ONTARIO
SUPERIOR COURT OF JUSTICE
COBOURG COURT FILE NO.: 0132/11
DATE: 20120920
BETWEEN:
HER MAJESTY THE QUEEN Respondent Ð and Ð Stanley Grizzle Appellant
D.J. Thompson, for the Respondent
D.E. Boeve, for the Appellant
HEARD: 1 March 2012
REASONS FOR Judgment
(On appeal from the finding of guilt by
Justice Graydon of the Ontario Court of Justice on January 11 , 2011)
J.C. Corkery J.
[ 1 ] Stanley Grizzle appeals his conviction for operating a motor vehicle with over eighty milligrams of alcohol in his blood under section 253(1) (b) of the Criminal Code of Canada . He submits that the trial judge erred in finding that the samples of his breath were taken as soon as practicable and in finding that the first suitable sample had been taken within 2 hours of the time of last driving.
A. The evidence
[ 2 ] The facts of this case are not in dispute. On April 16 th , 2010 at 4:30 p.m., Mr. Grizzle was observed by the police to be driving with an expired validation sticker. The relevant events which transpired thereafter are as follows:
4:32 The investigating officer makes a roadside screening demand based upon the odour of alcohol on Mr. GrizzleÕs breath his admission that he has consumed one beer.
4:37 Mr. Grizzle provides a suitable sample of his breath into a roadside screening device and a FAIL reading is recorded. The officer forms the opinion that Mr. Grizzle has more than 80 milligrams of alcohol in his blood and arrests him, reads him his rights to counsel (4:41), caution (4:42) and makes a demand for a suitable sample of his breath (4:43).
4:46 The investigating officer and Mr. Grizzle arrive at the police detachment.
4:49 Mr. Grizzle is lodged in a cell. He requests to speak with his lawyer or duty counsel.
4:51 The breath technician commences the set-up procedure.
4:59 Calls are placed to Mr. GrizzleÕs lawyerÕs office and residence and messages are left.
5:13 No response having been received from Mr. GrizzleÕs lawyer, Mr. Grizzle agrees to speak with duty counsel.
5:14 A call is placed to duty counsel and a message is left.
5:24 Duty counsel calls back and Mr. Grizzle is permitted to speak with duty counsel.
5:27 Mr. Grizzle concludes his call with duty counsel and is turned over to the breath technician, with grounds provided by the investigating officer.
5:28 The breath technician reads the breath demand and supplementary caution.
5:35 Mr. Grizzle completes supplying the first suitable sample with a reading of 133 mg/100 ml blood. The second breath technician received information that a male had collapsed in his cell
5:38 Mr. Grizzle is returned to his cell.
5:50 Mr. Grizzle is observed lying on the floor of the cell, unresponsive. An ambulance is called.
6:01 The ambulance arrives at the police station. Paramedics treat Mr. Grizzle and his condition improves. Asked if he will provide a second sample, he says that he wants to be seen by a doctor. The first breath technician is off duty.
6:10 A second breath technician packs up the breath machine and departs for the hospital.
6:11 Mr. Grizzle in the ambulance and the investigating officer depart for the hospital.
6:21 The second breath technician arrives at the hospital.
6:26 Mr. Grizzle, the ambulance and the investigating officer arrive at the hospital and are placed in a room awaiting examination by a doctor. At no time does the investigating officer lost sight or contact with Mr. Grizzle.
7:05 Mr. Grizzle is examined by a doctor. Upon completion of examination, the investigating officer is informed that Mr. Grizzle is capable of supplying a breath sample.
7:14 The second breath technician commences the set-up procedure, including changing the alcohol standard.
7:33 The second breath technician performs calibration check.
7:34 The second breath technician performs diagnostic check.
7:37 The time that the investigating officer testified that he turned Mr. Grizzle over to the second breath technician.
7:40 The time that the second breath technician testified that he received Mr. Grizzle from the investigating officer.
7:42 Mr. Grizzle attempts to provide a second suitable sample which registers an Òinterference detect,Ó perhaps as a result of a ÒpufferÓ used by Mr. Grizzle before providing the sample.
7:44 Mr. Grizzle supplies a second suitable sample with a reading of 96 mg/100 ml blood.
8:08 Mr. Grizzle supplies a third suitable sample with a reading of 95 mg/100 ml blood.
The Decision at Trial
[ 3 ] In his oral reasons for judgment, the trial judge was satisfied that the first suitable sample was provided by Mr. Grizzle at 5:35 p.m., well within two hours. He did not express reasons why he was satisfied that the first test was taken as soon as practicable.
[ 4 ] The trial judge recognized that three samples were taken overall and found that there was a reasonable explanation for the second and third samples not being taken forthwith after the first: a serious medical issue concerning Mr. GrizzleÕs health. On the whole of the evidence, the trial judge was satisfied that both the second and third samples Òwere taken within a reasonable prompt time, under the circumstances.Ó
[ 5 ] Considering the period between 6:21 and 7:05 p.m., the trial judge was satisfied with the testimony of the second breath technician to explain the delay: he could not speak to a doctor to determine whether Mr. Grizzle could provide a sample.
