Court File and Parties

Ontario Court of Justice

Date: 2018-12-21

Court File No.: Halton 17-2895

Between:

Her Majesty the Queen

— and —

Geoffrey Brunt

Before: Justice D.A. Harris

Heard on: May 14, 2018, September 10, 2018, and November 2, 2018

Reasons for Judgment released on: December 21, 2018

Counsel:

Elysse Quinn and Michael Godinho, for the Crown

Douglas Lent, for the defendant Geoffrey Brunt

Reasons for Judgment

D.A. HARRIS J.:

Introduction

[1] Geoffrey Brunt is charged with operating a motor vehicle in the Town of Halton Hills on September 11, 2017 when his blood alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of his blood.

[2] Crown counsel elected to proceed summarily.

[3] Mr. Brunt pled not guilty and a trial was held.

[4] Mr. Brunt had applied for an order that all evidence of the results of any Intoxilyzer tests should be excluded pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms.

[5] Counsel agreed that we should proceed with a "blended" hearing in which all of the evidence would be applicable to both the Charter application and to the trial.

[6] Karen Vanderlaan, Jennifer Vandenbrink, and Halton Regional Police Constables Joseph Dominelli and Nathaniel Ng, and Staff Sergeant Paul Davies testified for the Crown. No evidence was led by the defence.

[7] There is no issue that Mr. Brunt was operating his motor vehicle in Halton Hills on September 11, 2017 or that the two Intoxilyzer tests showed results of 280 and 270 milligrams of alcohol in 100 millilitres of his blood.

Issues Before the Court

[8] The issues before me are:

(1) whether the evidence referred to above should be excluded pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms; and

(2) whether the presumption set out in section 258(1)(c)(ii) of the Criminal Code does not apply since the breath tests were not conducted as soon as practicable.

[9] More particularly with respect to the Charter application, counsel for Mr. Brunt argued that the evidence should be excluded on the basis that the police did not have the reasonable suspicion necessary to make the initial approved screening device demand, and that the police did not have the reasonable and probable grounds to make the subsequent breath demand, in violation of sections 8 and 9 of the Charter.

[10] A right-to-counsel issue was raised after the trial started but was abandoned before the trial ended.

[11] I will deal with the Charter application first.

Sections 8 & 9 of the Charter

[12] Sections 8 and 9 of the Canadian Charter of Rights and Freedoms provide that:

8. Everyone has the right to be secure against unreasonable search or seizure.

9. Everyone has the right not to be arbitrarily detained or imprisoned.

[13] In most cases, an accused bears the burden of persuading the court on a balance of probabilities that his or her Charter rights have been infringed, but in the section 8 context, once the accused has demonstrated that the search or seizure was a warrantless one, the burden of persuasion shifts to the Crown to show that on a balance of probabilities the search or a seizure was reasonable.

[14] To demonstrate compliance with s. 254(2) of the Criminal Code the Crown must show that the police officer making the approved screening device demand had the necessary reasonable suspicion to do so.

[15] To demonstrate compliance with s. 254(3) the Crown must show that the police officer making the breath demand had the necessary reasonable and probable grounds to do so.

[16] In this case then, the onus is on Mr. Brunt to establish an infringement of his section 9 rights but the onus is on the Crown with respect to the section 8 rights. I have accordingly approached this alleged violation of rights as one where the Crown bears the onus.

Reasonable Suspicion

[17] Section 254(2) of the Criminal Code provides that:

(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:

(a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and

(b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

[18] The Supreme Court of Canada reviewed the reasonable suspicion standard in R. v. Chehil. That case involved the use of a sniffer dog by police with respect to luggage on a domestic flight in Canada. The same reasonable suspicion standard is applicable in those circumstances. In that decision Karakatsanis J. specifically noted that "Parliament has employed this standard when authorizing certain searches in legislation" including section 254.

[19] The following is a summary of her review of this.

[20] The reasonable suspicion standard requires that the entirety of the circumstances, inculpatory and exculpatory, be assessed to determine whether there are objective ascertainable grounds to suspect that an individual is involved in criminal behaviour. It does not require the police to investigate to rule out exculpatory circumstances.

