Court Information

Ontario Court of Justice

Date: December 13, 2018

Court File No.: North Bay 998-18-15

Parties

Between:

Her Majesty the Queen

— and —

Norman Liard

Judicial Officer and Counsel

Before: Justice A.H. Perron

Heard on: November 16, 2018

Reasons for Judgment released on: December 13, 2018

Counsel:

• Julian Gallarino, counsel for the Crown
• David Gomes, counsel for the defendant Norman Liard

Reasons for Judgment

Perron, J.:

Facts

[1] Norman Liard is charged with one count of operation of a motor vehicle with over 80 mg of alcohol per hundred milliliters of blood in relation to an incident that happened in North Bay, Ontario on December 15, 2017. A blended trial and Charter application were held on November 16, 2018.

[2] A quick highlight of the facts is as follows. The North Bay OPP communication Centre received a detailed traffic complaint and advised Constable D. Graves via radio at 6:50 PM to investigate the matter. There was a motor vehicle travelling from Sturgeon Falls to the North Bay hospital with a male driver who had been drinking and driving a black Honda Civic. The driver of the motor vehicle was identified as Norman Liard and a plate number was provided.

[3] The constable spotted the motor vehicle at 7:10 PM and initiated a traffic stop after following the said motor vehicle for a couple hundred meters. He advised that the motor vehicle stopped approximately 75 m from the emergency room entrance at the North Bay Regional Health Center. The driver verbally identified himself and produced a driver's license which confirmed that he was in fact Norman Liard, the accused now before the court. The driver was smoking a cigarette at the time and also chewing gum. He was told to discard same and a roadside breath demand was made after the officer had detected the smell of alcohol on his breath. The accused failed the ASD test and was therefore arrested for the over 80 charge. He was then placed in the back of the police cruiser where he was explained his rights to counsel and a formal breath demand was also made with the officer reading from the standard issued police card. The accused was then transported to the North Bay detachment of the OPP. The accused was once again provided his rights to counsel and refused to speak to any lawyer. He was however provided the opportunity to call his father and was also allowed to use the washroom facilities.

[4] The investigating officer had called for a breath technician while at the roadside. The accused was eventually turned over to this qualified technician after the investigating officer had briefed him on his grounds for the arrest. A notice of intention to produce certificate as well as a certificate of a qualified technician were filed as exhibits during the trial. The certificate confirms that the truncated results of the first sample was of 110 and the results for the second sample was 100 milligrams of alcohol per hundred milliliters of blood. The appropriate paperwork was therefore prepared and served on the accused and the investigating officer then drove the accused home at approximately 10:12 PM. The investigating officer is the only witness who testified during this trial.

Defence Submissions

[5] At the conclusion of the evidence at the trial, defence counsel made submissions suggesting that there were three issues for this court to consider:

1. the crown has not proven beyond a reasonable doubt that the Intoxilyzer samples were taken as soon as practicable and therefore same should not be admissible;

2. the accused's Charter rights were violated as the officer did not have the appropriate grounds to make a breath demand as he could not reasonably rely on the ASD test;

3. that the accused's Charter rights were violated as he was not properly informed of his rights to a lawyer as provided by section 10 B.

[6] At the conclusion of the submissions, the court reserved its decision in order to review the voluminous case law presented mostly on the Charter argument. On November 22, 2018, defence counsel provided the court and the crown a letter advising that he had received instructions from his client to abandon his Charter application. He confirmed in this correspondence that defence relies on its submission that the crown had not proven beyond a reasonable doubt that samples a breath were taken as soon as practicable as required by the Code.

Legal Framework

[7] This court has previously written on this topic and would like to make reference to the decision of R. v. Moore, [2017] O.J. No. 3654. At paragraph 8 - 11 of this decision, the test to be applied is explained:

8. Section 258 (1)(c)(ii) provides that when breath samples are taken as soon as practicable after the time the alleged offence has been committed, the accused's blood level is presumed to be at the same level at the time of the breathalyser test if same is taken no later than two hours after that time and with an interval of at least 15 minutes between the times the two samples were taken. In our particular case, counsel for Mr. Moore alleges the samples were not taken as soon as practicable and therefore this presumption cannot be relied upon. As we did not have a toxicologist testify during this trial, if this argument is successful, a finding of not guilty must result.

