ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 09-12620
DATE: March 2, 2012

BETWEEN:

HER MAJESTY THE QUEEN Appellant – and – ERIC MALETTE Respondent

Peter Napier, for the Appellant
Jeffrey Langevin, for the Respondent

HEARD: February 29, 2012

REASONS FOR JUDGMENT

Madam Justice J.A. Blishen

Introduction

[ 1 ] Eric Malette was charged with operating a motor vehicle with over 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 253(1) (b) of the Criminal Code of Canada , arising out of an incident on September 16, 2009.

[ 2 ] On December 22, 2010, the trial judge found that the samples of Mr. Malette’s breath were not taken “as soon as practicable” within the meaning of s. 258(1) (c)(ii) of the Criminal Code and found Mr. Malette not guilty.

[ 3 ] The Crown appeals the acquittal and argues the trial judge misapprehended the evidence and erred in two fundamental respects:

1. by engaging in a analytic parsing of events into static moments without regard for the totality of the circumstances and on that basis finding that the Respondent’s breath samples were not taken “as soon as practicable”; and

2. in finding there was no evidence to explain a number of delays when there was an explanation directly on the evidence or on the basis of reasonable inferences from the evidence.

Facts

[ 4 ] There is substantial agreement on the facts as outlined below.

[ 5 ] Shortly after 1:00 a.m. on September 16, 2009, Mr. Malette sped past Constable Friel’s police cruiser, proceeded down a number of residential streets and stopped at a residence. Mr. Malette left his vehicle and ran through a number of residential back yards, while Constable Friel pursued him on foot. Mr. Malette gave up the chase at 1:04 a.m. and was arrested by Constable Friel for careless driving under the Highway Traffic Act . Constable Friel testified that he then brought Mr. Malette back through three yards to his cruiser, searched him and observed an odour of alcohol on his breath and glassy eyes.

[ 6 ] At 1:11 a.m., Mr. Malette was cautioned; at 1:15 Constable Friel did a roadside demand; at 1:16 he demonstrated the use of the roadside device to Mr. Malette and at 1:18, Mr. Malette failed the screening test and was rearrested for a s. 253 Criminal Code offence.

[ 7 ] Constable Friel testified some of Mr. Malette’s property was outside the vehicle after the search. It had to be collected and Constable Friel also dealt with whether Mr. Malette’s vehicle could remain in the laneway of the residence. He returned to the cruiser and at 1:26 a.m., read Mr. Malette his rights to counsel and caution. A breathalyser demand was made at 1:29 a.m.

[ 8 ] At 1:36 a.m., Constable Friel left with Mr. Malette in his custody and proceeded directly to the police station arriving there at 1:54 a.m. Mr. Malette was placed in a holding room and efforts were made to facilitate contact with counsel. Mr. Malette spoke with counsel commencing at 2:12 a.m. and continuing until 2:29 a.m., at which point he was returned to the holding room.

[ 9 ] At 2:30 a.m., Constable Friel met with the qualified breathalyser technician, Constable Stewart and provided him with grounds for making the breath demand. Constable Stewart received all the information from Constable Friel by 2:37 a.m. and began entering information into the breathalyser machine.

[ 10 ] Constable Stewart provided Mr. Malette with his rights to counsel and caution at 2:43 a.m. and made a breath demand at 2:44 a.m. He initiated the test sequence on the intoxilyzer and Mr. Malette provided a suitable sample at 2:47 a.m. At 2:48 a.m., the sample registered 129 mg of alcohol in 100 ml of blood. At 2:48 a.m., the intoxilyzer initiated a “lockout” which prevented another test from being conducted for 17 minutes. Following the 17 minute lockout, Constable Stewart testified that there is a two minute period during which the intoxilyzer “cycles through another air blank...a calibration check and then another air blank”, which totals 19 minutes.

