ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-48

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – TRAVIS THOMPSON Appellant

Elaine Evans, for the Crown

Brad Allison, for the Appellant

HEARD: November 23, 2010 and May 10, 2011

on appeal from the decision of the honourable justice p. Adams of the ontario court of justice on May 10, 2011 at morrisburg, ontario

REASONS FOR JUDGMENT

mcmunagle j.

Introduction

[ 1 ] On December 5, 2009, the Appellant was charged with Impaired Driving contrary to s. 253 (a) of the Criminal Code of Canada, R.S.C., 1985, c. C-46 and Driving over 80, contrary to s. 253(b) of the Criminal Code :

253. Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,

( a ) while the person's ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or

( b ) having consumed alcohol in such a quantity that the concentration in the person's blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.

[ 2 ] The trial was held on November 23, 2010, in the Ontario Court of Justice, before the Honourable Justice P. Adams, who rendered his decision in this matter on May 10, 2011. The Appellant was acquitted of operating a motor vehicle while impaired by alcohol, contrary to s. 253 (a) of the Criminal Code , supra, but was found guilty of driving with over 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 253(b) of the Criminal of Canada, supra.

[ 3 ] On May 10, 2011, the Appellant was sentenced to pay a fine of $1,100, pursuant to s. 255(1) (a)(i) of the Criminal Code , supra . The Appellant was also given the minimum statutory one year driving prohibition, pursuant to s. 259(1) (a) of the Criminal Code, supra. The Appellant appeals his conviction only. The Appellant’s Notice of Appeal raised four grounds of appeal:

(1) That the Honourable Trial Judge erred in law by finding that the accused was driving a motor vehicle at a particular time, when that time was not in fact established in the trial evidence;

(2) That the Honourable Trial Judge erred in law by convicting the accused of having care and control of a motor vehicle, though the accused was charged with operating a motor vehicle;

(3) That the Honourable Trial Judge erred in law by failing to give Reasons for Judgment that were sufficient in law with respect to the rejection of the arguments raised by defence, and;

(4) Such further and other grounds as this Court may permit.

[ 4 ] At the hearing for the appeal, counsel for the Appellant agreed that the main focus of the appeal would now be whether the Honourable Trial Judge had erred by finding that the Crown had proved beyond a reasonable doubt that the first breath test had been taken within two hours, from the time the accused had operated a motor vehicle, and secondly that the Honourable Trial Judge had erred by finding that the Crown had proved beyond a reasonable doubt that the breath test had been taken as soon as practicable. Essentially, there was only one ground of appeal that was advanced at the hearing, on consent of counsel for the Appellant, and that is whether the Honourable Trial Judge erred in finding that the breath test was taken within the requisite timeframe.

Factual Background

[ 5 ] On December 5, 2009, shortly before 9:10 a.m., the Appellant was operating a motor vehicle, when Constable Shane Budgell, a trained radar operator, observed the Appellant’s vehicle driving at a high rate of speed and activated his radar device. After observing the vehicle in motion for about a minute, he stopped the Appellant’s vehicle. Upon approaching the driver, Constable Budgell noted the odour of an alcoholic beverage on the driver’s breath and that the driver seemed nervous. Following an admission of alcohol consumption from the previous evening, the officer made the Approved Screening Device demand at 9:14 a.m. The Appellant blew a fail and was subsequently arrested and transported to the local O.P.P. detachment, where samples of his breath were taken into an Approved Breathalyser Instrument and analysed. The results of those samples were 163 and 158 milligrams of alcohol in 100 millilitres of blood. He was subsequently charged with the offences before the Honourable Trial Court and was released.

[ 6 ] Constable Budgell testified that he was using the clock in the police vehicle to record the times. He further testified that he made his notes at the scene in his police vehicle while waiting for the tow truck to arrive. He further testified that he wears a watch and knows what times he is dealing with. He also testified that the clock in his cruiser is part of a car radio and that he could not recall with 100% accuracy, if it was the radio, the watch, or both, that formed the basis of his timings. He did, however, testify that while the radio may not always be accurate, he indicated that his watch is “pretty accurate”, which he usually checks and that it was his practice to verify his watch as compared to the radio. Having blown a fail, at approximately 9:16 a.m., Constable Budgell arrested Mr. Thompson, read his rights to counsel, made the breath demand, and gave him the caution, beginning at 9:17 a.m. Constable Budgell then contacted the qualified breathalyser technician at the detachment at 9:19 a.m. and requested a tow truck to attend the scene to tow away the Appellant’s vehicle. The tow truck arrived at 9:47 a.m. along with another officer, Constable Rosen. Constable Budgell then left the scene for the detachment, arriving at 10:13 a.m., whereupon the Appellant was lodged in the cells. Constable Budgell then had a conversation with Constable Budzinski, the qualified breathalyser technician.