9. The Ontario Court of Appeal in R. v. Vanderbruggen, 206 CCC (3d) 489, is a leading authority on this issue. That Appeal relates to the requirement the crown must meet to rely upon the presumption of identity in drinking and driving cases. It specifically addresses the issue of "as soon as practicable" as mentioned in section 258 (1)(c)(ii) of the Code. In that leading decision, the Court of Appeal is dealing with a period of 46 minutes between the time the accused is placed in cells and then turned over to the breath technician. In paragraph 12 of that decision, Justice Rosenberg mentions that "decisions of this and other courts indicate that the phrase means that nothing more than the tests were taken within a reasonably prompt time under the circumstances. There is no requirement that the test 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."

10. He continues at paragraph 13 by saying that "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 offense 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 circumstances the breath samples were taken within a reasonable 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."

11. In concluding that this is an issue of fact that the trial judge must decide, as Justice Rosenberg mentioned, it should not be interpreted so as to require an exact accounting of every moment in the chronology"

Chronology of Events

[8] Similarly to the Moore decision, counsel in the matter at bar is suggesting that there were some unexplained and unreasonable delays from the arrival time at police headquarters, to the obtaining of the breath samples. From the evidence presented at court, the sequence of events on this matter is as follows:

• 6:50 PM traffic complaint dispatch from communication Centre
• 6:55 PM investigating officer in stationary lookout for black Honda Civic
• 7:10 PM suspect motor vehicle spotted by investigating officer
• 7:11 PM suspect motor vehicle stop at the ER of the NBRHC
• 7:16 PM formal ASD breath demand read to accused
• 7:18 PM accused registers a fail during the second sample provided in the ASD
• 7:19 PM rights to counsel explained to the accused
• 7:20 PM formal breath demand read to the accused
• 7:20-7:30 PM arrival of Cst Larocque and Cst Lalonde so they could remain with motor vehicle and await a tow truck
• 7:30 PM investigating officer leaves scene with accused
• 7:33 PM arrival at the North Bay detachment of the OPP
• 8:20 PM investigating officer briefs breath technician on grounds for arrest
• 8:31 PM accused turned over to breath technician
• 8:46 PM first sample analyzed with Intoxilyzer
• 9:11 PM second sample analysed with Intoxilyzer
• 9:15 PM accused returns to the custody of the investigating officer after completing Intoxilyzer test
• 10 PM appropriate paperwork served on the accused
• 10:12 PM accused driven home by the investigating officer

Analysis

[9] I agree with defence counsel's submission that the investigating officer was "moving at lightning speed at the roadside". He is a seasoned officer and this court has no issues with anything that he did at the roadside concerning this investigation. The concern is with the delay once they have arrived at the detachment and the taking of the first sample. Defence counsel argues that the one hour and 12 minutes between the arrival at the detachment and the taking of the first sample is unreasonable.

[10] The investigating officer testified that on arrival at the detachment, they went to the cell area which is at the back detachment entrance and where the breath room is located. They sat in the interview room next to the Intoxilyzer room, and the accused's rights to counsel was once again read. As the accused stated that he did not have his own lawyer, the option of contacting duty counsel was also re-explained to him. No direct evidence was presented as to how long this discussion took however, the court can only assume that same was fairly quick as the same discussion took approximately one minute at the roadside.

[11] The investigating officer testified that the accused was very talkative, friendly and acted like a gentleman. While waiting for the breath technician, the accused asked to use the washroom and to call his father. The investigating officer allowed him to do both but is unaware at what exact time this happened. All that he can say is that it was prior to 8 PM. The constable also advises that the rights to counsel were once again explained to the accused after he had spoken to his father by telephone.

