Court Information

Ontario Court of Justice

Date: 2018-06-18

Court File No.: Central East Region: Oshawa Courthouse 17-00193-00

Parties

Between:

Her Majesty the Queen

— And —

Kathy Clennon

Judicial Officer and Counsel

Before: Justice Peter C. West

Evidence Heard on: June 18, 2018

Reasons Released on: June 18, 2018

Counsel:

• Mr. I Skelton — counsel for the Crown
• Mr. K. Byers — counsel for the defendant

Judgment

WEST J.:

Facts

[1] Kathy Clennon was charged on January 14, 2017, with operating a motor vehicle with more than 80 mg of alcohol in 100 ml of blood. She pleaded not guilty and a trial was commenced on June 18, 2018.

[2] The defence brought a Charter application respecting breaches of ss. 8, 9, 10(a) and 10(b). It was agreed by counsel the trial would proceed by way of a blended hearing. The Crown called P.C. Turkington, the investigating OPP officer and Sgt. Everson, the booking Sergeant at 17 Division DRPS Oshawa.

[3] P.C. Turkington received a dispatch concerning a possible impaired driver on the 401 Highway with license number BZZZ547. The vehicle was described as weaving within its lane and almost striking another car as well as the centre median. P.C. Turkington set up at the Coffee Time Donut shop on Bloor Street East in Oshawa, across from the Ritson Road off-ramp from the E/B lanes of the 401. At 11:07 p.m., he observed the car with license BZZZ547 exiting this ramp and turn left onto Bloor Street East. He moved behind this vehicle, which then turned left onto Ritson Road north. The vehicle was weaving within its lane and turned right onto Olive Street East. The officer followed and effected a traffic stop at 11:10.

[4] He approached the driver's door and observed a sole occupant in the driver's seat. He requested driver's license, ownership and insurance, which were provided. The driver was Kathy Clennon. He told her about the call by a citizen concerning Ms. Clennon's driving and the suspicion that she was impaired. He asked how much she had to drink that evening and she responded one beer earlier in the day. The officer detected an odour of alcohol on her breath. He requested Ms. Clennon step out of her vehicle to provide a sample of her breath into an ASD.

[5] P.C. Turkington explained and demonstrated how to provide a sample of breath into the Alcotest 6810 ASD he had. At 11:17 Ms. Clennon provided a suitable sample of her breath, which resulted in a fail. The officer advised her she was under arrest for Over 80 and she asked him questions about this. He explained the reason for the arrest and contacted his dispatch to order a tow truck to take responsibility for impounding Ms. Clennon's vehicle.

[6] At 11:27 pm he removed the card from his notebook and read the formal arrest and right to counsel. He also handcuffed Ms. Clennon.

[7] At 11:29 p.m. he read Ms. Clennon the breath demand from the same card. At 11:30 p.m. he read the caution from the same card to her. The defence took no issue with the wording of any of the rights, demand or caution. At 11:31 p.m. the tow truck arrived and P.C. Turkington left with Ms. Clennon for 17 Division DRPS, which is where he was directed by his dispatch to attend for the breath samples. He arrived in the sally port at 11:45 p.m. He was advised he had to wait. He indicated he paraded Ms. Clennon before the booking Sergeant at 12:08 a.m.

[8] At 12:09 a.m., he placed a call to duty counsel. He agreed Ms. Clennon must have requested duty counsel before they arrived at the police station or he would not have known to make the call. P.C. Turkington agreed he did not attempt to call duty counsel earlier that 12:09 a.m.

[9] Duty counsel returned the call at 12:21 a.m. but he could not put Ms. Clennon in the private room as there was already a detainee using the room to speak to counsel. Duty counsel was placed on hold until the room became available for Ms. Clennon. Ms. Clennon was put into the room at 12:32 a.m. and spoke with duty counsel for 7 minutes.

