Court File and Parties

Date: April 6, 2018

Information No.: 15-8143

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Mike Cabral

Before: Justice S. Bondy

Counsel:

• J. Magri for the Crown
• B. Ducharme for the Accused

Matter Heard: April 5, 2018

Reasons for Judgment

Introduction

[1] In the matter of Mike Cabral, the accused is charged with an "over 80" driving offence on May 29, 2015. A Charter argument was first proceeded with and I dismissed the application finding no basis for a breach finding and no basis to exclude the breathalyzer results under s. 24(2). The following is my ruling with respect to the trial proper. The only issue is whether the breath samples were taken as soon as practicable as required by s. 258(1)(c)(ii) of the Criminal Code in order for the presumption of identity to apply to the breath readings.

Facts

[2] The following is a time chart of the circumstances of this offence:

[3] 9:32 p.m. – Mr. Cabral's vehicle is pulled over/stopped by Officer Fedak for speeding. He was doing 98 kilometres in a 60 kilometre zone.

[4] 9:32 to 9:39 p.m. – Officer Fedak approaches the vehicle after first conducting a plate and MTO search. She approaches the vehicle and asks Mr. Cabral to produce his identification material, the accused fumbles in producing the materials, he has no photo identification on him so she returns to her vehicle to confirm his identity, in speaking with him she detects the odour of alcohol in his system, she forms the requisite suspicion under the Code and makes an ASD demand. The device is on her when she makes the demand.

[5] 9:39 p.m. – Officer Fedak makes and reads the ASD demand to the accused. She tests the roadside device, is satisfied it is working properly, changes the mouthpiece, the accused provides three samples (the first two were not satisfactory and he was cautioned as to a refusal/failure, so a third sample was satisfactory). Time of screening was 9:42 p.m.

[6] 9:45 p.m. – Mr. Cabral is escorted to the officer's vehicle and arrested.

[7] 9:49 p.m. – Mr. Cabral is read a s. 254 demand.

[8] 9:50 p.m. – Officer Fedak reads right to counsel to the accused and is satisfied he understands. Mr. Cabral does not want a lawyer or seek legal advice.

[9] 9:51 p.m. – Officer Fedak reads standard caution and is satisfied he understands and requests a male officer attend for a roadside search for officer safety issues.

[10] 9:55 to 9:59 p.m. – Officer Pillon, a male officer, arrives on scene and searches Mr. Cabral as both the arresting and auxiliary officers were females.

[11] 9:59 p.m. – Officer Fedak leaves the scene and is en route to the Leamington detachment of OPP. The evidence reveals there were no stops along the way. The evidence reveals she does not know who (i.e. which officer) stayed behind to secure Mr. Cabral's vehicle.

[12] 9:59 p.m. – The breathalyzer machine is ready to receive a sample.

[13] 10:06 p.m. – Officer Fedak arrives at the Leamington detachment. The evidence did not reveal the distance from the scene of arrest to the detachment. There is no issue that this constituted any delay.

[14] 10:06 to 10:12 p.m. – Officer Fedak completes a lodging form (detailing all the property and personal effects on Mr. Cabral) which is a two page form and a drug disclosure caution (which is standard procedure and requires the accused to advise if there is anything else in their system requiring medical attention or EMS support). The evidence reveals that Officer Fedak is both the arresting and transporting/booking officer. This form is in her own handwriting.

[15] 10:12 p.m. – Mr. Cabral is lodged in the cells without incident or delay.

[16] 10:12 to 10:17 or 10:19 p.m. – Officer Fedak is completing a Grounds for Arrest sheet which she testifies is required by the breath technician and her function to complete as the arresting officer. In-chief she explains what the Grounds Sheet details are: i.e. timing particulars of arrest, demand and timing particulars, ASD test results, ASD machine and serial numbers, particulars of accused, particulars of the officer, reading of rights and caution and timing, etc. She estimates this took her 5 to 7 minutes to complete.

[17] 10:17 or 10:19 to 10:30 p.m. – Officer Fedak completes her notes which she asserts is "her first opportunity" to do so, after "the incident" since "Mr. Cabral is secure" and "I then have time to complete that." These words in quotation are her direct evidence at p. 21 of the transcript of November 9, 2017.

