Ontario Court of Justice
Date: 2018-05-28
Court File No.: Central East - Newmarket 4911-998-17-01950
Between:
Her Majesty the Queen
— AND —
Daniel Kiprotich Rutto
Before: Justice P.N. Bourque
Reasons for Judgment
Released on May 28, 2018
Counsel:
- R. DeChellis, for the Crown
- B. Starkman, for the defendant
BOURQUE J.:
Overview
[1] On February 22, 2017, two paramedics driving an ambulance on the Queen Elizabeth Way ("QEW") saw a transport trailer truck weaving. After observing the vehicle for some time and after it turned north on the 427 highway, they called 911. After a subsequent police investigation, the defendant is facing charges of driving with excess alcohol.
Evidence
Terence Eveleigh
[2] …is a paramedic and was travelling with his partner in an ambulance when he was woken up by his partner and saw a tractor trailer ahead which was swerving several times in his lane. They followed and after the vehicle turned from the Eastbound QEW to the north 427 they called 911. They continued to follow and saw the same swerving including vehicles being pushed onto the shoulder by the swerving truck. They followed to a truck park in Vaughan and they waited as the truck went in and then back up. The police arrived some 5 to 10 minutes later and they spoke to the officer and pointed out the defendant's truck before he went in. The witness stated that the vehicle kept its lights on. They followed the police vehicle into the area. They described the park as having many trucks but the defendant's truck was the only one moving. They parked near the truck and saw the defendant eventually being taken into custody.
Mathew Landry
[3] …is a York Regional Police officer who attended first and spoke to the driver of the ambulance.
[4] He had gotten a dispatch call at 22:44 to attend and look for an 18 wheeler north on New Huntington and it was "going all over the road". He then got a message that Peel Police had been advised and he waited. At 22:56, dispatch advised that the truck was now eastbound on Major McKenzie Drive and the officer attended there. At 22:59, he saw an ambulance by the side of the road and spoke to the driver. He was informed the truck had gone into the truck park across the road and he went up to the gate and it remotely opened for him. He went in and after driving for 20 or 30 seconds, saw a transport truck with its lights on and there was engine noise coming from the truck.
[5] The ambulance had followed him in and one of the paramedics pointed out the vehicle to him. The officer saw a man's head in the driver's position and motioned for him to come out of the vehicle. The officer spoke to the defendant who had come out of the vehicle, and told him there was a report of erratic driving. He asked the defendant if he had any alcohol to drink and the defendant said "no". He asked what would be the result of a breath test and the driver said "I am fine".
[6] The officer could smell alcohol from the defendant's breath and his eyes were bloodshot and glossy. After getting the defendant's documents, he went to his cruiser and got the approved screening device ("ASD"). He came back and at 23:04, he read the ASD demand. He tested the Draeger Alcotest 6810 and he was satisfied it was in good working order. The defendant provided a sample and it registered a fail.
[7] At 23:05, the officer placed the defendant under arrest for over 80 care and control. The defendant was searched, handcuffed and placed in the rear of the cruiser.
[8] The acting sergeant attended at the scene and the officer briefed him as was his usual practice when a senior officer comes to a scene.
[9] At 23:12, the defendant told the officer that he had started his personal car which was beside the truck. The officer asked another officer to turn off the truck and the car.
[10] At 23:13 the officer read the caution. At 23:14 he read the rights to counsel. The defendant wished to call his own lawyer. The officer then read the breath demand.
[11] The officer could tell from his computer map that there was a RIDE truck in the area and it was closer than 4 District by about five minutes. He may also have been directed to the RIDE truck by dispatch. The officer also indicated that he believed that there was only one breath tech on duty and he would have been at the RIDE truck.
[12] At 23:18 he left the scene with the defendant and at 23:27, he arrived at the RIDE truck.
[13] He went into the RIDE truck and after retrieving the defendant lawyer's phone number from his cell phone. He called the number but for some reason he did not connect. In any event, at 23:50, he was informed by the breath technician in the RIDE truck that the breath machine was not working. He left the RIDE truck at 23:52 and went to 4 District, arriving at 00:30 hours. The officer took him from his cruiser in the sally port and went to the booking area. He believes the booking could have taken 20 minutes but did not note it.
