ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-11-206AP
DATE: 20120605

BETWEEN:

HER MAJESTY THE QUEEN Applicant – and – DARRELL JENKINS Respondent

K. Hull, for the Crown
D.A. Wilcox, for the Respondent

HEARD: May 14, 2012

On Appeal from the Judgment of Madam Justice E. Earle-Renton dated May 17, 2011

McCARTHY J.

[ 1 ] This is an appeal from a judgment rendered by Her Honour Justice Earle-Renton of the Ontario Court of Justice at Bradford, Ontario on May 17, 2011. Earle-Renton J. dismissed the charges brought against the Accused/Respondent under sections 253(1) (a) and 253(1)(b) of the Criminal Code , R.S.C. 1985, c. C-46.

[ 2 ] The Crown appeals on the grounds that the Trial Judge erred in law in holding that the approved screening device sample had not been taken forthwith and that the Trial Judge misinterpreted the law laid down in R. v. George , 2004 6210 (ON CA) , [2004] O.J. No. 3287 (C.A.).

[ 3 ] The Crown seeks an order setting aside the dismissal and for entering a conviction on the charges.

THE FACTS

[ 4 ] On the evening of July 30, 2010, the Respondent was approaching a police checkpoint on the 3 rd Concession of Essa Township. It was approximately 7:18 pm. Before reaching the checkpoint, the Respondent turned into a private driveway, reversed and then exited the driveway. He then drove his vehicle in the opposite direction, away from the checkpoint. Sergeant Melanson of the Ontario Provincial Police, suspicious that the Respondent was attempting to evade the checkpoint, made the decision to pursue and apprehend the Respondent using the nearest available police cruiser.

[ 5 ] Sergeant Melanson caught up to the Respondent on the 2 nd Concession some 2.1 kilometres from the checkpoint. He stopped the Respondent’s vehicle and approached the driver. It was approximately 7:20 or 7:21pm. At that time, he detected an odour of alcohol on the Respondent’s breath.

[ 6 ] Sergeant Melanson did not have an approved screening device (“ASD”) with him. He called back to the checkpoint on his cell phone to request that one be brought to the scene. The Sergeant did not have his “right to counsel” or “demand” card with him. He anticipated that PC Sharp would take over carriage of the investigation upon his arrival. PC Sharp was requested to proceed to the scene by PC Bednarczyk at 7:22 pm. After picking up his clipboard and paperwork from another officer at the checkpoint, PC Sharp proceeded to join Sergeant Melanson at the investigation scene. He arrived at 7:32 pm. After a brief discussion, PC Sharp approached the Respondent, still seated in the driver’s seat of the vehicle. He made an ASD demand at 7:35 pm. The Respondent complied and registered a “Fail” at 7:39 pm.

[ 7 ] PC Sharp arrested the Respondent and then read him his rights to counsel at 7:41 pm. He made an Intoxilyzer demand at 7:42 pm. The Respondent declined to contact a lawyer at that time. PC Sharp took the Respondent to the nearest detachment at 7:54 pm. With the test set to proceed, the Respondent then asked to speak to counsel and was afforded that right. Following this, the Respondent took the Intoxilyzer test with a qualified technician. He failed this test as well.

THE TRIAL JUDGE’S FINDINGS

[ 8 ] The Trial Judge found that the period of time, as it elapsed from the roadside fail at 7:39 pm to the arrival at the detachment at 7:54 was “...not unreasonable and has been explained adequately.” In addition, the Trial Judge was satisfied that the period of time from the arrival at the detachment at 7:54 pm to the completion of the first sample at 8:51 pm had been more than adequately explained.

[ 9 ] The Trial Judge was not satisfied, however, that the tests were taken as soon as practicable for the purposes of section 258 (1)(a)(ii) because of the unexplained delay in the investigation between 7:22 and 7:32 pm, the time between which PC Sharp was requested to attend the scene and his actual arrival, when the evidence established that the driving distance between the checkpoint and the scene was less than a minute.

[ 10 ] The crux of the learned Trial Judge’s reasoning is set out at page 84, lines 6 through 15 of the trial transcript:

That being the case then, is it sufficient to render the whole charge nugatory? Criminal Code [sic] is quite – quite specific. What has to be done, has to be done within a reasonable period of time – as soon as practicable. Were it not for that 10 minute delay in getting to the scene from where he was working I would have said everything was done quite properly and was explained properly, but I am not satisfied that there is any explanation for that 10 minute delay. That being the case, I am not satisfied that the tests were taken as soon as practicable.