[18] 10:30 p.m. – Officer Fedak provides verbal grounds to Constable Harris, the breath tech, which she testifies were the fail on the ASD and her original suspicion of alcohol in Mr. Cabral's system by her detection of alcohol on his breath. In cross-examination she testified it took no less than one or two minutes to convey her grounds but she also reviewed the grounds sheet with the breath technician which she testified is "required" by the breath tech to ensure the arrest can be continued so that she felt that the one to two minutes might be "shy" as she also reviewed the grounds sheet with the officer. It was at this time that she handed over custody of the accused to the qualified breath tech, Constable Harris.

[19] I did not hear any evidence from the breath technician.

[20] Officer Fedak filed the Certificate of a Qualified Breath Technician which was marked and produced as exhibit one in these proceedings. The Certificate provides that Officer Harris completed taking the first sample at 22:40 hours (10:40 p.m.) and commenced taking the second sample of Mr. Cabral's breath at 23:08 hours (11:08 p.m.). The Certificate also reads that the time required to take each of the said samples was less than one minute.

[21] No time was noted by Officer Fedak when the breath technician advised her of the breath results and provided her with the Certificate under s. 258(1)(g) of the Code.

[22] 12:20 a.m. May 30, 2015 – Mr. Cabral is released from police custody after service of Certificate and other necessary documentation upon him by Officer Fedak. I would note the Notice in accordance with s. 258(7) of the Code states it was served on the 29th of May, 2015 however, this date should have read May 30th if service was made after midnight as indicated at 12:20 a.m.

The Issue

[23] The defence relies on three time periods which the defence submits there is no explanation or ill-explained delay in support of the argument that the breath tests in this matter were not taken as soon as practicable as required under s. 258(1)(c) of the Code.

[24] First, is the delay of 18 minutes when the Officer took 5 to 7 minutes to complete a ground form and then another 11 minutes to complete her case notes before she presented the defendant to the breath tech for testing.

[25] Second, is the delay of 28 minutes from 10:40 p.m. when the first breath test was completed until 11:08 p.m. when the second test was commenced per the Certificate filed. This delay exceeds the statutory limit of 15 minutes and the usual norm of 17 minutes between tests for which there was no explanation provided.

[26] Third, is the delay from 10:30 to 10:40 p.m. when the Officer said she presented her verbal grounds to the breath tech for about 2 minutes until the first test was completed per the Certificate filed. Defence says this shows a further delay of 8 minutes which is unaccounted for.

[27] In total, the defence argues that there are 37 minutes of ill explained or unexplained delay in this matter.

[28] In response, the Crown asserts that they are not obliged to account for every single minute of time the accused is in custody pursuant to the principles in R. v. Vanderbruggen, the Crown maintains that the efficiency of having the breath testing equipment ready and available for the defendant's sample at 9:59 p.m. did not negate the Officer's need to document the facts by completing necessary forms prior to presenting the defendant for breath testing. Further, the Crown submits that when the Officer took the time to assure accuracy in her notes that these obligations should not be negated by the need to conduct breath tests as soon as practicable pursuant to the provisions in s. 258 of the Code. In this respect, the Crown relies on Supreme Court of Canada jurisprudence for support for the argument that police officers have a duty to prepare accurate, detailed and comprehensive notes as soon as practicable after an investigation. See Shaeffer v. Woods, 2013 SCC 71.

[29] I have also been presented with a number of cases on the subject of whether or not breath tests were conducted "as soon as practicable." The Crown relies primarily on the Ontario Court of Appeal decisions in Vanderbruggen and R. v. Singh, 2014 ONCA 293. Defence relies on two decisions, namely, R. v. Shouten and R. v. Ruck, 2013 ONCJ 527.

The Law

[30] The Criminal Code states in s. 258(1)(c):

(c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if…

(ii) …each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken,…

…evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused's blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things – that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused's blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused's blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed;

[31] As a matter of law then, the Crown cannot succeed on this prosecution without relying on the presumption of identity found in s. 258(1)(c) of the Code. This tool is necessary so I can find that at the time of driving by Mr. Cabral his blood alcohol readings were the same as when he provided his samples at 10:40 and 11:08 p.m. In order to use this presumption the Crown has to prove among other things that the samples were taken "as soon as practicable."

[32] The phrase "as soon as practicable" does not mean as soon as possible. It means "nothing more than the tests were taken within a reasonably prompt time under the circumstances." The "touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably." Vanderbruggen.

