ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: (Ottawa) 11-11517
DATE: 2013/09/05
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
BRAM MOERMAN
Applicant/Appellant
Moiz M. Karimjee, for the Respondent
Eric Granger, for the Applicant/Appellant
HEARD: June 26, 2013
Appeal of the conviction of The Honourable Madam Justice C. Kehoe
of the Ontario Court of Justice, dated November 15th, 2012
REASONS FOR DECISION
Quigley J
[1] This is an appeal by the Appellant, Bram Moerman, of a conviction of The Honourable Madam Justice C. Kehoe of the Ontario Court of Justice released on November 15th, 2012.
[2] The Appellant submits that the learned trial judge erred in concluding that the breath samples were taken as soon as practicable.
[3] The Crown submits that there was no error of law and that the learned trial judge correctly understood and applied the test for determining whether breath samples were taken as soon as practicable.
[4] The Appellant’s vehicle was stopped by Officer Keri Saunders at 12:18 a.m. After failing the roadside test, he was arrested at 12:27 a.m. and cautioned at 12:34 a.m. on September 16th, 2011.
[5] Officer Saunders transported the Appellant to the nearest police station and arrived at 1:01 a.m.
[6] The Appellant exercised his right of counsel until approximately 1:28 a.m. At 1:49 a.m., Officer Saunders gave her grounds of arrest to the breath technician, Constable Biggs. At 1:55 a.m., Officer Saunders turned the Appellant over to Constable Biggs.
[7] In examination in-chief, Officer Saunders testified that the breath technician, “Constable Biggs, he was doing another test and we just had to wait.”
[8] The Appellant was acquitted on the charge of driving while his ability to operate a motor vehicle was impaired by alcohol, but was convicted of the charge under Section 253(1) (b) of the Criminal Code.
[9] Intoxilyzer technician, Constable Charles Biggs, testified that he arrived at the police station at 12:16 a.m., prepared the Intoxilyzer 8000C for use by verifying the calibration of the instrument and undertaking a series of internal testing procedures in accordance with his training, and performed breath testing on another individual.
[10] Ultimately, two samples of breath were obtained from the Appellant at 2:05 a.m. and 2:26 a.m. respectively, which were analyzed to contain (using truncated readings) 120mg of alcohol per 100mL of blood and 110mg of alcohol per 100 mL of blood respectively.
[11] The central issue at trial and on this appeal is the applicability of the so-called “presumption of identity” found at Section 258(1) (c) of the Criminal Code and the condition found in that provision that in order for that presumption to apply, the breath samples must be obtained “as soon as practicable” after the commission of the alleged offence. The provision reads as follows:
(c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if
(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.
Evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the analyses were made and at the time when the offence as 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, in the absence of evidence tending to show all of the following three things – that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80mg of alcohol in 100mL of blood, and that the concentration of alcohol in the accused’s blood would not in fact have exceeded 80mg of alcohol in 100mL of blood at the time when the offence was alleged to have been committed. (emphasis my own) (Criminal Code, R.S.C. 1985, c. C-46, s. 258(1)(c)).
[12] The provision of the Criminal Code offers the Crown the benefit of being able to prove the blood alcohol concentration of an accused person at the time of the alleged offence without the need to call a toxicologist to provide an opinion relating the blood alcohol concentration at the time of testing back to the projected blood alcohol concentration at the time of driving. As this evidentiary presumption is of potentially great benefit to the Crown, in order for it to apply, all of the preconditions to the applicability of the presumption (including the requirement that the samples be obtained “as soon as practicable”) must be proven by the Crown on evidence beyond a reasonable doubt. In other words, strict compliance with the presumption by the Crown is required in order for it to operate to the disadvantage of the accused. Any doubt whether the breath samples were obtained as soon as practicable must be resolved in favour of the accused. (R. v. Walker, [2006] O.J. No. 2679 at para. 2 (S.C.J.); R. v. Schouten, [2002] O.J. No. 4777 at para. 8 (S.C.J.))
[13] Constable Biggs testified that before he took a breath sample from the Appellant he “took another accused into my custody and performed breath testing on that accused prior to Mr. Moerman’s incident – being involved in Mr. Moerman’s incident, or the incident involving the accused today, I should say.”
[14] The Ontario Court of Appeal in the case of R. v. Vanderbruggen, 2006 9039 (ON CA), [2006] O.J. No. 1138 (Ont.CA) suggests that the test of “as soon as is practicable” is if the police acted reasonably in the circumstances. Justice Rosenberg, at paragraph 16, states as follows:
- To conclude, these provisions, which are designed to expedite trials and aid in proof of the suspect’s blood alcohol level, should not be interpreted so as to require an exact accounting of every moment in the chronology. We are now far removed from the days when the breathalyser was first introduced into Canada and there may have been some suspicion and scepticism about its accuracy and value and about the science underlying the presumption of identity. These provisions must be interpreted reasonably in a manner that is consistent with Parliament’s purpose in facilitating the use of this reliable evidence.