[10] At 12:39 a.m., Ms. Clennon was turned over to P.C. Keating, the qualified breath technician. At 1:18 a.m., Ms. Clennon was returned to P.C. Turkington to be served the Certificate of the Qualified Breath Technician. This was served on Ms. Clennon by P.C. Turkington. It was marked at Exhibit 1. The two breath samples were obtained at 12:52 a.m. and 1:17 a.m. on January 15, 2017. The results were 150 mg of alcohol in 100 ml of blood and 140 mg of alcohol in 100 ml of blood.

[11] P.C. Turkington then brought Ms. Clennon to the Whitby OPP detachment for release papers and other documentation to be prepared and served. She was served her release papers and the other documentation at 1:53 a.m. Her husband attended the OPP detachment to pick up Ms. Clennon but P.C. Turkington did not note the time this occurred.

Analysis

[12] During submissions Mr. Byers abandoned his Charter application respecting ss. 8, 9, 10(a) and 10(b). P.C. Turkington of the OPP, on the evidence, had a reasonable suspicion Ms. Clennon had alcohol in her body. The odour of alcohol alone would be sufficient to provide the officer with a reasonable suspicion.

[13] In R. v. Lindsay, [1999] O.J. No. 870, at para 2, the Ontario Court of Appeal held the smell of alcohol on the respondent's breath by the officer was sufficient to amount to reasonable suspicion justifying an ASD demand (see also R. v. Carson, 2009 ONCA 157, [2009] O.J. No. 660).

[14] Further, the "Fail" result on the ASD, which the officer believed was working properly, provided the necessary reasonable and probable grounds to P.C. Turkington to arrest Ms. Clennon with over 80 mg of alcohol in 100 ml of blood. P.C. Turkington testified the ASD he used registered a "Fail" when the blood/alcohol concentration was greater than 100 mg of alcohol in 100 ml of blood.

[15] Mr. Byers submitted, however, the breath tests were not taken "as soon as practical." He submitted that the delays occasioned at the scene and at the police station, DRPS 17 Division were too long and therefore unreasonable. He pointed to what he described as the 10 minute delay from the ASD failure until the arrest and right to counsel and breath demand were read to Ms. Clennon. P.C. Turkington testified after Ms. Clennon failed the ASD he told her she was under arrest for over 80. She then asked him a number of questions, which he did his best to explain. This was reflected in his notes where he wrote, "explained to Ms. Clennon the fail." He also called for a tow truck to come to the scene. This explained the 10 minutes up to 11:27 pm when he read from his police card the arrest and right to counsel and breath demand and caution, which he completed at 11:30 pm. The tow truck arrived at 11:31 pm, P.C. Turkington left the scene at that point having been directed to attend 17 Division where the closest breath technician was available to take breath samples.

[16] Section 254(3) reads as follows:

(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person

(a) to provide, as soon as practicable,

(i) samples of breath,…

[17] This provision requires that a police officer make a timely demand for samples of the breath of a person who is believed to have committed either the offence of impaired driving or that of operating a motor vehicle with more than the permissible amount of alcohol in his or her blood.

[18] Section 254(3)(a) requires that the person provide these samples "as soon as practicable".

[19] I find the delay of what initially appeared to be 10 minutes is, in fact, no delay at all as it is explained by P.C. Turkington and I find his conversation with Ms. Clennon was reasonable, as was his call for a tow truck, which he testified took probably 2 minutes.

[20] When considered within the context of "reasonableness", I conclude it was not unreasonable for P.C. Turkington to contact through dispatch the tow company to impound Ms. Clennon's car. The Ontario HTA mandates that a person's vehicle must be impounded for a period of 7 days where that person has been charged with impaired, over 80 or refuse breath sample. As a result of the failure of the ASD and Ms. Clennon's arrest, P.C. Turkington was now responsible for her vehicle. Mr. Byers argued there was an auxiliary officers present, however, he was in P.C. Turkington's police vehicle and not his own vehicle. Making the call to get a tow truck to the scene to impound and take responsibility for the vehicle, in my view, was reasonable.

[21] I find the breath demand was made in compliance with s. 254(3) and was made "as soon as practicable."

[22] Mr. Byers then asserted that the police failed to secure samples of the Ms. Clennon's breath in compliance with the statutory obligation under s. 258(c)(ii) and therefore, the Certificate, Exhibit 1, should not be admitted.