[ 11 ] Constable Stewart testified that he usually provides instructions to the subject once again and may have engaged in casual conversation with Mr. Malette. In addition, he completed a Notice of Intent and Notice of Increased Penalty prior to the second sample being provided at 3:15 a.m. The result on the second test was also 129 mg of alcohol in 100 ml of blood. At 3:19 a.m., Mr. Malette was back in Sergeant Friel’s custody and the documents were served on him at 3:30 a.m.

Reasons for Decision

[ 12 ] The trial judge found a number of delays between the offence and the taking of the breath samples and gave examples as follows:

1. Mr. Malette is arrested for careless at 1:04 and rights to counsel are read only at 1:11 a.m. There is no explanation for the seven minute delay.

2. Sergeant Friel leaves the scene at 1:36, arriving at the station at 1:54. There is no explanation for the delay between 1:15 a.m. and 1:36 a.m. at the scene.

3. The first test is completed at 2:48 a.m. Constable Stewart agrees that there was no reason for not proceeding with the second sample at 3:05 a.m. The preparation of the machine does not begin until 3:13 a.m. and a sample is obtained at 3:15 a.m.

[ 13 ] The trial judge concluded that:

In total, there are several short but unexplained delays in addition to the eight minute delay between the samples being taken at the station.

[ 14 ] She found that the breath tests were not taken “as soon as practicable” and therefore the presumption that the results of the breath tests were, in the absence of evidence to the contrary, deemed to represent the blood alcohol level at the time of driving, did not apply.

Law and Analysis

[ 15 ] The Crown’s right of appeal from an acquittal in summary proceedings such as this is not limited to questions of law alone. The Crown may appeal on questions of fact, including on the basis of an allegation that the verdict is unreasonable: R. v. Kendall , 2005 21349 (ON CA) , [2005] O.J. No. 2457 (Ont. C.A.), at para. 46 .

[ 16 ] On a Crown appeal as on a defence appeal, the summary conviction appeal court may not retry the case: Kendall , at para. 46 . As explained in R. v. Burns (1994), 1994 127 (SCC) , 89 C.C.C. (3d) 193 (SCC), at paras. 198-199 , an appeal court is entitled to review the evidence, re-examine it and re-weigh it, “but only for the purpose of determining if it is reasonably capable of supporting the trial judge’s conclusion; that is, determining whether the trier of fact could reasonably have reached the conclusion it did on the evidence before it [...] Provided this threshold test is met, the Court of Appeal is not to substitute its view for that of the trial judge, nor permit doubts it may have to persuade it to order a new trial”.

[ 17 ] In this case, the Crown argues the trial judge misapprehended the evidence and therefore erred in law, in assessing whether the breath samples for analysis were obtained by the police “as soon as practicable”.

[ 18 ] The test in assessing the “as soon as practicable” requirement under s. 258(1) (c)(ii) of the Criminal Code is one of reasonableness.

[ 19 ] In R. v. Payne 1990 10931 (ON CA) , [1990] O.J. No. 639 (Ont. C.A.), the Ontario Court of Appeal referred to its decision in R. v. Phillips 1988 198 (ON CA) , [1988] O.J. No. 415 (Ont. C.A.) and noted that as soon “as practicable” does not mean as soon as possible. The court goes on to note:

The critical issue in each case is whether the conduct of the police, in the interval between the time the appellant was arrested and the breathalyser test was administered, was reasonable, having regard to all the circumstances.

[ 20 ] In R. v. Seed 1998 5146 (ON CA) , [1998] O.J. No. 4362 (Ont. C.A.), the Ontario Court of Appeal further held that the focus of a trial court should be on whether the police had acted reasonably and expeditiously in all the circumstances. The court goes on to note that the “as soon as practicable” requirement does not impose:

...an evidentiary burden on the prosecution to account for every minute between the time of arrest and the administration of the first test, rather than focusing on whether the police had acted reasonably, and expeditiously, in all the circumstances.