[ 7 ] Most importantly, from the Court’s perspective, Constable Budzinski testified that he had checked the synchronization of his and Constable Budgell’s watches and that there was a “one minute” difference between them. Constable Budzinski testified that he received the call for his services, as a breath technician, at 9:20 a.m., and at that point he attended the ‘Morrisburg Detachment arriving at 9:44 a.m.

[ 8 ] After various efforts were made to contact counsel of choice, including Mr. Allison, who was duty counsel, a different duty counsel was called at 10:35 a.m. and ultimately spoke with the Appellant at 10:59 a.m. and concluded his conversation at 11:04 a.m.

[ 9 ] Constable Budzinski testified he received custody of the Appellant at 11:06 a.m. The Appellant provided his first breath sample at 11:08 a.m., with the result being 163 milligrams of alcohol in 100 millilitres of blood. Constable Budzinski conducted an interview between the first and second test. He felt the effects of alcohol were “slight”, and that the Appellant was “apparently fit”, to operate a motor vehicle. The second sample was provided at 11:28 a.m., which provided a reading of 158 milligrams of alcohol in 100 millilitres of blood.

[ 10 ] Constable Budgell took custody of the Appellant again at 11:31 a.m. and after being served with the relevant documentation, the Appellant was released at 12:35 p.m.

[ 11 ] Constable Budzinski testified that he realized that “...the timing of the first test was very close to the two hour limit.” As a result, he compared the time of his watch, to the time of Constable Budgell’s watch. He noted that the time on his watch was 11:35.06, while the time on Constable Budgell’s watch was11:34.06, a one minute difference.

Reasons for Trial Decision

[ 12 ] The learned trial judge found that, on the totality of the evidence, the Appellant’s car was stopped at 9:10 a.m. and the first test began at 11:08 a.m.

[ 13 ] At trial, the Crown relied on the presumption afforded to them by s. 258(1) (c) of the Criminal Code , supra . It should be noted that the Crown did not call expert or other evidence to relate the breath readings taken from the Appellant, to the time of driving. Absent this statutory presumption, there would be no evidence before the Court upon which the accused could be found guilty of the offence as charged.

[ 14 ] A thorough reading of the learned trial judge’s reasons for judgment specifically paras. 23, 24, 25, 26, 27 and 28 reveals that he was very much alive to the main issue in dispute. That is, whether or not the first breath sample was taken within the statutorily required two hour limit, in order for the Crown to rely on the aforementioned evidentiary presumption contained in the Criminal Code .

[23] First, the time between the stopping and the breath test. In this case, the stop was at 9:10 a.m. and the first test was at 11:08 a.m. On the face of the timing, it seemed too close a case to automatically accept the time as being within two hours to allow the Crown the use of the presumption. I therefore considered the timing carefully on the facts before me. (Emphasis added)

[24] First, I found the evidence of Officer Budgell to be true in his timing. He said he used his watch and also used his police vehicle radio clock. He made his notes immediately at the scene. He had no crystal ball to predict the future when the first test would be given and thus he had no reason to make up the time he put in his notes. And I find that he was very careful in making his notes. I was impressed with his evidence when he said that he doesn’t call dispatch for timing, but rather relies upon his own times because he’s aware that they are generally busy and sometimes miss the time necessary for an offence of this nature. As a result, I find that the Crown has proved beyond reasonable doubt that the time of the stopping, as noted, was at 9:10 a.m.

[25] On the other end of the spectrum, I believe the two officers when they said the first test was at eleven-o-eight. Officer Budzinski and Officer Budgell said that they compared watches. Budzinski said he compared them down to the second. In my view, the time period nine ten to eleven-o-eight was within the two hour time period and the Crown is entitled to rely on the presumption under s. 258(1) (c) of the Criminal Code .

[26] Second, I am not persuaded that the nine ten time period is the time that I must consider. Officer Budgell said that he stopped the vehicle at nine ten. He went to the Thompson vehicle and spoke with Mr. Thompson, who was the operator. He made observations that took some moments to consider. He then asked Mr. Thompson to leave the vehicle. It was at this period of time that Mr. Thompson abandoned the operation and care or control of his vehicle.

