Court File and Parties

Court File No.: Orangeville 17-484 Date: April 13, 2018 Ontario Court of Justice Central West Region

Between: Her Majesty the Queen — and — Anthony Bhola

Before: Justice Richard H.K. Schwarzl

Heard on: January 22 and February 2, 2018

Reasons released on: April 13, 2018

Counsel:

• Mr. Robert Fetterly and Ms. Sandra Duffey for the Crown
• Mr. Douglas Lent for the Defendant

SCHWARZL, J.:

1.0: INTRODUCTION

[1] On February 10, 2017 the Defendant, Anthony Bhola, was driving a friend home from a bar when his car wound up in a ditch on a rural road. Following a police investigation, the Defendant was charged with a single count of Driving with Excess Blood Alcohol contrary to section 253(1)(b) of the Criminal Code of Canada.

[2] Three issues were raised at the trial. One is whether the prosecution has proven that the Defendant was in care or control of his motor vehicle at the relevant time. Another is whether the police had lawful grounds to make any demands on the Defendant. Lastly, there is an issue as to whether the breath tests were taken as soon as practicable.

2.0: WAS THE DEFENDANT IN CARE OR CONTROL OF THE MOTOR VEHICLE?

2.1: Positions of the Parties

[3] The defence submits that the Crown cannot rely on the statutory presumption of occupation of the driver's seat to prove care or control and that without that presumption there is a reasonable doubt that the Defendant was in actual care or control of the car when the police got involved. The Crown submits that even if the statutory presumption of occupancy is rebutted the evidence shows that the Defendant was in actual care or control of his car at the relevant time.

2.2: Applicable Legal Principles

[4] Section 258(1)(a) of the Criminal Code states that where a person is found to be in the driver's seat of a motor vehicle while intoxicated by alcohol and/or drugs, he is presumed to have occupied the seat with the intention to drive. Where the statutory presumption applies, the defendant must establish on a balance of probabilities that his occupancy of the driver's seat began without the purpose of setting the vehicle in motion: R. v. Hatfield (1997), 115 C.C.C. (3d) 47 (Ont. C.A.); R. v. Miller, [2002] O.J. No. 4896 (S.C.J.) aff'd [2004] O.J. No. 1464 (C.A.); R. v. Saulteaux, [2000] S.J. No. 633 (Q.B.).

[5] Where the presumption applies, there is no obligation on the Crown to prove a realistic risk of danger: R. v. Amyotte, [2009] O.J. No. 5122 (S.C.J.), R. v. Blair, [2014] O.J. No. 4296 (S.C.J.) at ¶15; R. v. Tharumakulasingam, [2016] O.J. No. 1575 (S.C.J.).

[6] Where the statutory presumption has been rebutted, criminal liability may nevertheless attach where the Crown proves to the requisite standard of proof such acts by the defendant that involve some use of the motor vehicle or its fittings and equipment, or some course of conduct associated with the vehicle that would involve a risk of endangering the public: R. v. Toews (1985), 21 C.C.C. (3d) 24 (S.C.C.); R. v. Wren (2000), 144 C.C.C. (3d) 374 (Ont. C.A.); R. v. Boudreault, 2012 SCC 56, [2012] S.C.J. No. 56 (S.C.C.). In other words, where the defendant did not occupy the driver's seat in order to drive, guilt may still be proven by evidence of actual, as opposed to presumed, care or control.

[7] The phrase "care or control" signifies an intentional course of conduct associated with a motor vehicle by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit in circumstances that create a realistic risk, as opposed to a remote possibility, of danger to persons or property. The risk of danger is an essential element of the care or control offence: R. v. Boudreault, supra. An intention to drive the vehicle is not an essential element of the offence of "care or control": Ford v. The Queen, [1982] 1 S.C.R. 231, at pp. 248-49. It is, however, part of the conduct of the defendant that is relevant to the determination of whether that conduct in relation to the motor vehicle had created a risk of danger: R v. Ruest, [2009] O.J. No. 5108 (C.A.).

