ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 116/13
DATE: 20140722
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
– and –
WILLIAM CREWSON
Respondent
Rick Nathanson, for the Crown
Adam Little, for the Respondent
HEARD: June 17, 2014
r.f. goldstein j.
REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL
[1] On September 23 2012 Constable Conlan arrested and charged Mr. Crewson with impaired driving and “over 80”. Justice Shamai of the Ontario Court of Justice acquitted him of the two charges. Shamai J. found that the police failed to comply with the requirement that a breath sample be taken “as soon as practicable” because they had facilitated a call to Mr. Crewson’s mother. Mr. Crewson and his mother were on the phone for 30 minutes. Since the samples were not taken “as soon as practical” an acquittal on the “over 80” charge was inevitable. Shamai J. then found that without the technical evidence of the amount of alcohol in Mr. Crewson’s blood (usually referred to as BAC or blood alcohol content) she was not satisfied beyond a reasonable doubt on the impairment charge.
[2] The Crown appeals the acquittal on the “over 80” count on a question of law. The Crown’s position is that Shamai J. applied the wrong test to the evidence. For the reasons that follow, I respectfully disagree with the Crown. The trial judge’s decision was predicated on findings of fact for which there was support in the evidence. The appeal is dismissed.
FACTS
[3] At 3:54 am on September 23 2012 Constable Conlan observed Mr. Crewson in a vehicle stopped in a lane of traffic at a red light. The light turned green, and then turned red again. Mr. Crewson did not move. Constable Conlan went over to ask Mr. Crewson whether he needed any assistance. The officer detected the odour of alcohol on Mr. Crewson’s breath. He demanded that Mr. Crewson provide a breath sample for an approved screening device. Mr. Crewson provided a sample. He registered “fail”. Constable Conlan arrested Mr. Crewson for “over 80”, and transported him to Traffic Services so that he could provide a sample for the Intoxilyzer machine. He arrived at Traffic Services at 4:13 am. At 4:30 am the Intoxilyzer machine was ready but Constable Conlan facilitated a telephone call between Mr. Crewson and his mother. The trial judge found that Mr. Crewson had merely asked that the police call his mother, but that the police went further by actually facilitating the call. Between 4:40 am and 5:10 am Mr. Crewson spoke to his mother. Samples of his breath were then taken at 5:16 am and 5:37 am.
[4] The trial proceeded before Shamai J. on August 27 2013. Constable Crewson was the sole Crown witness. The Crown submitted an affidavit of Inger Bugyra. Inger Bugyra is a toxicologist employed by the Centre of Forensic Sciences. She prepared a report analyzing the results of the breath samples taken by the Intoxilyzer machine. It was the toxicologist’s opinion that Mr. Crewson had 166 milligrams of alcohol in 100 milliliters of blood when the 5:16 am sample was taken, and 154 milligrams of alcohol in 100 milliliters of blood when the 5:37 am sample was taken.
DECISION OF THE TRIAL JUDGE
[5] There were two issues at the trial. The first was a Charter issue. Mr. Crewson’s counsel argued that Constable Conlan had not made a note of the date that the approved screening device was calibrated. Accordingly, the “fail” was unreliable. The arrest was therefore made without reasonable grounds. The subsequent seizure of Mr. Crewson’s breath samples for the Intoxilyzer machine were, therefore, made in violation of s. 8 of the Charter. Shamai J. rejected that argument and dismissed the Charter motion.
[6] The second issue was whether the breath samples taken at 5:16 am and 5:37 am were taken “as soon as practicable” as required by s. 258(1)(c)(ii) of the Criminal Code. Shamai J. found that the Crown did not prove this beyond a reasonable doubt, as required. Her Honour found that by facilitating the call to Mr. Crewson’s mother, Constable Conlan had, perhaps inadvertently, breached the “as soon as practicable” requirement. Her Honour thus found that she could not rely on the expert report. Since the only remaining evidence was simply Constable Conlan’s observations, she found Mr. Crewson not guilty of both counts.
ISSUE AND ANALYSIS
[7] The only real issue on this appeal is whether the trial judge erred in law in her application of the “as soon as practicable” test.
[8] The Crown argues that the trial judge erred by applying a standard of “as soon as possible” rather than a standard of “as soon as practicable”. In doing so, the trial judge erred in law.
