COURT FILE: CR-12-10000064-00AP
DATE: 20130131
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
– and –
CHARLES NEWTON
Respondent
David Mitchell, for the Appellant
William Thompson, for the Respondent
HEARD: January 23, 2013
On appeal from the acquittals entered by Justice C. Mocha of the Ontario Court of Justice at Toronto on May 2, 2012.
MacDonnell, J.
[1] On May 2, 2012, the respondent appeared for trial in the Ontario Court of Justice in Toronto and was arraigned on an information charging him with operating a motor vehicle while his ability to do so was impaired by alcohol or a drug, and operating a motor vehicle having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood. The respondent pleaded not guilty to both counts.
[2] At trial, the Crown called two witnesses: the police officer who encountered the respondent at a RIDE checkpoint and took him to the police station where Intoxilyzer tests were conducted, and a forensic toxicologist who testified that the ability to operate a motor vehicle of a person with the respondent’s Intoxilyzer readings would be impaired. To prove the results of the Intoxilyzer tests, the Crown tendered the certificate of the Intoxilyzer technician.
[3] The respondent did not testify and did not call evidence.
[4] After hearing the submissions of the Crown, the trial judge held that the certificate of the Intoxilyzer technician was inadmissible because the tests had not been conducted ‘as soon as practicable’. Without the certificate, there was no evidence that the respondent’s blood alcohol concentration was in excess of the legal limit at any material time and he was found not guilty on the ‘over eighty’ count. Further, without the certificate there was no foundation for the toxicologist’s opinion with respect to the impairment of the respondent’s ability to drive. The remaining evidence was insufficient to prove the count of impaired operation and the respondent was found not guilty on that count as well.
[5] The Crown appeals against the acquittals on both counts on the ground that the trial judge erred in law in her interpretation of the “as soon as practicable” requirement in s. 258(1)(c)(ii) of the Criminal Code.
A. The evidence
[6] In the early morning hours of May 7, 2011, Wayne Weathers and a number of other Ontario Provincial Police officers were conducting a RIDE spot check on the northbound Allen Road in Toronto. At 1:54 a.m. the respondent’s motor vehicle approached the checkpoint. Officer Weathers engaged the respondent in conversation, formed a suspicion that he had alcohol in his body, and made a demand for a screening sample of breath to be provided into an approved screening device (ASD). The respondent complied with the demand and the ASD registered a fail. At 1:58 a.m. Weathers arrested the respondent for operating a motor vehicle with more than 80 milligrams of alcohol in 100 millilitres of blood. He informed the respondent of his right to counsel and cautioned him. At 2:03 a.m., Weathers called the detachment to advise that he would be bringing someone in for Intoxilyzer testing. At 2:04 a.m., he made an approved instrument demand. At 2:06 a.m., he began transporting the respondent to the detachment.
[7] Weathers arrived at the detachment with the respondent at 2:16 a.m. Upon arrival, he booked the respondent into the detachment before lodging him in a cell. He testified that persons who are taken to the detachment for breath testing are not paraded before a booking officer. Rather, it is the responsibility of the arresting officer to obtain the detainee’s personal information, such as a current address, the name of next-of-kin, and whether the person has any health concerns or illnesses. The officer is also required to conduct a search of the detainee, which involves emptying the person’s pockets and itemizing the contents. Only after completing this process, filling out the requisite forms and having the detainee sign them will the detainee be lodged in a cell.
[8] Weathers testified that between 2:16 a.m. and 2:36 a.m. he was engaged in the duties I have just described. He conceded that he did not have a specific recollection of what occurred during the process. He did recall, however, that the respondent provided him with the business cards of two lawyers. Between 2:36 a.m. and 2:49 a.m. Weathers called every number on the cards and left messages for counsel. No one returned the calls. At 2:50 a.m., Weathers placed a call to duty counsel. At some point, duty counsel called back and had a private conversation with the respondent. At 3:12 a.m., after the respondent’s conversation with duty counsel had concluded, the respondent was turned over to the Intoxilyzer technician. At 3:21 a.m. he provided the first of two samples of his breath into an Intoxilyzer instrument. At 3:42 a.m. he provided the second sample. The results of the analyses of those two samples revealed blood alcohol concentrations of 197 and 193 milligrams of alcohol in 100 millitres of blood, respectively.
[9] Between the arrest of the respondent at roadside, four minutes after he drove up to the RIDE checkpoint, and the commencement of the first Intoxilyzer test, one hour and twenty-three minutes had elapsed.
