ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 133/14 AP
DATE: 20150909
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
JOSEPH RIENGUETTE
Appellant
Natalie Boivin, for the Respondent.
P. Berk Keaney, for the Appellant.
HEARD: July 30, 2015
R. D. GORDON, R. S. J.
Overview
[1] On December 13, 2014, the Appellant was convicted by the Honourable Justice William Fitzgerald at Sudbury, Ontario on a charge of operating a motor vehicle while his blood alcohol level exceeded 80 milligrams of alcohol in 100 millilitres of blood.
[2] Mr. Rienguette appeals his conviction and raises three grounds of appeal: (1) That the trial judge erred by failing to find a breach of his right to counsel under the Charter; (2) That the trial judge erred by finding that the samples of his breath were taken as soon as practicable; and (3) That the trial judge erred by finding that the failure of the breath technician to follow certain directions and recommendations in the operation and maintenance of the breathalyzer did not, or could not, affect the reliability of the breath test results.
Background Facts
[3] Cst. Alexander Balloway was working a “Festive RIDE Program” in Sudbury, Ontario on December 23, 2010, doing spot checks at the Coniston turnoff where Second Avenue merges into Highway 17 East. When he started duty at 8:30 p.m., he had not checked to see whether he had an Approved Screening Device (“ASD”) with him.
[4] Cst. Balloway stopped the Appellant at 10:17 p.m. He detected the odour of an alcoholic beverage coming from the Appellant’s breath when the Appellant admitted to having had “a few” alcoholic beverages and formed a reasonable suspicion that the Appellant was operating a vehicle with alcohol in his system. He asked the Appellant to accompany him to his cruiser and seated him at the rear. Cst. Balloway then looked in the trunk for the ASD and realized that he did not have one with him.
[5] At 10:20 p. m., he used his police radio to request that an ASD be brought to his location. There were two other RIDE locations set up within 250 metres of his location. He received a response on his radio from Cst. Rizzi who said: “Yeah, I’ll get there as soon as I can”. Cst. Balloway did not ask how soon that would be.
[6] At 10:23 p. m., Cst. Balloway demanded the Appellant provide a sample of his breath for testing by an ASD.
[7] At 10:30 p. m., Cst. Coluzzi arrived and provided an ASD for use. Cst. Balloway turned it on, waited as it went through its calibration checks, and explained to the Appellant how to provide a sample. The Appellant provided a sample which registered a “Fail” on the ASD at 10:34 p. m., giving Cst. Balloway reasonable grounds to believe the Appellant was operating a motor vehicle with over 80 mgs of alcohol in 100 mls of blood.
[8] At 10:40 p. m., Cst. Balloway arrested the Appellant for this offence and read him his right to counsel and caution.
[9] At 10:47 p. m., Cst. Balloway demanded that the Appellant provide samples of his breath into an Approved Instrument.
[10] At 10:52 p. m. the officer and the Appellant left the scene to attend at police headquarters. They arrived there at 11:07 p. m. The Appellant was searched, brought into the detachment and paraded. He asked to speak with a lawyer named Robert Brunet, whose name did not appear on the police lawyer list. Cst. Balloway found Mr. Brunet’s number in the phone book and at 11:15 p. m. called the number which was answered by Gary McMahon, a lawyer. The Appellant was given the phone and privacy to speak to Mr. McMahon.
[11] At 11:31 p. m. Cst. Balloway determined that the Appellant had finished his conversation with Mr. McMahon. The Appellant asked to use the washroom and exited at 11:33 p. m. He was turned over the Cst. Coluzzi, the breath technician at 11:37 p. m.
[12] Cst. Coluzzi had arrived at police headquarters at 10:57 p. m. and entered the Intoxilyzer room at 11:00 p. m. He changed the alcohol standard solution in the simulator, completed test procedures on the Intoxilyzer 5000C and spoke with Cst. Balloway to obtain the grounds for the arrest. Set-up checks on the Intoxilyzer were conducted from 11:24 p. m. to 11:29 p. m. and based on his training and the diagnostic testing, Cst. Coluzzi concluded that the Approved Instrument was in proper working order.
