ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
CITATION: R. v. Ortiz-Ordonnez, 2015 ONSC 280
COURT FILE NO.: SCA(P) 788/13
DATE: 20150116
B E T W E E N:
HER MAJESTY THE QUEEN
Robin Prihar, for the Appellant
Appellant
- and -
LOUISE ORTIZ-ORDONNEZ
Norm Stanford, for the Respondent
Respondent
HEARD: January 9, 2015, at Brampton
REASONS FOR JUDGMENT
[On appeal from the acquittal entered by L.A. Botham J.
dated November 27, 2013]
F. DAWSON J.
[1] The Crown appeals from the acquittal of the respondent for operating a motor vehicle with excess blood alcohol, contrary to s. 235(1)(b) of the Criminal Code. The trial judge found that the Crown had failed to prove beyond a reasonable doubt that the first intoxilizer test had been administered “as soon as practicable” as required by s. 258(1)(c)(ii) of the Criminal Code. Therefore the presumption of identity that the responden’ts blood alcohol level at the time of testing was the same as at the time of driving was not available to the Crown. As no expert evidence was called to relate the blood alcohol level at the time of testing to that at the time of driving an acquittal followed.
[2] The appellant submits that the trial judge erred in law in the application of the appropriate test. I am unable to agree with this submission.
[3] This was a one witness case. The only witness was the arresting officer, Cst. Kosher. Cst. Kosher was qualified as a breath technician but he did not do the intoxilizer tests in this case. Instead he arranged for Cst. Pinheiro to do the test as he believed that would likely be faster. The inference was that Cst. Pinheiro could get to the police division and set up for the test while Cst. Kosher dealt with the respondent and attended for the booking process. A review of the submissions made by counsel at trial confirms that this was the basis on which the case was argued to the trial judge at the conclusion of the evidence. The only issue at trial was whether the first intoxilizer test was administered as soon as practicable.
[4] In her reasons for judgment the trial judge clearly and accurately summarized the law as stated in R. v. Vanderbruggen (2006), 2006 CanLII 9039 (ON CA), 206 C.C.C. (3d) 489, [2006] O.J. No. 1138 (C.A.). She understood that as soon as practicable does not mean as soon as possible but rather means that the breath tests must be administered within a reasonably prompt time. She acknowledged that the Crown is not required to detail minute by minute what took place leading up to the testing. She correctly stated that, nonetheless, the onus was on the Crown to demonstrate that “in all the circumstances, including where relevant the way the police organized and why, the breath samples were taken within a reasonably prompt time.” This proposition was supported by reference to the judgment of Hill J. in R. v. Walker, [2006] O.J. No. 2679, at para. 3.
[5] Walker was a post-Vanderbruggen case. Justice Hill cited the pre-Vanderbruggen case of R. v. Letford (2000), 2000 CanLII 17024 (ON CA), 150 C.C.C. (3d) 225 (Ont. C.A.), at p. 230 for that proposition. Letford was cited with approval in Vanderbruggen at para. 13.
[6] The trial judge also expressly stated that, as held in Vanderbruggen, at para. 12: “The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably.”
[7] The trial judge’s decision was based on her conclusion that there was uncertainty in the evidence about what was occurring during a 22 minute period after the respondent was brought to 21 Division for breath testing. During submissions to the trial judge this period was further broken down into the time period between 3:19 a.m., when the respondent completed speaking to duty counsel, and 3:28 a.m., when she was turned over to the breath technician and between 3:28 a.m. and 3:42 a.m., when the first breath test was administered.
[8] The appellant contends that by focusing on these periods the trial judge erred in her application of the principles in Vanderbruggen. Despite correctly stating those principles the appellant submits the trial judge erred by failing to consider the entire chain of events in order to determine whether the first breath test was administered in a reasonably prompt time.
[9] The appellant further submits that the trial judge erred by failing to advert to the evidence that Cst. Kosher was concerned throughout his dealings with the respondent to ensure that everything occurred expeditiously and in failing to infer from that that the police were acting reasonably. In addition the appellant contends that the trial judge should have utilized the evidence Cst. Kosher gave about providing his grounds to the technician and about how the intoxilizer is prepared for breath testing and how long that process takes, to explain what was going on during part of the time period between 3:28 and 3:42 a.m.
[10] In my view the appellant has failed to establish that the trial judge erred in the application of the appropriate test. Whether breath samples were taken as soon as practicable is a question of fact for the trial judge. The trial judge noted at p. 2 of her reasons that overall it took one hour and four minutes from the respondent’s arrest to the administration of the first breath test. The trial judge detailed in her reasons what the evidence showed was occurring at various times during that period. Her reasons reflect that Cst. Kosher took certain steps to ensure that a number of things happened promptly. These features of the trial judge’s reasons, together with her correct statement of the law, demonstrate that she did not fail to take the whole chain of events into account.