[21] Reasonable suspicion must be based on objectively discernible facts, which can then be subjected to independent judicial scrutiny which is exacting, and must account for the totality of the circumstances.

[22] She cited the reasons of Binnie J. in R. v. Kang-Brown, where he provided the following definition of reasonable suspicion:

The "reasonable suspicion" standard is not a new juridical standard called into existence for the purposes of this case. "Suspicion" is an expectation that the targeted individual is possibly engaged in some criminal activity. A "reasonable" suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds.

[23] Reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded in objective facts, but reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime.

[24] Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience. A police officer's grounds for reasonable suspicion cannot be assessed in isolation.

[25] Reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors. Factors that give rise to a reasonable suspicion may also support completely innocent explanations. This is acceptable, as the reasonable suspicion standard addresses the possibility of uncovering criminality, and not a probability of doing so.

[26] Exculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors. The totality of the circumstances, including favourable and unfavourable factors, must be weighed in the course of arriving at any conclusion regarding reasonable suspicion.

[27] However, the obligation of the police to take all factors into account does not impose a duty to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations.

[28] It is not permissible for the reasonable suspicion inquiry to assess circumstances learned after the execution of the search.

[29] Counsel for Mr. Brunt conceded here that Constable Dominelli subjectively had the requisite suspicion before making the approved screening device demand. The issue is whether that suspicion was objectively reasonable.

[30] I am satisfied that it was.

[31] At 5:20 p.m., Constable Dominelli was dispatched to investigate a possible impaired driver. A man had been refused service at the LCBO. He got into his motor vehicle and drove away.

[32] Constable Dominelli drove to the address of the registered owner of that vehicle. At 5:29, Mr. Brunt drove up in a vehicle that matched the description provided.

[33] Constable Dominelli spoke to Mr. Brunt and smelled alcohol coming from his breath.

[34] Mr. Brunt admitted to drinking two beers approximately an hour earlier.

[35] Counsel for Mr. Brunt argued that this was not enough to make Constable Dominelli's suspicion objectively reasonable.

[36] I disagree. It was more than enough.

Reasonable and Probable Grounds

[37] The relevant portions of section 254(3) of the Criminal Code provide that:

(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 that, in a qualified technician's opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person's blood, ...

[38] To demonstrate compliance with section 254(3), the Crown must show that the police officer making the breath demand had the necessary reasonable and probable grounds to do so.

[39] The legal test for reasonable and probable grounds is not a high one. It is more than a mere suspicion, and less onerous than a prima facie standard.

[40] It is a fact based analysis of the totality of the circumstances the arresting officer had in mind. The officer is entitled to disbelieve and disregard any evidence disbelieved. However, the officer must balance any circumstance detracting from the conclusion of impairment to those suggestive of impairment, and the totality of circumstances must be sufficient that a reasonable person in the position of the arresting officer would be able to conclude that reasonable and probable grounds existed.

[41] Here, counsel for Mr. Brunt argued that Constable Dominelli could not rely on the accuracy of the approved screening device because it had not been calibrated within the previous two weeks.

[42] Constable Dominelli testified that it should be calibrated every two weeks.

[43] He testified further that it had been calibrated on August 27, 2017. That would be 15 days before Mr. Brunt blew into it.

[44] Counsel also argued that Constable Dominelli could not objectively believe that the approved screening device was in proper working order because he had not performed a self-test on the device.

[45] Constable Dominelli testified that he did not do a self-test because he assumed that Constable Ng, who brought the device to Constable Dominelli, had done so. Usually the officer who takes a device out conducts a self-test at that time. Constable Ng testified that he had tested the device and was satisfied that it was in proper working order. It was reasonable for Constable Dominelli to assume that Constable Ng would not have given him the approved screening device if it was not in proper working order.

[46] The Crown is not required to prove in every case that the device was in proper working order. The test is whether, on an objective basis, the officer had reasonable grounds for believing that the approved screening device was in good working order.

[47] I am satisfied on a balance of probabilities that Constable Dominelli subjectively believed that. I am further satisfied that his belief was objectively reasonable.

[48] Mr. Brunt's rights were not infringed and the Charter application is dismissed.

[49] In the event that a reviewing court finds that I have erred in reaching that conclusion, I will note that I would not have excluded the evidence even if I had determined that there was a Charter breach here. My reasons for this are set out as follows.