[13] After having his right to counsel and caution provided again by Cst. Coluzzi the Appellant asked for a further opportunity to consult with counsel. He was given that opportunity and at 11:55 p. m. spoke to Duty Counsel. After completing his consultation he again asked to use the washroom and was given that opportunity. He was returned to Cst. Coluzzi at 12:08 a. m. at which time he provided the first sample of his breath into the Approved Instrument and registered a reading of 139 mgs of alcohol in 100 mls of blood. A second sample was provided at 12:28 a. m. and also registered a reading of 139.
Analysis
Issue #1 - Was There a Breach of the Appellant’s Section 10(b) Rights?
[14] The Appellant’s position is that the ASD sample taken from him was not taken “forthwith” as required by section 254(2) of the Criminal Code, resulting in an obligation on the part of Cst. Balloway to provide him with an opportunity to retain and instruct counsel. Because no such opportunity was afforded to him, it is argued there was a breach of his section 10(b) rights with the result that any evidence obtained thereafter ought to be ruled inadmissible.
[15] A driver is detained when held following a roadside breath demand. Although one’s right to counsel would normally arise upon detention, the requirement that the sample be provided forthwith has been held to be a reasonable limit on the right to counsel, prescribed by law and justified under section 1 of the Charter [see R. v. Thomsen, (1998) 1988 73 (SCC), 40 C.C.C. (3d) 411 (S.C.C.)].
[16] In the case of R. v. Quansah (2012) 2012 ONCA 123, 286 C.C.C. (3d) 307 (Ont. C.A.), the Ontario Court of Appeal provided an excellent summary of the law as it applies to the issue of whether a breath sample is provided “forthwith”. It held as follows:
That the analysis of the “forthwith” requirement must always be done contextually, bearing in mind Parliament’s intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual rights;
The demand to provide a sample of breath into an ASD must be made by the police officer promptly after he or she forms the reasonable suspicion that the driver has alcohol in his or her body;
“Forthwith” connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible interpretation may be given. In the end, the time from the formation of a reasonable suspicion to the making of the demand to the detainee’s response to the demand must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by section 254(2);
The immediacy requirement imported by the word “forthwith” must take into account all the circumstances, which may include a reasonable and justifiably necessary delay where breath tests cannot immediately be performed;
One of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee’s section 10(b) rights before requiring the sample. If so, the “forthwith” criterion is not met.
[17] Put another way, for a sample to be provided forthwith the Crown must establish that, having regard to all of the circumstances, any delay was reasonable and justifiably necessary to enable the officer to discharge his duty. However, even if the Crown is successful in doing so it is open to the accused to establish that as a consequence of the delay the police could realistically have fulfilled their obligation to implement the accused’s section 10(b) rights and that the failure to do so was in violation of those rights.
[18] On this appeal, the question is whether the police could realistically have fulfilled their obligation to implement Mr. Rienguette’s section 10(b) rights. That determination would require consideration of the following factors:
The Officer’s expectations concerning the length of the delay;
The actual length of the delay;
The availability of a telephone;
The length of time required to consult with counsel;
What, if anything, was happening during the delay.
[19] The findings of the trial judge on the issue are as follows:
In this proceeding, the defence brings an application under The Canadian Charter of Rights and Freedoms, under section 10(b) and section 24(2) alleging that this approved screening device sample simply was not taken forthwith as required by the Criminal Code. Because Constable Galloway did not have an approved instrument and because Mr. Rienguette had been detained awaiting the arrival of the instrument, the submission made by the defence is that he ought to have been informed of his section 10(b) Charter rights in the police cruiser while awaiting its arrival.
Section 10 reads: Everyone has a right on arrest or detention, (b) to retain and instruct counsel without delay and to be informed of that right.
