R. v. Debilio, 2015 ONSC 5769

CITATION: R. v. Debilio, 2015 ONSC 5769

COURT FILE NO.: 109/14

DATE: 20140917

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Her Majesty the Queen v. Antonio Debilio

BEFORE: K.L. Campbell J.

COUNSEL: Daniel Guttman, for the Crown, respondent

Gregory Lafontaine, for the accused, appellant

HEARD: June 10, 2015

REASONS FOR DECISION

[Summary Conviction Appeal]

A. Introduction

[1] The issues raised by this summary conviction appeal are: (1) whether the reasons for judgment delivered by the trial judge adequately addressed the supplementary “as soon as practicable” argument that was advanced at trial on behalf of the appellant; and (2) if the reasons for judgment are legally inadequate, is this a case which requires that a new trial be ordered, or is it appropriate in all of the circumstances to apply the curative provisions of s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46.

B. Overview of the Case

[2] The appellant, Antonio Debilio, was tried by the Honourable Mr. Justice G.S. Lapkin of the Ontario Court of Justice on a charge of operating a motor vehicle with a blood-alcohol concentration exceeding 80 mgs. of alcohol in 100 mls. of blood, contrary to s. 253(1)(b) of the Criminal Code. The offence was allegedly committed in Toronto on or about April 4, 2013.

[3] The trial in this case unfolded as a blended proceeding. The Crown led the evidence of two police officers, the arresting officer, Cst. Peter Schafhauser, and the qualified breath technician, Cst. William Niziol, in an effort to establish the commission of the alleged offence. Defence counsel cross-examined those same witnesses in an effort to establish that there had been a violation of the appellant’s right to counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms, and exclude the Intoxilyzer results of the appellant’s breath samples under s. 24(2) of the Charter. At the conclusion of the Crown’s case, the appellant elected to call no evidence. The matter was then adjourned to permit the parties to prepare and file brief written arguments instead of making any oral submissions.

[4] According to the evidence of Cst. Schafhauser, at approximately 11:42 p.m. on April 4, 2013, while using a radar device, he caught the appellant speeding eastbound on Westhumber Boulevard near Kipling Avenue. The appellant was on his way home from a Toronto Maple Leafs hockey game. During the course of this traffic stop, Cst. Schafhauser detected the odour of an alcoholic beverage on the appellant’s breath. When questioned, the appellant admitted that he had consumed two beers at the game. The officer then demanded that the appellant provide a breath sample into an approved screening device. The device registered a “fail” result at 11:49 p.m. Given the calibration of the device, this result indicated that the appellant had at least 100 mgs. of alcohol per 100 mls. of his blood. The appellant was then arrested for operating a motor vehicle while having more than 80 mgs. of alcohol per 100 mls. of blood. The appellant was also advised of his right to counsel.

[5] Arrangements were then made for a tow truck and another police officer to take custody of the appellant’s vehicle. Cst. Schafhauser left the scene, with the appellant, at approximately 12:09 a.m. on April 5, 2013, after another officer arrived to take custody of the appellant’s vehicle. Cst. Schafhauser and the appellant arrived at the Traffic Services facility at 12:30 a.m. After he was paraded and booked, the appellant provided two samples of his breath for analysis in an approved instrument. The truncated results from the breath analysis revealed that the appellant had a blood-alcohol concentration of 160 and 150 mgs. of alcohol per 100 mls. of blood at 1:00 a.m. and 1:26 a.m. respectively.

[6] As I have indicated, the principle issue at trial was the admissibility of the Intoxilyzer results of the appellant’s breath samples. In his written submissions, defence counsel argued that the police violated the appellant’s right to counsel, and that the resulting Intoxilyzer evidence should be excluded under s. 24(2) of the Charter. However, in the final two paragraphs of his 14 pages of written argument, defence counsel also advanced the ancillary argument that the appellant’s breath samples were not taken “as soon as practicable” within the meaning of s. 258(1)(c)(ii) of the Criminal Code and that, accordingly, the Crown was not entitled to rely upon the conclusive presumption that the results of the appellant’s breath samples reflected his blood-alcohol level at the time he was operating the motor vehicle. The Crown addressed each of these arguments in its written submissions.