[8] In Boudreault, supra, at ¶ 42, the Supreme Court held that in the absence of a contemporaneous intention to drive, a risk of danger may arise in at least three ways, namely:

(i) an inebriated person who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to do so;

(ii) an inebriated person behind the wheel may unintentionally set the vehicle in motion; or

(iii) through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property.

[9] The risk of danger must be a realistic risk and is a matter of fact for the trial judge to determine: Boudreault, supra, ¶ 50. The trial judge must examine all of the relevant evidence to this end and must consider all factors present: R. v. Smits, 2012 ONCA 524, [2012] O.J. No. 3629 (C.A.) at ¶ 60 - 65; R. v. Szymanski, [2009] O.J. No. 3623 (S.C.J.), at ¶ 93. A realistic risk of danger will normally be the only reasonable inference where the Crown establishes impairment and a present ability to set the vehicle in motion. To avoid conviction, the defendant will in practice face a tactical necessity of adducing evidence tending to prove that the inherent risk is not a realistic one in the particular circumstances of the case.

[10] An "alternate plan" to ensure safe passage home may eliminate any realistic risk of danger provided that the plan was objectively concrete and reliable and was in fact implemented by the defendant. Even where, for example, it is certain that a taxi will show up at some point, if the defendant occupied the driver's seat without a valid excuse or reasonable explanation, this alone may persuade the judge that his judgment was so impaired that he could not foresee the possible consequences of his actions. The converse, however, is not necessarily true. Even where it is probable that the taxi will appear at some point and the accused occupied the driver's seat with a valid excuse or reasonable explanation, the trial judge may nonetheless be satisfied beyond a reasonable doubt that there remained a realistic risk of danger in the circumstances: Boudreault, supra, at ¶ 51 - 53.

[11] Vehicle inoperability or vehicle immobility do not, per se, extinguish risk of danger. A realistic risk may be found where the motor vehicle is in a position where it might endanger the public including other motorists: R. v. Vansickle, [1988] O.J. No. 2935, aff'd [1990] O.J. No. 3235 (C.A.); R. v. Ruetz, [2007] O.J. No. 307 (S.C.J.); R. v. Wren, [2000] O.J. No. 756 (C.A.); R. v. Magagna, [2003] O.J. No. 510 (C.A.); R. v. Wilford, [2004] O.J. No. 258 (C.A.); R. v. McBrine, 2007 ONCA 25, [2007] O.J. No. 142 (C.A.); R. v. Amyotte, [2009] O.J. No. 5122 (S.C.J.) at ¶ 109 – 122; R. v. Banks, [2009] O.J. No. 2607 (C.A.); R. v. Agyemang, 2014 ONSC 4232, [2014] O.J. No. 5047 (S.C.J.).

[12] A defendant may be found to be in care or control where Crown proves beyond a reasonable doubt:

(i) that he was driving the motor vehicle up to the point where it became inoperable: R. v. Varaich; R. v. Coultis, 66 C.C.C. (2d) 385 (Ont. C.A.);

(ii) that he was driving recently, followed by continuing care or control in the broader sense: R. v. Johal (1998), 124 C.C.C. (3d) 249 (S.C.J.); R. v. Wilford, [2004] O.J. No. 258 (C.A.); R. v. Bernatsky, [2007] O.J. No. 4787 (O.C.J.) at ¶ 11 – 12; R. v. Pereira, 2007 ONCJ 584 (O.C.J.); or

(iii) solely on the basis of earlier driving even if he had nothing to do with the car after driving: R. v. Pendleton (1982), 1 C.C.C. (3d) 228 (Ont. C.A.); Pereira, supra, at ¶ 11 – 18.