A number of cases have been cited dealing with this issue, and I have been referred by the Crown to R. v. Torsney for guidance. The only issue of substance here is whether Constable Balloway was in a position to require that Mr. Rienguette provide a breath sample forthwith, that is, before there was any realistic opportunity to consult with counsel as opposed to the mere chance to place a call to a lawyer. The right as set out in section 10 is to “retain and instruct”. It later appeared that Mr. Rienguette had a cell phone in his possession, but at the time this was neither known to Constable Balloway nor did Mr. Rienguette make the Constable aware that he had a cell phone.
In R. v. Latour, the Ontario Court of Appeal held that in deciding whether, in a particular case, there was a realistic opportunity to consult with counsel, all the circumstances must be considered, including the time which in fact elapsed between the demand and the taking of the breath sample.
These cases would seem to make it clear that the question to be asked is whether, in the circumstances, the police officer was in a position to require that the breath sample be provided “forthwith”, that is, as I understand it, before there was any realistic opportunity for Mr. Rienguette to consult counsel. In my consideration to that question in the circumstances of this matter, the answer is “yes”. The trier of fact is to be concerned certainly with the amount of time involved, but more importantly, what was indeed happening during that time period.
The outside limits in the consideration of all the circumstances on this evidence are 13 minutes. The machine was at the scene and ready for use at 10:30 p.m. The “reasonable suspicion” was formed at 10:17 p.m. Constable Balloway escorted Mr. Rienguette to the rear seat of the police cruiser. Realizing he did not have an ASD with him, he looked in the trunk of the cruiser to see if one might have been left there. There wasn’t. The Constable then used his police radio to request a machine be brought to him, before making the demand of Mr. Rienguette which was done at 10:23 p.m.
The demand that was made was clear and Mr. Rienguette understood. He knew what was being asked of him and he understood that the Constable was awaiting the arrival of the instrument. He knew that he was to provide a sample as soon as the machine arrived and he responded accordingly. There was no discussion of telephoning, nor was there any discussion with regard to the availability of a phone. There is nothing in the evidence about the ready availability of a telephone at this time.
There was a response to Constable Balloway’s radio response from Constable Rizzi at an unknown location, “Yeah, I’ll try and get there as soon as I can.”, is, in my view, of no relevant significance in this consideration. I am unable to speculate what that call might have generated in the Constable’s mind other than that from some unspecified location, a Constable Rizzi had responded that he would try to attend Constable Balloway’s location “as soon as he can”. The evidence indicates that Constable Balloway assumed that others in his location had an approved screening device. It is true that that call, however, might have taken on more significance and even become a relevant factor, if the wait had lasted longer with no approved screening device being delivered.
Similarly, the watches were not synchronized has no relevance here. The evidence is that the machine was ready for use at 10:30 p. m. and all of the times considered are from the same source, that is Constable Balloway.
Mr. Keaney, on behalf of the defence, directs me to R. v. George, at paragraph 56, not paragraph 55 as set in the materials, it’s paragraph 56, “Where an officer is in a position to require that a breath sample be provided by the detainee before the detainee has any realistic opportunity to consult counsel, the detainee does not have the right to delay the production of the breath sample in order to consult counsel by virtue of the ready availability of the telephone. However, where an officer is not in a position to require that a breath sample be provided immediately after a demand for such sample, the court in determining whether the detainee had a reasonable opportunity to consult with counsel during the period of delay, must consider the ready availability of a telephone as a relevant factor in making the determination.”
In R. v. George, the test results were excluded when the officer did not have the necessary screening device with him and called for one to be brought to him. The facts in that case are substantially different than the circumstances here. In George, the evidence supported a finding of fact that the police officer was told that the only available screening device was at a different police division and that it would take “fifteen or twenty minutes to arrive”. Clearly there would appear to be sufficient time to provide a reasonable opportunity to consult counsel in George and this makes Mr. George’s situation clearly distinguishable from that of Mr. Rienguette.
Also, not a relevant consideration, in my view, is that Mr. Rienguette was later able to consult a lawyer from the police station. In fact, the evidence is that he did so more than one occasion at the station.
