ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
BRIAN CAREW
Appellant
Moiz M. Karimjee, Assistant Crown Attorney
Lawrence Greenspon, for the Appellant
HEARD: December 11, 2013
REASONS FOR JUDGMENT
Mr. Justice Douglas Rutherford
I The Background
1Mr. Carew was charged on January 30, 2012 with impaired driving and with driving with in excess of 80 milligrams of alcohol in 100 millilitres of his blood, contrary to ss. 253(1)(a) and (b) respectively of the Criminal Code, R.S.C., 1985, c.C-46. He was tried before Justice Hugh Fraser in the Ontario Court of Justice, who, in his judgment given orally on May 30, 2013, acquitted Mr. Carew on the impaired driving charge but convicted him on the charge of driving while his blood/alcohol content was in excess of the legal limit.
2At trial, there were three arguments advanced by the defence. Justice Fraser outlined them in his reasons for judgment as follows:
There were essentially three issues raised by the defence. The most prominent argument is that the accused’s right to the counsel of his choice was breached, and that the breath samples obtained thereafter should be excluded by virtue of Section 24(2) of the Charter. The accused also argues that the first breath sample was not obtained within two hours, and that the Crown is therefore not entitled to the presumption contained in Section 258(l)(c). The third argument is that there is insufficient proof that the accused’s ability to operate a motor vehicle was impaired by alcohol.
3Justice Fraser dealt with the issues in reverse order, concluding for relatively brief reasons that he was left in reasonable doubt whether Mr. Carew’s ability to drive was impaired, given that there was no expert evidence to relate the breath samples to the degree of impairment.
4On the second issue, the only one advanced on this appeal, again, for relatively brief reasons, Justice Fraser found that the first breath sample tested was obtained not later than two hours after the time when the offence was alleged to have been committed. As a result, subject to the third issue, the Crown was entitled to rely upon the conclusive statutory presumption that the blood/alcohol concentration, upon analysis, was the concentration at the time of the alleged driving.
5Finally, Justice Fraser dealt at much greater length with the “most prominent argument” and found that there was no breach of Mr. Carew’s right to counsel of his choice, and allowed the breath samples analyses into evidence. Justice Fraser then proceeded to find that the Crown had proven Mr. Carew guilty of driving with a blood/alcohol concentration in excess of the legal limit and sentenced him accordingly.
II Issues on Appeal
6In his Factum, Mr. Greenspon advances three alternative issues on behalf of Mr. Carew on this appeal. He says that the trial judge:
erred in law in failing to appreciate the burden of proof to be applied to the pre-conditions for the presumption contained in section 258(l)(c) to operate; or
erred in law by failing to apply the appropriate burden of proof beyond a reasonable doubt to the section 258(1)(c) preconditions; or
failed to provide sufficient reasons as to why he found that the Appellant’s first breath sample was obtained within two hours of the time of driving so as to permit for meaningful appellate review.
7In ruling that the Crown was able to rely on the presumption contained in s. 258(1)(c), Justice Fraser gave the following reasons:
The second issue that I will deal with is whether the first breath test was taken within the required two hours. Mr. Greenspon submits that there is a considerable discrepancy between Constable Periard’s timepiece, and that of Constable Robillard.
He points to Constable Periard’s testimony that he was called into the breath testing room at 5:20 a.m. as an indication that the arresting officer’s watch might have been off by as much as 12 minutes, meaning the first sample of breath would have been taken a few minutes outside of the two hour limit provided for in Section 258.
The Crown submits that Constable Periard was simply mistaken when he stated that he was called into the breath testing room at around 05:20 a.m. Constable Periard testified that he stopped the vehicle driven by Mr. Carew at 03:37 a.m. He also gave evidence that he gave his grounds for arrest to Constable Robillard at 04:55 and that the conversation continued until 05:06 a.m. when Constable Robillard then took custody of the accused.
Constable Robillard testified that he began to receive the grounds for arrest at 4:51 a.m., and that it continued until 5:02 a.m. Based on this evidence it appears that Constable Periard’ s watch was four minutes faster than that of Constable Robillard. On that basis the first test conducted by Constable Robillard at 5:27, on his watch or 5:29 by the readout on the Intoxilyzer 8000c, was still within the two hour period from the time of Constable Periard’s observations of the accused’s vehicle.
I find therefore that the first test was conducted within the two hour limit prescribed in Section 258 of the Criminal Code of Canada, and the Crown is entitled to rely on the presumption contained therein.
