Court Information

Ontario Court of Justice

Date: October 23, 2019

Court File No.: 18-10291

Parties

Between:

Her Majesty the Queen

— And —

Baljit Singh

Before the Court

Justice: K.A. Wells

Heard: August 9, 2019

Reasons for Judgment Released: October 23, 2019

Counsel

Ms. Seeta Scully — counsel for the Crown

Ms. Heather Spence — counsel for the Defendant Baljit Singh

Judgment

WELLS J.:

Introduction

[1] Baljit Singh is charged with having care or control of a motor vehicle while "over 80," contrary to s. 253(1)(b) of the Criminal Code. He alleges that his rights under section 10(b) of the Charter were breached and seeks the exclusion of any observations of the officer and the breath test results taken pursuant to a Criminal Code s. 254(3) demand. Further, he argues that the Crown has failed to satisfy the statutory requirement contained in section 258(1)(c) of the Criminal Code that the breath tests be taken "as soon as practicable," and as such, cannot rely on the presumption of identity. Finally, he argues that the Crown has failed to prove that the accuracy of the breath tests such that the offence of "over 80" has not been made out.

[2] The parties agreed to hear the Crown's case and evidence on the Charter application in a blended hearing. The Crown called PC Peach, who acted as both the investigating officer and the breath technician. The defence called no evidence. At the outset of trial the defendant conceded that PC Peach is a qualified breath technician.

[3] I will review the relevant evidence heard, the positions of the parties, and provide my findings with respect to each of the issues and related Charter arguments in the order in which they were argued at trial. These issues were:

1. Did PC Peach violate the defendant's s.10(b) right to counsel?
2. Were the breath samples taken "as soon as practicable"?
3. Having lost the presumption of accuracy in s.320.31(1), can the Crown still rely on the breath tests as accurate?

Issue #1: The Defendant's Rights to Counsel

a) Evidence of Police Constable ("PC") Peach

[4] On August 21, 2018, PC Peach was conducting a routine static R.I.D.E. stop at a plaza located at 80 Peel Centre Drive in Brampton. The plaza in question is home to both an LCBO and a Beer Store. According to PC Peach, she observed Mr. Singh drive into the plaza, park his vehicle, and enter the LCBO. Upon exiting the LCBO, Mr. Singh re-entered his vehicle and began to drive through the parking lot.

[5] At 7:50 p.m. PC Peach conducted a traffic stop of Mr. Singh's vehicle. He exited his car and stood beside it. PC Peach observed Mr. Singh to have red-rimmed eyes and a strong odor of an alcoholic beverage on his breath. She formed the suspicion that he was operating a motor vehicle with alcohol in his system.

[6] At 7:52 p.m. PC Peach read Mr. Singh the demand for the Approved Screening Device. She then demonstrated the use of the device and conducted a self-breath test which registered zero mgs of alcohol. She was satisfied that the device was functional.

[7] At 7:53 p.m. Mr. Singh provided a sample of his breath into the Approved Screening Device which registered a "Fail." At 7:54 p.m. Mr. Singh was placed under arrest for the offence of "over 80," handcuffed, and placed in the rear of PC Peach's police vehicle.

[8] Subsequent to the arrest of Mr. Singh, PC Peach turned her focus to the vehicle that Mr. Singh had been driving. She notified dispatch of her location and the need for a tow truck to take the defendant's car. PC Peach enquired of the defendant whether he needed anything from his vehicle, and at 7:55 p.m. she conducted an inventory search of the vehicle so that it was ready to be towed. Mr. Singh remained handcuffed in the rear of the police cruiser during the search.

[9] At 8:01 p.m. PC Peach returned to the cruiser and read Mr. Singh his rights to counsel and caution, which concluded at 8:04 p.m. Mr. Singh advised he wanted to speak to counsel. Officer Peach then read the breath demand, which Mr. Singh indicated he understood. She then departed the scene for 21 Division.

b) Analysis

[10] It is not in dispute that six minutes elapsed between the arrest of the defendant and him being provided with his rights to counsel. Officer Peach testified that as the officer authorizing the tow of a person's vehicle, she feels that it is her responsibility to do a thorough search in order to ensure there is no discrepancy in the cataloging of a defendant's property. In her testimony, PC Peach acknowledged the importance of rights being provided in a timely fashion. Under cross-examination, PC Peach agreed that several variables could result in a routine vehicle search leading to a prolonged delay (i.e. locating a firearm). Ultimately, Officer Peach was candid in saying "my procedure is my procedure."