[11] In my view, it is natural and appropriate that the trial judge concentrated on the time period between 3:19 a.m. and 3:42 a.m. This was the portion of the chain of events about which there was confusing and contradictory evidence from Cst. Kosher. Cst. Kosher’s evidence was unclear about whether he provided his grounds to the breath technician before or after 3:19 a.m. His evidence was also unclear about when the booking process was completed. Overall, the evidence was unclear about when the intoxilizer was readied for testing. It may have been readied before 3:19 a.m. or after 3:28.
[12] Counsel on both sides directed considerable attention to what occurred between 3:19 a.m. and 3:42 a.m. during their questioning of Cst. Kosher and in their submissions.
[13] In these circumstances the trial judge’s focus on the part of the evidence that was troubling her and the time period it concerned does not indicate that the trial judge was misapplying the legal principles that she had correctly stated.
[14] Counsel for the respondent makes the point that good faith on the part of Cst. Kosher in trying to have the test performed expeditiously does not mean that all of the police conduct was reasonable. There is merit in this submission. There was a significant time period about which the evidence was at best ambiguous. Cst. Pinheiro was involved with the respondent but was not called as a witness. Cst. Kosher’s good faith efforts to proceed expeditiously could not assist in determining whether Cst. Pinheiro acted reasonably.
[15] The trial judge was not requiring a minute by minute explanation for what was occurring between 3:19 a.m. and 3:42 a.m. but she had to be satisfied beyond a reasonable doubt that the police were acting reasonably throughout. As she expressly stated, she was unable to be so satisfied because there was “an absence of evidence as to what was happening with the defendant after she spoke to duty counsel.”
[16] In my respectful view the trial judge’s reasons read as a whole indicate that she was correctly applying the legal principles the appellant agrees she correctly stated. It was the trial judge’s task to determine whether, based on the evidence before her, she was satisfied beyond a reasonable doubt that the police acted reasonably and administered the tests within a reasonably prompt time. She may not have drawn certain inferences the appellant would like her to have drawn and she may have taken a view of the evidence which was generous to the respondent, but I am not persuaded she erred as alleged. See generally R. v. Jenkins, 2012 ONSC 3345, at para. 21; R. v. Najm, 2006 CanLII 19483 (ON CA), [2006] O.J. No. 2348 (C.A.). The view of the evidence which the trial judge took was open to her on this record and that view was certainly capable of leading to a reasonable doubt about whether the first test was administered within a reasonably prompt time.
[17] In a separate argument the appellant contends that the trial judge made a palpable and overriding factual error when she stated, at p. 5 of her reasons, that the booking process had been completed by 3:19 a.m. The appellant notes that this was a misapprehension of the evidence and was followed immediately by a finding that there was an absence of evidence as to what was happening with the respondent after she spoke with duty counsel.
[18] I do not believe the passage referred to reflects any factual error or misapprehension of the evidence by the trial judge. In the portion of the judgment the appellant refers to the trial judge is reciting a number of possible scenarios to demonstrate why she is unsure that what occurred was reasonable on the part of the police. As counsel for the respondent accurately points out in his submissions, the sentence immediately before the impugned comment shows that the trial judge did not proceed on the basis that the booking procedure was completed by 3:19 a.m. The passage in which the impugned comment is found is as follows:
It may well be that the defendant was not turned over to the Intoxilizer technician because the booking process had not been completed. It may be that there is a perfectly reasonable explanation for why the technician was not ready to take custody of the defendant at 3:19 a.m. even though the booking process had been completed. However, there is an absence of evidence as to what was happening with the defendant after she spoke to duty counsel.
The first sentence in this passage, read in the context of the surrounding text, is referring to the time when the call to duty counsel was completed, which was 3:19 a.m. Therefore, in this passage the trial judge is clearly not making a finding that the booking process was complete by 3:19, but was setting out various scenarios to make the point that she could not be sure what occurred.
[19] Counsel for the respondent also correctly points out that earlier in her judgment, at p. 3, line 10 and following, the trial judge referred to Cst. Kosher’s evidence and said that “it was possible that the booking process may not have been completed before the defendant spoke to duty counsel and therefore may have been completed after 3:19 a.m.” This clearly demonstrates that the trial judge did not misapprehend the evidence as the appellant submits.
[20] In this case the trial judge decided as she did because she determined that there was insufficient evidence before her to satisfy her beyond a reasonable doubt that the police were acting reasonably throughout the process. That was a factual determination for her to make and I am not persuaded that the trial judge erred in making that determination.
[21] The appeal is dismissed.
F. Dawson J.
Released: January 16, 2015
CITATION: R. v. Ortiz-Ordonnez, 2015 ONSC 280
COURT FILE NO.: SCA(P) 788/13
DATE: 20150116
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Appellant
- and –
LOUISE ORTIZ-ORDONNEZ
Respondent
REASONS FOR JUDGMENT
F. Dawson J.
Released: January 16, 2015