III The Evidence as to the Timing of Sample 1
Evidence of Cst. Periard
8Cst. Periard observed Mr. Carew as he was driving westbound, ahead of the police cruiser, in the centre lane on Walkley Road. He described Mr. Carew as having difficulty staying in his lane and drifting into the right lane. Cst. Periard initially said this was at 03:41 hours. He pulled the Carew vehicle over, ascertained that Mr. Carew had consumed alcohol as recently as an hour earlier, and read him the roadside screening device demand. Cst. Periard later stated that he initiated the stop at 03:37 and read the demand at 03:41. On cross-examination he was asked about the Carew vehicle wandering between lanes, and when defence put to him, “This occurred at 3:40 or so in the morning?”, Cst. Periard replied “That’s correct.” Later during cross-examination defence returned to the time of the erratic driving and this exchange occurred:
Q. …your investigative action report has you first noticing the vehicle at 03:41 and that’s not correct because that’s also the time that you say that you read him – read Mr. Carew the approved road screening device, correct?
A. Yes.
Q. All right. And so – what you…
A. Yeah, it was at 03:37.
Q. Right.
A. In my notes.
Q. And the 03:37 you get that correctly from your notes on page 124 right at the top, it says 03:37?
A. On scene, yes.
Q. On scene. Right. So – and I take it, Sir, you never adjusted your watch that night?
A. The on scene time, I don’t know where I got it from, either from the watch or from the computer in the car.
Q. You never adjusted either the watch or the computer…
A. I did not.
Q. …as determined?
A. No, they’re not timed perfectly.
9After some unsuccessful attempts to provide an adequate sample, Mr. Carew ultimately recorded a ‘failed’ on the roadside device. He was then arrested and taken to Police Headquarters where he was processed, spoke with a lawyer by telephone, and was handed over to breath technician Robillard. Cst. Periard testified that he went to give his grounds for arrest to Cst. Robillard at 04:55 hours and that Cst. Robillard took custody of Mr. Carew at 05:06. Cst. Periard testified that 05:20 he went into the intoxilyzer room where there was some further discussion with Mr. Carew about his consultation with counsel, and that at 06:04 Cst. Robillard turned Mr. Carew back over to him and told him of the intoxilyzer results.
10On cross-examination of Cst. Periard, the exchange under paragraph 8 above continued as follows:
Q. All right. And you say you were asked to come into the breath tech room at 5 – at 05:20, 5:20?
A. Yes.
Q. All right. Now, I anticipate that Officer Robillard is going to tell us that he asked you to come into the breath tech room at 05:08, in other words 5:08?
A. It’s possible.
Q. Okay. And is it possible therefore, sir, that your watch may have been fast by some 12 minutes?
A. I don’t know, I didn’t check my watch and compared it, so I can’t answer that question.
Evidence of Cst. Robillard
11Cst. Robillard testified in chief that Cst. Periard explained to him his grounds for arresting Mr. Carew beginning at 04:51 and ending at 05:02, at which point he took over custody of Mr. Carew. He explained to Mr. Carew the reasons for his arrest and at 05:08 read him his full rights to counsel. There was some discussion about whether Mr. Carew had spoken to the lawyer of his choice and Cst. Robillard called for Cst. Periard to be called back into the room on that point. He noted that all the interaction in the intoxilyzer room was recorded on video. At 05:16 primary and secondary cautions were read to Mr. Carew and a demand for breath samples was read at 05:17. At 05:29 Cst. Robillard received the first sample and was satisfied that it was a good sample. It analysed showing 184 milligrams of alcohol in 100 millilitres of blood. At 05:51, Mr. Carew provided a second sample which analysed showing 175 milligrams of alcohol in 100 millilitres of blood.
12On cross-examination, Cst. Robillard said that the time shown on the intoxilyzer was two minutes faster than on his watch. He said:
A. …I actually made a notation in my notes that the instrument time was two minutes faster than my watch and that’s on page 191.
