CITATION: R. v. Dean, 2013 ONSC 2916
COURT FILE NO.: 9/11
DATE: May 27, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Craig W. Sigurdson for the Respondent
Respondent on Appeal
- and -
Daniel Dean
Adam Little for the Appellant
Appellant on Appeal
HEARD: December 10, 2012; January 2 and 24, 2013
MITROW J.
INTRODUCTION
[1] The appellant, Daniel Dean (“appellant”), appeals his conviction on a charge of “over 80” contrary to s. 253(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46.
[2] The trial was heard by Pockele J. (“trial judge”) in the Ontario Court of Justice at St. Thomas. The trial commenced April 19, 2010, at which time the respondent (“the Crown”) put in its case, consisting of two witnesses, being the arresting officer and the breath technician and following which the appellant brought a motion for a non-suit based on a lack of evidence that the second breath sample was received from the appellant directly into an approved instrument. The decision on the non-suit motion was adjourned to June 9, 2010, at which time the trial judge dismissed the motion. The trial continued on October 4, 2010, at which time the appellant testified. On March 28, 2011, the trial judge rendered his decision convicting the appellant. In rendering his decision, the trial judge also dismissed the appellant’s application to exclude evidence under s. 24(2) of the Canadian Charter of Rights and Freedom (“the Charter”).
[3] The appellant raises the following grounds of appeal:
The trial judge erred in law in concluding that the Crown had proven beyond a reasonable doubt that the appellant’s breath samples were taken “as soon as practicable” in accordance with s. 258(1)(c)(ii) of the Criminal Code;
The trial judge erred in finding that the Crown had proven beyond a reasonable doubt that the appellant’s breath samples were received directly into an approved instrument in accordance with s. 258(1)(c)(iii) of the Criminal Code;
The trial judge erred in law by misapprehending the facts and reversing the burden of proof in determining whether the Crown had established the statutory requirement set out in ss. 258(1)(c)(ii) and 258(1)(c)(iii) of the Criminal Code;
The trial judge erred in dismissing the appellant’s application for a non-suit on the basis that the Crown had failed to present any evidence that the appellant’s second breath sample was received directly into an approved instrument as required by s. 258(1)(c)(iii) of the Criminal Code;
The trial judge erred in failing to provide sufficient and meaningful reasons for judgment; and
The trial judge erred in law in failing to exclude the appellant’s breath samples pursuant to s. 24(2) of the Charter.
[4] For reasons set out below, the appeal is allowed and a verdict of acquittal is entered.
THE FACTS
[5] Police Constable Yohnicki (“P.C. Yohnicki”) was working and driving a marked cruiser on Sunset Road.
[6] At 12:01 a.m., P.C. Yohnicki observed a motor vehicle weaving from side to side within its lane of travel. This vehicle was operated by the appellant, who was the lone occupant.
[7] At somewhere between 12:04 to 12:05 a.m., P.C. Yohnicki stopped the vehicle. He exited his cruiser, approaching the vehicle on the driver’s side and received identification and documentation from the appellant. P.C. Yohnicki observed an open half full bottle of vodka sitting on the floor in the back of the vehicle.
[8] While the appellant remained seated in his vehicle, P.C. Yohnicki formed a reasonable suspicion that the appellant had alcohol in his body and as at that time P.C. Yohnicki agreed that he could have made a demand for the appellant to provide a sample of breath for the purpose of analysis by an approved screening device (“ASD”).
[9] P.C. Yohnicki asked the appellant to exit his vehicle and P.C. Yohnicki then escorted the appellant to the rear of the cruiser, conducted a pat-down search and placed the appellant in the rear of the cruiser. P.C. Yohnicki did not advise the appellant at this time of the reason for his detention, nor did P.C. Yohnicki make an ASD demand.
[10] During cross-examination, it was suggested to P.C. Yohnicki that at this point, while the appellant was seated in the back of the cruiser (and before the roadside test), that the appellant was handcuffed. It was P.C. Yohnicki’s evidence that he did not believe the appellant was handcuffed and that P.C. Yohnicki had no notes of that. P.C. Yohnicki agreed that he could not tell the court definitively one way or the other whether or not the appellant was handcuffed at this time and, when the suggestion was made that it was possible the appellant was handcuffed, P.C. Yohnicki testified the appellant would not have been handcuffed to the rear and that, if he was handcuffed, it would have been to the front. Later in cross-examination, in the context of whether it was possible that the appellant was handcuffed to the front while the appellant was blowing into the ASD, P.C. Yohnicki responded “Yes, sir, he could have been.”