[ 11 ] On that basis the charge was dismissed.

THE ISSUE

[ 12 ] The sole issue on appeal is whether the Trial Judge erred in holding that the Intoxilyzer tests were not taken as soon as practicable after the time when the offence was alleged to have been committed as required by section 258 (a)(ii) of the Criminal Code .

THE APPELLANT’S POSITION

[ 13 ] The Appellant contends that, in addressing the issue of the roadside delay, the Trial Judge should have turned her mind to the test in R. v. George , 2004 6210 (ON CA) , supra .. In assessing whether a delay at the roadside renders test results inadmissible, the Trial Judge ought to have considered whether the roadside samples were taken “forthwith’ within the meaning of George . If they were taken forthwith, the time period necessary to do that could hardly be said to be impermissibly long.

[ 14 ] In George , the Ontario Court of Appeal held that a police officer not in possession of an ASD at the time a demand is made must assess whether the detainee’s right to counsel could reasonably be facilitated during the wait. In that event, the factors the court must look at in assessing the reasonableness of the officer’s actions include the time it actually takes the device to arrive, the ability and desire of the accused to contact counsel and whether any opportunity to contact counsel is reasonable in the circumstances: see paras. 34, 39, 41, 42.

[ 15 ] The Appellant submits that the “forthwith” requirement exists to protect the Charter rights of a detainee, and the “as soon as practicable” requirement protects the science underlying the breath analysis of blood alcohol concentration. Therefore, “forthwith” must mean before any realistic opportunity to consult counsel; “as soon as practicable” must take into account that the Criminal Code section in question allows an outside limit of two hours for taking the test.

[ 16 ] The Appellant puts forward the following circumstances that the Trial Judge should have considered in deciding whether the Intoxilyzer tests were done as soon as practicable: (a) the scene itself was in a rural location; (b) Sgt. Melanson was expecting the roadside device momentarily; and (c) the device arrived in less time than it might reasonably have taken to reach duty counsel.

THE RESPONDENT’S POSITION

[ 17 ] The Respondent contends that the Trial Judge, having considered all of the evidence and having weighed the length of the impugned delay against the reason for the delay, came to the simple conclusion that the Intoxilyzer tests were not taken as soon as practicable.

[ 18 ] The Respondent argues that R. v. Vanderbruggen , 2006 9039 (ON CA) , [2006] O.J. No.1138, 208 O.A.C. 379 (C.A.), is the leading case dealing with the interpretation of the wording, “...as soon as practicable.” At paragraph 12 of that decision, the Ontario Court of Appeal held that: “The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably.”

[ 19 ] In this case, there was evidence upon which the Trial Judge could find that the arresting officer had acted unreasonably, specifically P.C. Sharp’s inability to provide an explanation for the ten minute time delay between 7:22 pm and 7:32 pm. The Trial Judge took into account all of the circumstances including the time of day, the time of year, distance travelled and the steps taken by the constable prior to departing the checkpoint for the scene. In fact, P.C. Sharp conceded that there was no explanation for the length of time it took him to get to the scene with an ASD.

[ 20 ] The Respondent relies on the following passage from the Ontario Court of Appeal decision in R. v. Najm , 2006 19483 (ON CA) , [2006] O.J. No.2348, 211 O.A.C. 280 (C.A.) at paras. 1-2 , which defines the role of the Trial Judge and the summary conviction Appeal Judge respectively:

While the trial judge’s finding may have been generous in favour of the appellant, she applied the correct test and took the proper factors into account. The summary conviction appeal judge applied the same test and came to a different conclusion. In our view, in the absence of error on the part of the trial judge, the summary conviction appeal judge was not entitled to, in effect, retry the case.

ANALYSIS AND DISPOSITION

[ 21 ] I find that the Trial Judge correctly identified the issue at trial as being whether the Intoxilyzer samples were taken as soon as practicable. She went on to consider the evidence and the entire circumstances. She found that there was no explanation for the impugned ten minute delay between 7:22 pm and 7:32 pm. She was not satisfied that the tests were taken as soon as practicable. The Trial Judge’s finding may have been generous in favour of the Respondent in this case but her finding is entitled to deference. The matter should not be reviewed based upon what another Trial Judge might have done.

[ 22 ] I find that the Trial Judge properly applied the test enunciated in the R. v. Vanderbruggen decision. She looked at the whole chain of events in an effort to determine whether the tests were taken within a reasonably prompt time under the circumstances.

[ 23 ] The appeal is dismissed.

McCARTHY J.

Released: June 5, 2012