Q. Okay. Instrument time was two minutes faster than your watch, okay. So.
A. The time displayed.
Q. Pardon-me?
A. The time displayed on the instrument was two minutes faster than on my watch.
Q. All right. So then the first sample would have been at 5:27 or so on your watch but 5:29 on the instrument, correct?
A. Approximately, yes.
13Defence also cross-examined Cst. Robillard about a point when Mr. Carew had asked him what time it was. Cst. Robillard told him it was 5:10. It was shortly after that that Cst. Robillard called for Cst. Periard to return to the room to discuss Mr. Carew’s consultation with counsel. That exchange was as follows:
Q. Now, Mr. Carew asked you what time it was, do you recall that?
A. Yes.
Q. And you looked at your watch, correct?
A. Yes, I believe so.
Q. And you told him it was 5:10?
A. Yes.
Q. Was that the truth?
A. Was that the exact time? It might have been…
Q. Was it 5:10 on your watch?
A. I – I can’t – I can’t say- with exact certainty that that was the exact time
Q. 5:10 – the – the little hand was on the five, the big hand was on the 10, I’m not asking you about the seconds? Your watched showed you 5:10 and you truthfully told Mr. Carew that was the time it was?
A. It could have been 5:12, it could have been 5:13, could have been 5:08, what I’m staying is I can’t say with 100 percent certainty, it was a quick glance at my watch. I may have rounded up, I may have rounded down. I think the best estimate would be to take a look at the time on the video.
14With that evidence and Cst. Periard’s testimony as to when he was called back into the intoxilyzer room (see paragraph 10 above), defence counsel had this further exchange with Cst. Robillard:
Q. So if he’s [Cst. Periard] there at 5:10 or 5:10 and a half or 5:11, and according to his testimony he is called by you and is in the breath tech room with you at 5:20, certainly his watch is not in sync with yours?
A. Absolutely, there’s discrepancy somewhere I’d say.
Q. For sure. And there could be a discrepancy of as much as 10 minutes as between your watch and his timing. According to his evidence?
A. Sure.
Video Evidence
15A video record was made of everything that happened in the intoxilyzer room from the time Cst. Robillard first entered the room to set up the intoxilyzer until after he escorted Mr. Carew out of the room to hand him back into the custody of Cst. Periard. The video shows a running clock in hours, minutes and seconds. The video recording was played in court and marked as Exhibit 2 The running time clock on the video shows the times for the following events as:
05:06 Cst. Robillard brings Mr. Carew into the room.
05:12:42 Cst. Robillard asks that Cst. Periard return to the room in connection with Mr. Carew’s consultation with a lawyer.
05:13:39 Mr. Carew asks Cst. Robillard what time it is.
05:13:42 Cst. Robillard, looking at his watch, replies that it is 10 after 5:00.
05:14:00 Cst. Periard joins them in the room and further discussion concerning Mr. Carew’s consultation with Mr. Greenspon’s associate, Mr. Granger, ensues.
05:18:20 Cst. Periard leaves the room.
05:29:40 Mr. Carew delivers first breath sample.
06:01:30 Cst. Robillard leaves room with Mr. Carew.
16The Breath Technician’s Certificate was filed as Exhibit 1 at trial. It records the first breath sample as having been taken at 05:29:23.
IV Argument of the Appellant
17Mr. Greenspon contends that there is a “stream of evidence” consisting of the variance between Cst. Periard’s note that he re-entered the intoxilyzer room at 05:20, and the evidence of Cst. Robillard that it was 05:10 or 05:11. Mr. Greenspon argues that such variance provides a basis for the possibility that the first sample of breath was taken more than two hours after the time of the offence. If Cst. Periard’s watch was running some 10 minutes faster than the time on which Cst. Robillard was operating, then the driving offence could have occurred at 03:27 Robillard’s time, as opposed to 03:37 as noted by Cst. Periard. If this first sample was taken at 05:29 as attested to by Cst. Robillard’s evidence, his Certificate, and the video timeline, it would have been outside the two hour period. It is the defence position that Justice Fraser did not make his finding that the first sample was taken within the two hour time period with the criminal standard of proof in mind.
18Alternatively, it is argued that if Justice Fraser can be assumed to have had the proper burden of proof in mind, albeit without expressly stating it, he failed in its application in light of the “stream of evidence” consisting of the variance between “Cst. Periard time” and “Cst. Robillard time.” That stream of evidence as to the time variance, in Mr. Greenspon’s submission, would constitute an evidentiary basis sufficient to raise a reasonable doubt as to whether the s. 258 (1)(c) presumption had been established.
19Alternatively, the defence argues that Justice Fraser’s reasons for finding that the first breath sample was taken within the two hour period are insufficient to enable proper appellate review. Such inadequacy lies in his failure to deal with and explain why he rejected the stream of evidence as to the time variance on which a reasonable doubt arises as to the length of time between the offence and the taking of the first sample.