B. The trial judge’s reasons
[10] In finding that the breath tests had not been conducted as soon as practicable, the trial judge focused on the 20 minute period between the arrival of the respondent at the detachment at 2:16 a.m. and the beginning of Weathers’ efforts to call counsel at 2:36 a.m.:
The issue here is whether or not Mr. Newton was taken before a qualified Intoxilyzer technician in a manner which is set out in the legislation. That is that there cannot be really any unexplained gaps; that things need to move quickly for a reason; that it is acknowledged that taking these readings is time-sensitive and that needs to be taken into account by officers when dealing with individuals charged with impaired and over 80 charges. Obviously, Officer Weathers being a qualified breath technician is aware of this. He would have been aware of it on the day when he was recollecting these events and taking notes. Yet again, the only explanation in his notes with regard to that twenty minutes between 2:16 and 2:36 when he made the first call to the lawyer was lodging.
Now, although he indicated what that process meant to him, his description of that process to my mind would not take twenty minutes. The questions that he asked of someone who was polite and cooperative and who had provided the bulk of that material earlier, that is the information about his name, address. He already had his license. So he had that there. The only real additional information it sounded like that he was taking from Mr. Newton at the lodging point was whether he had any medical complaints and he indicated that he never indicated that there was any complaint made that they had to discuss and next of kin. Again, those questions and that information I cannot see would take more than a minute or two.
With regard to the search and then itemizing what he might have had on his person, again as I have indicated, I cannot see that process taking more than approximately five minutes. He never indicated, for example, that Mr. Newton had an unusually large number of items on his person that he had to document and that’s what took so long. The information that he provided to this court I do not think does adequately explain what happened in that twenty minutes and unfortunately that may be in part due to the fact that all he put in his notes was the word ‘lodging’ and he was trying to recollect what it seems to me he really did not have a clear recollection of. I am not satisfied that the twenty minutes is explained. I am not satisfied that the prerequisites for accepting the certificate have been met.
I also…have some concerns with regard to specificity in regards to the rest of his evidence, but I think that really is the fatal issue in this particular case though is that time period. So I am not going to accept the certificate into evidence on that basis. Without that, the Crown cannot rely on the readings then of 197 and 193.
[emphasis added]
[11] The trial judge then turned to the impaired operation charge. She acknowledged that the exclusion of the results of the Intoxilyzer tests adversely affected the Crown’s ability to prove that charge:
So this court must examine what evidence is left with regard to the impaired driving charge because certainly I agree with the Crown’s position that had they had those readings that may well have bolstered any of the observations of Officer Weathers
[12] After reviewing the remaining evidence, the trial judge concluded that the impaired operation charge had not been proved beyond a reasonable doubt.
C. Discussion
(i) the relevance of ‘as soon as practicable’ requirement to the admissibility of the breath results
[13] The trial judge was of the view that in the absence of proof that the Intoxilyzer tests were conducted as soon as practicable, the certificate of the Intoxilyzer technician setting out the results of those tests was not admissible. With respect, the trial judge erred in so concluding.
[14] The requirement set forth in ss. 258(1)(c)(ii) of the Criminal Code that Intoxilyzer tests be conducted “as soon as practicable after the time when the offence was alleged to have been committed” is not a precondition to the admissibility of the results of breath testing generally, nor to the admissibility of a certificate of a qualified technician under ss. 258(1)(g). Rather, it is a precondition to the availability of the presumption of identity. If the Crown fails to prove that the tests were conducted as soon as practicable, the presumption that the subject’s blood alcohol concentration at the time of driving was the same as at the time of testing is not available. However, that does not make the results of the tests inadmissible, nor does it preclude the Crown from proving those results by means of a certificate. Subsection 258(1)(g) sets forth preconditions for the admissibility of a certificate but the ‘as soon as practicable’ requirement is not one of them. Where the Crown is unable to show that the tests were conducted in accordance with the temporal requirements of s. 258(1)(c)(ii) it cannot avail itself of the presumption of identity, but it would remain open to the Crown to adduce expert evidence relating the test results back to the time of driving without the assistance of the presumption.
[15] Insofar as the ‘over eighty’ charge is concerned, the trial judge’s error in ruling that the certificate was inadmissible was of no practical consequence because, in this case, the Crown needed the presumption of identity to establish the respondent’s blood-alcohol concentration at the time of the driving. With respect to the impaired operation count, however, the error was significant. As I have said, the Crown led evidence from a forensic toxicologist that the ability of a person with the respondent’s Intoxilyzer readings to operate a motor vehicle would be impaired by alcohol. Once the trial judge ruled that the readings were not admissible, the foundation for the toxicologist’s opinion disappeared. I appreciate that in the absence of the presumption of identity the opinion of the toxicologist with respect to impairment was limited to the time of testing. However, evidence of impairment at the time of testing would not have been irrelevant to an assessment of the respondent’s condition at the time of driving. In drinking and driving cases, circumstantial evidence of impairment often concerns observations made subsequent to the time when the offence was alleged to have been committed.