[11] While the appellant remained seated in the back of the cruiser, P.C. Yohnicki then returned to the appellant’s vehicle to investigate further the bottle of vodka and to confirm that the liquid in the bottle smelled like Vodka.
[12] At 12:06 a.m., P.C. Yohnicki returned to the cruiser and made an ASD demand.
[13] At 12:07 a.m., the first ASD test was administered. The appellant was not successful in providing a suitable sample. Thereafter, there were four more unsuccessful attempts by the appellant to provide a suitable sample. During this process, P.C. Yohnicki was instructing the appellant again as to how to provide a proper sample. At 12:13 a.m., the appellant provided a suitable sample of his breath into the ASD and the appellant registered a “fail.”
[14] At 12:14 a.m., the appellant was arrested for the offence of “over 80.” The appellant was read his right to counsel and the appellant indicated he wanted to call a lawyer.
[15] At 12:15 a.m., P.C. Yohnicki read the appellant the breath demand for the intoxilyzer.
[16] At 12:23 a.m., P.C. Yohnicki and the appellant arrive at the police detachment.
[17] Upon arriving at the detachment, P.C. Yohnicki testified in-chief that the appellant was searched and lodged into a cell. When asked what P.C. Yohnicki did after searching the appellant and lodging him into the cell, P.C. Yohnicki testified that the appellant had indicated he wanted a lawyer, that he requested to speak to duty counsel and P.C. Yohnicki facilitated that by placing a call to duty counsel at 12:43 a.m.
[18] Pursuant to a question from the trial judge (during P.C. Yohnicki’s cross-examination), P.C. Yohnicki confirmed that there was no “booking sergeant” at the detachment, that P.C. Yohnicki was designated as an “officer in charge” and that he was responsible for the booking procedure.
[19] During continuation of the cross-examination, P.C. Yohnicki provided details as to what he did during the process of booking the appellant, searching the appellant and lodging the appellant in the cells and there is no dispute that P.C. Yohnicki testified this process “would have been a short period of time” and further, that “it would have only been a couple of minutes.”
[20] P.C. Yohnicki agreed in cross-examination that at that point in time he could have called the duty counsel but rather he did not in fact call duty counsel until 12:43 a.m.
[21] At 12:52 a.m., duty counsel called the police detachment and at 12:54 a.m. the appellant starts to speak with duty counsel.
[22] The appellant spoke with duty counsel from 12:54 a.m. to 1:10 a.m., at which time the appellant was turned over to breath technician Police Constable Fisher (“P.C. Fisher”).
[23] Prior to P.C. Fisher testifying, it was conceded by the appellant that there was no issue with the set up and testing of the instrument, nor was there an issue with the proper functioning of the instrument.
[24] P.C. Fisher testified that the appellant was turned over to her at 1:10 a.m.
[25] At 1:19 a.m., the appellant provided a sample into the mouth piece of the instrument and the sample registered 122 milligrams of alcohol in 100 millilitres of blood.
[26] P.C. Fisher testified that she then commenced a second sample and, before she commenced the second sample, the instrument was in proper working order to receive the second sample.
[27] P.C. Fisher testified that the second sample was received at 1:39 a.m. and the result was 121 milligrams of alcohol in 100 millilitres of blood. P.C. Fisher then added in her evidence in-chief that both samples were from the appellant.
[28] In her evidence in-chief in relation to the second sample, P.C. Fisher did not specifically state that the appellant provided the sample into the mouthpiece attached to the instrument.
[29] During cross-examination of P.C. Fisher, there was no evidence as to where the appellant provided the second breath sample.
[30] P.C. Yohnicki testified that at all times his criminal investigation was solely in relation to the offence of “blowing over.” He never embarked on an investigation in relation to impaired driving.
THE “AS SOON AS PRACTICABLE” ISSUE – SECTION 258(1)(c)(ii)
The Position of the Parties
[31] This was the first issue argued by the appellant. The central focus of the appellant’s argument was in relation to the 20 minutes starting from 12:23 a.m. when the appellant arrived at the detachment, until 12:43 a.m. when P.C. Yohnicki placed the call to duty counsel.
[32] The appellant submits that P.C. Yohnicki testified it took him at most a “couple of minutes” to process, search and lodge the appellant in the cells. Considering the explanation given for this 2 minute period, and in the context of P.C. Yohnicki’s evidence that he could have called duty counsel earlier but did not do so until 12:43 a.m., the appellant submits that in the absence of any evidence as to the actions of P.C. Yohnicki during the remaining 18 minutes, that there was no basis for the trial judge to find that the breath samples were taken “as soon as practicable.”
