ASD test, there is not a rule of a standard permissible period of delay in administering the Intoxilyzer test. A fact-specific inquiry requires that significant periods of delay be identified and the Crown be required to justify them.

[13] As Durno J. held in R. v. Schouten, [2002] O.J. No. 4777:

… each case must be examined on its own facts. One hour and forty-six minutes could be "as soon as practicable": R. v. Letford (2001), 150 C.C.C. (3d) 225 (Ont. C.A.). One hour and thirty minutes might not be "as soon as practicable" in another: R. v. Lightfoot, (1980), 4 M.V.R. 238 (Ont. C.A.).

Part 3: Analysis

[14] As I have indicated, the defendant takes issue with two time periods: the period between the arrest at 2:34 a.m. and the departure at 2:45 a.m., and the period between 2:58 a.m. and 3:03 a.m. when Cst. Webster pulled over on Metcalfe Street and advised the defendant of his right to counsel, cautioned him, and made a formal breath demand. Defence counsel submits that the first of these time periods has not been adequately explained and was, in the main, taken up waiting for another officer to arrive to tow the car because he believed, improperly, that the car had to be towed because the defendant had failed the ASD test. He submits that the second time period was unnecessary because Cst. Webster could have told the defendant all of those things on the scene.

[15] I will deal with each issue separately.

(a) Time on the Scene

(i) Cst. Webster acted reasonably promptly between arresting the defendant and leaving the scene

[16] Cst. Webster testified that between 2:34 a.m., when he arrested the defendant, and 2:45 a.m., when he left the scene with the defendant, he did the following:

(a) arrested him at his cruiser, where the ASD test was carried out;

(b) requested a breath technician be available at the station and another unit come to deal with towing the defendant's car from the side of the Queensway;

(c) handcuffed him, double locking the cuffs and checking their tightness;

(d) searched him and located his wallet in his pocket;

(e) put him in the cruiser;

(f) after placing the defendant in the rear of the cruiser, he returned to the defendant's car at the defendant's request and searched for his cellphone, mistakenly retrieving the defendant's iPod instead of his phone;

(g) after returning to his cruiser with the iPod and being told of his mistake, returned to the defendant's car and retrieved some cash and the phone from the center console;

(h) returned to his cruiser and gave the phone and cash to the defendant; and

(i) spoke to Cst. McDade as she arrived and walked by his cruiser, and asked her to arrange for the tow.

[17] Cst. Webster testified that there was no idle time between arresting the defendant and leaving the scene. It was his evidence that he was hastening to leave the scene as quickly as he could.

[18] I accept his evidence. In my view, Cst. Webster acted reasonably promptly during this period of time. There is no basis to conclude that he was not doing so.

(ii) The issue of necessity of towing the car is a red herring; the tow caused no delay but in any event there was legal authority to tow it

[19] Defence counsel submitted that a significant portion of the delay between 2:34 a.m. and 2:45 a.m. was caused by arranging for the defendant's car to be towed and waiting for the other officer to arrive to look after the towing. I have found that that is not so. The only time required to arrange for the tow was to ask dispatch to send another officer to the scene for that purpose. Cst. Webster did this at the same time he asked that a breath technician be made available. It took no extra time. He was fully engaged in the other things I have already gone through between then and the time Cst. McDade arrived. Consequently, this issue is not relevant.

[20] I note, however, that the law is not quite as simple as was submitted by defence counsel. He submitted that the Highway Traffic Act only allows towing and impounding (for 7 days) of a driver's vehicle when the driver has failed an Intoxilyzer test under s. 254(3) of the Criminal Code. He is right that the effect of sections 48.4(1), 48.4(3), and 48.3(1) of the Highway Traffic Act authorizes towing and impoundment in those circumstances.

[21] But the legislation goes further than merely to authorize towing and impoundment. Subsection 48.3(1) requires that when a police officer is satisfied that a driver has failed an Intoxilyzer test, the officer shall request the surrender of the driver's licence. And s. 48.4(1) states that when an officer is satisfied that he or she is required by s. 48.3(1) to request the surrender of the driver's licence, the officer shall detain the motor vehicle and impound it for seven days.

[22] And there is other authority to tow a vehicle.

[23] Subsection 48(2) of the Highway Traffic Act provides that a police officer may request a driver to surrender his or her driver's licence if they fail an ASD which indicates that their blood alcohol concentration is more than 50 milligrams in 100 millilitres of blood. Subsection 48(3) provides that when such a request is made, the driver's licence is suspended. And Subsection 48(12) provides:

If the motor vehicle of a person whose licence is suspended under this section is at a location from which, in the opinion of a police officer, it should be removed and there is no person available who may lawfully remove the vehicle, the officer may remove and store the vehicle or cause it to be removed and stored … .