V Argument of the Crown
20Assistant Crown Attorney Karimjee argues that Justice Fraser must be assumed to know the law, and in particular, that the criminal burden of proof is applicable to all essential elements, including the timing of the taking of the sample in order to trigger the statutory presumption. In addition, Justice Fraser can be assumed to have applied the proper presumption even without expressly saying so.
21It is Mr. Karimjee’s submission as well, that on the evidence, there is an ample basis for the conclusion reached by Justice Fraser that the first sample was taken within the required two hour period.
VI Analysis
22I accept that the presumption in s. 258(1)(c) is applicable only where it is shown beyond a reasonable doubt that the first sample was taken within two hours of the alleged offence. The difficulty I have with Mr. Greenspon’s argument that there is an evidentiary “stream” that could rationally lead to the conclusion that the first sample was taken after the two hour period is that, upon close scrutiny, that evidentiary stream appears, to maintain the metaphor, no more than a dry creek bed. There is no water in it.
23In oral argument, Mr. Greenspon referred several times to Cst. Periard’s watch, arguing that because of the officer’s initial evidence that he was called into the intoxilyzer room by Cst. Robillard at 05:20, Cst. Periard’s watch may have been as much as 12 minutes faster than that of Cst. Robillard. In my view, a careful review of the evidence as to time simply cannot sustain such a conclusion. Indeed, Cst. Periard’s testimony as to the time at which he did things was not necessarily based upon the time shown on his watch. As to the time of the offence, he testified that it was 03:37 when he stopped Mr. Carew. He said, “I don’t know where I got it from, either from the watch or from the computer in the car.” When asked if he ever adjusted his watch or the computer he replied, “I did not.” As to the time when he was called into the intoxilyzer room, he said it was 05:20. He was not asked where he got that time from, and said nothing about a watch. Moreover, when told that Cst. Robillard would say that he asked for Cst. Periard to be brought back into the room at 05:08, Cst. Periard readily conceded, “It’s possible.”
24The running clock on the video in the intoxilyzer room showed Cst. Robillard asking that Cst. Periard return to the room at 05:12. The evidence shows that the running video clock was displaying the same time as the intoxilyzer, both of which were running two minutes faster than Cst. Robillard’s watch. The first breath sample was taken at 05:29 according to the running video clock and the intoxilyzer clock.
25All of the most reliable and verifiable evidence bearing on the timing of the taking of the first sample shows it occurred at 05:29. The evidence as to the time of the offence was Cst. Periard’s testimony that it was at 03:37. That was what he had entered in his notebook. He couldn’t say if that was the time on his watch or on his cruiser’s computer. Cst. Periard began to tell Cst. Robillard of his grounds for arrest and demand at 04:51. Cst. Robillard said it was at 04:55. It was on this time deviation evidence that Justice Fraser concluded that it appeared that the watches of the two officers were at most, only some four minutes apart.
26The overwhelming burden of the evidence supports a concordance as to the time of events that morning as between the two officers, subject only to that four minute difference just mentioned. To attempt to construct a possibility that Cst. Periard’s watch might have been as much as eight or more minutes faster than the running clocks in the intoxilyzer room on the basis of his statement that he was called into the room at 05:20, is in my view, untenable. There is just no evidentiary stream in which to float that boat. Cst. Periard never said that 05:20 came from his watch or where it came from, and he readily abandoned any claim to its accuracy. The reliable evidence as to that event comes from the running clocks in the intoxilyzer room. The finding made by Justice Fraser in the penultimate paragraph of his judgment that the sample was taken within the two hour period was the only reasonable finding he could make on all the evidence. In my view, Justice Fraser’s conclusion that the first sample was taken within two hours of the alleged offence is unassailable.
27Not only must it be assumed that Justice Fraser, a very experienced trial judge, knows the basic law, including that essential elements of an offence must be proven beyond a reasonable doubt (R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 at para. 54), I cannot see how, given the evidence, he could not have concluded that the pre-conditions for the engagement of the s. 258(l)(c) presumption had been established beyond a reasonable doubt. In this light, borrowing on the language in R. v. T.S., 2012 ONCA 289 at para. 77, Justice Fraser’s reasons, considered in the context of the evidence adduced at trial and the live issues that emerged, are quite adequate for appellate review. In short, I am unable to appreciate how another result was open to the trial judge. The appeal must be dismissed and the conviction affirmed.
Order accordingly.
Rutherford J.
Released: March 11 , 2014
R. v. Carew, 2014 ONSC 1532
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
BRIAN CAREW
Appellant
REASONS FOR JUDGMENT
Mr. Justice Douglas Rutherford
Released: March 11, 2014