[33] The Crown submits that the authorities relied on by the appellant seem to suggest that the Crown is only required to account for “significant” delays, that an 18 minute delay could never be described as significant, particularly where the investigating officer is also acting as the officer-in-charge. The Crown further submits that the issue of whether the breath tests were conducted “as soon as practicable” within the meaning of s. 258(1)(c)(ii) is a finding of fact that the trial judge was entitled to make on the evidence before him – a finding that this court should not disturb given the lack of any palpable or overriding error made by the trial judge.
Meaning of “As Soon as Practicable” in [Section 258(1)(c)(ii)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)
[34] In R. v. Vanderbruggen, 2006 CanLII 9039 (ON CA), [2006] O.J. No. 1138 (C.A.), the Court of Appeal for Ontario, referring to various authorities, summarized the meaning of “as soon as practicable” used in s. 258(1)(c)(ii) of the Criminal Code as meaning nothing more than the breath tests must be taken within a reasonably prompt time under the circumstances. There is no requirement for the tests to be taken as soon as possible. The “touchstone” in determining compliance with the “as soon as practicable” requirement is whether the police acted reasonably. While the burden to prove compliance with the “as soon as practicable” requirement rests with the Crown, there is no requirement that the Crown must provide a detailed explanation for “every minute” that an accused is in custody. The law as summarized above is discussed in Vanderbruggen at paras. 12 and 13 as follows:
12 That leaves the question that is at the heart of this appeal -- the meaning of as soon as practicable. Decisions of this and other courts indicate that the phrase means nothing more than that the tests were taken within a reasonably prompt time under the circumstances. See R. v. Phillips (1988), 1988 CanLII 198 (ON CA), 42 C.C.C. (3d) 150 (Ont. C.A.) at 156; R. v. Ashby (1980), 1980 CanLII 2920 (ON CA), 57 C.C.C. (2d) 348 (Ont. C.A.) at 351; and R. v. Mudry, R. v. Coverly (1979), 1979 ABCA 286, 50 C.C.C. (2d) 518 (Alta. C.A.) at 522. 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. See R. v. Payne (1990), 1990 CanLII 10931 (ON CA), 56 C.C.C. (3d) 548 (Ont. C.A.) at 552; R. v. Carter (1981), 1981 CanLII 2063 (SK CA), 59 C.C.C. (2d) 450 (Sask. C.A.) at 453; R. v. Van Der Veen (1988), 1988 ABCA 277, 44 C.C.C. (3d) 38 (Alta. C.A.) at 47; R. v. Clarke, [1991] O.J. No. 3065 (C.A.); and R. v. Seed, 1998 CanLII 5146 (ON CA), [1998] O.J. No. 4362 (C.A.).
13 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 CanLII 17024 (ON CA), 150 C.C.C. (3d) 225 (Ont. C.A.) at para. 20; R. v. Carter, supra; R. v. Cambrin (1982), 1982 CanLII 353 (BC CA), 1 C.C.C. (3d) 59 (B.C.C.A.) at 61-3, and R. v. Seed at para. 7.
[35] Section 258(1)(c)(ii) of the Criminal Code is part of a statutory scheme that allows the Crown, in proving “an over 80” offence to rely on the presumption of identity, in the absence of evidence to the contrary, that deems the results of the breath tests to be proof of an accused’s blood alcohol level at the time when the offence was alleged to have been committed. The “as soon as practicable” condition includes a requirement for the first breath test to be taken not less than two hours after the time the offence was alleged to have been committed, with at least a 15 minute interval between the times the samples were taken (see Vanderbruggen, para. 8). This presumption creates an evidentiary assist for Crown. There must be strict compliance with the statutory scheme as the presumption relieves the Crown of the obligation of adducing expert evidence (see R. v. Walker, [2006] O.J. No. 2679 at para. 2 (S.C.J.)).
[36] The appellant relies on a number of cases discussed below where the issue as to whether the “as soon as practicable” requirement was met centred on a specific time period (or in some instances more than one time period). A number of the cases involve periods of delay very similar to the case at bar.
[37] In R. v. Schouten, [2002] O.J. No. 4777 (S.C.J.), Durno J. was faced with an appeal from conviction on a charge of “over 80.” The evidence at trial centered on an 18 minute delay. The evidence was that the accused spoke to duty counsel between 12:31 a.m. to 12:34 a.m. The breath technician was ready to proceed at 12:34 a.m. and so advised the arresting officer. The technician was told that the accused was speaking to counsel. The technician then returned to the breath room and did a sample test and a recalibration, but it was conceded there was no evidence that either check was required given the breath technician’s earlier evidence that he was ready at 12:34 a.m. At 12:52 a.m. (18 minutes after the accused finished speaking with duty counsel), the accused was turned over to the breath technician.