[33] The Crown does not have to provide a detailed explanation of what occurred during every minute the accused is in custody. Vanderbruggen.

[34] These provisions must be interpreted reasonably in a manner that is consistent with Parliament's purpose in facilitating the use of this reliable evidence. Vanderbruggen.

[35] Whether the samples were taken as soon as practicable is an issue of fact for the trial judge. Vanderbruggen.

[36] A trial judge should look at the whole chain of events, keeping in mind that the Criminal Code permits an outside limit of two hours from the offence to the taking of the first test. The "as soon as practicable" requirement must be applied with reason. Vanderbruggen and Singh.

[37] The overall circumstances of the case are to be considered. Singh.

[38] There must be an evidentiary basis for a trial judge's finding that breath samples were taken "as soon as practicable." Shouten.

Analysis

[39] There are three areas of concern. To repeat, the first period is the time the Officer took to complete her grounds for arrest form and her notes from 10:12 to 10:30 p.m., a period of 18 minutes. The second period is the 10 minutes it took to turn over custody to the breath technician and the first test was completed from 10:30 to 10:40 p.m. The third period is the unexplained delay between the two tests of 28 minutes (or 11 minutes as defence concedes a 17 minute allowable statutory delay) – for a total period of delay objected to by the defence of 37 minutes.

[40] I would note that the entire exercise from arrest to the completion of the breath tests for the defendant took approximately one and a half hours. I would note this is well under the statutory two hour time limit. I would also note however, that Mr. Cabral did not consult with counsel and if these rights had been invoked, this would have added yet more time to this exercise.

[41] It seems to me that what Vanderbruggen and Singh compel me to consider is not whether a single unexplained delay between tests was unexplained or ill-explained or whether individual delays including delays between testing can lead to a conclusion that police officers did not act with reasonable dispatch or concern for prompt processing as in Ruck but rather whether the police conduct in the entirety of the circumstances was reasonable and reasonably prompt.

[42] In Vanderbruggen, the Court found that the officers were attentive to their duties and to the need to administer the tests to the appellant as soon as possible. I quote from paragraph 14 of the judgment: "There was no evidence that either the arresting officer or the technician acted unreasonably. The record only shows that they were attentive to their duties and to the need to administer the tests to the appellant as soon as practicable. There was no evidence that the officers gave unreasonable priority to any other task." In Vanderbruggen the delay occurred in a 46 minute gap when the appellant was searched and placed in a cell and when he was turned over to the breath technician for the breath testing procedure. In Singh the issue was the unexplained delay between the two samples of breath of 28 minutes. The Court took issue with the proposition that an unexplained gap between two tests viewed in isolation and without considering the whole chain of events could support a conclusion that the "as soon as practicable" requirement was not met and expressly rejected this type of logic found in R. v. Bugler, [1997] O.J. No. 2283 (O.C.A.) and R. v. Blacklock. I note with some interest that Ruck cites the Blacklock case with approval in its rationale for rejecting the argument that the breath tests in that case were taken as soon as practicable.

[43] In R. v. Pullen, [2015] O.J. No. 5644 (Ont. S.C.), the appellate court considered whether delay related to booking procedures was reasonable in the circumstances and whether a delay between a first and second breath tests of 20 minutes or more required an explanation or failing such, amounted to unreasonable delay. The appeal court found that the trial judge did "precisely what he was required to do," in compliance with the principles in Vanderbruggen and Singh, and considered the totality of the circumstances outside the 15 minute period between the samples. He quite correctly concluded that, notwithstanding unexplained delay, the overall police conduct, for the entire period the appellant was in police custody, lead to the conclusion that the delay was "not unreasonable." Moreover, the appeal court said that "there was no evidence that either of the officers involved had acted unreasonably, or had been inattentive to their duties, or had given unreasonable priority to any other task than conducting this drinking and driving investigation and the proceeding of the appellant in pursuance of that investigation."

[44] In Pullen, the trial judge appears to have considered evidence before him that the breath technician (Constable Smuland) was attentive to his duties during the investigation, which including interviewing witnesses at the scene, interacting with the accused at the scene, assisting Sgt. Sanderson (who appeared to be the arresting officer) during the booking in process and attending to his duties as a qualified technician. The trial Court also had before it evidence relating to what were reasonable police duties associated with a booking in process. Moreover, the Court did not engage in what the appeal court considered speculation or improper inferences related to an unexplained delay of 10 to 15 minutes between the two breath tests.