Section 24(2) Analysis

[50] The test set out in R. v. Grant by the Supreme Court of Canada directs me to assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to:

(1) the seriousness of the Charter-infringing state conduct,

(2) the impact of the breach on the Charter-protected interests of the accused, and

(3) society's interest in the adjudication of the case on its merits.

[51] I must balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

[52] In R. v. Grant, supra, the court discusses the first factor, the seriousness of the Charter-infringing state conduct, as follows:

The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.

[53] The concern of this inquiry is not to punish the police or to deter Charter breaches, although deterrence of Charter breaches may be a happy consequence. The main concern is to preserve public confidence in the rule of law and its processes.

[54] Admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law.

[55] Good faith on the part of the police will also reduce the need for the court to disassociate itself from the police conduct.

[56] I am satisfied that any breach was minor and done in good faith. Constable Dominelli believed that the approved screening device was working properly and that the results were valid and that he could rely on them. Accordingly the degree of seriousness of such breach would have favoured admission of the results of the breath tests.

[57] With respect to the second factor, the impact of the breach on the Charter-protected interests of the accused the ensuing breath test was minimally intrusive both in terms of what took place and the evidence obtained.

[58] In reaching that conclusion, I have taken note of the obiter comments in R. v. Grant, supra that:

While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused's privacy, bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability. On the other hand, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused's body may be admitted. For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive.

[59] Previously, it often seemed that any infringement of the rights of those accused of drinking and driving would result in the automatic exclusion of the breath results. This passage would appear to indicate that this will not always be the case now.

[60] I also note the comments in the recent decision of the Ontario Court of Appeal in R. v. Jennings:

Although … the proposition that breath sample procedures are minimally intrusive is simply dicta in Grant, it should be noted that the statement was no mere throwaway line. The Supreme Court chose the example of breath sample procedure as an apt and economical means of illustrating the concept of a minimally intrusive search. And the Court assuredly did so in the knowledge that most formal demands for breath samples would be accompanied by an arrest and by all of the accompanying incidents itemized by the trial judge.

[61] The Court of Appeal rejected the approach taken in R. v. Au-Yeung where Ducharme J. held that a trial judge is to consider the impact of the entirety of the procedure faced by an accused after arrest including the initial detention, being placed in the back of a police cruiser and transported to a police station, and detention at the police station for a substantial period of time.

[62] Some judges have since tried to downplay the decision in R. v. Jennings. Most notably, in R. v. Mann Justice Linhares De Sousa, sitting as a summary conviction appeal court, considered whether the trial judge had erred in admitting the results of breath testing in a case in which the trial judge had concluded that the officer lacked reasonable and probable grounds to stop the appellant's vehicle, resulting in a section 9 breach, and that the officer lacked reasonable suspicion for a roadside sample, resulting in a section 8 breach.

[63] It was her view that R. v. Jennings was itself obiter. I agree with that characterization but note that the Court of Appeal made it clear that this was obiter that was binding on our trial courts.

[64] She also found that, unlike in R. v. Jennings, there were multiple breaches and that R. v. Grant required her to consider the interests engaged by both sections 8 and 9. She found that the breaches had a significant impact on the accused and favoured exclusion.

[65] This interpretation of R. v. Jennings has been rejected by various courts including two other summary conviction appeals courts.

[66] In R. v. Barr, Ratushney J. wrote that:

56 Defence counsel submits that Jennings should not be dispositive of the trial judge's analysis of the second Grant factor because Jennings did not deal with a s. 9 breach, in contrast to the present case where the trial judge found there had been both s. 8 and s. 9 breaches. Defence counsel submits that there were multiple s. 8 and 9 breaches all arising from Constable Meness' failure to consider the possibility of residual mouth alcohol and that this changes the assessment of the second Grant factor because the impact of the breaches on the respondent are more serious.

57 I cannot accept this argument. Defence counsel is alleging multiple breaches arising out of a single "mistake" by the officer resulting in the collection of breath samples. However, there is no evidence of separate or multiple breaches. By alleging multiple s. 8 and 9 breaches so that their combined impact might be considered as more intrusive and serious, Defence counsel is effectively arguing that which Jennings has now rejected, namely a consideration of the impact of the entirety of the procedure faced by the respondent after arrest, rather than only considering as has now been clarified, the minimal intrusiveness of the breath sample procedure on his privacy, bodily integrity and human dignity.