[11] Section 10(b) of the Charter requires that police provide a detainee with rights to counsel "without delay." In Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 42, the Supreme Court made clear that "without delay" means immediately. This immediacy requirement is subject only to concerns for officer or public safety.

[12] Having regard to all of the circumstances, I agree that there was a breach of s.10(b)'s immediacy requirement in this case. PC Peach expressed no concern for officer safety vis-à-vis the defendant. Rather, she chose to prioritize searching the defendant's vehicle in advance of the tow. This is not a justification for delaying the informational component of section 10(b).

Section 24(2) of the Charter

[13] Having found a breach of Mr. Singh's rights under ss. 10(b) of the Charter, I turn now to the analysis under s. 24(2).

[14] To determine whether the evidence obtained should be excluded pursuant to s. 24(2), the court is required to undertake an analysis of the three factors mandated by the SCC's decision in Grant.

[15] The court must assess and balance the effect of admitting the evidence on society's confidence in the justice system, having regard to the following three factors: 1) the seriousness of the Charter-infringing state conduct; 2) the impact of the breach on the claimant's Charter-protected interests; 3) society's interest in the adjudication of the case on its merits.

[16] On the first step of the Grant inquiry, I agree with the defendant that the breach in this case is serious. Although the total time elapsed was just six minutes, the evidence demonstrates that PC Peach simply did not make the defendant's Charter-protected right a priority. For someone in police custody, being informed of one's rights at the earliest opportunity is of utmost importance. It is troubling that Officer Peach has seen fit to generate her own procedure which is inconsistent with Charter jurisprudence. The first step of the Grant inquiry favours exclusion.

[17] Both the second and third steps of the Grant inquiry favour admitting the evidence. The impact of the breach on Mr. Singh's Charter-protected interests was minimal. PC Peach did not elicit any statements from Mr. Singh before informing him of his right to counsel. Furthermore, the six-minute delay in no way impacted Mr. Singh's ultimate exercise of his right to counsel.

[18] Finally, society has significant interest in the prosecution of drinking and driving related cases being heard on their merits. The breath test results are reliable evidence, and their exclusion would bring the prosecution to a halt. In my view, the truth-seeking function of the criminal trial process would be better served by the admission of the breath results. Mr. Singh's application to exclude his breath readings for a violation of s.10(b) is dismissed.

Issue #2: "As Soon As Practicable"

a) Evidence of PC Peach

[19] PC Peach left the scene with the defendant in her custody at 8:06 p.m. and some four minutes later arrived at 21 Division. Between 8:10 p.m. and 8:24 p.m., PC Peach waited in her vehicle with the defendant, until she was granted entry into the station by other police personnel controlling the doors. PC Peach testified it was her belief that the delay was due to the fact that another prisoner was being lodged.

[20] Under cross-examination, PC Peach explained the general process that unfolds when she arrives at the police station with a prisoner. She testified that she drives down a ramp, hits a button and is told to the effect of "you have to wait there is someone else being lodged." She agreed that on August 21, 2018, when she had custody of Mr. Singh, she had no firsthand knowledge of a prisoner actually being lodged, only what she was told by one of her colleagues. She further indicated that from the sally port, she could see into the booking room if on her "tippy toes," although she did not take that step to confirm that her colleagues were actually booking someone.

b) Analysis

[21] Section 258(1)(c)(iii) of the Criminal Code was enacted as part of the scheme to ease proof of the concentration of alcohol in the accused's blood for proving the offence of "over 80" in section 253(b). Section 258(1)(c)(iii) provides that where breath samples are taken "as soon as practicable" after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken then, provided certain other conditions are fulfilled, the prosecution can rely on the presumption of identity. The effect of the presumption is to deem the results of the breath tests to be proof of the accused's blood alcohol level at the time of the offence in the absence of evidence to the contrary. In order to satisfy the "as soon as practicable" requirement, the Crown must demonstrate that the samples were taken within a reasonably prompt time under the circumstances. I must consider both subjective and objective factors, including whether the police officer involved acted reasonably. The phrase "as soon as practicable" must be applied with reason having regard to the entire chain of events, and bearing in mind that the Code permits an outside limit of two hours from the time of the offence to the taking of the first test.

