Court Information

Ontario Court of Justice

Date: 2018-05-08

Court File No.: Central East - Newmarket - 16-08433-00

Parties

Between:

Her Majesty the Queen

— And —

Dale Patterson

Before

Justice John McInnes

Heard on: December 4 & 5, 2017, January 30 and March 20, 2018

Reasons for Judgment: Released orally on May 2, 2018 and in writing May 8, 2018

Counsel

C. Valente — counsel for the Crown

S. Biss — counsel for the defendant Dale Patterson

Judgment

McINNES J.:

I. Introduction

[1] Dale Patterson is charged with operating a motor vehicle while impaired and "over 80". Police officers came upon his car sitting motionless on the exit ramp from the 404 at Highway 7 close to three in the morning. Mr. Patterson was sitting in the driver's seat of the extensively-damaged car with the motor running, alcohol on his breath and smashed windshield glass covering his lap. He had obviously been in an accident but no second vehicle, damaged sign post or anything else at the scene indicated what he had collided with. Mr. Patterson was arrested for impaired driving; breath readings at the station measured his blood/alcohol at 150 mg/100 ml and 140 mg/100 ml.

[2] The defendant argues the Crown failed to prove the breath samples were taken as soon as practicable and that the first sample was taken within two hours of the alleged offence. Consequently, he argues, the Crown cannot rely on the s.258(1)(c) presumption that the readings conclusively prove his blood/alcohol concentration at the time of the alleged offence. Mr. Biss raises a collection of further issues that in his submission prevent the Crown from proving the "over 80" charge through the toxicologist's evidence and/or another statutory presumption. Finally, he submits the evidence of impairment was insufficient to prove impaired operation beyond a reasonable doubt.

II. Analysis

Issue 1: Do the Breath Results Conclusively Prove the "Over 80" Charge?

(a) Introduction

[3] Section 258(1)(c) deems breath results to be "conclusive proof" of the blood alcohol concentration at the time of driving provided the Crown has proven, inter alia, that "each sample was taken as soon as practicable after 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…" [ss. 258(1)(c)(iii)]. Each temporal precondition must be proven beyond a reasonable doubt: R v Egger, [1993] 2 SCR 451, para.32; R v Zeman, [2013] OJ 6196 (CJ), para. 24.

[4] Mr. Biss argues the tests were not completed as soon as practicable because the police failed to implement Mr. Patterson's asserted right to consult with counsel promptly; the arresting officer should have arranged for a call to duty counsel at the scene and should not have been dilatory making the call back at the station. The Crown did not prove the first sample was taken within two hours of the time of the alleged offence because although the recorded times at which the officers came upon the defendant and the samples were taken (2:49 and 4:45 a.m.) are within two hours of each other, there was no evidence those times were ascertained with reference to synchronized timepieces.

[5] The Crown argues the tests were administered reasonably promptly which is all the law requires and that I can infer a degree of synchronicity across timepieces sufficient to establish the samples were taken within two hours of the alleged offence.

(b) The First Sample Was Taken Within Two Hours

[6] PC Korte and Sgt. Armstrong were in separate police vehicles travelling westbound along Highway 7 when they noticed the defendant's car at the stoplight where the exit ramp from the 404 meets Highway 7.

[7] PC Korte testified in chief he made the observation at 2:48 or 2:49. In cross-examination he clarified that the time he put in his notes was 2:49 based on the time he made the radio call within a minute of first seeing the defendant's vehicle. Later in his evidence he seemed less certain about how much or how little time had elapsed between the observation and the radio call.

[8] Sgt. Armstrong's evidence was much clearer on this point, however. He testified that he and PC Korte had been just been together dealing with another call in the area; while leaving they both did a u-turn in the intersection where the 404 exit ramp meets Highway 7 and both independently noticed the defendant's vehicle as they did so. Sgt. Armstrong testified that he recorded the observation time as 2:49 in his notes based on the time he aired it on the radio which he did within seconds, and at most a minute, after seeing the defendant's vehicle.

[9] It seemed implicit in PC Korte's evidence that the radio call was made before he exited his vehicle to investigate but a degree of ambiguity in his testimony on this point was left unresolved. However, Sgt. Armstrong cleared this up by clarifying during cross-examination that the purpose of the radio call was to notify dispatch that the two officers were embarking on an investigation of a suspicious vehicle and that the call was made before either officer began interacting with Mr. Patterson.

[10] Two points in time are pertinent in assessing compliance with the "two hour rule" in s.258(1)(c)(ii). The first is the "time when the offence was alleged to have been committed". The second is the time at which the first "[the first] sample was taken".