[38] On appeal, Durno J. noted that during the 18 minute period it was uncertain what the arresting officer and the accused were doing. Notwithstanding the finding of the trial judge to the contrary, Durno J. found that the Crown had failed to prove the tests were conducted “as soon as practicable” and the Crown had failed to establish that the police acted reasonably and expeditiously. The appeal was allowed and a verdict of not guilty was entered. At para. 14, Durno J. states in part:
14 … This is not a case where there is an explanation given for a delay. There is no explanation. It was incumbent on the Crown to establish beyond a reasonable doubt the tests complied with section 258(1)(c), before the readings could be related back to the time of driving. There is no magic point in time when an unexplained gap will be sufficient to raise a doubt. However, where there is no evidence why the arresting officer with custody of the appellant was told at 12:34 a.m. that everything was ready, and did not turn the appellant over until 12:52 a.m., the Crown had not established the tests were taken as soon as practicable. It was not established that the officers acted reasonably and expeditiously in all the circumstances.
[39] R. v. Willette, [2011] O.J. No. 504 (S.C.J.) also involved an 18 minute delay at the police station. In this case, the delay was between the time the accused finished a phone call and the time he was turned over to the breath technician. The investigating officer believed there was another breath test being conducted, but this belief was contradicted by the breath technician who testified that she had been ready to commence the accused’s testing process. In finding that the trial judge erred in concluding that the tests were conducted “as soon as practicable,” McMunagle J. focused on the lack of evidence as to what transpired during the 18 minute delay, stating as follows at para. 44:
44 The learned trial judge stated in his decision that "eighteen minutes, in some cases, can be a long time if we just sit and look at the clock." Constable Guy, as I understand her evidence, testified that the machine was ready to go and that she would have been ready to administer the test at 11:20 a.m. [sic] However he then went on to state: '...is it practicable that she would conclude one test and immediately start into another without, perhaps making some notes or doing some adjusting of the machinery, I think no.' It is here that the learned trial judge fell into error in my view. I see no evidence to support this conclusion. In fact, the evidence indicates that the eighteen minute delay is unexplained. Constable Booth believed that Constable Guy was performing another test and he was simply waiting in the queue. On the other hand, Constable Guy testified that she was ready to go at 11:20 p.m. The testimony of neither officer offers any explanation as to what took place between 11:25 p.m. and 11:43 p.m. Further, Constable Guy made no mention in her testimony of any concern on her part regarding the need for time in between testing to either make notes or adjust the machine.
[40] It should be noted that in Willette, there was a further issue of an earlier 22 minute delay between the time the accused failed the roadside test and the time of departure from the scene. However, McMunagle J. found no error by the trial judge regarding this period of delay. Hence, the appeal turned on the basis of the subsequent unexplained 18 minute delay.
[41] Further, in Willette, McMunagle J. agreed with the accused’s position that the 18 minute delay was a “significant” period of time, stating at para. 42:
42 I would agree with the position of the defence that this eighteen minute delay is a significant period of time that requires a reasonable explanation. As Bélanger, J. stated in R.v.Walsh, [1994] O.J. No. 4614 at para. 7:
Eighteen minutes in the context of the time periods provided for by law, is not a trifling time period. It is a significant one.
[42] R. v. Williams, [1985] O.J. No. 1867 (District Court), involved an unexplained delay of 20 minutes after arrival at the police station. In convicting the accused on a charge of “over 80,” the trial judge took judicial notice of the necessity of the breath technician to prepare the instrument to receive samples as a potential explanation for the delay. In allowing the appeal and entering an acquittal, Daudlin J. emphasized that as there was no evidence as to what had actually happened during the 20 minute delay, that it was not proper for the trial judge to rely on judicial notice and, accordingly, Daudlin J. concluded that the Crown had failed to meet the “as soon as practicable” condition (see paras. 22 – 24).
