ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-13-4000011800

DATE: 20140626

RE: Her Majesty The Queen

AND:

Paul Cargill, Defendant

BEFORE: R. F. Goldstein J.

APPEARANCE: Paul A. Renwick, for the Crown, Appellant

Adam Little, for Paul Cargill

ENDORSEMENT

[1] On June 14 2012 Constable Swain of the Toronto Police Service stopped Mr. Cargill’s vehicle on the Don Valley Parkway. The officer had received information about Mr. Cargill’s driving from a Provincial Enforcement Officer. He formed reasonable grounds to believe that Mr. Cargill was impaired. He arrested Mr. Cargill at the scene. He transported him to the police station for an Intoxlyzer test. The results revealed that Mr. Cargill had a blood alcohol concentration level higher than the legal limit.

[2] The trial judge, Justice Kozloff, found that he had a reasonable doubt as to whether Mr. Cargill was impaired. He also found that he was unable to determine whether the police acted reasonably and expeditiously in all the circumstances when they took the breath samples. He therefore was unable to find that the breath samples were taken as soon as practicable. The Crown was therefore not entitled to rely on what is known as “the presumption of identity”. He dismissed the “over 80” charge.

[3] The Crown appealed on the grounds that Justice Kozloff erred in finding that the samples were not taken as soon as practicable. I dismissed the appeal from the bench and indicated that reasons would follow. These are those reasons.

FACTS AND JUDGMENT AT TRIAL

[4] The sequence of events was as follows:

12:37 am Constable Swain stops Mr. Cargill’s vehicle on the Don Valley Parkway

12:39 am Constable Swain arrests Mr. Cargill for impaired driving. He places Mr. Cargill in his cruiser and transports him to 41 Division

12:58 am Constable Swain and Mr. Cargill arrive at 41 Division

1:18 am Mr. Cargill booked at 41 Division

1:55 am Mr. Cargill provides the first sample of his breath

[5] Justice Kozloff dealt with the “over 80” charge by focussing on the 20 minute period between Mr. Cargill’s arrival at the station and the commencement of the booking process. The officer and Mr. Cargill had to wait to commence the booking process. The only evidence as to the reason for the 20-minute wait was from Constable Swain, who did not know the reason why.

[6] Constable Swain testified:

Other prisoners ahead. As far as – I wasn’t privy to exactly the reason why. My experience from other arrests is, if there’s a delay, there’s other officers ahead of us with an arrest, they could be doing a release.

[7] Justice Kozloff found that the officer’s explanation was speculative, at best. The penultimate paragraph of His Honour’s reasons stated:

In the result, I am unable to determine whether or not the police acted reasonably and expeditiously in all the circumstances, and as a consequence I am unable to find that the breath samples were taken as soon as practicable, that is, whether they were taken within a reasonably prompt time under the circumstances.

ANALYSIS

[8] In an “over-80” case the Crown may rely on “the presumption of identity” in the Criminal Code. The presumption is simply this:

• Samples of an accused’s breath must be taken by a qualified technician using an approved machine;

• The samples must be taken “as soon as practicable” (and not more than two hours) after the time of the alleged offence;

• The accused’s alcohol concentration taken at the time of the sampling is deemed to be his or her blood alcohol concentration at the time of the offence;

• The Crown must prove that the samples were taken “as soon as practicable” beyond a reasonable doubt.

See: R. v. Vanderbruggen (2006), 2006 9039 (ON CA), 206 C.C.C. (3d) 489 (Ont.C.A.).

[9] The Crown concedes that Justice Kozloff properly referenced and articulated the analytical framework set out by the Court of Appeal in Vanderbruggen. The Crown argues, however, that Justice Kozloff erred in his application of the test by fixating on the unexplained twenty-minute period. As a result, His Honour failed to consider the whole chain of events, especially in light of the fact that the whole period from arrest to first sample was only 78 minutes.

[10] I disagree. Although the Crown argues that Justice Kozloff erred in law, in reality this appeal is about whether there was an error of fact.

[11] In R. v. Beharry, 2014 ONSC 848, [2014] O.J. No. 603 (Sup.Ct.) my colleague Campbell J. very helpfully and succinctly set out the standard of review on an appeal in cases involving the presumption of identity and I respectfully adopt his analysis. I summarize the principles as follows:

• The “as soon as practicable” requirement set out in the Criminal Code is a legal standard. Whether the trial judge applied the standard correctly is a question of law. On appeal it is subject to review on a standard of correctness;

• A trial judge must make findings of fact in order to apply that legal standard. Findings of fact are subject to review on a standard of palpable and over-riding error;

• The Crown must prove beyond a reasonable doubt that the police took the breath samples as soon as practicable. Whether the Crown has called enough evidence to meet that burden is a question of fact.

[12] In dismissing a conviction appeal in R. v. Burbridge, 2008 ONCA 765, [2008] O.J. No. 4595, 69 M.V.R. (5th) 159, 2008 CarswellOnt 6823 (C.A.) the Court of Appeal stated at para. 8:

The trial judge addressed the argument that the crown had failed to prove that the samples were taken as soon as practicable. He made findings of fact and based on those findings concluded that the crown had met its burden on that issue. As indicated in Vanderbruggen this was a factual issue for the trial judge and we are not satisfied that he made any error that should cause us to interfere with that finding.

[13] Did Justice Kozloff commit palpable and over-riding error? In my view he did not. His key finding of fact was that there was a period of 20 minutes that was un-explained. That key finding of fact was clearly available to him based on the evidence of Constable Swain.

[14] The Crown also points to the fact that Justice Kozloff applied the test in only four of the 106 paragraphs of the judgment, or about half a page in 17 single-spaced pages. The judgment must, however, be read as a whole. The penultimate paragraph that I quoted must be seen in the context of Justice Kozloff’s very careful and detailed review of the evidence. The reasons as a whole demonstrate that he appreciated the entire chain of events and did not simply isolate and fixate on one portion. It is clear from the reasons that the twenty-minute period was the portion of time that troubled him. He did not engage in a minute-by-minute analysis to determine whether the Crown had proven that the samples were taken as soon as possible. Where a trial judge correctly sets out the applicable test it should be assumed that he applied that test unless there is a clear indication that he or she did not: R. v. MacGillivray, 1995 139 (SCC), [1995], 1 S.C.R. 890, 97 C.C.C. (3rd) 13, 11 M.V.R. (3rd) 1.

[15] I note that similar delays have resulted in acquittals, upholding acquittals, or overturning convictions in this Court: for example, see Beharry; R. v. Chung, [2009] O.J. No. 1546 (Sup.Ct.); R. v. Dean, [2013] O.J. No. 2418; R. v. Davidson, [2005] O.J. No. 3474, 23 M.V.R. (5th) 77 (Sup.Ct.).

[16] In R. v. Schouten, [2002] O.J. No. 4777 (Sup.Ct.) Durno J. allowed an appeal from conviction where the Crown had failed to account for an 18-minute un-explained delay. The accused in that case was arrested at 12:05 am and the first breath sample was taken at 12:55 am. As Durno J. pointed out, there is no magic associated with any particular point in time that will necessarily raise a reasonable doubt as to the presumption of identity. I respectfully adopt that comment. It is ultimately a question for the trial judge, and a trial judge is entitled to a considerable amount of deference in that regard.

[17] The appeal is dismissed.

R.F. Goldstein J.

Released: June 26, 2014