2.3: Analysis

[13] The Defendant was drinking at a bar. When he left he agreed to drive an acquaintance, Mr. Goolcharran, home. Along the way and in poor weather, the Defendant's car left the roadway and went down a steep slope where it got stuck in a deep, snow-filled ditch. The car, which did not appear damaged, could not get back onto the road without assistance. On behalf of both occupants, Goolcharran called C.A.A. for a tow. When the tow truck arrived, both men got out of the car and spoke to the tow operator. The Defendant then got back into the car and sat in the driver's seat. Due to its position, the car could not be pulled out without the tow truck blocking both lanes of traffic. The tow operator therefore called the police to assist in traffic control so he could pull the car out of the ditch. When the police arrived, the Defendant was in the driver's seat of his Toyota. The officer spoke to him and noticed the smell of alcohol on his breath and slow speech. Later, when the officer arrested the Defendant the car keys were found in his coat pocket. The tow operator was able to remove the car undamaged from the ditch and onto the roadway. Although the arresting officer did not think he tried to start the Defendant's car, another officer said he did. I prefer the other officer's evidence that the car was started. This is because the arresting officer was preoccupied with many tasks and duties whereas the other officer's only role was to watch the cars and traffic. Therefore, the second officer was not distracted and had a clear view of the first officer starting the Defendant's car on the road.

[14] The Defendant was found in the driver's seat of his car while under the influence of alcohol. The statutory presumption of occupancy therefore applies.

[15] On the totality of the evidence, the Defendant has failed to rebut the presumption of occupancy for two reasons. First, he entered the driver's seat back at the bar with the clear intention of driving himself and his friend home: R. v. Szymanski, supra, at ¶ 36. Second, even though the Defendant got out of his car after going into the ditch, he returned to the driver's seat prior to the police arriving and while awaiting the extrication of his car. Nothing in the evidence suggests that the Defendant did not intend to set his car in motion after he re-entered it. To the contrary, the evidence taken as a whole demonstrates that he had every intention to resume his journey home once the car was out of the ditch. The fact that the car was immobile in the ditch does not mean he didn't mean to keep driving as soon as he was able.

[16] Assuming that the Defendant has rebutted the statutory presumption of occupancy, the evidence shows beyond a reasonable doubt that he was in actual care or control of his car because:

(a) The keys were in his coat pocket and readily available to him to start the car and drive;

(b) The car appeared undamaged and in running condition;

(c) The Defendant had not yet reached his destination with no indication that he had forsaken that goal;

(d) Neither the Defendant, nor his passenger in the presence of the Defendant, told the tow operator that they didn't want the police involved and there is no evidence the Defendant disagreed with this statement; and

(e) There was no plan to get home by any means other than the Defendant driving there. Despite having a cell phone on hand, only a tow was called. There is no evidence that a cab, friend, or relative was called despite the immediate ability to do so. The arrival of the tow truck on his behalf clearly shows a desire to continue driving home.

[17] The facts in this case are similar to those in the matter of R. v. Wilford, [2004] O.J. No. 258 where the Ontario Court of Appeal upheld the trial judge's finding of care or control where the defendant in that case was found by the police standing next to his car that was in a ditch with the key in the ignition and where a tow truck arrived to pull it out. In the case at bar, the necessary element of risk is proven by the realistic possibility, if not probability, that but for the intervention of the police, the Defendant would have driven off after his car was pulled out of the ditch: R. v. MacMillan, [2005] O.J. No. 1905 (C.A.) at para. 4; see also R. v. McBrine, [2005] O.T.C. No. 237 (S.C.J.) at para. 89-92, 95, 97 (aff'd 2007 ONCA 25, [2007] O.J. No. 142 (C.A.) at para. 3-4).

[18] Therefore, I find that the Defendant was in care or control of his motor vehicle at all relevant times.

3.0: DID THE POLICE HAVE LAWFUL GROUNDS TO MAKE ANY SECTION 254 CRIMINAL CODE DEMANDS?