[43] The case of R. v. Williams, [2000] O.J. No. 4740 (S.C.J.) was an appeal by the accused from conviction on a charge of “over 80” where there was an unexplained delay of 25 minutes. The trial judge concluded there was no evidence to explain that particular delay, but nevertheless made a finding that “the police acted reasonably and expeditiously during the period of time, which is explained” (see para. 8). On appeal, Marshall J. referred, inter alia, to R. v. Seed, 1998 CanLII 5146 (ON CA), [1998] O.J. No. 4362 (C.A.) for the principle that when determining whether the “as soon as practicable” requirement was met, there was no necessity for the Crown to account for every minute, but rather the focus should be on whether the police had acted reasonably and expeditiously in all the circumstances. Marshall J., on the basis that there was no evidence at trial to explain the 25 minute delay, allowed the appeal and entered an acquittal.
[44] R. v. Beninato, [2005] O.J. No. 2193 (S.C.J.), involved an accused’s appeal from a conviction on a charge of “over 80.” At issue were three separate unexplained delays totaling 27 minutes (consisting of a period of 6 minutes during which the accused was brought to the station, 11 minutes when the accused was paraded until he was brought into a room, and 10 minutes from the time the accused was placed in the reporting room until duty counsel was called). At the conclusion of the Crown’s case, the accused moved for a directed verdict that the Crown had not met its burden in proving beyond a reasonable doubt that the breath samples were taken as soon as practicable. The trial judge dismissed the motion. On appeal, L.A. Beaulieu J. considered the test for appellate review on a summary conviction appeal and the relevant authorities as to the meaning of “as soon as practicable” in relation to s. 258(1)(c)(ii). Beaulieu J. found that the Crown was not required to explain the 6 minute delay to get to the police station; however, referring, inter alia, to Schouten, supra, found that it was incumbent on the Crown to provide an explanation for the remaining two periods that totalled 21 minutes. In allowing the appeal, Beaulieu J. concluded that the trial judge lacked a sufficient evidentiary basis to conclude that the police had acted reasonably and expeditiously. Beaulieu J states at para. 36:
[36] The trial judge stated that the Crown did not have to account for every minute, and was clearly aware of the legal test to be applied. However, given that there were 21 minutes of time in which it was not clear what the officers were doing, the trial judge lacked a sufficient evidentiary basis to conclude that the police acted “reasonably and expeditiously” in all of the circumstances of the case. The trial judge’s dismissal of the directed verdict application, and the subsequent verdict of guilty were therefore unreasonable.
[45] R. v. Blacklock, 2008 CanLII 16199 (ON SC), [2008] O.J. No. 1472 (S.C.J.) was an appeal by an accused from a conviction of “over 80.” The issue on appeal was whether the breath test was conducted “as soon as practicable.” The focus was the 32 minute delay between the first and second breath tests. On appeal, Fedak J. noted (at para. 14) that although a gap of at least 15 minutes between tests is required by the Criminal Code, “the common practice is to see a gap of 17 to 20 minutes between the two tests; and no exception is taken to that minor time period.”
[46] Accordingly, in the context of the “as soon as practicable” issue, the Blacklock case involved a delay ranging from 12 to 15 minutes (based on the 17 to 20 minute “common practice” between tests). Fedak J. discussed the standard of appellate review, and the authorities, including Vanderbruggen, on the meaning of “as soon as practicable.” Fedak J. concluded that, at trial, there was no explanation for the delay and that there was no evidentiary basis for the trial judge to conclude that the test was taken “as soon as practicable” and, accordingly, the conviction was set aside and an acquittal entered. In deciding the appeal, Fedak J. distinguished Vanderbruggen (as did the court in Willette, supra) on the basis that in Vanderbruggen the Court of Appeal found there was sufficient evidence before the trial judge on which the trial judge could conclude that the breath tests were taken as soon as practicable.
[47] The Crown appealed the acquittal of an accused on a charge of “over 80” in R. v. Chung, [2009] O.J. No. 1546 (S.C.J.), on the “as soon as practicable” issue where the trial judge found there was no explanation for a delay of some 16 to 18 minutes before a call was made in relation to locating a qualified breath technician (see para. 15). In dismissing the appeal, Croll J. found the trial judge made no error on this issue and that the trial judge correctly applied the law (including the test in Vanderbruggen) in concluding that the “as soon as practicable” requirement was not met.
THE TRIAL JUDGE’S REASONS
[48] In relation to the trial judge’s findings as to what took place on arrival at the detachment and until P.C. Yohnicki called duty counsel, the trial judge’s reasons at pages 5 and 6 are as follows:
Yohnicki took Dean directly to the nearby police detachment arriving at 12:23 a.m. To this point, the detention through arrest has taken 18 to 19 minutes.