[12] The investigating officer testified that Constable Larocque and Constable Lalonde attended the detachment to provide paperwork on the tow for Mr. Liard's motor vehicle. No details were provided as to the exact time of their attendance or how long this encounter lasted. The breath technician was briefed by the investigating officer as to the grounds for arrest at approximately 8:20 PM. No evidence was presented as to how long this discussion lasted.

[13] The problem that this court faces is that there is a lack of evidence as to exactly what happened between the arrival at the detachment and the taking of the first sample. The accused was turned over to the breath technician at 8:31 PM with the first breath sample being taken at 8:46 PM. There is no clear evidence that explains this 15 minute delay however, it is safe to assume that the breath technician does have a number of requirements that he needs to fulfil prior to obtaining this first sample. There is also a period of 25 minutes between the first and second sample analyzed with the Intoxilyzer. No evidence was presented as to the reason for this delay however, the Code does provide that there must be an interval of at least 15 minutes between the two samples and it is safe to assume that the Intoxilyzer is programmed not to accept any samples for a period slightly longer than this.

[14] The biggest issue is the period of 58 minutes between the arrival at the detachment at 7:33 PM and 8:31 PM when the accused was turned over to the breath technician. During that period of time, the investigating officer reviewed the rights to counsel with the accused on two occasions. As already mentioned, it is safe to assume that this was done in a fairly quick an expedited fashion as same had been done at the roadside and took only one minute at that time. The accused was also allowed to use the washroom and to telephone his father. No specific evidence was presented as to how long this lasted. It is however clear from the evidence that these two actions did not prolong the waiting time and these actions were only allowed as they were waiting for the breath technician. During that period of time, there was also a discussion between the investigating offices and the breath technician as to the grounds for the arrest.

[15] This court has some serious concerns about the lack of evidence as to why the breath technician was not in a position to receive the accused in his custody until 8:31 PM. The investigating officer testified that he made arrangements for a breath technician and requested same after placing the accused in the back of his police cruiser. No exact time was provided as to when he did this however, we do know that the accused was in the back of the police cruiser at 7:19 PM when he was provided his rights to counsel. The investigating officer testified that he knew that Constable Carlson was working that evening and that he was a qualified breath technician. He testified that it was his hope that he could assist him and requested that he find his way back to the office as soon as possible.

[16] No evidence was presented as to whether Constable Carlson was in fact the only breath technician available for the OPP or what his whereabouts were at the time. Also, nothing was mentioned about whether another breath technician was available quicker from other police services. This vacuum of evidence is of great concern to this court.

[17] As mentioned earlier, this investigation was proceeding at lightning speed at the roadside and then there was a drastic change in the pace of the investigation once they arrived at the detachment. I do agree that the crown does not need to prove what happens at every minute during the investigation however, this drastic change in pace must be explained. The court cannot determine if the tests were taken within a reasonably prompt time if it does not know what the circumstances were for any delay.

[18] All this court knows is that during a period of 58 minutes, the rights to counsel were reviewed twice with the accused, the accused was allowed to use the washroom and telephone his father, documents were exchanged with the investigating officer concerning the tow of the accused's motor vehicle and the grounds for arrest were reviewed between the investigating officer and the breath technician. All of these are quick and simple events and clearly did not take 58 minutes. The lack of evidence as to what else was going on at this time makes it impossible for this court to determine if the tests were taken as soon as practicable in all of the circumstances.

Decision

[19] Accordingly, the court is not satisfied that the crown has proven beyond a reasonable doubt that the breath samples were taken as soon practicable. Accordingly the presumption as created by the Code cannot apply and as we have not had any toxicologist's evidence on this matter, there must be a finding of not guilty in this matter.

[20] The charge of operation of a motor vehicle with over 80 mg of alcohol per hundred milliliters of blood against Norman Liard is therefore dismissed.

Released: December 13, 2018

Signed: Justice A. H. Perron