[14] He then called the lawyer again and received and recorded message and left a message. He went to the defendant and spoke to him about his call and informed him of duty counsel. The defendant then asked him to call duty counsel which he did.
[15] At 00:38, he took the defendant to the phone where he spoke to duty counsel. He took the defendant to the breath technician at 00:42 and gave the breath technician his grounds. The breath technician, Constable Lamb, then performed the breath tests. At 01:25, the officer was informed of the breath test results.
Eon Lamb
[16] …is a York Regional Police officer with some 14 years' experience and is a breath technician. His timelines are as follows:
| Time | Event |
|---|---|
| 23:51 | Dispatched to go to 4 district for a breath test. |
| 00:04 | Arrived at 4 District. |
| 00:10 | Performed diagnostic test of the Alcotest 8000C. |
| 00:14 | Conducted self-test and received a 0 reading. |
| 00:23 | Met with arresting officer and obtained grounds. |
| 00:42 | Brought defendant to breath room. |
| 00:43 | Requested breath demand based on grounds from arresting officer and a secondary caution. Gave the defendant a fresh mouthpiece and he blew into it to ensure no obstructions. Defendant provided a suitable sample directly into instrument. |
| 00:48 | Registered reading of 122 milligrams of alcohol. Waited 17 minutes for the second test. Performed another calibration. |
| 01:10 | Second test reading, 114 milligrams. |
[17] The officer served the certificate on the defendant, at which point he signed it. The officer testified that he believed that the instrument was in proper working order and all the tests were within tolerances.
[18] The officer identified things in Exhibit 1 which shows the interior of the RIDE truck.
[19] The defence called no evidence on any issues.
Legal Analysis
Has the Crown Proven That the Defendant Had Care and Control of a Motor Vehicle?
[20] The officer had been informed of the observations of the paramedics. He attended at the scene and was directed to the truck park. He located a truck that was lit and the engine was running. He was told by the paramedics that he had found the truck that they had followed for some 40 minutes. He saw a man who was in the position of a driver. As the vehicle was at a height, he was not able to see his body on the seat. He of course could not see the seat from that angle.
[21] The defendant argues that the above evidence is not enough to satisfy me that the defendant "occupied the seat or position ordinarily occupied by a person who operates a motor vehicle…" As I cannot be satisfied with that (so the argument goes) the presumption of care and control is rebutted. The Crown argues that the evidence is sufficient to raise the presumption and even if I am not satisfied that the presumption applies, I should be satisfied beyond a reasonable doubt from all of the evidence that the defendant was in care and control of the vehicle.
[22] I am satisfied from the evidence that the defendant was seen in a position (as viewed from the ground) that a driver would normally occupy. I believe that is sufficient evidence to trigger the presumption. In any event, the defendant was in the driver's cab of a tractor truck, with no one else present, either inside the vehicle or anywhere else nearby. The vehicle was the only vehicle running and it was late at night. I believe that there is plenty of evidence which satisfies me that the defendant was in care and control of the vehicle.
[23] In addition to his care and control of the tractor trailer, the defendant also indicated that he had started his personal vehicle which was nearby. He had the key in his pocket and asked the officers to turn it off. Circumstantially, in my opinion, that could have him in care and control of that motor vehicle as well. In light of my findings of care and control of the tractor trailer, it is not necessary to deal with this issue conclusively.
[24] The Crown has also asked me to make a finding of actual operation of the tractor trailer by the defendant.
[25] He points to the fact that the civilian witness followed the vehicle for some 40 minutes, and while he never got a good look at the driver, he did get a good look at the vehicle. He testified that they stopped at the truck park where the tractor trailer went into and waited for 5 minutes for the police. While there was some discrepancy between the civilian witness and the police as to whether the vehicle was always in sight in the truck park, the witness said that they followed the officer into the truck park and pointed it out to the officer. I am satisfied that they identified the vehicle that they had been following on the highway to the truck park. The issue is, can I also be satisfied beyond a reasonable doubt that the defendant was the same person who had been driving the tractor trailer. I note that in the 15 or so minutes they were at the vehicles, no one else attended. I believe that based upon all of this evidence, some of which is circumstantial, that I can be satisfied that the defendant was the operator of the vehicle that the civilians saw driving on the highway and into the truck park.