Yohnicki performed the duties normally ascribed to a booking Sergeant. He searched Dean, filled in a booking sheet with vital information, inventoried his pockets, describing this as taking a very short period of time. He lodged Dean into the cell, and contact with a lawyer/duty counsel was facilitated by Yohnicki when he placed a call to duty counsel at 12:43 a.m. In cross examination Yohnicki conceded he could have called Duty Counsel before 12:43, but he was not challenged in cross-examination on these various activities and no evidentiary foundation was established to support any argument that Yohnicki did not diligently apply himself to the duties of processing the arrest of this individual accused, that he failed to properly prioritize his actions, that he gave undue attention to matters not important to the overall investigation and that there was any significant delay in placing the phone call to duty counsel.
[49] The trial judge stated as follows at page 17 regarding the issue of delay raised by the appellant:
While at the police detachment, the defence argues that the police, Officer Yohnicki, failed in his duty to obtain the breath tests as soon as practicable by waiting 18 to 20 minutes, from 12:23 a.m. [to] 12:43 a.m., to call duty counsel. Duty counsel returned the call 9 minutes later and Dean finished his conversation at 1:10 a.m. Defence argued that had the call to duty counsel been made sooner, then Dean could have provided breath tests 20 minutes sooner and that would be the most appropriate form of compliance with providing samples “as soon as practicable.”
[50] The trial judge’s analysis as to the delay that took place at the police detachment between the time of arrival and the phone call being placed to duty counsel is further addressed at page 20 of the reasons as follows:
The defence was free to cross-examine the Crown witnesses and to lead defence evidence in order to establish that “unexplained delay” as a live issue. This was not done. The evidence does not disclose any threshold of “unexplained delay” which would require the prosecution to lead this evidence by way of explanation. Officer Yohnicki was cross-examined and answered that once at the police station, he performed the duties normally ascribed to a booking sergeant, searching the accused, filling in a booking sheet, conducting an inventory of personal goods, lodging the accused in his cell, and facilitating contact with duty counsel. He was not minutely cross-examined as to whether he spent any improper or inordinate amount of time in these activities and I’m satisfied that he conducted his duties without giving undue attention to any matters that were not important. He conceded that he might have called duty counsel earlier, but by virtue of the questions asked and the answers given, I cannot conclude that this had any significant impact in the overall timeframe of providing samples or receiving a call back from duty counsel.
STANDARD OF APPELLATE REVIEW
[51] In this summary conviction appeal, it is not the function of this appeal court to retry the case or to substitute its own decision (R. v. Colbeck, 1978 CanLII 2447 (ON CA), 1978 CarswellOnt 1206, 42 C.C.C. (2d) 117 (Ont. C.A.) at para. 3). The test for an appellate court in determining whether a verdict of a jury or the judgment of a trial judge is unreasonable or cannot be supported on the evidence is whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered (R. v. Biniaris, 2000 SCC 15, [2000] S.C.J. No. 16 (S.C.C.) at para. 36).
DISCUSSION
[52] It is apparent from the authorities cited above that where evidence at trial establishes a delay (including a delay in the range of 18 minutes, as occurred in a number of the cases), that a finding by a trial judge that the breath tests were conducted as soon as practicable may constitute reversible error. This can occur where there is no evidence as to police activities during the delay to establish the requisite evidentiary foundation that the breath tests were conducted “within a reasonably prompt time under the circumstances” (see Vanderbruggen, supra).
[53] The trial judge found P.C. Yohnicki to be a “reliable and credible” witness concerning “relevant and important matters.” The trial judge added that P.C. Yohnicki “provided reliable and credible evidence outlining his activities through delivery of Mr. Dean to the breath technician.” Similarly, the trial judge accepted the evidence of P.C. Fisher to be reliable and credible. In contrast, the trial judge made negative findings regarding the appellant’s credibility, finding there was very little in the appellant’s evidence that can be deemed reliable, particularly on the issue of “unexplained delay.” Accordingly, the discussion below, where it relates to evidence, focuses on the evidence of P.C. Yohnicki and P.C. Fisher.
[54] The trial judge focused on the 20 minute time period starting 12:23 a.m. when the appellant arrived at the detachment until 12:43 a.m. when P.C. Yohnicki called duty counsel.
[55] In finding there was no unexplained delay, the trial judge referred to the duties during this period of time undertaken by P.C. Yohnicki that consisted of “searching the accused, filling in a booking sheet, conducting an inventory of personal goods, lodging the accused …”
[56] However, the evidence of P.C. Yohnicki was that this process occupied “a short period of time” – a “couple of minutes” at most. Accordingly, there remained an unexplained delay of 18 minutes. None of the above duties carried out by P.C. Yohnicki, as described by the trial judge, are capable of providing an explanation of what happened starting at 12:25 a.m. (being two minutes following arrival at the detachment while P.C. Yohnicki was performing the above duties) to 12:43 a.m. when P.C. Yohnicki called duty counsel. Respectfully, the trial judge erred in considering this evidence as an explanation of what P.C. Yohnicki may have been doing between 12:25 a.m. to 12:43 a.m.
