ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

WALKERTON COURT FILE NO.: 811/12CR
DATE: 20120925

B E T W E E N:

HER MAJESTY THE QUEEN

D. Scapinello, for the Respondent/Crown

Respondent

• and -

BLAKE COTE

S. Shikhman, for the Appellant

Appellant

HEARD: August 9, 2012

SUMMARY CONVICTION APPEAL

REASONS FOR JUDGMENT

[On appeal from the judgment of the Honourable Justice W.W. Bradley
dated February 17, 2012]

DALEY J.

[1] The appellant appeals from his conviction entered on February 17, 2012 under section 253 (1) (b) of the Criminal Code of Canada following a finding of guilt under section 253 of the Criminal Code of the offence of operating a motor vehicle with a concentration of alcohol in his blood that exceeded 80 mg of alcohol in 100 ml of blood.

[2] The appellant did not appeal the sentence imposed.

The Facts

[3] The appellant was charged with dangerous driving, impaired driving and operating a motor vehicle with an alcohol concentration in his blood that exceeded 80 mg of alcohol in 100 ml of blood. The appellant was acquitted of all charges other than driving while over "80."

[4] On May 14, 2011 at approximately 12:54 a.m. the appellant's motor vehicle was stopped by P. C. Stewart for having run through a stop sign.

[5] Upon having made some observations of the appellant, as to possible alcohol impairment, the officer requested a roadside screening device be brought so that a test could be conducted on the appellant.

[6] The roadside screening device arrived at the roadside location at 1:01 a.m. and a "fail" result was obtained on the roadside screening device. The appellant was arrested for impaired operation of a motor vehicle.

[7] The appellant was transported to the police station by an officer other than P.C. Stewart. He next met with P.C. Stewart at the police station at 1:26 a.m. upon the officer's arrival.

[8] Upon arrival at the police station, in the custody of the other officer, the appellant was lodged in a cell at 1:19 a.m.

[9] P.C. Lein, a qualified breath technician, was contacted at his home on May 14, 2011 at 1:06 a.m. with a request that he attend at the police station. He arrived at the station at 1:16 a.m., at which point in time the Intoxilyzer unit had been turned on and was in the process of warming up.

[10] Prior to the appellant being turned over to him, P.C. Lein had changed the alcohol standard solution used in the Intoxilyzer and then reset the machine. He testified that he could not recall the reason as to why the alcohol solution was changed, however, he testified that he would have only done this for one of two reasons namely: it had been 14 days since last changed, or there had been more than 50 tests conducted on the machine. Given his belief that there had not been 50 tests on the machine, he testified that the reason the solution was changed was that 14 days had passed since the solution had been changed.

[11] P.C. Lein testified that he changed the alcohol solution and then had to reset the instrument.

[12] As to preparing the Intoxilyzer for use, P.C. Lein testified that once the alcohol solution was changed that the simulator was turned back on and then the alcohol solution and simulator had to warm-up. He testified in cross-examination that it takes 20 to 25 minutes for the instrument to warm-up and that the encoding of diagnostics would take approximately another three minutes.

[13] P.C. Lein testified that the Intoxilyzer was ready for use at 1:58 a.m.

[14] The appellant was turned over to P.C. Lein at 2:04 a.m. by P.C. Stewart. At 2:05 a.m. the officer advised the appellant of his rights to counsel and as the appellant was equivocal in his answer as to whether he wished to consult with counsel P.C. Lein advised P.C. Stewart, at 2:07 a.m., that duty counsel should be contacted.

[15] The appellant was given an opportunity to speak with duty counsel and was then returned to P.C. Lein at 2:23 a.m. The first breath sample was taken by the officer at 2:34 a.m. with a reading of 196 mg of alcohol per 100 ml of blood.

[16] Upon his arrival at the police station at 1:26 a.m. P.C. Stewart spoke with P.C. Lein regarding the appellant and he then prepared grounds for conduct of the Intoxilyzer test and a preliminary data sheet for use by P.C. Lein.