Were the Breath Tests Taken as Soon as Practicable?
[26] The defendant asserts that the breath tests were not taken as soon as practicable as set out in section 258 of the Criminal Code. He has brought a Charter application and says that a failure to take the tests "as soon as practicable" results in a breach of his section 8 and section 9 rights. There is some dispute as to whether the "as soon as practicable" be a statutory pre-condition or whether it is, strictly speaking, a Charter issue. In any event, I must first determine whether the test was taken as soon as practicable.
[27] The timeline is as follows:
| Time | Event |
|---|---|
| 22:59-23:01 | Last occupation of the motor vehicle by the defendant. |
| — | Investigation |
| 23:04 | ASD demand made. |
| 23:05 | Arrest for over 80 – searched and placed in cruiser. |
| 23:12 | Conversation with defendant about his personal car started beside his truck. |
| 23:13 | Caution read. |
| 23:14 | Rights to counsel. |
| 23:18 | Left for the RIDE truck. |
| 23:27 | Attended at RIDE truck. Discussions about the defendant's lawyer. Gets phone number and calls but no connection made. |
| 23:50 | Advised by breath technician Stewart that device not functioning and the need to attend 4 District. |
| 23:50 | Left for 4 District. |
| 23:51 | Breath technician summoned to attend 4 District. |
| 00:03 | Arrival at 4 District. Attend in booking room for approximately 20 minutes. Defendant's lawyer called. Message left, further discussion with defendant. Call to duty counsel placed. |
| 00:04 | Breath technician arrives at 4 District. |
| 00:10 | All tests and calibrations done on breath machine. |
| 00:23 | Officer meets with breath technician and advises grounds. |
| 00:38 | Defendant speaks with duty counsel. |
| 00:42 | Call complete and defendant taken to breath technician. |
| 00:42 | Breath technician receives the defendant. |
| 00:43 | Breath technician reads the demand. |
| 00:48 | First reading, 122 milligrams. |
| 01:10 | Second reading, 114 milligrams. |
[28] The total time from care and control to first breath test is 1 hour and 48 minutes. That is almost at the 2 hour limit. The defence points firstly to the time which was lost at the RIDE truck.
[29] The officer said that he could have arrived at 4 District some 5 minutes later than he could have arrived at the RIDE truck. Therefore, the maximum time lost by going to the RIDE truck was (39 minutes minus 5 minutes) 34 minutes. The defendant says that this is unacceptably long, and should have required the breath technician at the RIDE truck to give evidence as to what the problem was with the Intoxilyzer and when he was aware of it.
[30] While that would have given a more complete picture, on the facts of this case, I do not think it was necessary. The arresting officer indicated that he saw the breath technician working on the device while he was waiting with the defendant. The officer also took some of the time to attempt to call the defendant's lawyer. He was unsuccessful. I do not fault him for that, even if he made some error. He was seriously attempting to comply with the defendant's wish for counsel of choice.
[31] The defence wants me to go further and not only fault the officer for being at the RIDE truck in the first place, but also that he failed to successfully contact the defendant's lawyer, and that in and of itself led to more delay at 4 District, when he had to undertake this task. Again, just because something could have been done better or with more efficiency is not the test.
[32] In total, with regard to the delay at the RIDE truck, I find no fault with the officer's actions. He went where he was instructed. He saw the breath technician working on the breath machine and eventually he was told the test could not be done. I find this is unfortunate but it is an explained delay.
[33] With regard to the time at the station, the defendant takes issue with the fact that for the time from the attendance at 4 District (00:03) to the time he called duty counsel (00:37 or 00:38) he does not have any other times of activities in his notes. That is true, however, he did describe what he was doing during that time. He was parading the defendant before the duty sergeant, he was searching and lodging the defendant in the cells, he was calling the defendant's counsel (he got through to an answering machine) and then taking instructions from the defendant to call duty counsel.