[45] I find that what is problematic in the case before me is the lack of evidence that I have before me to draw the necessary conclusions that the steps that Officer Fedak took relating to her booking and processing procedures were reasonable and reasonably prompt or to conclude that she did not give undue priority to any other task such as completing case notes while Mr. Cabral remained in cells and awaiting presentation to the breath technician. These are clearly factors and evidence that the cases named above address in their determination of reasonableness as it impacts on the question of the "as soon as practicable" requirement to s. 258 breath testing results.

[46] The evidence before me was that Officer Fedak was acting as the arresting, transport and booking officer in connection with Mr. Cabral. She was completing all three of these tasks at the same time. First, I do not know if that is always the procedure at her detachment or solely on this occasion, and if so, why so, as clearly completing all of these tasks by one officer alone and the forms associated with these tasks took some time and resulted in delay from the time Mr. Cabral arrived at the station at 10:06 p.m. until his presentation to the breath technician at 10:30 p.m.

[47] Secondly, I do not know why the Officer was compelled to complete a grounds form for the breath technician where the evidence would suggest that she still had to convey her grounds orally to the breath tech once Mr. Cabral was presented for testing at 10:30 p.m. What she indicated in evidence was the breath technician required this for policy reasons. I received no evidence as to why this was policy and the rationale behind it. In addition, the evidence before me suggests the grounds form included detailed notations related to her reasons for arrest, observations, timing of the ASD demand, make and model of instruments used and particulars related to the accused etc., only to have the Officer then immediately complete her detailed case notes which added yet another layer of delay and may well be duplication of tasks before presenting Mr. Cabral for breath testing. Moreover, I do not know what the urgency was relating to completion of Officer Fedak's case notes when the evidence revealed that the breath machine was ready to receive Mr. Cabral's breath sample any time after 9:59 p.m. and when he continued to wait in cells until 10:30 p.m.

[48] Thirdly, I did not hear from the breath technician in this matter at all nor was I provided with an explanation through the investigating officer as to why the machine was ready and prepped for a sample at 9:59 p.m. and yet Mr. Cabral did not arrive at the detachment until 10:06 p.m. with further delay until 10:30 p.m. when he was presented for testing. I simply have a gap of evidence in this regard. I am aware that the arresting officer had to wait for another male officer to attend at the arrest scene for a search of Mr. Cabral before he was transported back to the detachment, but I do not know why the machine was prepped for 9:59 p.m. in the first place or alternatively, why the breath technician might not have assisted Officer Fedak with her arrest, lodging and processing duties and/or the completion of forms after Mr. Cabral's attendance at the detachment. Moreover, I do not know why if the Intoxilyzer machine was ready at 9:59 p.m. another 10 minutes was required, in addition to the grounds form, to review the grounds once again. Moreover, I cannot conclude that a further 28 minutes delay between tests was reasonable, as I have no evidence at all relating to the breath technician's conduct throughout either by the breath technician or through Officer Fedak.

[49] In the totality of these circumstances and with these instances of delay, where Officer Fedak is acting in multiple capacities, where no one appears to be assisting her after her arrival at the detachment with Mr. Cabral, where the evidence reveals that her completion of forms is tied to policy and where tasks appear to be duplicated and urgent for reasons unknown to the Court, and where she assesses that completion of her case notes is an additional priority, I cannot draw the necessary conclusion that the steps taken by police were reasonable or reasonably prompt in the circumstances and that Mr. Cabral's breath tests were taken as soon as practicable in the totality of these circumstances. I cannot conclude that Officer Fedak did not give unreasonable priority to the task of completing forms and notes when the evidence would suggest that some of these tasks were duplicitous and unnecessary at the time they were completed. In the end, the totality of delay in these circumstances I find to be unreasonable and not reasonably prompt.

Finding

[50] I conclude then that the breath tests conducted in these circumstances were not completed as soon as practicable as the section provides. As this evidence is critical to the finding that Mr. Cabral's blood alcohol level at the time of driving was over 80 mg. of alcohol in 100 ml. of blood, and there being no other evidence other than the Certificate filed, and as the presumption of identity does not apply, there shall be an acquittal in these circumstances.

Released: April 6, 2018

Original Signed and Released

Justice Sharman Bondy