[7] On September 11, 2014, the trial judge delivered oral reasons for judgment in this case. Lapkin J. indicated, at the outset, that if the Intoxilyzer results were admissible, they established the alleged offence. The trial judge then concluded that there had been no violation of the appellant’s right to counsel. Lapkin J. also concluded, in the alternative, that even if there had been a violation of s. 10(b) of the Charter, he would not have excluded the Intoxilyzer results of the appellant’s breath samples under s. 24(2) of the Charter in any event. In this regard, the trial judge mentioned the “good faith” of the police officers and society’s interest in an adjudication of such cases on their merits. The trial judge also indicated that he was satisfied that the Intoxilyzer readings established that the appellant had a blood alcohol level “over 80,” and that the appellant’s breath samples “were properly taken.” In the result, the trial judge found the appellant guilty.

[8] Before the Crown made his sentencing submissions, he noted that it was “implicit” in the oral reasons provided by the trial judge that, in concluding that the breath samples were “properly taken,” the trial judge had addressed the “as soon as practicable” issue that defence counsel had raised in his written submissions. The Crown observed that he did not want defence counsel to think that the issue had not been addressed. Defence counsel made no comment, but the trial judge stated: “My finding was that the readings were admissible based on the evidence of the breathalyzer officer and Officer Schafhauser.”

[9] Ultimately, the trial judge sentenced the appellant to a fine of $1,250.00 (with six months to pay), a victim surcharge of $100, and he prohibited the appellant from driving a motor vehicle for a period of one year.

[10] The appellant now appeals against his conviction. He argues that the reasons for judgment provided by the trial judge were legally inadequate in that they did not address the argument that the appellant’s breath samples were not taken “as soon as practicable” as required by s. 258(1)(c) of the Criminal Code. While the appellant initially also launched an appeal against his sentence, that appeal was abandoned during the course of oral argument.

C. Analysis

1. Introduction – The Inadequacy of the Reasons at Trial – Curing the Deficiency

[11] In his oral reasons for judgment the trial judge did not expressly address, even briefly, the appellant’s written argument that his breath samples were not taken as soon as practicable. This argument by the appellant was only advanced as a secondary point, and consumed but a small portion of the written submissions filed by defence counsel. Nevertheless, having been advanced as one of the reasons why the appellant should be acquitted, the trial judge was obliged to address this point, at least in a summary way. The appellant was entitled to know that this argument had been considered and why it had been rejected. Accordingly, in my view, the reasons for judgment provided by the trial judge are legally inadequate. In light of this conclusion, what is the appropriate result in this case?

[12] In R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, the Supreme Court of Canada recognized, at paras. 52 and 55 (in the final summary point), that there may be circumstances in which the curative proviso in s. 686(1)(b)(iii) of the Criminal Code may be applied when inadequate reasons are provided at trial. The ordering of a new trial is not always the inevitable result of insufficient reasons. In other words, even in cases in which the reasons of the trial judge are legally inadequate, the basis of the verdict may still be readily apparent to the appeal court through the reasons provided and the trial record. As Binnie J. stated, in his judgments in both R. v. Sheppard, at paras. 46 and 53, and R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245, at para. 20,“[w]here it is plain from the record why an accused has been convicted or acquitted, and the absence or inadequacy of reasons provides no significant impediment to the exercise of the right of appeal, the appeal court will not on that account intervene” as the duty to give reasons “should be given a functional and purposeful interpretation” and the failure to live up to the duty does not provide “a free-standing right of appeal” or “in itself confe[r] entitlement to appellate intervention.” Indeed, as the Supreme Court of Canada observed in R. v. Gagnon, [2006] 1 S.C.R. 621, 2006 SCC 17, at para. 13, it is only when the reasons provided by the trial judge are “both inadequate and inscrutable, [that] a new trial is required.” At the same time, the Supreme Court has also made it clear that this is “not an invitation to appellate courts to engage in a reassessment of aspects of the case not resolved by the trial judge,” or “substitute its own analysis for that of the trial judge.” See R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 32; R. v. Barrett, 1995 CanLII 129 (SCC), [1995] 1 S.C.R. 752, 96 C.C.C. (3d) 319; R. v. Maharaj (2004), 2004 CanLII 39045 (ON CA), 71 O.R. (3d) 388, 186 C.C.C. (3d) 247 (C.A.), at para. 23, leave denied, [2004] S.C.C.A. No. 340; R. v. Sarkis, 2005 MBCA 40, [2005] M.J. No. 73, at paras. 23-31; R. v. Tong, 2014 ONSC 1861, [2014] O.J. No. 1386, at paras. 42-43; R. v. Zhao, 2014 ONSC 1985, [2014] O.J. No. 1676, at paras. 11-13; R. v. Cuming, [2003] O.J. No. 3028, at para. 2; R. v. El-Merhabi, 2008 ONCA 552, [2008] O.J. No. 2735, at para. 1.