[9] The Respondent concedes that the trial judge did not make specific reference to any cases or to the legal standard. Nonetheless, the Respondent points out that this is a highly experienced trial judge. Trial judges are presumed to know the law and to have applied it unless it can be demonstrated that they have erred.
[10] The “as soon as practical” requirement set out in s. 258(1)(c)(ii) of the Code is a legal test reviewable on a standard of correctness. The trial judge must make findings of fact in order to apply the test. Those factual findings are reviewable on a standard of “palpable and over-riding error”: R. v. Beharry, 2014 ONSC 848, [2014] O.J. No. 603 (Sup.Ct.).
[11] In R. v. Davidson, [2005] O.J. No. 3474 (Sup.Ct.) Dawson J. pointed out that s. 258(1)(c)(ii) of the Criminal Code is a protection for the accused. Given that the “presumption of identity” assists the Crown, the “as soon as practicable” requirement encourages accuracy of results and ensures that any delays are justifiable in the circumstances. Accordingly, there will be an unreasonable delay where there is no legitimate basis to support it.
[12] In R. v. Vanderbruggen (2006), 2006 9039 (ON CA), 206 C.C.C. (3d) 489 (Ont.C.A.) the Court of Appeal set out the legal test for whether breath samples are taken as soon as practicable. The Court noted that “the touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably”. The entire time frame must be examined in order to determine whether the police acted reasonably promptly: R. v. Melo, [2011] O.J. No. 1640 (Sup.Ct.).
[13] In my view, Shamai J. did not fall into any of the pitfalls associated with “presumption of identity” cases. For example, Her Honour did not apply the erroneous “as soon as possible” standard or require the Crown to minutely account for every minute of delay: R. v. Burbridge, 2008 ONCA 765, [2008] O.J. No. 4595, 69 M.V.R. (5th) 159, 2008 CarswellOnt 6823 (C.A.)
[14] The Respondent argues that the facts of this case are analogous to the “duty counsel” cases. The typical case is Davidson, which I have already referred to. In that case, the accused waived his right to counsel at the roadside. When he got to the station the police officer contacted duty counsel “out of fairness” to the accused. There was a 35-minute delay waiting for duty counsel to return the call. The trial judge found that the waiver did not remain effective when he attended at the police station. Dawson J., on appeal, found that the trial judge erred because there was no basis upon which he could have concluded that the waiver was no longer valid. Accordingly, the delay was unreasonable. I agree with the Respondent in this regard.
[15] In essence, the Crown’s position is that there was nothing unreasonable about the police allowing Mr. Crewson to speak to his mother for 30 minutes. I respectfully disagree. The onus on the Crown under s. 258(1)(c)(ii) of the Code is a high one. The Crown is required to prove that the samples were taken “as soon as practicable” beyond a reasonable doubt. This is because the expert report is virtually conclusive of guilt.
[16] The trial judge’s verdict that the delay was not reasonable was predicated on her finding that Mr. Crewson asked the officer to call his mother, but that the officer went further and actually facilitated the call. It was this finding of fact that led to the finding that the samples were not taken “as soon as practicable”. That was a finding that was supported by the evidence and there was no palpable and over-riding error. I may well have come to a different conclusion about whether the behaviour of the police was reasonable, but that is not the test. The test is whether there was palpable and over-riding error. On a finding of fact such as this, a trial judge is entitled to a great deal of deference. Judges of the Ontario Court of Justice have a great deal of experience in the interpretation and application of the impaired driving sections of the Criminal Code, which are technical and complicated.
[17] I agree with the Crown that it does seem very incongruous that the police pay a penalty because Constable Conlan compassionately assisted Mr. Crewson. The trial judge noted that the officer was relatively inexperienced. Her Honour was careful not to criticize him and I completely agree with her that the officer acted in good faith. That said, I respectfully agree with my colleague Durno J. in R. v. Schouten, [2002] O.J. No. 4777 (Sup.Ct.) where he said:
There is nothing inconsistent with an officer acting in good faith, and at the same time not ensuring that the tests were taken as soon as practicable.
DISPOSITION
[18] The appeal is dismissed.
R.F. Goldstein J.
Released: July 22, 2014
COURT FILE NO.: 116/13
DATE: 20140722
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
– and –
WILLIAM CREWSON
Respondent
REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL
R.F. Goldstein J.