58 This was also an argument in R. v. Ho, 2014 ONSC 5034 (Ont. S.C.J.), at para. 19, rev'd on other grounds, 2015 ONCA 559 (Ont. C.A.), decided before Jennings, where the SCAJ said "the s. 9 Charter 'spin' adds nothing to the debate, especially when one sees absolutely no reference to it in the Grant analysis by the Supreme Court of Canada: see para. 111". The SCAJ in Ho, at para. 18, noted that the same s. 9 argument had been made and rejected by the Supreme Court of Canada in Shepherd, supra, at para. 14, when it said that "based on the facts of this case nothing would be added by an analysis under s. 9. Accordingly, our analysis will proceed solely under s. 8".

59 I agree that a consideration of the second Grant factor in breath sample cases is certainly not limited to only considering the minimal intrusiveness of the breath sample procedure. It depends on the evidence leading to a finding of a breach or breaches and an evaluation, as stated in Grant, supra, at para. 76, of "the extent to which the breach actually undermined the interest protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive".

[67] In R. v. Merko, Woolcombe J. wrote that:

40 It seems to me that the Supreme Court of Canada made clear at para. 134 of Grant that a s. 24(2) analysis must focus on the impact of the breach on the accused's protected interests. Because different Charter rights protect different interests, if there are different rights violated, each must be considered separately at this stage. It must be assumed that the Court of Appeal in Jennings was well aware of the Supreme Court of Canada's direction in that regard.

41 In Jennings, the Court of Appeal dealt with a case involving only one Charter violation, a s. 8 claim. Nevertheless, at para. 29, the Court appears to have considered that when the Supreme Court of Canada found that breath sample procedures were minimally intrusive, that Court must have known that breath demands are accompanied by arrest, detention, taking an accused to the police cruiser and then detention at the police station for the taking of the sample. In other words, while not saying so directly, the Court of Appeal seems to have considered that while an arrest without reasonable and probable grounds would result in a s. 8 violation through the subsequent seizure of breath samples, it would also, necessarily, result in a s. 9 violation due to the resulting unlawful arrest and detention. On my reading, I understand the Court of Appeal to essentially be saying that in many cases the consequential s. 9 violation will not necessarily create a significant added impact on an accused's Charter protected interests.

42 To be clear, I do not see Jennings as creating an automatic rule of inclusion of breath samples irrespective of whether or not s. 9 was also breached. Rather, as Grant directs, a case by case analysis is always necessary to assess the impact of the particular breaches on the particular accused. But, Jennings contemplates and clarifies that there will be a minimal intrusion on an accused's Charter protected interests in many cases in which there is a breach respecting the arrest and breath demand, which necessarily leads to a detention and transportation to the police station for the taking of a breath sample (and thus a s. 9 violation). Of course, in cases in which the deprivation of an accused's liberty is more significant, it might well be that the impact of this breach would be greater. This is a fact specific determination for the trial judge based on all of the circumstances of the particular case: Barr at paras. 56-59.

43 In this case, without the benefit of the Court of Appeal's decision in Jennings, the trial judge followed Au-Yeung. She found, correctly, that she was required to consider constitutional breaches, and the extent to which they affected the respondent's Charter protected interests. Bearing in mind that the taking of the breath sample was minimally intrusive, what is lacking in the trial judge's reasons is a consideration of the effect of the deprivation of the respondent's liberty, bearing in mind what the Court of Appeal said in Jennings about the effect of the usual processes that follow an arrest in this context, including a detention and transportation to the police detachment for the breath samples to be collected.

44 In my view, the liberty deprivation in this case was minimal. The respondent was stopped by police at 12:15 a.m. He was arrested at about 12:19 a.m. The officers transported him to the station at about 12:26 a.m. He was lodged in a cell at 12:44 a.m. Duty counsel returned a call to the station at 12:53 and the respondent spoke to counsel until 12:57 a.m. Breath samples were taken at 1:03 a.m. and 1:24 a.m. At 1:57 a.m., the respondent was released.