[23] Mr. Skelton for the Crown, submitted that the breath samples in issue were secured within "a reasonably prompt time" under consideration of all of the circumstances in issue in this case.

[24] Courts of superior jurisdiction direct that the "as soon as practicable" consideration must be applied with reason. The prosecution is not required to explain every time period between the stop and arrest of a defendant and the securing of the breath test as long as the tests are taken as soon as practicable on consideration of the circumstances of the investigation in issue. In determining whether the as soon as practicable issue has been met with compliance, the court is required to assess whether the conduct of the police was reasonable in all the circumstances; see R. v. Van Derveen, 1988 ABCA 277, 44 C.C.C. (3d) 38, (Alta. C.A.); R. v. Vanderbruggan, 206 C.C.C. (3d) 489 (Ont. C.A.); R. v. Carter, 59 C.C.C. (3d), 450 (Sask. C.A.); R. v. Payne, 56 C.C.C. (3d) 548 (Ont. C.A.).

[25] The governing authority in this province is R. v. Vanderbruggan, supra, at paras. 12 and 13, where Justice Rosenberg held:

12 That leaves the question that is at the heart of this appeal -- the meaning of as soon as practicable. Decisions of this and other courts indicate that the phrase means nothing more than that the tests were taken within a reasonably prompt time under the circumstances. See R. v. Phillips, 42 C.C.C. (3d) 150 (Ont. C.A.) at 156; R. v. Ashby, 57 C.C.C. (2d) 348 (Ont. C.A.) at 351; and R. v. Mudry, R. v. Coverly, 1979 ABCA 286, 50 C.C.C. (2d) 518 (Alta. C.A.) at 522. There is no requirement that the tests be taken as soon as possible. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably. See R. v. Payne, 56 C.C.C. (3d) 548 (Ont. C.A.) at 552; R. v. Carter, 59 C.C.C. (2d) 450 (Sask. C.A.) at 453; R. v. Van Der Veen, 1988 ABCA 277, 44 C.C.C. (3d) 38 (Alta. C.A.) at 47; R. v. Clarke, [1991] O.J. No. 3065 (C.A.); and R. v. Seed, [1998] O.J. No. 4362 (C.A.).

13 In deciding whether the tests were taken as soon as practicable, 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 breath samples 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 is in custody. See R. v. Letford, 150 C.C.C. (3d) 225 (Ont. C.A.) at para. 20; R. v. Carter, supra; R. v. Cambrin, 1 C.C.C. (3d) 59 (B.C.C.A.) at 61-3, and R. v. Seed at para. 7. (Emphasis added)

[26] The recent decision in R. v. Singh, 2014 ONCA 293, [2014] O.J. No. 1858 (C.A.), at paras. 12-16, upheld Justice Rosenberg's comments in Vanderbruggan.

[27] While some delay resulted as a consequence, while P.C. Turkington waited in the sally port for the booking Sergeant to call him in, I conclude, on consideration of the totality of the circumstances, that that period of delay was insufficient to violate the soon as practicable requirement governing the lawful securing of samples of the defendant's breath for the purposes of analysis. Further, the delay in waiting for duty counsel to call back and having to place duty counsel on hold as another detainee was using the private room to speak to counsel (12:09, when duty counsel called to 12:21, when duty counsel called back: 12 minutes and time between 12:21 and 12:32, when Ms. Clennon was put into the private room to speak to duty counsel: 11 minutes) was not unreasonable in all the circumstances. Ms. Clennon spoke to duty counsel for seven minutes and was then turned over to the qualified breath technician.

[28] A further consideration is that the first breath sample was provided at 12:52, which was within the 2 hour period from the driving observed by P.C. Turkington at 11:10. In all of the circumstances of this case, the Certificate evidence is admissible as the pre-requisites under s. 258 have been met.

[29] There will be a conviction registered respecting the charge of operating a motor vehicle with a blood/alcohol level greater than 80 mg of alcohol in 100 ml of blood.

Released: June 18, 2018

Signed: Justice Peter C. West