(ii) the meaning of “as soon as practicable”
[16] The Crown acknowledges that the findings of fact made by the trial judge with respect to what occurred between 2:16 a.m. and 2:36 a.m. are entitled to deference in this court. Accordingly, the Crown does not challenge the trial judge’s findings that the process of obtaining personal information and filling out forms would not have taken more than one to two minutes and that the search of the respondent and the itemizing of the contents of his pockets would not have taken more than five minutes. Based on those findings, therefore, what the trial judge found to be not explained was a period of 13 or 14 minutes.
[17] The position of the Crown is that the trial judge’s conclusion that in the absence of an explanation of what occurred in those 13 or 14 minutes it had not been shown that the Intoxilyzer tests were conducted as soon as practicable was based on a misinterpretation of that requirement.
[18] The leading authority in relation to the meaning of ‘as soon as practicable’ is the judgment of the Ontario Court of Appeal in R. v. Vanderbruggen (2006), 2006 9039 (ON CA), 206 C.C.C. (3d) 489. Speaking for the Court in that case, Rosenberg J.A. stated, at paragraphs 12, 13 and 16:
Decisions of this and other courts indicate that [‘as soon as practicable’] means nothing more than 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.
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.
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[^1].
[emphasis added]
[19] In my opinion, the trial judge’s reasons demonstrate a misunderstanding of the principles articulated in Vanderbruggen. I accept that the fact that the trial judge never referred to those principles is not in itself an indication of misdirection. However, the analysis that she conducted was inconsistent with a correct understanding of the meaning of ‘as soon as practicable’.
[20] At no point in her analysis did the trial judge consider the whole chain of events between the arrest and the taking of the tests. She focused entirely on the period between 2:16 and 2:36 a.m. Nor did she ask whether in light of the whole chain of events Officer Weathers acted reasonably. She never adverted to the amount of time that actually elapsed between the arrest and the commencement of the testing. She never considered the fact that the first test was conducted thirty-seven minutes within the outside limit of two hours permitted by the Criminal Code. With respect to the one portion of the overall chain of events that she did consider, her minute-by-minute parsing of the officer’s evidence and her statement that “there cannot be…any unexplained gaps”, effectively required the Crown to provide a detailed explanation of everything that occurred.
[21] In all of these respects, the analysis that the trial judge conducted was significantly at odds with that contemplated by Vanderbruggen. In essence, she required the Crown to establish that the tests were conducted as soon as possible. The approach that she took was akin to that taken by the trial judge in R. v. Seed, 1998 5146 (ON CA), [1998] O.J. No. 4362 (C.A.). As in the case at bar, the trial judge in Seed found an unexplained period of delay of 14 minutes.[^2] Based on the failure of the Crown to provide evidence of what happened in those 14 minutes, he held that the Crown had failed to establish that the tests were conducted as soon as practicable. The reasoning of the trial judge was affirmed by a summary conviction appeal judge. The appeal judge acknowledged that the test of practicability was reasonableness, but he held that for the court to determine that the delay was reasonable “evidence must be introduced describing what was happening throughout the time period between the time of arrest and the breathalyzer test being administered”. The Crown sought leave to appeal to the Court of Appeal. Leave was refused because of the Crown’s delay in perfecting the appeal. The Court was sufficiently concerned with respect to the correctness of the approach taken by the courts below, however, that it took the “rare” step of commenting on the merits of the case. In the opinion of the Court, both the trial judge and the appeal judge erred. The Court stated at paragraph 7:
It would have been our view had we granted leave to appeal that both the trial judge and the appeal judge misconstrued the meaning of "as soon as practicable" and in imposing an evidentiary burden on the prosecution to account for every minute between the time of arrest and the administration of the first test, rather than focusing on whether the police had acted reasonably, and expeditiously, in all the circumstances. Their decisions were contrary to an established line of authority
[22] I am satisfied that trial judge’s determination that the Intoxilyzer tests were not conducted ‘as soon as practicable’ was based on an incorrect interpretation of the meaning of that requirement.
D. Disposition
[23] For the foregoing reasons, the verdicts of acquittal are set aside. Counsel for the respondent at trial was not called on by the trial judge and did not have the opportunity to address the findings that she should make. Further, the determination of whether guilt on the impaired driving count has been proved would require an assessment of the reliability of the evidence given by Officer Weathers. This court is poorly situated to make that assessment. In my opinion, the appropriate order is for a new trial.
MacDonnell, J
Date: January 31, 2013
[^1]: Justice Rosenberg’s citation of the authorities in support of these paragraphs has been omitted. [^2]: To be clear, the overall delay between arrest and the commencement of the testing process in Seed was only 31 minutes.