[13] In my view, this is one of those cases where a new trial is unnecessary as the basis of the verdict is readily apparent given the reasons for judgment that were provided by Lapkin J. and the nature of the trial record in this case. In other words, in all of the circumstances of the present case it is at least implicit from the oral reasons for judgment provided by the trial judge that he rejected the appellant’s argument that his breath samples were not taken “as soon as practicable,” and it is apparent from the trial record why he reached that sensible and inevitable conclusion. Moreover, the absence of any detailed reasons from the trial judge on this topic provides no significant impediment to the appellant’s exercise of his right of appeal. In addition, in my view this is a conclusion that can properly be amplified on appeal with reasons that expressly consider the undisputed facts of the case as measured against the clearly established governing legal principles.

2. The Implicit Conclusion of the Trial Judge – Samples Taken as Soon as Practicable

[14] In his reasons for judgment the trial judge clearly accepted the evidence of the two police officers as to their interactions with the appellant and the timing and sequence of events that led to the Intoxilyzer results of the appellant’s breath samples. Indeed, the trial judge noted the “good faith” of the police officers in their dealings with the appellant. Perhaps most importantly, in finding the appellant guilty of the “over 80” offence in the concluding paragraph of his reasons for judgment, the trial judge expressly stated that the appellant’s breath samples were “properly taken.” Of course, the trial judge could not have drawn that conclusion, and relied upon the conclusive statutory presumption contained in s. 258(1)(c) of the Criminal Code, as he did, if the appellant’s breath samples had not been obtained “as soon as practicable.” Therefore, in my view it is at least implicit in the trial judge’s reasons for judgment that he rejected the supplementary argument by defence counsel that the appellant’s breath samples were not taken as soon as practicable.

[15] My conclusion in this regard is fortified by the exchange that followed immediately after the conclusion of the trial judge’s oral reasons for judgment. The Crown, realizing that the trial judge had not dealt expressly with the “as soon as practicable” argument, but believing that his rejection of that argument was “implicit” in his conclusion that the appellant’s breath samples were “properly taken,” expressly addressed that very point and placed his understanding on the record. Defence counsel offered no comment on this observation. Had defence counsel been of an opposing view, this comment by the Crown provided defence counsel with the perfect opportunity to express any such contrary view. His silence in the face of the Crown’s comment suggests that he too thought that the trial judge had simply rejected his “as soon as practicable” argument when he stated that the appellant’s breath samples were “properly taken.” The trial judge responded to the Crown’s comment by saying that he had found the Intoxilyzer results admissible based upon the evidence of the two police officers. This exchange supports my conclusion that the trial judge, at least implicitly, rejected the appellant’s “as soon as practicable” argument in his reasons for judgment.