[11] The alleged offence is operating a motor vehicle while "over 80". Being in care or control of a stationary vehicle while "over 80" is an included offence. It follows that "the time when the offence was alleged to have been committed" ended at the point the defendant relinquished care or control by complying with PC Korte's direction to exit the vehicle. That event took place sometime between 2:49 when the radio call was made and 2:55 when PC Korte's in-car camera video activated, by which point Mr. Patterson had been arrested and was about to be lodged in the back of the police cruiser. It seems likely the defendant relinquished care or control towards the beginning of that time period, probably at 1:50 or 1:51.

[12] The first sample was taken at 4:45 a.m. according to the time stamp on the station video. Mr. Biss argues that the Crown has failed to establish that the timepiece used to record the time of the radio call and the recorded times on the in-car camera video and station video were synchronized. I disagree. The in-car camera ends when the vehicle arrives at 5 District. There is a specific point in time, when PC Korte first exits the vehicle recorded on both the in-car camera video and the sallyport view of the station video. The respective time-stamps are within one second of each other.

[13] This leaves the time recorded for the radio call. For the defendant's argument to succeed I would have to have a reasonable doubt that the radio time was about 5 minutes out of sync with the other two time recording systems.

[14] That proposition defies common sense and any doubt based upon it would be speculative and hence unreasonable. There is no evidence the time recording system for the radio and for the in-car camera are, in fact, separate. But even if they are, both are computerized systems used in a context where accurate and reliable timekeeping is essential. The purpose of the radio call, for example, was to communicate to other officers the status of these officers. Concluding that the two systems are synchronized – again, assuming there even are two separate systems – or at least within a few seconds of each other – is not speculation whereas any supposition the clocks were out of step to the tune of five minutes, or even one minute, would be.

[15] I appreciate the Crown has the evidentiary burden and did not positively establish the timepieces were aligned. But the burden and standard of proof in a criminal case, as onerous as it is, does not require the Crown to "negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused": R v Bagshaw, [1972] SCR 2, at p. 8.

[16] It follows the first sample was taken within two hours of the alleged offence.

(c) The Breath Samples were Taken "As Soon as is Practicable"

[17] Mr. Biss focuses on PC Korte's failure to arrange for Mr. Patterson to consult with duty counsel on his cellphone while they were still at the scene and/or to alert duty counsel that Mr. Patterson would require a consultation upon arrival at the station. He also points to the few-minutes delay at the station before PC Korte called to duty counsel.

[18] Subsection 258(1)(c)(ii) requires the breath tests be conducted "as soon as is practicable". This phrase means "nothing more than that the tests were taken within a reasonably prompt time under the circumstances" and does not mean "as soon as possible". The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably: R v Vanderbruggen, [2006] OJ 1138, 206 CCC (3d) 489 (CA) at para.12.

[19] During argument Ms Valente provided a timeline of the relevant events. Mr. Biss was not prepared to concede its accuracy because of the timepiece synchronization issue, but I am satisfied that it accurately reflects the evidence and that the times are sufficiently exact for the purpose of determining whether the police obtained the breath samples with reasonable promptitude:

Time	Event
2:48 to 2:49	PC Korte and Sgt. Armstrong in separate police vehicles first notice Mr. Patterson's stationary vehicle.
2:54	PC Korte arrests Mr. Patterson for impaired driving.
3:00	Right to counsel and caution completed.
3:07	PC Korte leaves scene for 5 District station.
3:08	PC Korte reads the s.254(3) breath demand to Mr. Patterson as he drives to 5 District.
3:17	PC Korte and Mr. Patterson arrive at 5 District.
3:20→3:22	Mr. Patterson uses the washroom.
3:22→3:36	Mr Patterson is booked in to 5 District.
3:40	Mr. Patterson is lodged in a cell.
3:43	PC Korte calls duty counsel.
4:09	Duty counsel calls back.
4:12 →4:26	Mr. Patterson speaks to duty counsel.
4:29	Mr. Patterson is turned over to the Qualified Breath Technician, PC Percy.
4:45	Mr. Patterson provides the first sample.
5:08	Mr. Patterson provides the second sample.

[20] In my view, the officers "acted reasonably" throughout and the breath tests were taken "within a reasonably prompt time under the circumstances". I accept PC Korte's explanation it would have been impracticable for him to implement the right to counsel at the roadside and that the better course of action was to bring Mr. Patterson expeditiously to the station where he could privately consult with counsel in a room designed for that purpose.