3.1: Positions of the Parties

[19] The defence argues that the officer making the screening demand, P.C. Ellwood, did not provide credible evidence to justify a suspicion that the Defendant had been drinking. They submit that the same officer did not follow protocol in administering the screening test therefore he knew that the result of the screening test was unreliable, thus making the breath demand illegal. They submit that the conduct of the police caused a breach of the defendant's right under section 8 of the Canadian Charter of Rights and Freedoms guaranteeing protection of citizens from unreasonable searches and seizures. The prosecution submits that P.C. Ellwood was a reliable witness and that nothing in his conduct raises any concern about the basis for making a screening demand or about the reliability of the screening test result. The Crown submits that even if there was breach of the Defendant's rights, no evidence ought to be excluded because of it.

3.2: Applicable Legal Principles

[20] In R. v. Beharriell, 2014 ONSC 1100, [2014] O.J. No. 882 (S.C.J.), Mr. Justice Durno sitting as a Summary Conviction Appeal court, succinctly set out the applicable legal principles in a situation as argued before me. At paragraph 56 of this case His Honour stated:

… [T]he following principles can be derived where a police officer uses an ASD to confirm his or her suspicions a driver has driven while impaired or having consumed excess alcohol and the accused alleges his or her s. 8 Charter rights were infringed:

i) the determination is made on a case-specific basis;

ii) breath samples taken pursuant to an Intoxilyzer demand, involve a warrantless search and the onus is on the Crown to establish, on a balance of probabilities, that the search was reasonable;

iii) police officers may, but are not required to, rely on 'fail' readings obtained on an ASD as the basis or one of the bases upon which they conclude they have reasonable grounds to make an Intoxilyzer breath demand;

iv) police officers using an ASD are entitled to rely on its accuracy unless there is credible evidence to the contrary;

v) in doing so, the officer must have a reasonable belief the ASD was calibrated properly and in working order before relying on the 'fail' reading as a component of their reasonable grounds to make an Intoxilyzer demand;

vi) a relevant consideration is whether the record discloses that because of his or her training the officer knows that in the circumstances in which the ASD is being used the results will be unreliable;

vii) whether an officer had that reasonable belief can be established by direct or circumstantial evidence;

viii) there is no requirement that the Crown prove the instrument's calibration or that the ASD was working properly; and

ix) there is a heavy onus on the accused to establish a high degree of unreliability in the specific facts of the case. That evidence may arise in the Crown's case or through defence expert evidence.

[21] Reduced to its essence, the test is whether the officer's belief that the screening test result was reliable is reasonable. It is wrong to ask whether the officer actually knew that the screening device test result was reliable: R. v. Topaltsis, [2006] O.J. No. 3181 (C.A.); R. v. Zhou, 2014 ONSC 1985, [2014] O.J. No. 1676 (S.C.J.); R. v. Ho, [2015] O.J. No. 3997 (C.A.).

3.3: Analysis

[22] The investigating officer, P.C. Ellwood, arrived at the scene at around 9:30 p.m. He spoke to the Defendant who was seated in his car that was lodged in a ditch. The officer smelled alcohol on his breath and noted that the Defendant spoke very slowly. The Defendant admitted drinking at a local tavern. Based on the entirety of the circumstances known to the officer he made a screening demand because he suspected that the Defendant had been driving a motor vehicle with alcohol in his body. While the officer's evidence on the weather conditions and the description of the ditch differed from other witnesses, his evidence regarding his reasons to make a screening demand were not challenged and are reliable. Whatever differences that exist between the witnesses, there is no doubt that the Defendant was in charge of the car given all of the evidence. The officer's belief that the Defendant had been drinking alcohol is supported not only by the odour but by the Defendant's admission.

[23] After making the screening demand, but before administering the screening test the officer asked the Defendant if he had any food, drink, or smoke within the past fifteen minutes. He did so to ensure that nothing adversely affected the test result. The Defendant replied that he had nothing to eat, drink or smoke in that time. The officer then confirmed that the most recent accuracy and calibration checks of the Draeger Alcotest 6810 approved screening device were both done within acceptable time ranges. He said that if the latest checks been done outside the time limits the device would not have permitted any breath samples to be accepted or tested. P.C. Ellwood then conducted a self-test and demonstration in the presence of the Defendant and received the expected result of zero. Based on all these factors, the officer believed that the device was in proper working order at the time the Defendant was told to provide his breath sample into it.