It is clear here that the evidence indicates that Constable Balloway made his observations and stopped the vehicle operated by Mr. Rienguette. At 10:17 p. m. he approached the vehicle and spoke with the driver, he noted the odour of alcoholic beverage and formed a reasonable suspicion that the driver had alcohol in his body. He asked the driver to accompany him to the vehicle. He searched the trunk of the vehicle for an ASD and, at 10:20 p. m. he used his police radio to request that an ASD be delivered to him. The device was delivered to him at 10:30 p. m.
I have attempted to set out in these reasons all the relevant circumstances and the events that transpired over those 13 minutes. In my view, Mr. Rienguette was placed in the cruiser as Constable Balloway had formed his reasonable suspicion. The Constable was waiting a reasonable time for the delivery of the machine to confirm his suspicion and provide him with reasonable grounds to proceed with an arrest. In my view he received the machine within that reasonable time and immediately proceeded to administer the test. In my consideration, in these circumstances, it has not been shown that Mr. Rienguette’s rights under the Charter were infringed or defined.
Similarly distinguishable is R. v. Najm where the Ontario Court of Appeal decided that, on the evidence, it was open to the trial judge to make the finding that there was a violation of Charter rights and properly excluded the evidence. In these circumstances there is clear evidence supporting a finding that it has not been shown that Mr. Rienguette’s Charter rights have been violated.
[20] Read as a whole, it is clear to me that the trial judge applied the proper test. It is also clear to me that he considered the following factors:
He considered the officer’s expectation concerning the length of anticipated delay in obtaining the ASD when he found that the evidence supported the officer’s assumption that someone at one of the other RIDE programs within 250 metres of his location had an ASD. The clear implication of this finding is that the delay would be quite short.
He considered the actual length of the delay and made a specific finding that at its most it amounted to 13 minutes.
He considered the availability of a phone when he found that at a later time it was determined that Mr. Rienguette had a cell phone in his possession. The clear inference from that finding is that there was a phone available to Mr. Rienguette.
He considered specifically what was transpiring during the delay when he described in some detail the actions of the officer between when Mr. Rienguette was pulled over and when the sample was eventually provided.
[21] It is not clear from the reasons of the trial judge that he considered the length of time it would have taken Mr. Rienguette to consult counsel from the roadside notwithstanding that evidence had been led at trial suggesting it would take not more than five minutes to do so. Ordinarily, it might be expected that a trial judge would, in his reasons, touch upon evidence tendered at trial on a contested issue. However, a fair reading of the trial judge’s decision is that regardless of the time required to consult counsel, such time did not exist in this case. His decision, when read as a whole, indicates that during the 13 minutes of delay the officer was not simply standing around waiting for the ASD to arrive, but was involved in the discharge of his duties to an extent that made it unrealistic for him to implement the Appellant’s section 10(b) rights, even if to do so were to take only five minutes.
[22] I am satisfied that the trial judge identified the appropriate test. He considered and applied the required factors. I may or may not agree with his conclusion, but that is of no consequence. The decision of the trial judge in these circumstances is entitled to deference [see R. v. Najm (June 13, 2006 – unreported)]. It follows that the decision of the trial judge on this issue must stand.
Issue #2 - Were the Breath Samples Taken As Soon As Practicable?
[23] The “as soon as practicable” requirement contained in section 258(1) of the Criminal Code means nothing more than that the tests be taken within a reasonably prompt time under the circumstances. There is no requirement that the tests be taken as soon as possible. The touchstone for determining whether tests were taken as soon as practicable is whether the police acted reasonably. That decision is an issue of fact for the trial judge. [See R. v. Vanderbruggen 2006 9039 (ON CA), [2006] O.J. No. 1138].
[24] The Trial Judge correctly identified these legal principles in arriving at his decision.
[25] The Appellant takes issue with three periods of time between when he was stopped and when the samples were provided. The first is the 13 minute period between when he was first stopped and when the ASD was ready to be administered. With respect to this period of time, the Trial Judge made findings of what had transpired and found the sample to have been provided forthwith.