[15] In R. v. Torsney [2009] O.J. No. 2638 (Ont.CA), an application for leave to appeal the decision of a summary conviction appeal court, Justice E.A. Cronk rejected an applicant’s submission “that there was insufficient evidence led by the Crown at trial to account for the delay of approximately 50 minutes between the completion of the booking of the applicant at the police station (at 3:07 or 3:11 a.m.) and the time when he ws taken to the breathalyser room for testing (3:58 a.m.). The applicant emphasizes that neither the trial judge nor the SCAC judge were entitled to presume “police regularity” during the 50-minute time interval in question.”
[16] In Torsney, supra, Cronk, J. further states at paragraph 12:
....While the Crown must prove beyond a reasonable doubt that the breath tests were taken reasonably promptly in teh circumstances, I do not think that its burden requires that it negative every conjectural possibility, including those lacking any evidentiary basis.
[17] Cronk, J. further states at paragraph 15:
- I see no error in the SCAC judge’s conclusion. There was some evidence at trial to support the trial judge’s factual findings and the inferences drawn by him regarding the events between 3:07 a.m. and 3:50 a.m. Although that evidence, as the trial judge aptly observed, was “sketchy”, it was sufficient to ground the trial judge’s holding that the breath tests were administered as soon as practicable in all the circumstances. In particular, the evidence supported the inferences that during the 50-minute delay at issue, multiple efforts were made to contact a lawyer at the applicant’s request and, by 3:50 a.m., the applicant was on the telephone in the privacy booth at the police station speaking by telephone with a lawyer. In these circumstances, the SCAC judge did not err in concluding that the trial judge’s findings and the inferences drawn by him were reasonable, based on the whole of the evidence.
[18] In Justice Kehoe’s decision released on November 15th, 2012, she makes the following observations and findings, at paragraphs 59 to 63, which included her discussions of the principles outlined in the Ontario Court of Appeal case of R. v. Vanderbruggen referred to earlier:
Applying those principles to this case, Cst. Saunders and Cst. Biggs provided evidence that demonstrated taht the officers did not give unreasonable priority to any other task. Cst. Saunders acted quickly on scene, took a direct route to the station, and facilitated the right to counsel as soon as Mr. Moerman was processed. Cst. Saunders testified that Mr. Moerman finished speaking with counsel at 01:28. Cst. Saunders spoke with Cst. Biggs at 01:49 and transferred custody of Mr. Moerman for the tests at 01:55 hours.
Cst. Saunders testified as to the reason for the delay that Cst. Biggs had three subjects that night and completed the testing of one subject prior to dealing with Mr. Moerman’s test. Cst. Biggs testified that there were three subjects that night.
There is no evidence that either officer was doing anything other than processing Mr. Moerman as quickly as possible in the circumstances. Cst. Biggs was on patrol and dispatched to the station for breath tests. He arrived at 00:16. Mr. Moerman was not ready to provide samples until 01:28 hours and Cst. Saunders still had to provide grounds to Cst. Biggs. Cst. Saunders did so at 01:49 hours and Mr. Moerman was turned over to Cst. Biggs at 01:55 hours.
There was nothing unreasonable about the delay given the circumstances and the police did and were acting reasonably.
I find that the breath samples were taken as soon as practicable and the presumption applies.
[19] The issue of “as soon as practicable” was argued at trial by the Appellant’s counsel as well as counsel on this appeal. In particular, counsel for the Appellant submitted that the trial judge relied on inadmissible hearsay evidence in order to make her findings of fact. Counsel on the appeal also argued that the learned trial judge reversed the onus, which was on the Crown, to prove that the tests were taken as soon as practicable. I disagree.
[20] The trial judge relied on the evidence of Constable Saunders who testified that the breath technician, “Constable Biggs, he was doing another test and we just had to wait”. Constable Saunders was not cross-examined by trial counsel on that statement. Although there is no obligation on defence counsel to cross-examine on any particular testimony of a witness, I find no evidence to support the suggestion that Constable Saunders was relying on inadmissible hearsay evidence.
[21] Accordingly, I find further that there is no suggestion in the trial judge’s reasons that would suggest that she, in any way, reversed the onus of proof which is always on the Crown to prove that the tests were taken as soon as practicable.
[22] Therefore, the appeal will be dismissed.
The Honourable Mr. Justice Michael J. Quigley
Released: September 5, 2013
COURT FILE NO.: (Ottawa) 11-11517
DATE: September 5, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
BRAM MOERMAN
Applicant/Appellant
REASONS FOR DECISION
Quigley, J.
Released: September 5, 2013