[ 21 ] More recently, the Ontario Court of Appeal in R. v. Vanderbruggen 2006 9039 (ON CA) , [2006] O.J. No. 1138 (Ont. C.A.) affirmed that the entirety of the circumstances must be considered having regard to parliament’s provision of a two hour period from the time of the offence to the time of the taking of the first breath sample. Mr. Justice Rosenberg writing for the court states:

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), 2000 17024 (ON CA) at para. 20 ; R. v. Carter , supra ; R. v. Cambrin (1982), 1982 353 (BC CA) , 1 C.C.C. (3d) 59 (B.C.C.A.) at 61-3, and R. v. Seed at para.7.

[ 22 ] In the case at bar, the trial judge considered all the circumstances surrounding the taking of the samples to determine whether they were taken within a reasonable period of time or “as soon as practicable”. She was well aware of the law and accepted there did not need to be an exact accounting of every minute throughout an investigation.

[ 23 ] In considering the evidence of the breathalyser technician, she noted his evidence as to what took place between the tests was based on his usual practice; he did not have notes specific to what occurred between himself and Mr. Malette during the testing procedure; the second test could have commenced at 3:05 a.m. and Constable Stewart did not have notes of what occurred between 3:05 a.m. and 3:13 a.m. She noted:

I also cannot accept that officers do not have notes where there is a delay specific to the case to explain it. It is not sufficient to testify, “Well, this is my general practice. I would have been filling out forms that could and should be completed after the testing is complete.” or “I would have been engaged in casual conversation with an accused with no notes on what is being said.” It is not an acceptable practice and it is an unsatisfactory explanation.

[ 24 ] Therefore, I find with respect to the eight minute delay between 3:05 and 3:15 a.m., the trial judge did not misapprehend the evidence but carefully considered the reasonableness of that delay and found it to be unreasonable. No error was made.

[ 25 ] However, the trial judge did make findings with respect to as she termed it “several short but unexplained delays in addition to the eight minute delay between the samples”. Specifically, she noted that the seven minute delay between 1:04 and 1:11 a.m. was unexplained and considered this delay in determining that the entire period of time was unreasonable. I find the trial judge misapprehended the evidence with respect to that delay. There was indeed evidence and an explanation as to that seven minute period. Constable Friel had engaged in a foot chase ending at 1:04 a.m. when Mr. Malette was arrested. The officer then walked Mr. Malette back to his vehicle through three residential backyards and searched him. He then read Mr. Malette his rights to counsel and caution at 1:11 a.m.

[ 26 ] In addition, I find the trial judge misapprehended the evidence in finding there was no explanation for the time period between 1:15 and 1:36 a.m. Constable Friel testified about a number of significant steps taken during this twenty-one minute time period. He described making a roadside demand as a result of his observations of Mr. Malette and demonstrating the roadside screening device to Mr. Malette at 1:16 a.m. The roadside was failed at 1:18 a.m. and Mr. Malette was arrested at 1:18, cautioned and given his rights to counsel again. A breathalyser demand was then made at 1:29 a.m. Further, Constable Friel testified he was making inquiries during this timeframe in an effort to determine whether Mr. Malette’s vehicle could be left in the laneway.

[ 27 ] The trial judge misapprehended the evidence in considering the delays noted above to be “unexplained”. She considered those delays in reaching the conclusion that in the totality of circumstances, there was an unreasonable delay. The trial judge’s finding that the breath samples were not taken “as soon as practicable” resulted in her finding Mr. Malette not guilty of the s. 253(1) (a) offence. I conclude the error by the trial judge had “a material bearing on the acquittal”, as stated by the Supreme Court of Canada in R. v. Graveline , 2006 SCC 16 (S.C.C.) at para. 14 . At para. 15, the Court refers to its decision in R. v. Morin , 1988 8 (SCC) , [1988] 2 S.C.R. 345 (S.C.C.) as follows:

An accused who has been acquitted once should not be sent back to be tried again unless it appears that the error at the first trial was such that there is a reasonable degree of certainty that the outcome may well have been affected by it.

[ 28 ] I find there is a reasonable degree of certainty that Mr. Malette may not have been acquitted had the trial judge not misapprehended the evidence as to the delays. Therefore, the appeal is allowed, the acquittal is set aside and a new trial is ordered.

Blishen J.

Released: March 2, 2012