[57] In addition to the duties of P.C. Yohnicki listed above, the trial judge also considered specifically P.C. Yohnicki’s duty in “facilitating contact with duty counsel” as explaining part of the delay.
[58] As indicated previously, the evidence in relation to the appellant wanting to call a lawyer was first broached by P.C. Yohnicki at the roadside. Specifically, P.C. Yohnicki testified that when he asked the appellant whether he wanted to call a lawyer now, the appellant answered “yep.”
[59] After P.C. Yohnicki agreed he did not call duty counsel until 12:43 a.m., the transcript of his cross-examination reveals the following questions and answers (at page 64):
Q. Alright. And you’d agree with me that you clearly could have called duty counsel sooner than that, shortly after my client was searched and lodged?
A. Yes, I guess I could have.
Q. Alright, but that’s not done in this case?
A. No, sir, it’s not.
[60] In response to a question from the trial judge as to why P.C. Yohnicki ended up calling duty counsel, rather than a private member of the bar, P.C. Yohnicki testified that the only thing he noted is that the appellant requested duty counsel after he was put in the cells.
[61] In further cross-examination, as to when P.C. Yohnicki actually spoke with the appellant about duty counsel, P.C. Yohnicki’s evidence was that following arrival at the detachment he believed this conversation took place after the appellant was lodged in the cells, being “after” 12:23 a.m. P.C. Yohnicki then gave the following evidence (at page 80 of the transcript):
Q. Alright. Would you agree with me it’s not a very lengthy discussion? It’s you asked him whether he wants to he has his own …. if you ask him if he has his own lawyer and if he wants to call duty counsel?
A. Yes, sir.
Q. Alright. He says, “Duty counsel.” That discussion lasts maybe 25 seconds?
A. I would imagine. If it played out as you just described it.
Q. Yes.
A. It would be short, yes.
Q. Okay. Alright. Do you agree with me that still even with that conversation or discussion you don’t actually contact duty counsel until twelve forty-three?
A. No phone call is made by me until 43 after 12.
[62] Hence, the only evidence before the trial judge as to what P.C. Yohnicki did in “facilitating contact with duty counsel” during the remaining 18 minutes was a short conversation between P.C. Yohnicki and the appellant. Beyond that conversation, the only other evidence before the trial judge as to P.C. Yohnicki “facilitating contact with duty counsel” was P.C. Yohnicki’s phone call to duty counsel at 12:43 a.m.
[63] In the context of the 18 minute delay, other than the short conversation between P.C. Yohnicki and the appellant about duty counsel that occupied an inconsequential amount of time, there was no evidence at trial to explain the delay, including no evidence as to what P.C. Yohnicki was doing while he was waiting until 12:43 a.m. to call duty counsel. This delay was significant, or at least significant enough to require some explanation, particularly in light of P.C. Yohnicki’s admission that he could have called duty counsel sooner. There was no explanation. Accordingly, similar to a number of the authorities cited above, I find there was no evidence before the trial judge to support a finding that the breath tests were taken within a reasonably prompt time under the circumstances and no evidence to support a finding that the police acted reasonably. Respectfully, I find that the trial judge erred in finding that the breath tests were taken “as soon as practicable” as required by s. 258(1)(c)(ii). It follows therefore that the Crown could not rely on the presumption of identity.
[64] Although the above is sufficient to dispose of the “as soon as practicable” issue as it relates to the approximate 18 minute delay, I find it is appropriate to address some additional arguments raised by the appellant in relation to this issue.
[65] In coming to the conclusion that the breath tests were conducted as soon as practicable, the trial judge in his reasons relied on the alleged failure of the appellant to sufficiently cross-examine P.C. Yohnicki regarding the delay. In relation to this failure to cross-examine, the appellant submits that the trial judge reversed the onus of proof and placed it on the appellant and, further, that the trial judge, in any event, was incorrect when he found that the appellant had failed to cross-examine P.C. Yohnicki regarding the delay.
