ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Christopher Presswood, for the Respondent
Respondent
- and -
ADAM POMROY
Gregory Lafontaine, for the Appellant
Appellant
HEARD: April 10, 2015 at Brampton
DECIDED: May 27, 2015
REASONS FOR JUDGMENT
[On appeal from the judgment of Currie J.
dated January 21, 2014]
André J.
1Mr. Pomroy appeals his conviction of the offence of excess blood alcohol, pursuant to s. 253(1)(b) of the Criminal Code of Canada (“the Code”). He submits that the trial judge erred in law in finding that 1) his rights under section 10(a) of the Canadian Charter of Rights and Freedoms had not been infringed by the arresting officer and 2) that the breathalyzer tests had been taken as soon as was practicable pursuant to s. 258(1)(c)(ii) of the Code. The Crown submits that the trial judge was correct in finding that the officer did not violate Mr. Pomroy’s s. 10(a) Charter rights and that the breathalyzer tests were taken as soon as practicable.
2For the reasons set out below, the appeal is dismissed.
Background Facts
3In the early hours of November 4, 2011, Mr. Pomroy was stopped while driving his motor vehicle, a silver Mazda Tribute, at a R.I.D.E. spot-check located on the Cawthra Road northbound ramp to Highway 403 eastbound, in the City of Mississauga, Peel Region. Mr. Pomroy identified himself with a valid Ontario driver’s licence. Provincial Constable Oskar Buinickis escorted Mr. Pomroy to a police cruiser where an Approved Screening Device (“ASD”) demand was made. Mr. Pomroy subsequently failed the ASD test. He was then arrested for the offence of operating a motor vehicle while exceeding 80 milligrams of alcohol in 100 millilitres of blood, contrary to section 253(1)(b) of the Code. The officer read Mr. Pomroy his rights to counsel, a caution, and a breath demand from a card. Mr. Pomroy requested to speak to a lawyer. He was subsequently transported to the Port Credit Detachment and placed in a cell. Mr. Pomroy spoke to duty counsel for approximately seven minutes. Constable Buinickis then transferred Mr. Pomroy to Provincial Constable Shakiv Halimi, a qualified breathalyzer technician. Two tests were conducted utilizing the Intoxilyzer 8000C machine. The first test was conducted at 2:29 a.m., with the result of 141 milligrams of alcohol in 100 millilitres of blood. The second test was conducted at 3:01 a.m., with the result of 133 milligrams of alcohol in 100 millilitres of blood. Cst. Buinickis released Mr. Pomroy on a Promise to Appear.
Trial Judge’s Decision
4The trial commenced on December 13, 2013, before Justice Paul Currie of the Ontario Court of Justice in Brampton. He convicted Mr. Pomroy on January 21, 2014, fined him $1,100, and prohibited him from driving anywhere in Canada for one year.
[5] During the trial, Mr. Pomroy’s counsel submitted that Cst. Buinickis violated his client’s s. 10(a) Charter rights by failing to promptly advise him of the reason for Mr. Pomroy’s detention. In dismissing the Charter application the trial judge concluded, at page 6 of his reasons for judgment, that:
In my view, however, the circumstances were such, including the wording of the demand which was read to Mr. Pomroy within three minutes of the stop, that the officer was requesting a sample of his breath to ascertain what level of alcohol was in his system. In my view, the purpose of Section 10(a) was accomplished without the officer having to explicitly state the reasons for the stop to Mr. Pomroy. In my view, there has not been established a breach of Section 10(a) of the defendant’s Charter Rights.
6The trial judge also concluded that, pursuant to s. 258(1)(c)(ii) of the Code, the breathalyzer tests were taken as soon as practicable. He noted that:
In my view, on this issue, there need not be that specific reference in the evidence. The delay was not unexplained, that is the 32 minutes between the two tests. There was an explanation provided by the officer. I am satisfied on the face of it, it accounts for the extra perhaps 12 to 15 minutes outside of the usual course between the first and second test.
Reasons for Judgment, January 21, 2014, page 9.
Analysis
Issue No. One – Did Constable Buinickis violate Mr. Pomroy’s section 10(a) Charter rights?
7Prior to reviewing the applicable statutory framework and applicable caselaw in relation to s. 10(a) of the Charter, it is necessary to set out the standard of review as it relates to this appeal. The appropriate standard is one of deference absent “palpable and overriding error” or findings of fact that are clearly wrong, unreasonable or unsupported by the evidence: Housen v. Nikolaisen, 2002 SCC 33 at paras. 10-18. The judgment of the trial judge will only be unreasonable if it could not have reasonably been rendered by a properly instructed trier of fact, acting judiciously: R. v. Biniaris, 2000 SCC 15, at para. 36-7.
8Section 10(a) of the Charter provides that:
Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor;
9In R. v. Nguyen, 2008 ONCA 49 at para. 21, the Ontario Court of Appeal noted that:
Once detained, an individual is at the mercy of state actors. Thus, in circumstances where the informational component of s. 10(a) of the Charter is easy to fulfill – as it was in this case – the breach of the obligation to provide that information cannot be considered a trivial matter. We say this because, as the jurisprudence illustrates, the right against self-incrimination is fundamental to the spirit of s. 10 of the Charter.