[24] When the Defendant provided a suitable sample of his breath into the device he registered a fail and was arrested for the offence of driving with excess blood alcohol. P.C. Ellwood testified that a fail means that the subject's blood alcohol concentration was greater than 100 milligrams of alcohol per hundred millilitres of blood. Nine hours later at the end of his shift, P.C. Ellwood did another self test on the approved screening device without any indication of any problems.

[25] P.C. Ellwood was shown a Memorandum dated November 26, 2013 for the Deputy Commissioner of the Ontario Provincial Police concerning the Alcotest 6810 (Exhibit #2). The officer was aware of this Memorandum prior to this investigation. He agreed it states, in part, that:

"it is imperative that officers remember to complete a self-test before their shifts, before and after an accused's test . After completing these tests the officer will have confidence that the A.S.D. was working before it was deployed in the field." (emphasis added)

[26] P.C. Ellwood testified that the 2013 Memorandum did not give any direction or instruction as to how close in time to the subject test the subsequent self-test should happen. The officer was firm in his evidence that he believed that he did not have to conduct a second self-test immediately after doing a roadside test but that he was to do one at some point before the end of his shift.

[27] P.C. Ellwood was also shown another document being the Ontario Provincial Police Operating Procedure Manual for the Alcotest 6810 dated August 10, 2015 (Exhibit #4). He was also familiar with this document at the time he dealt with the Defendant. The manual states at page 5 that "it is imperative that members perform an alcohol-free self-test at the beginning of their shift." The officer didn't make a note of it, but he did a self-test on the device at the outset of his shift because he always does. Pages 6 and 7 of the Manual sets out the subject test procedure for the screening device. After requiring officers to inquire about the potential mouth alcohol effect of some foods and drinks, the procedure sets out nine separate steps including a self-test prior to the subject test. However, the manual does not mandate, recommend, or even mention a self-test after a subject test unless the subject has failed to provide a suitable sample, which was not the situation in this case.

[28] P.C. Ellwood agreed that nothing in the 2015 Manual states that it supersedes or rescinds anything in the 2013 Memorandum. With that said, the officer testified that he believed he was right to follow the 2015 Manual because it was the most recent directive on how to conduct roadside screening tests.

[29] I find on the evidence that P.C. Ellwood's belief in the reliability of the screening test result was reasonable. He followed the latest training Manual to the letter by eliminating the possibility of mouth alcohol, testing the device on himself at the beginning of his shift, satisfying himself that it had been checked for accuracy and calibration within the required time range, and self-testing it immediately before the subject test. He also followed the 2013 Memorandum by doing a self-test after the subject test, albeit not until nine hours later.

[30] I disagree that failing to do a self-test immediately after the subject test was the only logical interpretation of the Ontario Provincial Police documents for several reasons. First, the 2013 Memorandum does not spell out the timing of the post-fail self-test. While it may make most sense that it be done sooner than later, the document was sufficiently ambiguous so as to be open to interpretation.

[31] Second, the 2013 Memorandum states that the reason for doing three self-tests (at the beginning of the shift, before and after a subject test) is to increase the officer's confidence that the device was working properly "before it was deployed to the field" which is another ambiguous statement. The Memorandum seems to suggest that the intent of multiple self-tests is to ensure that officers believe that the device they carry with them when they set out on patrol is in good working order. It is difficult to see how self-tests on either side of a subject test achieves this goal.

[32] Third, the officer was aware of a later official document setting out specific steps in dealing with subject tests wherein a post-fail self-test is not called for which is contradictory to the earlier official document. It is perfectly reasonable for a patrol officer to rely on the most recent written instruction on how to do something.

[33] Furthermore, there is no evidence that demonstrates that there was any problem with the device let alone evidence showing the high degree of unreliability as required by the legal authorities.

[34] For these reasons, I find that the breath demand based on the Defendant's failure of the approved screening device test was lawful. Accordingly there was no violation of the Defendant's section 8, Charter right.