[66] Firstly, there was no onus on the appellant to elicit evidence from P.C. Yohnicki to explain the delay – that burden rested with the Crown as part of its onus to prove all essential elements of the alleged offence beyond a reasonable doubt (see for example R. v. Bhamra, [2009] O.J. No. 2175 (C.J.)). The alleged failure of the appellant to cross-examine P.C. Yohnicki to explain the delay is not a relevant factor in determining whether the breath tests were conducted “as soon as practicable.”
[67] Secondly, and in any event, the evidentiary record discloses a thorough cross-examination of P.C. Yohnicki regarding the procedure at the detachment relating to booking, searching and lodging the appellant, and as to exploring what P.C. Yohnicki did to facilitate contact with duty counsel.
RELATED ISSUES REGARDING THE BREATH TESTS – SECTION 258(1)(c)(iii) AND SUFFICIENCY OF THE TRIAL JUDGE’S REASONS RELATING TO THE “AS SOON AS PRACTICABLE” ISSUE
[68] I find it is appropriate to deal briefly with two additional related grounds of appeal advanced by the appellant relating to s. 258(1)(c).
[69] In relation to s. 258(1)(c)(iii), the appellant submits that the breath technician, in relation to the second breath sample, failed to give evidence that it was received directly into the instrument and, accordingly, the Crown cannot avail itself of the presumption of identity on that ground. (There was no such issue regarding the first breath sample.)
[70] The issue in relation to the second breath sample was carefully considered by the trial judge and there is no basis to disturb his finding. Considering the evidence of P.C. Fisher summarized earlier, there was sufficient circumstantial evidence to support a conclusion that the appellant’s second breath sample was received directly into the instrument. In coming to his conclusion, the trial judge correctly considered and applied R. v. Mulroney, [2009] O.J. No. 4581 (C.A.). (The subsequent decision of R. v. Metz, [2011] O.J. No. 1202 (S.C.J.) also supports the trial judge’s conclusion.) An argument was advanced that the trial judge improperly placed the onus on the appellant when he referred to the facts that the “defence did not enlist any evidence” from the appellant and that the breath technician was not cross-examined on this point. Reading the trial judge’s reasons on the motion for a non-suit, and also at trial, I find that these comments were peripheral to the reasoning of the trial judge, and that he decided this issue based on the sufficiency of circumstantial evidence in accordance with Mulroney, supra. Accordingly, I would give no effect to the ground of appeal relating to s. 258(1)(c)(iii).
Sufficiency of Trial Judge’s Reasons
[71] The appellant argues that the trial judge, on the “as soon as practicable” issue, gave insufficient reasons. The appellant submits that the trial judge failed to give effect to the appellant’s submissions and failed to respond to key arguments advanced by the appellant. Further, the appellant submits that the trial judge failed to mention numerous cases that were provided by the appellant.
[72] I find that the trial judge’s reasons, as a whole, and read in context, sufficiently explain why the trial judge made the decision that he did in relation to the “as soon as practicable” argument. The trial judge’s reasons provide the logical connection between the verdict and the basis for the verdict. The trial judge did refer, inter alia, to Vanderbruggen, supra, in relation to the “as soon as practicable” argument. The fact that the trial judge did not specifically refer to the cases provided by the appellant (dealing with various periods of delay) does not render the reasons insufficient. The sufficiency of the trial judge’s reasons, in the case at bar, are in conformity with the tests summarized in R. v. R.E.M., 2008 SCC 51, [2008] S.C.J. No. 52 (S.C.C.) and, accordingly, I would dismiss this ground of appeal.
THE CHARTER ARGUMENTS
[73] At trial, the appellant alleged various Charter violations. Although the trial judge found violations of the appellant’s Charter rights regarding various aspects of P.C. Yohnicki’s actions (in relation to his failure to advise the appellant of the reasons for detention, failure to make a timely roadside demand and handcuffing and searching the appellant before a roadside demand was made), the trial judge did not exclude the evidence of the breath test results pursuant to s. 24(2) of the Charter. The appellant submits that the trial judge erred in failing to exclude this evidence.
[74] Given that the finding made on the “as soon as practicable” argument disposes of this appeal, I find it is not necessary to deal with the Charter arguments.
DISPOSITION OF THE APPEAL
[75] For reasons set out above, the appeal is allowed, the conviction is quashed and an acquittal is entered.
“Justice Victor Mitrow”
Justice Victor Mitrow
Released: May 27, 2013
CITATION: R. v. Dean, 2013 ONSC 2916
COURT FILE NO.: 9/11
DATE: May 27, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Respondent on Appeal
- and -
Daniel Dean
Appellant on Appeal
REASONS FOR JUDGMENT
MITROW J.
Released: May 27, 2013