45 I find that what took place in this case was precisely the sort of investigation contemplated by the Court of Appeal in Jennings. It is consistent with what takes place in a large number of routine drinking and driving investigations. While, admittedly, the respondent was arrested and detained, it was for a short period (less than two hours) and was, in context, minimally intrusive on his liberty interests. In my view, the second line of the Grant inquiry ought to have led to inclusion.

[68] I agree with the latter decisions and reject the reasoning in R. v. Mann.

[69] In any event, I am satisfied that the liberty deprivation in this case was also minimal. Mr. Brunt was questioned by police at 5:29 p.m. He was arrested at 5:34 and handcuffed and placed in the back of a police car. Police drove him to the station where he arrived at 6:09. He spoke to duty counsel and breath samples were taken at 7:04 and 7:26. At 8:03 the police drove him back to the Georgetown station, which was much closer to his home and he was released there at 8:35 p.m., three hours and six minutes after police first spoke to him.

[70] After considering all of this I conclude that the second branch of R. v. Grant would have weighed in favour of inclusion of the results of the breath tests.

[71] As for the third factor, the offence is recognized to be a serious one. The societal interest in having a trial on the merits would usually favour admission here.

[72] Further, with respect to the breath tests, I must also consider the fact that the evidence which Mr. Brunt seeks to have excluded, is reliable. "Subject to other evidence in any given case, breath samples and their testing by ASDs and intoxilyzers are generally considered reliable evidence." The Intoxilyzer test results are certainly presumptively reliable by virtue of the Criminal Code provisions.

[73] I find then that the truth seeking function would have been better served by the admission of the evidence than by its exclusion.

[74] As I stated above, I must balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

[75] I must not give any one factor "an unjustified analytical pre-eminence" while doing this.

[76] I do note however the comments of Fish J. in R. v. Morelli, where he stated "justice receives a black eye when it turns a blind eye to unconstitutional searches and seizures as a result of unacceptable police conduct or practices".

[77] In R. v. Beattie, Duncan J. stated:

Yet the focus must be long term, on the big picture. Viewed in that way, the balance shifts towards favouring exclusion in order to restore the intended public interest/individual liberties balance and underscore the limits of statutory powers that are permitted to encroach upon Charter rights. I conclude, after much anguished consideration, that the long term interests of the administration of justice are better served by exclusion in this case.

[78] In R. v. Mehta, Lipson J. wrote:

Yet it is also true that the overriding purpose of section 24(2) is to maintain the good repute of the administration of justice by both upholding the rule of law and Charter rights. The focus is both on the long-term and the prospective, not on the immediate reaction to admission or exclusion in a particular case. The purpose of section 24(2) is to further the long term interests of society and the justice system.

[79] I would have concluded that the long term interests of the administration of justice were better served by the inclusion of the results of the breath tests. Accordingly, they would have been included in evidence in any event.

As Soon as Practicable

[80] That then leaves the as soon as practicable argument.

[81] The presumption of identity, set out in section 258(1)(c)(ii) of the Criminal Code, provides that the results of breath tests are, in the absence of evidence to the contrary, deemed to represent the blood alcohol level of the accused at the time of driving.

[82] Before this presumption can apply, the Crown must establish beyond a reasonable doubt that a number of preconditions have been met. These include the requirement that two breath tests must be conducted using an approved instrument operated by a qualified technician. The first test must occur not later than two hours after the offence was alleged to have occurred. The second test must occur at least 15 minutes later and both tests must occur as soon as practicable.

[83] In that regard the Ontario Court of Appeal has stated clearly that "as soon as practicable" does not mean as soon as possible. It means that the tests must be taken within a reasonably prompt time.

[84] In deciding whether the tests are taken as soon as practicable I must look at the entire 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 reasonably. The Crown is obligated to demonstrate that in all the circumstances the breath samples were taken within a reasonably prompt time, but there is no requirement that the Crown provide a detailed examination of what occurred during every minute that the accused is in custody.