[ 6 ] In finding Mr. Grizzle guilty, the trial judge relies on the lowest of the three readings, the third reading of 95 mg/100 ml blood, which he truncates to 90 mg.
B. Issues
[ 7 ] There are two issues on this appeal:
Did the trial judge err in finding that the samples of his breath were taken as soon as practicable?
Did the trial judge err in finding that the first suitable sample had been taken within 2 hours of the time of last driving?
C. The Law
[ 8 ] Section 254(3) (a)(i) of the Criminal Code reads:
(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person
( a ) to provide, as soon as practicable,
(i) samples of breath that, in a qualified technicianÕs opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the personÕs blood, É[emphasis added]
[ 9 ] The Ontario Court of Appeal has recognized that the Òsamples of breathÓ are not determined to be suitable by an instrument producing a result. R. v. Dobrowolski [2005] O. J. No. 2576 (Ont. C.A.) at para 1-2 , the Court held Òthat the trial judge erred by concluding that once the sample in issue was analyzed it was a Ôsample necessary to enable proper analysisÕ [ sic ] within the meaning of s. 254(3) .Ó The trial judge erred in finding that a sample rejected by the technician as unsuitable was in fact suitable because the instrument produced a result from the sample.
[ 10 ] Section 258(1) (c) of the Criminal Code provides:
( c ) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if
É
(ii) each sample was 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, [emphasis added]
(iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and
(iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician,
evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accusedÕs blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses ,É [emphasis added]
[ 11 ] The Ontario Court of Appeal considered the meaning of Òas soon as practicableÓ in R. v. Vanderbruggen 2006 9039 (ON CA) , [2006] O.J. 1138 paras 12-13 . The court held that the phrase means nothing more than that the tests Òwere taken within a reasonably prompt time under the circumstances.Ó Breath tests need not be Òtaken as soon as possible.Ó Rather, the issue is whether the Òpolice acted reasonably.Ó A trial judge should examine the Òwhole 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.Ó There is no requirement to show Òwhat occurred during every minute that the accused is in custody.Ó The onus is on the Crown to prove that the samples were taken as soon as practicable.
D. The Position of the Parties
1. Did the trial judge err in finding that the samples of his breath were taken as soon as practicable?
a) The Appellant
[ 12 ] The appellant submits that the trial judge failed to consider and address the entire chain of events that gave rise to a total delay of 3 hours 48 minutes. The appellant identifies five time periods for which he submits there was no explanation for the delay:
- 4:49 p.m. and 4:59 p.m. Ð from when Mr. Grizzle was placed in the cells to when calls where placed to his lawyer.
The investigating officer gave no evidence as to how long it took to find the telephone number. No explanation was offered for the ten-minute delay.
- 5:27 to 5:50 p.m. Ð from when Mr. Grizzle was turned over to the first breath technician to when he was found lying on the floor.
The second breath technician testified that he learned a male had collapsed in a cell at 5:35. Given the conflict in the evidence, the appellant submits that the Crown did not meet its onus to provide a satisfactory explanation regarding this delay and why an ambulance was not called earlier.
- 6:26 p.m. to 7:05 p.m. Ð the waiting time at the hospital.
There was no evidence of any medical treatment during this period. There was evidence that Mr. GrizzleÕs condition had already improved earlier. When the second breath technician arrived at 6:21, he testified that he was not able to speak to a doctor. Asked if he talked to anyone at the hospital to inquire if he had access to Mr. Grizzle, he testified that he was informed that Mr. Grizzle was still being seen by medical staff, and that he didnÕt have the opportunity to know. The appellant submits that the only evidence presented was that the second breath technician could not talk to the doctor when he arrived at 6:21 p.m. There is no evidence of any other attempted contact with a doctor or the appellant. Furthermore, there is no explanation as to why the machine could not have been set up during this time period.
- 7:05 p.m. to 7:37 p.m. Ð time to set up the machine.
The second breath technician testified that he was advised of the appellantÕs ability to provide samples by 7:05 p.m and, as a result, he took steps to prepare the machine for use. Under cross-examination he stated that he began the set up at 7:14 p.m., conducted a calibration check at 7:33 and a diagnostic check at 7:34. At no point does the officer explain how long it takes to set up the machine in total. The Appellant submits that there is confusion with respect to when the officer began to set up the machine and no explanation as to how long the procedure took in total.
- 7:44 p.m. to 8:08 p.m. Ð time between samples.