[26] The second period of time at issue is the 18 minute period between when the Appellant failed the ASD and when they left the scene. With respect to this period, the Trial Judge found that the officer searched and secured the accused, returned him to the rear of the cruiser, read him his Charter rights to counsel, caution and demand, and assured himself that the accused understood what he had been told.
[27] The third period of time was the 30 minute period between when they arrived at headquarters and when he was handed over to the breathalyzer technician. During this time, the Trial Judge found that the Appellant was taken to the booking-in area and processed, arrangements made to have him speak with counsel, his call to counsel was completed, the officer provided his grounds to the breath technician, and the Appellant was permitted to use the washroom.
[28] Although the Appellant initially identified the 15 minute period of time between when they left the scene and when they arrived at headquarters as problematic, he conceded at the hearing of this appeal that this was a reasonable amount of time to travel from the scene to the detachment.
[29] The Trial Judge considered each period of time, made findings of what transpired during those periods of time and concluded that the police acted reasonably with the result that the samples were taken as soon as practicable in all of the circumstances.
[30] As in Vanderbruggen, there was sufficient evidence upon which the Trial Judge could arrive at this conclusion. It is not for me to re-evaluate the evidence.
Issue #3 - Reliability of the Breath Test Results
[31] Section 258(3) of the Criminal Code provides for a statutory presumption of accuracy of the analysis of breath tests in the absence of evidence that the Approved Instrument was malfunctioning or was operated improperly.
[32] In R. v. St.-Onge Lamoureux, 2012 SCC 57, 2012 S.C.C. 57, the Supreme Court of Canada held that to rebut the statutory presumption, an accused person must raise a doubt about the reliability of the breath test results which is more than frivolous or trivial. The Court also affirmed its earlier reasoning in R. v. Crosthwait, 1980 182 (SCC), [1980] 1 S.C.R. 1089, when it held that the mere possibility that the instrument had malfunctioned cannot cast doubt on the reliability of the results. An accused must not simply show that a deficiency is possible but raise a real doubt that the instrument was functioning or operated properly.
[33] Before an accused provides samples of his or her breath into an Approved Instrument, the breath technician normally tests the calibration of the Approved Instrument through the use of an external simulator. If the result of the simulated test is within an acceptable range of the alcohol content known to exist in the simulator, it is expected that the approved device is functioning properly. Of course, if the simulated test is to provide an accurate result, certain test parameters must be met. One of these parameters is that the temperature of the simulator falls within the range of 33.8 and 34.2 degrees centigrade when the simulated test is administered. This is determined by an internal thermostat in the simulator which provides a digital read out of the simulator temperature. That temperature can be confirmed by inserting a mercury glass thermometer into the machine through a port designed for this very purpose. The Centre of Forensic Sciences recommends that breath technicians verify the temperature of the simulator from time to time in order to ensure the integrity of the simulator test, however, the recommendation is not specific as to how, when or how often the verification should be done.
[34] In the case before me, the breath technician checked the digital display on the simulator and determined that it was within the required range of temperature. He then completed the simulated test and obtained a result that indicated the approved instrument had been properly calibrated. When this offence is alleged to have occurred, this officer was not in the habit of confirming the internal temperature of the simulator by the use of the mercury glass thermometer. There was no evidence that the thermostat of the simulator was accurately reporting the temperature of the thermometer until just a few months before trial, when the officer began testing it monthly for that purpose. The Appellant argues that by failing to verify the temperature of the simulator the technician’s operation or maintenance of the approved instrument was improper.
[35] The Appellant’s argument goes like this: (1) that without having verified the temperature of the simulator, we cannot know with any certainty what the correct internal temperature of the simulator was; (2) If we cannot know with certainty what the correct internal temperature of the simulator was we cannot know the validity of the simulated test results; (3) If we cannot know the validity of the simulated test results, we cannot know if the approved device was calibrated properly; and (4) If we do not know if the approved device was calibrated properly, we cannot know if the results it provided were accurate.