[21] No doubt sometimes, facilitating contact with counsel at the roadside is the best option; sometimes arresting officers cannot leave the scene for one reason or another and it may make sense to make use of the time. Here, however, the only thing delaying departure was that Mr. Patterson interacted so volubly with PC Korte as the officer attempted to complete reading rights, cautions and demands. The 5 District station was close by and the officer acted reasonably in going there after completing the cautions and answering the defendant's many procedural questions.

[22] I also agree with PC Korte it would have been impracticable to contact duty counsel from the scene. At that point in time PC Korte would not have been able to accurately predict when Mr. Patterson would be available to speak to counsel. Duty counsel have other detainees to speak to. Facilitating the right to counsel is important, but neither the right to counsel itself nor the duty to obtain samples "as soon as practicable" require police to treat a detainee's invocation of the right to counsel as an emergency.

[23] Upon arrival at 5 District Mr. Patterson was booked in and otherwise processed with ordinary and reasonable efficiency. Neither PC Korte nor PC Percy gave unreasonable priority to any other task. PC Korte could have contacted duty counsel a few minutes sooner, but an isolated delay of such magnitude does not amount to non-compliance with the "as soon as is practicable" requirement. PC Korte's conduct throughout his dealings with the defendant not only evinced his patience and professionalism it demonstrated he was alive to his duty to ensure the testing was conducted reasonably promptly. Compliance with the "as soon as is practicable" requirement is not measured by a stopwatch nor does it oblige police officers to proceed with robotic efficiency.

(d) There was No Section 10(b) Breach

[24] Mr. Biss argued the same failure to facilitate contact with counsel at the roadside and delay in contacting duty counsel at the station abridged Mr. Patterson's right to retain and instruct counsel without delay. The defendant's right to consult with counsel "without delay" was in tension with the right to consult in private and various other practical considerations. For much the same reason I found PC Korte's decisions and conduct in relation to this issue reasonable above, I find that the brief delay in implementing the right to counsel did not result in a breach of s.10(b).

(e) Conclusion

[25] The Crown has established beyond a reasonable doubt that the defendant's breath samples were obtained as soon as practicable and that the first sample was obtained within two hours of the time of the alleged offence. It follows the Crown may rely on the s.258(1)(c) presumption of identity and accuracy.

[26] Mr. Biss raised an issue about documentation of the alcohol standard solution and other related concerns pertaining to the reliability of the Intoxilyzer 8000C. These arguments were largely directed to his assertion that if the Crown could not rely on the s.258(1)(c) presumption it could not otherwise prove the "over 80" count with the toxicological evidence and the s.258(1)(g) presumption. I need not consider that issue further as I have concluded the Crown can rely on the s.258(1)(c) presumption.

[27] However, while acknowledging he had an uphill battle, Mr. Biss argued that even were I to find that the temporal preconditions set out in s.258(1)(c)(ii) were proven, the concerns he raised cast doubt on the reliability of the machine sufficient to raise a reasonable doubt.

[28] I agree with Crown counsel there is no evidence of improper maintenance or operation of the instrument that casts doubt on the reliability of the result. The evidence (and Mr. Biss' arguments) went no further than establishing a "mere possibility that the instrument had malfunctioned" and as such did not amount to "evidence to the contrary that could cast doubt on the reliability of the results": R v St Onge, 2012 SCC 57.

2. Proof of Impairment

[29] Mr. Biss argues the evidence of impairment is insufficient establish impaired operation beyond a reasonable doubt. Police found Mr. Patterson stopped at a green light in a vehicle that had clearly been involved in an accident that was completely unexplained. There was an odour of alcohol on his breath. When he got out of his car it rolled back as he had evidently not put it in park. The officers made no note of many other standard indicia of impairment, but Mr. Patterson struck me as evidently intoxicated when I watched the in-car camera video. He slurred his speech at many points and while he was articulate and well-mannered his manner otherwise struck me as indicative of inebriation albeit not to an extreme extent.

[30] Measured against the totality of these indicia of impairment, the proposition that Mr. Patterson's ability to operate a motor vehicle was not to any degree impaired by alcohol is simply far-fetched. It is trite law that the Crown need not establish a marked degree of impairment.

[31] Any doubt I might have had that the above evidence proves impaired operation beyond a reasonable doubt evaporates in the face of Dr. Langille's expert opinion evidence that, given the breath readings and projected range of blood alcohol at the time of driving Mr. Patterson's ability to operate a motor vehicle would have been impaired by alcohol. I note this aspect of his evidence went unchallenged.

[32] I find the defendant guilty of operating while impaired and while "over 80".

Signed: Justice John McInnes

Released orally on May 2, 2018, written reasons released to counsel May 8, 2018