[24] Furthermore, s. 134.1 of the Highway Traffic Act authorizes a police officer to remove and store a vehicle which is "directly or indirectly impeding the normal and reasonable movement of traffic on a highway" if the officer considers it to be reasonably necessary to "ensure orderly movement of traffic" or "to prevent injury or damage to persons or property".

[25] I draw the following conclusions from these various provisions.

[26] The first is that s. 48.4(1) would serve no practical purpose in requiring the police to tow and impound a vehicle when its driver fails an Intoxilyzer test if the vehicle could be removed from the control of the police before the Intoxilyzer test is administered. If the car had already been moved, the police would be unable to comply with their mandatory obligations under s. 48.4(1).

[27] In my view, s. 48.4 must be interpreted so as to allow its purpose and its terms to be carried out. When a driver is arrested for driving with over 80 milligrams of alcohol in his or her blood, an officer has authority to order that the vehicle be moved and stored until an Intoxilyzer test can be administered. This is necessary to ensure that the police can comply with their obligation to impound the vehicle if the driver blows over 80.

[28] Secondly, even if an officer does not arrest a driver after administering an ASD, he or she may remove a vehicle and cause it to be stored if the ASD shows a blood alcohol level over 50 milligrams of alcohol in 100 millilitres of blood, the driver is asked to surrender the driver's licence, the officer forms a good faith opinion that it should be removed, and there is no person available who may lawfully remove the vehicle. Such an opinion would be in good faith if it is consistent with the purpose of the provision, which is to ensure public safety and prevent persons with more than 50 milligrams of alcohol in 100 millilitres of blood from driving a car.

[29] Furthermore, an officer may have a vehicle towed if it is "directly or indirectly" impeding the normal and reasonable movement of traffic and its removal is necessary to ensure such movement or to protect persons or property. I have no doubt that a vehicle on the side of the Queensway would impede the normal and reasonable movement of traffic if it were not removed.

[30] On the evidence I heard, it is clear that the officer decided that the defendant's car should be moved. He testified that the car was being towed because that was one of the "consequences of fail". He also testified that he did not check to see if a friend of the defendant could move the car, because that was "not an option mandated by the policy to impound the vehicle for 7 days".

[31] I have no evidence of the details of that policy. From the evidence I have heard, it appears that the policy may be overbroad.

[32] I accept Cst. Webster's evidence. I am satisfied that he had the car towed and impounded because he believed that there was a policy that he do so. If that was what the policy required, it was overbroad. But there was statutory authority allowing him to tow and store the car to ensure that if the driver blew over 80 the car could be impounded. The police would only have had the legal authority to impound the vehicle if the defendant had blown over 80 on the Intoxilyzer. And, regardless of the policy and the interpretation of s. 48.4 of the Highway Traffic Act, the officer could have had the car towed and stored under s. 48(12) or s. 134.1.

[33] I note that the cases relied upon by defence counsel (R. v. Alexandre, unreported decision of Legault J., O.C.J., August 11, 2015; R. v. Molson, unreported decision of Moore J., O.C.J., Feb. 16, 2017; R. v. Cadieux, unreported decision of Bourgeois J., O.C.J., March 22, 2017; R. v. Emon, unreported decision of Waugh J., O.C.J., September 18, 2017) do not consider the issues raised by the mandatory wording of subsections 48.4(1) or the authority to tow under s. 134.1.

[34] Furthermore, in those cases, there were factual findings that the delay waiting for the tow either caused the Intoxilyzer tests to not be given as soon as practicable (24 minutes in Molson, 20 minutes in Cadieux, 30 minutes in Emon) or did not cause the Intoxilyzer to not be given as soon as practicable (11 minutes in Alexandre). I have found that waiting for the tow caused no delay in this case.

(b) The stop on Metcalfe Street did not cause any significant delay

[35] Defence counsel submitted that the time taken up with stopping on Metcalfe Street, advising the defendant of his right to counsel, cautioning him and giving him a secondary caution, giving him a s. 524 warning, and making a formal breath demand, unnecessarily delayed the Intoxilyzer tests because this could all have been done at the roadside.

[36] This all could have, and should have, been done at the side of the Queensway. But it took no more time to do it on Metcalfe Street than it would have taken at the side of the Queensway, other than the time taken to pull over to the side of the road before doing so and pull out again after doing so. As I have already indicated, Cst. Webster was fully occupied doing necessary and reasonable things (some at the request of the defendant) between the time of the arrest and leaving the scene. If he had done there what he did on Metcalfe Street, little or no time would have been saved.

Part 5: Conclusion

[37] The Intoxilyzer tests were administered as soon as reasonably practicable. The s. 258(1)(c) presumption that the results of those tests is the same as at the time of driving applies. Consequently, the Crown has proven beyond reasonable doubt all of the elements of the offence charged. I find the defendant guilty.

Released: December 5, 2017

Signed: Justice P.K. Doody