[27] When he arrived at the police car he completed the ASD demand and the time was noted on the police vehicle clock by Officer Budgell. He said, “The time was approximately nine fourteen when I read the breath demand.” He also said that he started his notes when he had Mr. Thompson in the back of the car and the start of the note taking included the stop at 9:10 a.m. and the demand at 9:14 a.m. This would increase, not decrease the two hour period of time from a two minute period to as high as almost seven minutes.

[28] While I agree that either period is a close period, I am not left in any doubt that either of the two scenarios was over a two hour time period. Both the time periods and the synchronizations of the times between the officers I find to be both subjectively true and objectively true. Both believed and objectively used at least three clocks, the police car, Budgell’s watch and Budzinski’s clock and all of the clocks put the times within a two hour period.

Analysis

[ 15 ] The scope of review in the present appeal is limited to examining whether the conviction is unreasonable and not supported by the evidence. See R. v. Burns , 1994 127 (SCC) , [1994] S.C.J. No. 30 (S.C.C.), R. v. Biniaris , 2000 SCC 15 () , [2000] S.C.J. No. 16 (S.C.C.).

[ 16 ] Counsel agree that there is no dispute that the investigating officer had the authority to make an ASD demand, pursuant to s. 254(2) (b) of the Criminal Code , as a result of the Appellant’s admission to consuming alcoholic beverages “the night before.” The Appellant contends that the evidence is insufficient to establish his guilt on the charge of operating over 80, unless the evidence is sufficient to prove, beyond a reasonable doubt, that the Appellant operated a motor vehicle within the two hours immediately preceding the completion of the first breath sample. The Appellant contends that the evidence was insufficient to establish this time requirement for the following reasons:

(a) the time at which the Appellant ceased to operate a motor vehicle as recorded in the notes of Cst. Budgell is uncertain because:

(i) that time was recorded approximately 4 minutes after the fact, with no evidence to indicate how the officer would know that only 4 minutes had elapsed between the stop and the recording of the time of stop;

(ii)that time was determined by Cst. Budgell by reference to his watch OR a clock located within the police vehicle, but Cst. Budgell is not sure of which timepiece was used;

(iii) the vehicle clock (radio) was notoriously inaccurate; and

(iv) when his attention was directed to this particular time, Cst. Budgell indicated the time as recorded was ambiguous, testifying that it “would’ve been within several minutes.”

[ 17 ] Further the Appellant contended that the time at which he completed the first breathalyser sample, according to Constable Budzinski, is uncertain because:

1. No evidence was adduced to determine if the first breath sample commenced at 11:08 a.m. or ended at 11:08 a.m., and no evidence was adduced to address the question of how long it took to provide the sample; and

2. Constable Budgell testified that he did not discuss the issue with Constable Budzinski, but Constable Budzinski testified that the issue was addressed by the officers when they were together; and

3. This synchronization evidence relates to Constable Budgell’s watch, although there is no clear evidence that Constable Budgell’s testimony about the time was related to his use of his watch to determine the times.

[ 18 ] The Crown’s submission is that there was indeed sufficient evidence to link the times that Constable Budgell and Constable Budzinski had, in order to prove, beyond a reasonable doubt, that the two hour time limit was met and therefore the Crown was entitled to rely on the presumption pursuant to s. 258(1) (c) of the Criminal Code .

[ 19 ] I agree with the Crown when they submit that “...the learned trial judge relied upon the evidence of Constable Budzinski as to the synchronization of their watches,” which he was entitled to do. Constable Budgell testified that he partially relied on the clock in the cruiser and his own watch, for his timings.

[ 20 ] I agree with the Crown’s submission that the defence claim that the clock in the cruiser could be “notoriously inaccurate,” is not supported by the trial record.

[ 21 ] As noted by the Crown, Constable Budgell, whether using the clock in the cruiser or his watch, called for the breathalyser technician at 9:19 a.m. Constable Budzinski testified that he received the request for his services at 9:20 a.m. Therefore, the one minute difference between their watches, which was commented upon by Constable Budzinski, is corroborated by the timing of the call for the breathalyser technician, which in turn supports the inference, properly accepted by the trial judge, that the clock in the cruiser and Constable Budzinski’s watch were off by only one minute.

[ 22 ] I agree with the Crown that the learned trial judge was entitled to rely upon this credible evidence and made the appropriate factual findings on the issue of timing, which findings ought not be disturbed by this Appellate Court.