Trial Decision

[17] The trial judge gave oral reasons for judgment on February 17, 2012 stating in part:

The evidence from the time of vehicle being stopped at 12:52 a.m. on May 14, 2011, to the time of the first test at 2:34 hours; Officer Stewart, Liscomb and Bookham-Smith and Lein gave a detailed accounting of what transpired. Defence counsel raised a specific issue relating to the time that elapsed when Officer Lein first began to the ( sic) procedure to ready the Intoxilyzer 5000-C to the first sample being taken. In particular there was concern over Officer Lein’s decision to change the solution. Although Officer Lein did not have notes for the reason, he enunciated the reasons that would cause him to change the solution and concluded that it was because the alcohol solution was over the 14 day time period. I am satisfied that the alcohol solution was changed because it was, in Officer Lein’s opinion, that it required changing and it was not done for a frivolous or unnecessary reason.

On the evidence at ( sic ) a whole I am satisfied beyond a reasonable doubt that the first sample was taken as soon as practicable. I further find that there is a reasonable suspicion for the demand for an approved screening device as well as the reasonable grounds for the breath demand. The certificate of a qualified technician which was entered as Exhibit “A” is now admitted as Exhibit “One” and on the evidence as a whole I find the essential elements of the offence of over 80 have been proven beyond a reasonable doubt, there is a finding of guilt on the over 80 charge which is contrary to section 253 (1) (b) of the Criminal Code of Canada .

Position of the Parties

[18] It was urged on behalf of the appellant that the trial judge erred in law in failing to consider the evidence as to unexplained delay on the part of the police in taking the appellant's breath sample. Specifically it was submitted that the trial judge erred in that he did not consider the appellant’s position that the Crown failed to offer any evidence explaining what occurred between the time the breath technician arrived at the police station and the time when the technician began to change the alcohol solution in the Intoxilyzer.

[19] It was urged on behalf of the Crown that there was sufficient evidence for the trial judge to properly conclude, beyond a reasonable doubt, that the appellant's breath sample was taken by the police as soon as practicable.

Standard of Review

[20] The standard of review on the appellant’s summary conviction appeal is whether the decision of the trial judge is based on findings that could have been reasonably reached based on the evidence before him. The appellate court should only interfere with the conclusion of the judge if:

(a) it cannot be supported by the evidence; or

(b) it is clearly wrong in law; or

(c) is clearly unreasonable; or

(d) there was a miscarriage of justice: see R. v. Varaich [2009 O.J. No. 595 at para. 12 .

[21] To set aside the verdict under section 686 (1) (a) of the Criminal Code , it is not for the reviewing court to simply take a different view of the evidence than the trier of fact or to refer to a vague unease, a lingering or lurking doubt based on its own view of the evidence, but a proper test is whether the verdict is one that a properly instructed jury, acting judicially could reasonably render.

[22] Although an appellate court must re-examine, and to some extent weigh and consider the effect of the evidence, it cannot merely substitute its views for those of the trier of fact: R. v. Corbett , 1973 199 (SCC) , [1975] 2 S.C.R. 275; R. v. Yebes, 1987 17 (SCC) , [1987] S.C.J. No. 51 (S.C.C.).

Analysis

[23] Section 258 (1) (c) (ii) the Criminal Code provides a mechanism to allow for proof of the concentration of alcohol in an accused's blood in respect of a charge of "over 80" under section 253 (b). This section 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 other conditions are fulfilled, the prosecution may rely upon the presumption of identity.

[24] The presumption of identity simply deems the results of the breath test to be proof of the accused's blood-alcohol level at the time of the offence in the absence of evidence to the contrary: R. v. Vanderbruggen 2006 9039 (ON CA) , [2006] O.J. No. 1138 at para. 8 .

[25] The meaning of the phrase "as soon as practicable" is that the tests were taken within a reasonably prompt time under the circumstances. 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: Vanderbruggen , at para. 12 .

[26] In determining whether the breath 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. As stated by the Court of Appeal in Vanderbruggen , at para. 13 :

The "as soon as practicable" requirement must be applied with reason. In particular, while the Crown is obliged 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.

[27] It is a question of fact for the trial judge to determine, in all of the circumstances, whether or not breath samples were taken as soon as practicable, namely within a reasonably prompt time: R. v. Letford, 2000 17024 (ON CA) at para. 17 .

[28] Further, as was noted by Durno J. in R. v. Price , 2010 ONSC 1898 () , [2010] O.J. No. 1587 at paras. 16-18 , focusing on one aspect of the total time is not the appropriate way to determine if the tests were taken as soon as practicable. It is the entire time period that must be examined. It is not necessary that fixed time periods be assigned to each event on the continuum from the time of the offence to the time the first breath sample is taken by the breath technician: Price , at para. 18 .