[22] On behalf of the Defendant, Ms. Spence argues that there is no admissible evidence to explain the 14-minute delay at the sally port, other than inadmissible hearsay. She relies on the summary conviction appeal judgment of O'Marra J. in R. v. Makacek, [2015] O.J. No. 32, in support of her position. Notwithstanding that less than one hour elapsed between the arrest of Mr. Singh and the taking of the first breath sample, Ms. Spence argues that "unexplained" delay at the sally port is all the more serious because it accounts for one quarter of the time period between the arrest and first sample being obtained. If the Crown cannot rely on the presumption of identity, the absence of evidence relating Mr. Singh's blood alcohol level at the time of the tests to his blood alcohol level at the time of driving would result in an acquittal.

[23] On behalf of the Crown, Ms. Scully argues that PC Peach acted reasonably and that a review of all of the circumstances reveals that the breath samples were indeed taken "as soon as practicable."

[24] Notwithstanding the 14-minute wait in the sally port, it is my view that the breath samples were taken from Mr. Singh as soon as practicable. In reaching this conclusion, I am guided by the principles set out by the Ontario Court of Appeal in R. v. Vanderbruggen, [2006] O.J. No. 1138. In Vanderbruggen, the sole issue litigated on appeal was whether a 46-minute time gap at the police station (where the Appellant was in custody) prior to the breath testing had been adequately accounted for such that the samples were taken "as soon as practicable." At trial the Crown had called only the arresting officer who indicated that she had observed the breath technician in the breath room "playing around with the equipment" during the pertinent time. The breath technician was not called by the Crown to confirm that he was in fact engaged in legitimate activities during the 46 minutes.

[25] Ultimately, the Court of Appeal agreed with the trial judge in Vanderbruggen and found that there was sufficient evidence from which the trial judge could conclude that the police acted reasonably, and that the breath samples were taken as soon as practicable in all of the circumstances. Writing for the majority, Rosenberg J. at paragraph 12 stated: "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." At paragraph 13 he said:

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 (2000), 150 C.C.C. (3d) 225 (Ont. C.A.) at para. 20; R. v. Carter, supra; R. v. Cambrin (1982), 1 C.C.C. (3d) 59 (B.C.C.A.) at 61-3, and R. v. Seed at para. 7.

[26] I need not rely on inadmissible hearsay in my determination that PC Peach acted reasonably throughout the entirety of her dealings with the Applicant. I accept as a fact that PC Peach subjectively believed that someone else was being processed within the police station. I also accept her evidence that she had been told she could not enter immediately, and that someone other than her was in control of the doors that permitted entry into the police station. In other words, the delay was beyond her control. Courts must not lose sight of the fact that impaired cases are but one of the myriad of offences and issues police deal with in the community. The "as soon as practical" requirement is not synonymous with a "no waiting" rule necessitating a race to the police station and priority attention to the exclusion of all others. PC Peach was at all times attentive to her duties and responsibilities towards Mr. Singh and to the case. Assessing the evidence as a whole, I am satisfied that the breath samples were taken as soon as practicable.

Issue #3: The Effect of the Loss of the Presumption – Are the Breath Samples Admissible at Common Law?

a) Evidence of PC Peach

[27] PC Peach testified that on August 21, 2018, she was operating an Approved Instrument, the Intoxilyzer 8000C (the "Intoxilyzer"), which is designed to detect the quantity of alcohol in a person's blood. Print-outs from the Intoxilyzer were entered as Exhibit 1 at trial. PC Peach reviewed the print-outs and explained that she had done a calibration check at 8:29 p.m., which the Intoxilyzer passed. She conducted a self-breath test at 8:29 p.m., which registered 0 mgs of alcohol in 100 mls of blood. She testified that this was accurate given she had not consumed any alcohol. She then conducted a diagnostic check at 8:33 p.m., which the Intoxilyzer also passed. PC Peach said that she was satisfied that the Intoxilyzer was in proper working order.

[28] At 8:51 p.m. the defendant provided a suitable sample of his breath into the Intoxilyzer which registered 129 mgs of alcohol in 100 mls of blood. After waiting the requisite 17 minutes between tests, Mr. Singh's second sample (taken at 9:14 p.m.) registered 132 mgs of alcohol in 100 mls of blood. At 9:49 p.m. PC Peach served the Certificate of a Qualified Technician (the "CQT") on Mr. Singh which reflects truncated readings of 120 and 130 mgs of alcohol in 100 mls of blood. The CQT was made Exhibit 2 at trial. During her testimony, PC Peach referenced the CQT and testified to the effect that the CQT sets out the manufacturer of the alcohol standard, the lot number, and where it was made. The Crown did not tender the Certificate of Analyst regarding the alcohol standard solution that was used in the Intoxilyzer.