The only explanation for the delay of 24 minutes between the samples taken at the hospital was from the second breath technician guessing that it was because Mr. Grizzle had to be wheeled over from his room, an explanation that the appellant submits is unreasonable given that there was evidence that Mr. Grizzle was returned at 8:02 p.m.
b) The Crown
[ 13 ] The Crown submits that it was only due to the sudden ÒillnessÓ of the Appellant that the police did not complete both tests in about ninety minutes. After the paramedics treated him, Mr. Grizzle declined to give a second sample until he saw a doctor. As a result of his request, he was transported to hospital. Only after he was seen by a doctor and found fit to provide a sample, was the machine prepared and the further testing proceeded. The Crown submits that it is vacuous to suggest that the breath tests in this case were not taken as soon as practicable.
2. Did the trial judge err in finding that the first suitable sample had been taken within 2 hours of the time of last driving?
[ 14 ] The appellant submits that trial judge relied on the second and third samples to convict him. Both readings were taken outside of the required two hours. Accordingly, the court was not entitled to rely on the presumption.
[ 15 ] The appellant submits that the trial judge could not rely on the first sample. Three samples were taken. There is no explanation found in the evidence why. While there was no evidence that the first sample was rejected by the first breath technician, if the first sample was acceptable the appellant asks why then was a third sample taken? The appellant submits that the first sample was not regarded suitable because it was too far away from the second sample.
[ 16 ] Relying on the Court of Appeal Decision in Dobrowolski , and on a decision of the Ontario Court of Justice in R. v. Topolie [2002] O.J. No. 645 , the appellant submits that the important issue is not simply the results achieved by the intoxilyzer but the analysis as accepted by the intoxilyzer and the operator. In R. v. Topolie Justice Kastner held that simple numerical values generated on the intoxilyzer are meaningless: ÒThe numeric display alone does not constitute an ÔanalysisÕ as required by the Code. Even if this were not so, the ÒresultÓ of the analyses can be read to mean the end result or the final analysisÓ.
E. Analysis
1. Did the trial judge err in finding that the samples of his breath were taken as soon as practicable?
[ 17 ] To answer this question I must consider whether it was open to the trial judge to find that the Crown had established that the samples were taken not as soon as possible but reasonably promptly.
[ 18 ] The first sample was taken 65 minutes after Mr. Grizzle was observed driving. The appellant points to one unexplained delay prior to this sample: the ten minutes from when he was placed in the cells to when calls where placed to his lawyer. Recognizing the 2 hour limit set by the Code for the first sample and that the Crown is not obliged to explain every minute that the accused is in custody, I am satisfied that the trial judge did not err in concluding that the first sample was obtained as soon as practicable. On the evidence before him as to what transpired between 4:32 and 5:35, it was open to the trial judge to be satisfied that the police acted reasonably in taking ten minutes between lodging Mr. Grizzle in the cells and calling his lawyer.
[ 19 ] The second delay period includes the time that the first test was administered and the time that Mr. Grizzle was waiting in his cell to be brought back for a second test, during which time he collapsed. The second breath technicianÕs evidence that he learned at 5:34 that a male had collapsed in a cell, is inconsistent with the evidence of both the first breath technician, who testified that he obtained the first suitable sample at 5:35 and the investigating officerÕs that he returned Mr. Grizzle to his cell at 5:38. It was open to the trial judge to accept the evidence of the two officers over the one and as such there would be no delay requiring explanation.
[ 20 ] The third delay involves the waiting time at the hospital. On the evidence before the trial judge it would appear that the officers made little or no attempt to speak to doctors or medical staff while Mr. Grizzle was waiting in hospital and no steps were taken to set up the breath machine while waiting. Mr. Grizzle had been transported to hospital by ambulance. In my view, it was open to the trial judge to find that this was reasonable that the police wait for word from the doctor before doing anything.
[ 21 ] The fourth and fifth delays involve the set up time and time between the second and third samples, 32 minutes and 24 minutes respectively. The second breath technician explained the steps he took to set up and calibrate the machine. It was open to the trial judge to conclude second breath technician acted reasonably.
[ 22 ] Given my conclusion on the second issue, the delay between the second and third samples need not be considered. However, should I be wrong in this regard, I would still be satisfied it was open to the trial judge to conclude police acted reasonably. To require the police to provide particulars about the extra 4-7 minutes beyond the normal time span between tests would be to require them to explain Òwhat occurred during every minute that the accused is in custody.Ó
2. Did the trial judge err in finding that the first suitable sample had been taken within 2 hours of the time of last driving?
[ 23 ] The first suitable sample in this case was 65 minutes after Mr. Grizzle was observed driving. Absent some evidence that the first technician had rejected the first sample as unsuitable, the fact that the second breath technician took a third sample does not invalidate the first.
[ 24 ] In convicting Mr. Grizzle, relied upon the analysis of third sample. In doing so, he complied with the requirement of section 258(1) (c) of the Criminal Code that: ÒÉif the results of the analyses are different, the lowest of the concentrations determined by the analysesÉÓ.
F. Decision
[ 25 ] The appeal is dismissed.
J.C. Corkery J.
Released: 20 September 2012
ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN Respondent Ð and Ð Stanley Grizzle Appellant Appellant REASONS FOR JUDGMENT J.C. Corkery J.
Released: 20 September 2012