3. Amplification or Clarification of the Reasons on Appeal – Explaining the Result

a. Introduction

[16] This is a case where it is appropriate to explain, on appeal, the implicit conclusion reached by the trial judge that the appellant’s breath samples were taken as soon as practicable. This is so, in my view, because: (1) the legal meaning of the phrase “as soon as practicable” is well-settled and uncontroversial; (2) the written submissions of both of the parties on this issue are available as part of the trial record, and the parties made no oral submissions on the issue; (3) the trial testimony of the two police officers (the only witnesses in this case) was accepted by the trial judge; and (4) the viva voce testimony of the police officers was supplemented by the extensive audio/video recordings of all of the relevant events. In these circumstances, the appellate court is in virtually the same position as the trial court to explain why the appellant’s breath samples were obtained “as soon as practicable” within the meaning of s. 258(1)(c)(ii) of the Criminal Code.

b. The Meaning of the Phrase “As Soon As Practicable”

[17] It is well established that the phrase “as soon as practicable” in this statutory context does not require that the breath samples be provided into the approved instrument “as soon as possible,” but only that the breath samples be provided “within a reasonably prompt time under the circumstances.” The recognized touchstone for determining whether or not the breath samples were provided as soon as practicable in the circumstances is whether the police acted reasonably having regard to the entire chain of events. See R. v. Vanderbruggen (2006), 2006 CanLII 9039 (ON CA), 206 C.C.C. (3d) 489, 208 O.A.C. 379 (C.A.), at paras. 12-15; R. v. Mudry (1979), 1979 ABCA 286, 19 A.R. 379, 50 C.C.C. (2d) 518 (C.A.); R. v. Ashby (1980), 1980 CanLII 2920 (ON CA), 57 C.C.C. (2d) 348, 9 M.V.R. 158 (Ont.C.A.), leave denied, (1981) 37 N.R. 393 (S.C.C.); R. v. Seed (1998), 1998 CanLII 5146 (ON CA), 114 O.A.C. 326, 38 M.V.R. (3d) 44 (C.A.), at paras. 6-8; R. v. Letford (2000), 2000 CanLII 17024 (ON CA), 51 O.R. (3d) 737, 150 C.C.C. (3d) 225 (C.A.), at paras. 14-20; R. v. Lemieux, [2002] O.J. No. 979 (C.A.); R. v. Schouten, [2002] O.J. No. 4777, [2002] O.T.C. 1041 (S.C.J.); R. v. Furlong, 2011 ONSC 6707, 24 M.V.R. (6th) 149, at paras. 12-13; R. v. Naidu, 2010 BCSC 851, 95 M.V.R. (5th) 91, at paras. 19-49, affirmed, 2012 BCCA 150, 30 M.V.R. (6th) 1, at para. 4; R. v. Beckler, 2013 BCSC 1697, 52 M.V.R. (6th) 256, at paras. 31-32, 49-62, 64-66; R. v. Duong, 2015 ONSC 5676, at para. 15.

[18] Moreover, the phrase “as soon as practicable” has the same legal meaning regardless of whether that statutory phrase is construed to determine whether the breath sample demand was made “as soon as practicable” as required by s. 254(3) of the Criminal Code, or whether the breath samples of the accused were taken “as soon as practicable” for purposes of the evidentiary presumption provided by s. 258(1)(c) of the Criminal Code. See R. v. Squires (2002), 2002 CanLII 44982 (ON CA), 59 O.R. (3d) 765, 166 C.C.C. (3d) 65 (C.A.), at paras. 31-32; R. v. Singh, 2014 ONCA 293, 120 O.R. (3d) 76, at paras. 7, 13-14. I note in passing, however, that under s. 258(1)(c)(ii) of the Criminal Code, the requirement is that each breath sample must be “taken as soon as practicable” after the time when the offence was alleged to have been committed and, in the case of the first breath sample, “not later than two hours after that time,” and with an interval of at least fifteen minutes between the time when the two samples were taken.

c. The Breath Samples Were Taken As Soon As Practicable in This Case

[19] Applying this settled legal standard to the uncontroversial facts of this case reveals why the trial judge concluded that the appellant’s breath samples were taken as soon as practicable. More specifically, the trial record in this case reveals the following facts:

• The appellant was stopped for speeding by Cst. Schafhauser at approximately 11:43 p.m. on April 4, 2013.