[10] A motorist is not entitled to be informed of his or her rights to counsel during a roadside sobriety investigation even though the enabling provincial legislation contained no express limits on the motorist’s s. 10(a) Charter rights. Such a limitation was implied by the statutory right to stop a vehicle and in the police’s duty to enforce s. 254 of the Code: R. v. Orbanski, 2005 SCC 37.
11The timely issuance of a demand to provide a breath sample pursuant to s. 254(2) of the Code satisfies the constitutional obligation under s. 10(a) of the Charter for a person to be promptly informed of the reasons for his or her arrest or detention. R. v. Wakernagel, [2004] O.J. No. 5543, at para. 23. As noted by Hill J. in Wakernagel, at para. 34:
[P]roviding the demand, or substantially its communicative content, fulfils the following objectives…. (2) the detainee’s s. 10(a) Charter right is promptly accommodated as he learns the “true grounds” for his continued detention – administration, not possible administration, of an A.S.D. test.
12Applying the law to the facts of this case, Mr. Pomroy approached Cst. Buinickis at 1:29 a.m. He advised the officer that he had earlier consumed a couple of beers. As a result of this response and the odour of alcoholic beverage that emanated from Mr. Pomroy’s breath, the officer formed a reasonable suspicion that Mr. Pomroy had alcohol in his body. Thereupon, at 1:32 a.m., Cst. Buinickis read an ASD demand to Mr. Pomroy. Two minutes later, Mr. Pomroy provided a suitable sample directly into the device. The results indicated to the officer that Mr. Pomroy had more than 80 mgs of alcohol in 100 millilitres of blood in his body. He then arrested Mr. Pomroy for operating a motor vehicle while having an excess blood alcohol level.
[13] In the circumstances of this case, it was open to the trial judge to find that “the purpose of section 10(a) was accomplished without the officer having to explicitly state the reasons for the stop to Mr. Pomroy”. There was no verbal exchange between Cst. Buinickis and Mr. Pomroy that suggested that the latter was unaware of the reason for his detention. The officer specifically advised Mr. Pomroy about his detention. The ASD demand provided information to Mr. Pomroy about why he was being investigated by the officer. In so doing, Mr. Pomroy’s s. 10(a) Charter rights were “promptly accommodated”, to use Hill J.’s typology in Wakernagel. The trial judge committed no error when he concluded that Cst. Buinickis did not violate Mr. Pomroy’s s. 10(a) Charter rights.
Issue No. Two – Were the breathalyzer tests taken as soon as practicable, pursuant to s. 258(1)(c)(ii) of the Code?
14The test for determining whether or not the breathalyzer tests were taken as soon as practicable is one of reasonableness. The question to be answered is whether the officer acted reasonably in the circumstances of the case or whether he or she devoted an unreasonable amount of time to a test that was unrelated to the investigation. R. v. Vanderbruggen, 2006 ONCA 9039, [2006] O.J. No. 1138, 2008 O.A.C. 379 (Ont. C.A.) at paras. 13-14.
15In R. v. Singh, 2014 ONCA 293, at para. 15, the Ontario Court of Appeal noted that:
It is worth repeating that the Crown is not required to call evidence to provide a detailed explanation of what occurred during every minute that the accused is in custody. These provisions of the Criminal Code were enacted to expedite the trial process by facilitating the introduction of reliable evidence to prove an accused’s blood-alcohol level. Interpreting these provisions to require an exact accounting of every moment in the chronology from the time of the offence to the second test runs counter to their purpose...
16Applying this law to the facts of this case, Cst. Shakiv Halimi testified that he conducted the first breathalyzer test at 2:29 a.m. and the second at 3:01 a.m. He stated that during these two periods he was doing a breath test for a second officer.
17Mr. Pomroy submits that this explanation is woefully inadequate and does not meet the legal standard requiring that the breath tests be taken as soon as practicable.
18It is standard practice for a qualified breathalyzer technician to delay 20 minutes after a first breathalyzer test before performing a second test. To that extent, the earliest the second test could have been done in this case would have been 2:49 a.m. Accordingly, the breath test that Cst. Halimi performed for another officer resulted in an additional 12 minute delay in the taking of the second breathalyzer test in this case.
19Were the officer’s actions unreasonable in the circumstances of this case? In an ideal world of infinite resources where a different breathalyzer technician is assigned to each drinking and driving case, they possibly would be unreasonable. In a less than ideal world, exigent circumstances may require a breathalyzer technician to perform another task related to another investigation. It is simply a matter of common sense that being required to do a breath test in another case would have delayed the taking of the second test in this case. There is no evidence to suggest that Cst. Halimi unnecessarily delayed the process with respect to the breath tests taken in this case or taken in the other case. In my view, the trial judge did not err in law or fact in concluding that the breathalyzer tests in this case were taken as soon as practicable.
Disposition
20For the above reasons, the appeal is dismissed.
André J.
Released: May 27, 2015
CITATION: R. v. Pomroy, 2015 ONSC 2923
COURT FILE NO.: SCA 47/14
DATE: 20150527
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
ADAM POMROY
Appellant
REASONS FOR JUDGMENT
André J.
Released: May 27, 2015