[29] An approved screening device was requested at 12:56 a.m. and arrived at the roadside location where the accused had been stopped at 1:01 a.m., following which the roadside breath test was conducted at 1:04 a.m.

[30] P.C. Stewart, who had stopped the accused, had a police service dog in his vehicle, and as it was contrary to policy to transport detained persons in the same vehicle with a police service dog, another transport officer was called to take the appellant back to the police station .

[31] P.C. Luscombe, the transport officer, took the appellant from the scene at 1:15 a.m. and arrived at the police station at 1:17 a.m.

[32] Upon P.C. Stewart arriving at the police station at 1:26 a.m., he had a conversation with the breath technician, P.C. Lein and then engaged in preparation of the information regarding grounds and a primary data sheet for use by the breath technician as input data for use in the Intoxilyzer.

[33] The appellant was turned over to P.C. Lein between 2:01 a.m. and 2:04 a.m. At this time the appellant indicated that he wished to speak with duty counsel whereupon P.C. Lein advised P.C. Stewart of this request and he was then given an opportunity to speak with duty counsel. He was returned to P.C. Lein at 2:23 a.m.

[34] P.C. Lein testified that the Intoxilyzer unit was ready at 1:58 a.m., after he had changed the alcohol standard solution and had reset the machine. He testified that it took 20 to 25 minutes for the instrument to warm up.

[35] In his reasons for decision, the trial judge observed that P.C. Lein did not have a specific note as to his reasons for changing the alcohol solution in the Intoxilyzer, however, he concluded that the alcohol solution was changed because it was, in the officer's opinion, required and it was not done for frivolous or unnecessary reason.

[36] In his reasons for decision, he noted that Officer Lein changed the solution at 1:40 a.m. and this took approximately 2 to 4 minutes and that following that, the Intoxilyzer required 20 to 25 minutes to warm up after the alcohol test solution was changed and calibration would be done after the machine was warmed up including a diagnostic check at 1:57 a.m.

[37] It was urged on behalf of the appellant that there were two areas in the timeline which amounted to unexplained delay by the police in taking breath samples and as such, it was submitted that the Crown had failed to establish, beyond a reasonable doubt, that the breath samples were taken as soon as practicable.

[38] It was submitted on behalf of the appellant that P.C. Lein had agreed in cross-examination that rather than requiring 20 to 25 minutes to warm up the Intoxilyzer machine after the alcohol solution was changed starting at 1:40 a.m. he had agreed that it would take 12 minutes. Contrary to this submission, the officer disagreed in his evidence with that suggestion by counsel.

[39] It was suggested to the officer that it would take 12 minutes for the Intoxilyzer to warm up, namely the period of time from when the alcohol test solution was changed at 1:40 a.m. to the point of the air blank check was conducted at 1:52 a.m.

[40] The evidence of P.C. Lein was consistent and he was firm in his evidence that it would take 20 to 25 minutes for the Intoxilyzer instrument, the solution and simulator to warm up and that the diagnostic input would take in the order of three minutes following that. As such, this time period was reasonably accounted for.

[41] The trial judge carefully considered the evidence and the submissions by counsel for the appellant and I am not persuaded that the trial judge erred in considering this aspect of the timeline while considering all of the surrounding circumstances from the time of the offence to the time of the first breath sample being taken.

[42] Considering the evidence offered by P.C. Lein and the entirety of the cross-examination of this witness, in my view, it was clearly open to the trial judge to conclude that the first breath sample was taken as soon as practicable.

[43] As to the second period of delay as asserted on behalf of the appellant, although the time period between 1:58 a.m. and 2:04 a.m. was not specifically addressed in the evidence offered on behalf of the Crown nor by the trial judge, as noted, focusing on one aspect of the total time is not the appropriate way to determine if the tests were taken as soon as practicable. This was a very brief time and it is not necessary for the Crown to account for every moment while the appellant was in custody prior to the breath sample being taken.

[44] The trial judge, having carefully and appropriately considered the evidence and all of the surrounding circumstances, was satisfied that the alcohol standard solution was not changed for a frivolous or unnecessary reason and that the breath test was taken as soon as practicable. I am not persuaded that the trial judge erred in reaching these conclusions. The findings and conclusions reached by the trial judge were clearly open to him to make on the evidentiary record presented.

[45] In the result the appeal is dismissed.

Daley J.

Released: September 25, 2012