Court File and Parties

Ontario Court of Justice

Date: 2018-05-30

Court File No.: Bradford 17-4620

Between:

Her Majesty the Queen

— and —

Marco Martins

Before: Justice Angela L. McLeod

Heard: May 29, 2018

Reasons for Judgment Released: May 30, 2018

Counsel:

• Mr. Kandola, counsel for the Crown
• Mr. Ebherdt, counsel for the accused Marco Martins

Judgment

McLeod J.:

Overview

[1] Marco Martins was tried before me on a two count information, alleging that on April 20, 2017, he drove his vehicle while his ability to do so was impaired by alcohol and that his blood alcohol concentration exceeded 80 milligrams of alcohol per 100 millilitres of blood.

[2] The trial was short and focussed. The Crown called two witnesses; Mr. Emsley who was a concerned citizen who called 911 to report a suspected impaired driver, and the arresting officer who also served as the breath technician.

The Evidence of Mr. Emsley

[3] Mr. Emsley is a retired gentleman who resides in the local area. On the date in question he was driving home from the city of Barrie, travelling southbound on highway 11. He described the road as bare and the weather as fine.

[4] Mr. Emsley followed behind a white Honda (conceded to be the vehicle driven by Mr. Martins) for about 10 miles over the course of about 15 minutes. He observed the vehicle to weave across the lane (at least 20 times), go off the shoulder of the road, almost collide with a teenager riding his bicycle on the sidewalk, randomly decrease and increase his speed including almost coming to a dead stop in the middle of road.

[5] Some other drivers, travelling in the opposite direction, had to move over, but no one had to swerve to miss Mr. Martins. Mr. Emsley testified that when the vehicle almost collided with the cyclist, the cyclist had to jump off his bike out of fear that he was going to be hit. At this point, out of concern, Mr. Emsley called 911 to report a possible impaired driver. In cross examination, Mr. Emsley agreed that he did not include the detail about the cyclist having to jump off his bike when he called 911 or when he gave a written statement to the police.

[6] I found Mr. Emsley to be a quiet, contemplative and reserved witness. He was not shaken in cross examination, and I give little weight to the fact that he neglected to include in his reporting that the cyclist had to jump off his bike. What was consistent in all recounting of the events was that a cyclist had almost been struck by the vehicle being driven by Mr. Martins. It was conceded by the defence that Mr. Emsley's evidence of bad driving by Mr. Martins could not be countered. Ultimately, I found Mr. Emsley to be credible and his evidence to be reliable.

The Evidence of Officer Kostiuk

[7] Officer Kostiuk has been an officer since December 2007. She is a qualified breath technician and is mainly assigned to general patrol with the South Simcoe Police Service.

[8] On the date in question, she was on general patrol when she overheard dispatch release a call regarding a possible impaired driver. A description of the vehicle in question was provided as well as the license plate and the registered owner's home address. She overheard the call at approximately 6:03pm.

[9] At 6:17pm, the officer observed a vehicle matching the provided description, on the registered owner's street, in fact pulling into the driveway of the specific residence. Officer Kostiuk did not observe anything unusual about the manner in which the vehicle was being driven. She approached the now parked vehicle and observed a lone male sitting in the driver's seat. The driver, later identified as the accused before the court, was advised why he was being investigated. Officer Kostiuk observed Mr. Martins to have slow moving eyes, detected a strong odour of alcohol on his breath and watched as he fumbled with his wallet in an effort to retrieve his requested driver's license. Mr. Martins spoke with a slight slur in his speech and denied consuming any alcohol.

[10] An approved screening device demand was made, and after four attempts, Mr. Martins registered a fail. At 6:24pm he was arrested for the officer of 'over 80', handcuffed to the rear and escorted to the police cruiser. Officer Kostiuk noted the continued strong odour of alcohol and that Mr. Martins walked with a slight sway. Rights to counsel were given and declined. A breath demand was made and the cruiser departed for the station at 6:33pm; arrival was at 6:42pm.

[11] Mr. Martins was paraded before PC Harbottle (who did not testify at the trial). In cross examination, Officer Kostiuk testified that the booking room video (marked as exhibit 3) did not capture the entirety of the process. No explanation was proffered. What was clearly depicted was Mr. Martins again indicating that he had no desire to speak with counsel and instead asked if he could take a second breath test. Officer Harbottle can be heard telling Mr. Martins that the best they could do would be to put him in touch with duty counsel. A third officer, PC McClellan, stood in the booking room area watching.