[ 23 ] Applying the test in R. v. Burns , supra , that the role of the Appellate Court is to determine whether on the facts that were before the Honourable Justice Adams, a jury properly instructed and acting reasonably could convict, this Court’s role is to review the evidence that was before the trier of fact and after re-examining, and to a very limited extent, re-weighing the evidence, determine whether the Burns test is met. While the Appellate Court may disagree with the verdict, if the Appellant has had a trial in which the legal rules have been observed, and there is, on the evidence, a reasonable basis for the verdict, no complaint can be upheld. See R. v. P.L.S ., 1991 103 (SCC) , [1991] S.C.J. No. 37 (S.C.C.) at page 197.

[ 24 ] I agree with the Crown that the law in the area of appellate review is clear. Specifically, considerable deference should be afforded to the trial judge on his or her findings of fact, the proper inferences to be drawn from them, in his or her assessment of the credibility and reliability of the witnesses, and the ultimate assessment of whether or not the allegations before the Court have been made out beyond a reasonable doubt. As Arbour J. wrote in Biniaris , infra:

Triers of fact, whether juries or judges, have considerable leeway in their appreciation of the evidence and the proper inferences to be drawn therefrom, in their assessment of the credibility of witnesses, and in their ultimate assessment of whether the Crown’s case is made out, overall, beyond a reasonable doubt. Any judicial system must tolerate reasonable differences of opinion on factual issues. Consequently, all factual findings are open to the trier of fact, except unreasonable ones embodied in a legally binding conviction. Although reasonable people may disagree about their appreciation of the facts, a conviction, which people may disagree about their appreciation of the facts, a conviction, which conveys legality, authority, and finality, is not something about which reasonable people may disagree. A conviction cannot be unreasonable, except as a matter of law, in which case it must be overturned [emphasis added]

• R. v. Biniaris (2000), 143 C.C.C. (3d) 298 (S.C.C.) at para. 24

• R. v. Boyce, 2005 36440 (ON CA) , [2005] O.J. No. 4313 (Ont. C.A.) at para. 3

[ 25 ] I further agree with the Crown’s submission that there is no general duty, viewed in the abstract and divorced from circumstances of the particular case, to provide reasons on particular points, when the finding is otherwise supportable on the evidence or where the basis of the finding is apparent from the circumstances. See R. v. Sheppard , 2002 SCC 26 () , [2002] S.C.J. No. 30 (S.C.C.) at para. 4 .

[ 26 ] I find no fault in the Honourable Justice Adams’ written reasons, and find that he has met his duty to provide sufficient reasons that would allow for an Appellate Court to meaningfully exercise its review function.

[ 27 ] As stated in Sheppard , supra , at para. 28 , the mandate of the Appellate Court is to determine the reasonableness of the trial decision, and a functional test requires that the trial judge’s reasons be sufficient for that purpose. Further, in Sheppard , supra , at para. 46 , it will be for the Appeal Court to determine whether, in a particular case, the deficiency in the reasons precludes it from properly carrying out its appellate function. I find that there is no deficiency in the reasons that precludes me carrying out my appellate function.

[ 28 ] I further agree with the Crown that the Honourable Judge Adam’s reasons, when read as a whole, and cross-referenced with the transcript, demonstrate an understanding of the critical issue, and that his Honour was alert to the arguments raised. In arriving at his finding of guilt, Justice Adams navigated an apparent and acceptable path through the evidence and provided obvious and rational explanations for his conclusion as required. See R. v. Tzarfin , 2005 30045 (ON CA) , [2005] O.J. No. 3531 (O.C.A.) at para. 10 . I also agree with the Crown’s submission that the learned trial judge addressed the issues fully and that his findings of fact were available to him on the evidence. The reasons given were sufficient within the requisites of the current case law.

[ 29 ] Accordingly, and in summary, I find that there was no error committed by the learned trial judge. Further, I agree with the trial judge’s decision that the statutory presumption contained in s. 258(1) (c) of the Criminal Code requiring that the first breathalyser test must take place within two hours from the time where the officers formed the reasonable suspicion of alcohol consumption to make the roadside demand, is clearly supported on the evidence. The only factual error that the Honourable Justice Adams appears to have made was concluding that both officers had synchronized their watches, when in fact only Constable Budzinski testified that he did so. This error is clearly not enough to overturn the otherwise cogent reasons of the Honourable Justice Adams.

[ 30 ] In the result, the appeal is dismissed and the original conviction is confirmed.

Mr. Justice John A. McMunagle

Released: July 25, 2012

COURT FILE NO.: 11-48

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent – and – TRAVIS THOMPSON Appellant REASONS FOR JUDGMENT McMunagle J.

Released: July 25, 2012