[85] I must remember, however, that:

the "as soon as practicable" requirement in s. 258(1)(c)(ii) of the Criminal Code was enacted as a protection for accused persons which goes hand in hand with the presumption that the results of the breath tests are, in the absence of evidence to the contrary, deemed to represent the blood alcohol level of the accused at the time of driving. This presumption, often referred to as the presumption of identity, benefits the prosecution by eliminating the need to call additional evidence to relate the breath test results back to the time of driving. The as soon as practicable requirement assists in ensuring that the presumption operates fairly and leads to accurate results. Consequently, any delay impinges on a protection Parliament has enacted for the benefit of the accused.

[86] In this case, Mr. Brunt was stopped at, or shortly after 5:29 p.m.

[87] The first breath test was completed at 7:04 p.m. It therefore occurred about one hour and 35 minutes later. That was well within the two hour limit.

[88] That is not determinative of the as soon as practicable issue but it is a factor that I should take into account.

[89] Starting at 5:29 p.m. Constable Dominelli was beside the Brunt motor vehicle and spoke to the driver, Mr. Brunt.

[90] At 5:20 he formed his reasonable suspicion. He made the approved screening device demand and requested that a device be brought to him.

[91] The device arrived at 5:24.

[92] Mr. Brunt provided a sample of his breath and registered a "fail" at 5:34.

[93] Constable Dominelli arrested him, read right to counsel and cautions and a demand. They left the scene at 5:40.

[94] They arrived at the police station at 6:09.

[95] He was seen there by Staff Sergeant Davies at 6:20.

[96] Counsel for Mr. Brunt argued that no explanation was provided to explain why it took 11 minutes for the Staff Sergeant to see Mr. Brunt. I disagree. I am satisfied that Staff Sergeant Davies more than satisfactorily explained this during his evidence.

[97] Staff Sergeant Davies asked Mr. Brunt a number of questions including whether he wished to speak to a lawyer. Mr. Brunt replied that he did not.

[98] Mr. Brunt was turned over to the breath technician at 6:24. He was brought back at 6:35. After speaking to the breath technician, Constable Dominelli placed a call to duty counsel at 6:36. Duty counsel called back at 6:49 and spoke to Mr. Brunt. The telephone conversation was done at 6:52 and Constable Dominelli returned Mr. Brunt to the breath room.

[99] As stated above, the first breath sample was received at 7:04.

[100] Counsel for Mr. Brunt argued that the police officers had unilaterally decided that Mr. Brunt should speak to duty counsel and that they made him do this, needlessly delaying the taking of the first breath sample.

[101] I disagree.

[102] Mr. Brunt did tell the staff sergeant that he did not want to speak to a lawyer.

[103] However, back at the scene of his arrest, he had told Constable Dominelli that he did wish to speak to a lawyer. So the statement to the staff sergeant showed a change of mind on Mr. Brunt's part.

[104] Then, after taking custody of Mr. Brunt, the breath technician spoke to Constable Dominelli leading Dominelli to believe that Mr. Brunt had changed his mind again and wanted to speak to duty counsel. It was in response to this belief that Constable Dominelli made the call. I note also that when told that they were calling duty counsel, Mr. Brunt did not say that he did not want to speak to duty counsel. I am satisfied that, based on all of this, I can infer that Mr. Brunt did indeed wish to speak to duty counsel and had asked to be allowed to do so. Any delay in conducting the breath tests was a result of this.

[105] I note further it is entirely appropriate that police officers would do everything they could to facilitate an accused person speaking to a lawyer.

[106] Counsel for Mr. Brunt also argued that the 22 minutes between taking the first and second samples was unexplained delay.

[107] Again I disagree.

[108] The tests have to be at least 15 minutes apart. Case law has suggested that the gap needs to be 17 minutes to ensure that the 15 minute gap is fully proven. Accordingly, the so called delay here is at most somewhere between five and seven minutes. It is ludicrous to suggest that the second test had to be taken sooner than that in order to meet the as soon as practicable standard.

[109] After considering all of the evidence, I am satisfied, beyond a reasonable doubt, that the breath tests were conducted as soon as practicable.

Conclusion

[110] I am therefore satisfied that the Crown has proven beyond a reasonable doubt that Mr. Brunt was operating his motor vehicle when his blood alcohol concentration was 270 milligrams of alcohol in 100 millilitres of blood.

[111] I find him guilty of the offence charged and enter a conviction.

Released: December 21, 2018

Signed: Justice D.A. Harris