[12] Despite Mr. Martins declination of the offer to speak with counsel, Officer Kostiuk placed a call to the duty counsel at 6:54pm. At 7:02pm the duty counsel called back and Mr. Martins was taken from his cell to the telephone area. He was returned to his cell at 7:07pm. As noted above, Officer Kostiuk was also acting as the qualified breath technician. She initiated those duties at 6:57pm, when she first entered the breath room and initiated the three self-checks on the machine. In cross examination, Officer Kostiuk agreed that the dual roles were slowing down the progress and testified that, "yes, it is taking my time away from the intoxilyzer, I believe it is important for the party to speak with duty counsel". The officer did not have any notation or independent recollection of Mr. Martins ever asking to speak with a duty counsel, but testified in re-examination that she would not call a duty counsel if the subject didn't ask to speak with a duty counsel.

[13] In summary, the timeline is as follows:

• (1) 6:03pm dispatch call re possible impaired driver
• (2) 6:17pm Kostiuk observes the white Honda pull into the driveway
• (3) 6:24pm Mr. Martins is arrested for 'over 80'
• (4) 6:31pm breath demand is made; right to counsel declined
• (5) 6:33pm depart for the station
• (6) 6:42pm arrive at the station
• (7) 6:42pm parade of Mr. Martins
• (8) 6:54pm call to duty counsel
• (9) 6:57pm Kostiuk enters the breath room for the first time
• (10) 7:02pm duty counsel calls back
• (11) 7:07pm Mr. Martins completes his discussion with duty counsel
• (12) 7:13pm Mr. Martins is taken from his cell to the breath room
• (13) 7:22pm the first breath sample is taken and registers 170/100

[14] In total, from arrest to first breath sample, the process takes 58 minutes.

Position of the Parties – As Soon As Practicable Issue

[15] The Crown submits that Officer Kostiuk acted diligently and promptly. The time from arrest to the first sample took less than one hour in total. The Crown urges this court to accept that the officer would not have called the duty counsel unless the accused had made the request to implement his rights to counsel and that this delay is attributable to the accused. The Crown submits that the first sample was in fact taken as soon as practicable.

[16] The defence submits that the court should find that Mr. Martins declined to implement his right to counsel, on two occasions; first upon arrest, and then again in the booking room. Officer Kostiuk did not make any note, nor did she have any independent recollection of Mr. Martins making a request to speak with duty counsel. The defence submits that the first sample was not taken as soon as practicable, and that this is fatal to the Crown's case regarding the offence of 'over 80'.

Findings of Fact With Respect to the 'Over 80' Allegation

[17] Based on the testimony of Officer Kostiuk, the booking room video and the certificate of a qualified breath technician, I make the following findings of fact:

• (1) There were 3 officers at the station involved in Mr. Martins matter;
• (2) Mr. Martins declined to speak with duty counsel, not once, but twice;
• (3) There was no reason to contact duty counsel, except that Officer Kostiuk believed that an arrestee should speak with duty counsel;
• (4) There is no explanation for why only Officer Kostiuk could contact duty counsel and facilitate the implementation of the rights to counsel;
• (5) 15 minutes of time, between 6:42pm and 6:57pm, is attributable to Officer Kostiuk standing by in the booking room. Officer Harbottle was clearly responsible for the parading of Mr. Martins. This delay kept Officer Kostiuk from initiating her duties as the qualified breath technician. This time could, and should, have been utilized to complete the requisite self-checks on the intoxilyzer. The taking of the first sample was thus delayed;
• (6) The requisite self-checks would only take a few minutes to complete;
• (7) 9 minutes of time, between 7:02pm and 7:13pm, is attributable to Mr. Martins having been forced to speak with duty counsel. The taking of the first sample was thus delayed.
• (8) In total, the taking of the first sample was delayed by 24 minutes. Given that the entire process was 58 minutes, the delay represents 41% of the time that Mr. Martins was detained between arrest and the taking of the first sample.

The Law Regarding the As Soon As Practicable Issue

[18] In R. v. Danton, 2017 ONSC 3013, Justice Gauthier was sitting as an appeal court. Mr. Danton had been acquitted in the Ontario Court of Justice after a trial on the charges of impaired driving and 'over 80'. The ground of appeal was that the trial judge had erroneously held that the breath samples were not taken as soon as practicable. Within that argument was the issue of the waiver of rights to counsel.

[19] The trial judge had held that although the arresting officer's motives were 'benevolent', "those efforts were not, in law, required". Further, "in the context of an over 80 investigation where statutory time limits are important, once an accused has expressly waived his right to counsel, there is no need for the police to take any further steps in order to encourage the accused to exercise his right to counsel". The trial judge found that there was 37 minutes of unreasonable or unaccounted delay. The trial judge had relied upon R. v. MacCoubrey, 2015 ONSC 3339, and R. v. Vanderbruggen, a case referred to this court by the Crown.

[20] Justice Gauthier succinctly summarized the applicable case law in paragraphs 46-50. He wrote:

46 Section 258(1)(c) of the Criminal Code provides that the results of an approved instrument analysis are conclusive proof that the concentration of alcohol in an accused's blood at the time of the analyses and at the time of the driving are the same.