[35] If I am wrong and his section 8 Charter right was violated, I would not exclude the breath test results. If there was breach, it was on the lowest end of the scale of seriousness: the officer did everything literally "by the book" and at worst may have misinterpreted only the timing but not the need for a post-fail self-test. The officer was acting in complete good faith and there is no suggestion of any systemic issues relating to this type of conduct. If there was a breach, it was a very technical one. Any purported breach did not impact on his Charter protected rights because the search and seizure was minimally intrusive and did not in any material way interfere with the Defendant's privacy, bodily integrity or dignity. Lastly, if there was a breach the societal interest in having a trial on the merits of a serious charge like drinking and driving is very high. Balancing everything, these factors militate against exclusion and instead favour inclusion of the breath test results.

[36] The Certificate of Qualified Technician (Exhibit A) will be received and admitted as evidence as Trial Exhibit #1. The Certificate proves that the blood alcohol concentration of the Defendant was over the legal limit at the relevant time. The result of the first test made at 10:48 p.m. was a truncated reading of 170 milligrams of alcohol per hundred millilitres of blood. The result of the second test made at 11:11 p.m. resulted in a truncated reading of 160 milligrams of alcohol per hundred millilitres of blood.

4.0: WERE THE BREATH TESTS TAKEN AS SOON AS PRACTICABLE?

4.1: Positions of the Parties

[37] The Defendant submits an examination of the evidence of what happened after arriving at the police station shows that the breath tests were not taken as soon as practicable as required by law. If so, they submit that the Crown cannot rely on the Certificate of Qualified Technician and that the charge must be dismissed because there is no other evidence regarding the Defendant's blood alcohol concentration. The Crown argues that the same examination discloses that the police did, in fact, act with due diligence and that the tests were taken as soon as practicable.

4.2: Applicable Legal Principles

[38] There are two times during drink/drive investigations that require the police to behave as soon as practicable. The first is before making a breath demand wherein section 254(3) of the Criminal Code requires that once an officer forms reasonable grounds to make a breath demand, he must make the demand as soon as practicable. The second is after a breath demand is made in which case sections 258(1)(c)(ii) and 258(1)(d)(ii) of the Code require that both breath tests be taken as soon as practicable after a breath demand has been made.

[39] Non-compliance with either of the "as soon as practicable" requirements can lead to both constitutional and evidentiary consequences. If a demand is not made as soon as practicable the demand itself may not be valid, thereby potentially engaging a section 8 Charter claim. If there is a breach of Charter rights, the subsequent breath test results could be excluded from the evidence. Furthermore, if there is a finding that the Crown has failed to prove that the tests were taken as soon as practicable the statutory presumption no longer applies and unless the Crown leads expert toxicological evidence an Over 80 charge may be dismissed.

[40] In R. v. St. Jean, [2012] O.J. No. 2684 (O.C.J.) at ¶ 6 – 10, Duncan J noted that there are two main reasons why these requirements exist: trial fairness and liberty interests. With respect to trial fairness, the "as soon as practicable" requirements ensure that the statutory presumption of identity[1] operates justly and accurately. As for liberty interests, the "as soon as practicable" requirements minimize the period of detention of an arrestee. See also: R. v. Forsythe, [2009] M.J. No. 438 (C.A.) at ¶ 16 – 25.

[41] The phrase "as soon as practicable" means "within a reasonably prompt time in all of the circumstances" and does not mean either "immediately" or "as soon as possible": R. v. Singh, 2014 ONCA 293, [2014] O.J. No. 1858 (C.A.) at ¶ 14; R. v. Vanderbruggen, [2006] O.J. No. 1138 (C.A.); R. v. Squires, [2002] O.J. No. 2314 (C.A.); R. v. Letford, [2000] O.J. No. 4881 (C.A.); R. v. Price, 2010 ONSC 1898, [2010] O.J. No. 1587 (S.C.J.) at ¶ 14 – 21.