[36] The findings of the trial judge on this issue are as follows:
The evidence given by the breath technician and the toxicologist called by the prosecution confirms, in my view, the reliability of the results, notwithstanding that the simulator check now being used by the technician was not done in this matter. These witnesses appear to be saying expressly that.
What the defence is raising here is that there is evidence which could possibly affect the reliability of the readings and that evidence is that the simulator check was not done. To the contrary, there is no evidence that the absence of performing this check would or could affect these readings. Nor is there evidence that in the absence of performing the check is evidence tending to show that the reliability of the instrument was or could be affected.
After having heard all of the evidence, it is my view that there is no evidence tending to show that the instrument was malfunctioning or was operated improperly. In the absence of that evidence, the results registered by the approved instrument are conclusive proof that the concentration of alcohol in Mr. Rienguette’s blood was in excess of the limit imposed by law.
[37] The questions boil down to this: Was the officer’s failure to confirm the simulator temperature with a mercury glass thermometer a failure to properly operate or maintain the Approved Instrument? If so, does such failure cast reasonable doubt on the reliability of the results provided by the Approved Instrument?
[38] In my view, the failure to confirm the temperature was a failure to properly operate the Approved Instrument, however, the failure does not cast a reasonable doubt on the reliability of the results in the circumstances of this case.
[39] Mr. Ben Joseph testified at trial as an expert in forensic toxicology. He worked as such at the Centre of Forensic Science for over 10 years and over that period of time dealt with hundreds of impaired driving cases. In cross-examination he gave the following evidence:
Q. All right. The temperature of the solution within the simulator plays a significant role in the integrity of the breath testing process, that would be fair?
A. Yes.
Q. And if the temperature of the solution is not within the parameters, that is if the internal thermostat was in error, how other than periodic verification by using the N.I.S.T. thermometer would a breath tech know that?
A. He wouldn’t know that. The only way to assume that it was working properly would be to assume the concentration of that alcohol standard solution was between 90 and 110 which was so in this case?
Q. All right. If the temperature of the solution is outside the parameters plus or minus point two degrees of 34, could that affect the reliability, could it affect the reliability of the calibration check, is that possible?
A. So you’re actually asking about a faulty thermostat?
Q. Yes?
A. Yes it could affect the reliability of that calibration check and hence the reliability indirectly of a subject breath test.
[40] The evidence before the trial judge was that the breath technician checked the digital read out on the simulator and confirmed the appropriate temperature. Although the evidence establishes that the accuracy of the thermometer had not been verified by the use of the mercury glass thermometer, there is no evidence to suggest that the thermometer in the simulator was faulty or that the temperature it indicated was inaccurate. There is no good reason to question its accuracy. The simulated test was expected to render a result on the Approved Instrument of .100, plus or minus .01 if the simulator was warmed to between 33.8 and 34.2 degrees. The evidence is that it was warmed to 34 degrees. The results from the approved instrument were .101 and .103. As found by the Trial Judge, the evidence of the expert and the breath technician confirmed the reliability of the results of the test. In the circumstances of this case the evidence does not raise a reasonable doubt about the reliability of the results rendered by the Approved Instrument.
[41] The Appellant also attempted to argue that the breath technician’s failure to observe the Appellant for 15 minutes prior to administering the first test amounted to improper operation of the device. This argument cannot succeed for two reasons: First, the evidence led at trial did not establish that this period of observation amounted to improper procedure or operation. Second, even if the evidence had established this, there was no evidence before the court upon which to find that the failure to observe the Appellant during this period of time would cast a reasonable doubt on the result of the approved instrument in the circumstances of this case.
Conclusion
[42] Having regard to all of the above, the appeal is dismissed.
R. D. GORDON, R. S. J.
Released: September 9, 2015
COURT FILE NO.: 133/14 AP
DATE: 20150909
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
JOSEPH RIENGUETTE
Appellant
decision on appeal
R. D. GORDON, R. S. J.
Released: September 9, 2015