47 In order for the Crown to rely, at trial, on the presumption of identity afforded by s. 258(1)(c), the Crown must prove beyond a reasonable doubt that the breath samples that an accused is compelled to provide were obtained "as soon as practicable" after the alleged offence.

48 The Ontario Court of Appeal decision in Vanderbruggen provided some guiding principles regarding the phrase "as soon as practicable", which were succinctly summarized by the Summary Conviction Appeal Judge in McDonald, at para. 4:

(a) That there was no requirement that the testing be taken as soon as possible.

(b) The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably.

(c) 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. In particular, while the Crown is obligated to demonstrate that in all the circumstances the tests were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused was in custody.

(d) The question of whether a breath test was taken as soon as practicable is an issue of fact for the trial judge.

(e) There must be sufficient evidence upon which the trial judge could conclude that the samples were taken as soon as practicable.

(f) The provisions should not be interpreted so as to require an exact accounting and every moment chronology.

49 In its recent decision in Singh, the Court of Appeal repeated the words of Rosenberg J.A., upholding the principle that the Crown is not required to provide a detailed explanation of what occurred "during every minute that the accused is in custody": para. 13.

50 The Court of Appeal went on to say the following, at para. 15: It is worth repeating that the Crown is not required to call evidence to provide a detailed explanation of what occurred during every minute that the accused is in custody. These provisions of the Criminal Code were enacted to expedite the trial process by facilitating the introduction of reliable evidence to prove an accused's blood-alcohol level. Interpreting these provisions to require an exact accounting of every moment in the chronology from the time of the offence to the second test runs counter to their purpose. As Rosenberg J.A. said in Vanderbruggen, at para. 12, 'The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably.'

[21] At paragraph 71, Justice Gauthier noted that the trial judge "relied upon the MacCoubrey decision in support of the conclusion that once an accused had waived their right to counsel it constitutes unreasonable delay to take further steps to encourage or implement this right."

[22] Ultimately, Justice Gauthier overruled the trial judge's assessment of the quantum of time and found that the lesser amount was not unreasonable.

[23] In this case, defence counsel made reference to the case of R. v. Davidson, 2005 ONSC 3474. Therein the issue was the waiver of rights to counsel and the arresting police officer taking it upon himself to request the assistance of duty counsel.

[24] Ultimately, Justice Dawson overruled the trial judge's assessment of the reasonableness of the 35 minute delay occasioned by the police contacting duty counsel. He held that "thirty five minutes of unexplained and therefore unjustifiable delay, is substantial in the context of the two-hour limit on the taking of the first breath sample", paragraph 28.

Conclusion Re the Over 80 Offence

[25] The taking of the first sample was delayed by 24 minutes. This delay is solely attributable to the officer's belief that accused persons should speak with duty counsel, regardless of their expressed declination.

[26] I find this time to be unreasonable. The first sample was not taken as soon as was practicable. The Crown cannot rely upon the statutory presumption. The over 80 charge is dismissed.

Evidence Regarding the Impaired Operation Allegation

[27] As noted above, Mr. Emsley noted significant bad driving, including a near collision with a teenage cyclist riding on a sidewalk. It was conceded that Mr. Martins was the driver. Officer Kostiuk made a number of observations when dealing with Mr. Martins. To recap; she noted that he had a slight slur in his speech, a slight sway in his walk, a strong odour of alcohol on his breath, fumbling with his wallet and driver's license and had slow moving eyes. Mr. Martins was observed to be driving his vehicle by the officer. Officer Kostiuk testified that she did not believe that she had reasonable and probable grounds to arrest for the offence of impaired operation of a motor vehicle.

Position of the Parties

[28] The Crown submits that the fact that the officer testified that she did not believe that she had reasonable and probable grounds to arrest for the offence of impaired operation of a motor vehicle is not dispositive. This would usurp the role of the trier of fact. I agree. In all the circumstances, the Crown submits that the offence of impaired operation has been made out beyond a reasonable doubt.

[29] The defence submits that the bad driving observed by Mr. Emsley is equally attributable to using a cell phone while driving, and further, that bad driving is not proof beyond a reasonable doubt of impaired driving. I agree with the latter. The defence suggests that because Mr. Emsley did not report to the police that the teenager had to jump off his bike to avoid being hit, this court should question the reliability of his evidence. The defence submits that the offence of impaired operation has not been made out beyond a reasonable doubt.

The Law Regarding Impaired Operation

[30] The test with respect to impairment has long been established by our appeal court in R. v. Stellato, affirmed, per Labrosse J.A. at para. 100, as follows:

In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.

Conclusion Regarding the Impaired Operation

[31] Having considered the constellation of factors and observations by both Mr. Emsley and Officer Kostiuk, I am satisfied beyond a reasonable doubt that Mr. Martins' ability to operate a motor vehicle was impaired by alcohol. A conviction will register.

Released: May 30, 2018

Signed: Justice Angela L. McLeod