[42] The key issue is whether the Crown has proven that the police acted both promptly and reasonably in all of the circumstances of the particular case: R. v. Schouten, [2002] O.J. No. 4777 (S.C.J.). There is no burden on the prosecution to account for every minute when considering this issue: R. v. Singh, 2014 ONCA 293, [2014] O.J. No. 1858 (C.A.); R. v. Vanderbruggen, [2006] O.J. No. 1138 (C.A.); R. v. Price, 2010 ONSC 1898, [2010] O.J. No. 1587 (S.C.J.); R. v. Carey, [2006] O.J. No. 3821 (C.A.); and R. v. Persaud, [2006] O.J. No. 5363 (S.C.J.) at ¶ 16 – 22.

[43] Trial judges may take judicial notice of the various things that happen during the investigation of drink/drive offences, including the normal procedures and routines that happen in police stations like booking, calls to lawyers, preparation of approved instruments, washroom breaks, etc.: R. v. Price, 2010 ONSC 1898, [2010] O.J. No. 1587 (S.C.J.); R. v. Gill, [2016] O.J. No. 3829 (O.C.J.).

4.3: Analysis

[44] The time between the arrest of the Defendant at 9:40 p.m. and the last breath test at 11:11 p.m. is 91 minutes. The following table summarizes the times and activities in this time span:

Time	Activity
9:40 p.m.	Arrest
9:41 p.m.	Qualified breath technician notified
9:58 p.m.	Left scene
10:00 p.m.	Qualified breath technician at station and initiating preparation of approved instrument
10:12 p.m.	Arrive at station and booking commenced
10:16 p.m.	Approved instrument ready for use
10:21 p.m.	Booking complete and Defendant lodged in cells
10:25 p.m.	Qualified breath technician is ready to do breath tests
10:33 p.m.	Defendant declines Duty Counsel and is brought into breath room
10:35 p.m.	Defendant turned over to qualified breath technician
10:48 p.m.	First breath sample taken and analyzed
11:11 p.m.	Second breath sample taken and analyzed

[45] There was evidence that P.C. Ellwood prepared a Grounds Sheet to provide to the qualified breath technician so he could satisfy himself that he had reasons to conduct breath tests. Ellwood created the Sheet after arriving at the station. I conclude from the evidence that while the approved instrument was ready at 10:16 p.m. the qualified breath technician was not ready to do the tests until 10:25 p.m. because he was awaiting to receive grounds from the arresting officer.

[46] Furthermore, the period between arriving at the station and the first breath test was adequately explained by what appeared to be a routine process of booking the Defendant, preparing and discussing grounds with the qualified breath technician, ensuring that the Defendant has received a reasonable opportunity to instruct counsel, bringing him to the breath room, and time for the qualified breath technician to deal with the Defendant by both giving and receiving information before administering the breath tests.

[47] Upon reviewing the evidence as a whole the police took no more and no less time than was needed to take the tests without any unreasonable delay. The police did not dither nor did they ignore the Defendant or their duties towards him. They comported themselves with alacrity and due care and attention. The 91 minutes of police conduct after arrest in this case did not extend the detention of the Defendant beyond that which was minimally necessary in order to do what they were required to do.

[48] I conclude that the breath tests were taken as soon as practicable as required by law. The prosecution is therefore able to rely upon the Certificate of Qualified Technician in proving the blood alcohol concentration of the Defendant.

5.0: CONCLUSIONS

[49] For the reasons set out herein, I find that the Crown has proven beyond a reasonable doubt that the Defendant is guilty of the charge of driving with excess blood alcohol. A verdict of guilty will be noted on Count #1 on the Information and a conviction entered.

Richard H.K. Schwarzl, Justice of the Ontario Court of Justice

Footnote

[1] The presumption of identity presumes that the blood alcohol concentration at the time of testing is the same as the blood alcohol concentration at the time of driving. The physiology of the absorption and elimination of alcohol can create significant differences between actual and tested blood alcohol concentrations the longer the time between driving and testing.