[29] In oral argument the Crown conceded that the presumption of accuracy set out in section 320.31(1) could not be relied upon given the failure of PC Peach to give evidence regarding the target value of the alcohol standard solution and its certification by an analyst. At the conclusion of oral argument, this matter was adjourned for the parties to provide written submissions on the common law admissibility of the breath readings. Both Crown and Defence provided comprehensive, detailed materials for which I am grateful.

b) Analysis

[30] Failure to establish the presumption of accuracy provided for in section 320.31(1) does not render breath samples inadmissible. The pre-requisites to the presumption of accuracy are not elements of the offence of "over 80," nor are they pre-requisites to the admissibility or reliability of breath tests at common law. Rather, they are pre-requisites to reliance on the evidentiary short-cut which the Crown can rely on to avoid the need for testimony from a breath technician. The breath samples remain admissible through viva voce evidence of the breath technician together with the Certificate of Qualified Technician.

[31] In her recent decision in R. v. Wu, Justice G. Roberts sitting in her capacity as a summary conviction appeal court had occasion to consider the issue of the admissibility and reliability of breath tests at common law. In discussing the issue she stated as follows:

In proceeding based on the viva voce evidence of a breath technician, and not relying on the evidentiary short-cut in s.320.31(1), the Crown did not need to prove that the criteria set out in s.320.31(1) were present in order for the results of the breath tests to be admissible at common law, or for the results to be found to be reliable. Rather, as Justice MacDonnell noted at para. 22 of McCarthy, which the trial judge explicitly relied on:

Measurements performed by a scientific instrument or device are admissible at common law if the court is satisfied that the instrument or device was capable of making the measurement in question, that it was in good working order, and that it was properly used at the material time [citations omitted]. Having regard to Parliament's designation of the Intoxilyzer 8000C as an 'approved instrument' – 'an instrument of a kind that is designed to receive and make an analysis of a sample of the breath of a person in order to measure the concentration of alcohol in the blood of that person' – the first of those requirements is easily satisfied. The viva voce evidence of a qualified technician will normally suffice to establish the other two.

Are the breath tests admissible?

[32] Based on the evidence of PC Peach, I am satisfied that the breath test results of Mr. Singh are admissible. The evidence was that on August 21, 2018, PC Peach was operating the Intoxilyzer 8000C (designated an "approved instrument" in the Criminal Code). Based on her quality assurance checks (diagnostic test, calibration check, and self-breath test), she was satisfied the machine was in good working order. I accept her evidence in this regard.

[33] At the outset of trial, counsel for Mr. Singh conceded PC Peach's qualifications as a Qualified Breath Technician. In light of this admission and the totality of the evidence, I am satisfied that PC Peach used the Intoxilyzer properly at the material time.

Are the breath tests reliable?

[34] Having found Mr. Singh's breath readings admissible at common law, I must now consider whether I am satisfied that the breath readings support a finding that Mr. Singh was "over 80" beyond a reasonable doubt. In considering this issue, I instruct myself that the burden of proof on this issue rests solely with the Crown.

[35] On the whole of the evidence I am satisfied beyond a reasonable doubt that Mr. Singh's blood alcohol concentration was "over 80" at the time he was in care or control of his motor vehicle. Notwithstanding her lack of compliance with the immediacy requirement of s. 10(b), PC Peach struck me otherwise as a thorough and careful officer. Her evidence went completely unchallenged as to her belief that the Intoxilyzer was in proper working order. She gave testimony concerning the diagnostic checks she ran that lead her to conclude the machine was working properly. That evidence was corroborated by the print-outs tendered as Exhibit 2 which do not reflect any error messages. Furthermore, Exhibit 1 (the CQT) specifically references the alcohol standard solution that was suitable for use with the Intoxilyzer and references the manufacturer (Laboratoire Atlas Inc.) and the alcohol standard lot number (1KA). In her testimony, officer Peach referenced the details of the alcohol standard solution and lot number being reflected on the CQT. Notwithstanding she did not explicitly state that she checked the solution on the date in question, I am satisfied that she is a thorough and thoughtful breath technician who ensured the Intoxilyzer was operating properly.

Verdict

[36] I find Mr. Singh guilty of the offence of "over 80."

Released: October 23, 2019

Signed: Justice K.A. Wells