[34] I do not find these tasks to be ones that could have been finished much quicker.
[35] As stated in many cases starting with R. v. Vanderbruggen, the requirement that the breath tests be taken as soon as practicable is not to be interpreted as being a requirement that they be taken as soon as possible. It is also the law that the Crown need not account for every minute of time which passes with the defendant in police custody. The trial judge should look at the whole chain of events and the "as soon as practicable" requirement must be applied with reason.[1]
[36] With regard to the delay as a result of the non-functioning intoxilyzer at the RIDE van, that delay was fully explained. I also find that the officer saw the breath technician working on the machine and it was only later he was informed by the technician that it could not function. I do not find that an unreasonable delay.
[37] With regard to the period of time at 4 District from attendance to the going into the breath room, I also find that the total time period is explained. I do not think that the officer has to make a note of the time of each and every step. In total, his description of the tasks that were undertaken by himself, the duty sergeant and the breath technician adequately explain the activities in this period of time. I do not find that the call to counsel at the RIDE truck (unsuccessful), definitely added to the total time. It could have. But it may have made no difference if, as he eventually discovered, the counsel was not present to take the call.
[38] I find that the tests were taken "as soon as practicable". Having found that, I need not decide whether a breach becomes a statutory requirement or a Charter challenge. If it were a matter of a Charter challenge, I would have to say that taking account the three part test in R. v. Grant and considering the seriousness of the breach and the impact upon the Charter-protected interests of the defendant, I would have to say they are minimal, especially considering the recent decision in R. v. Jennings ONCA. Breath tests being reliable and the wish to have matters decided on the merits, would favour inclusion of the evidence. I would not have excluded it.
Proof of the Breath Readings
[39] The defendant asserts that the officer made two mistakes in his viva voce evidence and these mistakes, individually or together, would lead me to reject his evidence of the blood-alcohol readings (122 and 114 milligrams of alcohol in 100 millilitres of blood).
[40] The first error is the fact that the officer, in giving his evidence about the setting up of the breath machine, called it an "Alcotest 8000C", and not the Intoxilyzer 800C. I note that further on in his evidence, he did in fact refer to the device as the "Intoxilyzer 8000C". The issue being, does this change in the evidence leave me with a reasonable doubt that the breath machine being used to produce these readings was not an approved device, which is an essential requirement of proof. I am not in any doubt from the totality of the evidence that this was an "Intoxilyzer 8000C" which was being operated by the breath technician that morning.
[41] The defendant pointed to a second error, which was that when the officer was pronouncing his readings, he made a mistake when talking about the first reading. He said that it was 122 milligrams of alcohol in 100 millilitres of "Breath". That is obviously incorrect. I note that when he spoke of the second breath reading, he gave it as 114 milligrams of alcohol in 100 millilitres of "blood", and this is the correct expression.
[42] I reject this argument. Like the misstatement of the breath device, this was clearly an error and slip of the tongue. I am not left in any doubt that what the officer was referring to was the alcohol in the defendant's blood, not the alcohol in his breath.
[43] Even if I am not correct about the viva voce evidence of the results of the breath tests, the Crown seeks to prove them through the Certificate of the Qualified Technician.
[44] The defendant objects to the admissibility of the certificate on the basis that there is not sufficient proof of service as per section 258 (7) of the Code. The evidence of the officer was that he served the certificate on the defendant. There is also the signed notice and "acknowledgement of service of a "true copy" of the Certificate, which according to the officer's testimony, was signed by the defendant. There is no evidence to contradict any of this. I believe that this constitutes evidence that on a balance of probabilities I can be satisfied that the requirements of Section 258(7) have been met.
Conclusion
[45] Having made the several findings and conclusions above on the various issues of law and fact that I was asked to consider in this matter, I find the defendant guilty of the offence of being in care and control of a motor vehicle while his blood alcohol level exceeded 80 milligrams of alcohol in 100 millilitres of blood.
Released: May 28, 2018
Signed: "Justice P.N. Bourque"