• After detecting the odour of alcohol on the appellant’s breath, and hearing the appellant admit that he consumed two beers at the hockey game, Cst. Schafhauser had the appellant provide a breath sample into an approved screening device. When the device registered a “fail” result, at 11:49 p.m., the appellant was arrested. The officer then handcuffed and searched the appellant. Cst. Schafhauser then advised the appellant of the informational component of his right to counsel guaranteed by s. 10(b) of the Charter of Rights, cautioned the appellant about making any statements to the police and demanded that the appellant provide samples of his breath suitable for analysis into an approved instrument. The officer then collected some personal property from the appellant.

• At 11:54 p.m., Cst. Schafhauser contacted the police dispatcher by radio, advised the dispatcher about the arrest of the appellant and indicated that he required access to the closest qualified breath technician, a tow truck for the appellant’s vehicle, and another police officer to take care of the appellant’s vehicle until the tow truck arrived. Cst. Schafhauser was advised that the closest breath technician was located at the Traffic Services facility.

• At 11:55 p.m., during a brief conversation about his property, the appellant told Cst. Schafhauser that he was “worried” about his car being left “on the road,” and the officer told him that they were not leaving his vehicle until: (1) a tow truck arrived; or (2) another police arrived to take care of the vehicle for them.

• At 11:56 p.m., Cst. Shafhauser switched the handcuffs on the appellant from the back to the front. The appellant was complaining about some abdominal pain, and the officer changed the handcuffs to the front to make him more comfortable.

• At approximately 12:00 midnight, another police cruiser briefly stopped by to make sure that everything was “okay” with Cst. Schafhauser. Cst. Schafhauser inquired as to whether the officers could “babysit” the appellant’s vehicle, but they could not as they were on their way to a different call. At around this same time, Cst. Schafhauser heard over the radio that there was another police officer in a “night shift traffic car” that could attend to take custody of the appellant’s vehicle.

• At 12:07 a.m. on April 5, 2013, Cst. Zetler arrived on the scene and assumed possession of the appellant’s vehicle, and the responsibility for ensuring it was towed to the appropriate storage facility. Cst. Schafhauser advised the appellant that this was taking place, and the appellant confirmed that the vehicle was being impounded.

• At 12:09 a.m., Cst. Schafhauser left the scene, with the appellant, and travelled to the Traffic Services facility by way of the “most direct and quickest route,” making no extraneous stops along the way.

• Cst. Schafhauser arrived at the Traffic Services facility with the appellant at 12:30 a.m., and they were permitted to enter the booking area at 12:34 a.m., when the appellant was paraded before the Officer-in-Charge. The booking process ended at approximately 12:42 a.m., at which time the appellant was taken into a small holding room where Cst. Schafhauser began to process the appellant by completing the necessary “paperwork.” During this period of time, Cst. Schafhauser had a conversation with the appellant about whether he wished to consult with a lawyer, and the appellant advised him that he did not want to contact a lawyer, but that he might want to call someone else later. The appellant was also permitted to use the washroom facilities during this time period.

• At 1:00 a.m. and 1:26 a.m., the respondent provided samples of his breath for analysis in an approved instrument, an Intoxilyzer 8000C, and the truncated results indicated that he had a blood-alcohol concentration of 160 and 150 mgs. of alcohol per 100 mls. of blood, respectively. Subsequently, at 1:58 a.m., Cst. Schafhauser served the appellant with various documents, including a Certificate of a Qualified Technician.

[20] In his written submissions at trial, defence counsel took issue with only one period of delay. More specifically, defence counsel argued that “[t]he delay occurred between P.C. Schafhauser’s breath demand and the [appellant’s] transport to the station.” Defence counsel argued, more specifically, that the 15 minute delay between the time when the arresting officer called for a tow truck for the appellant’s vehicle (at approximately 11:54 p.m.), and the time when Cst. Zetler assumed custody of the appellant’s vehicle (at approximately 12:09 a.m.), was unreasonable because it was possible to simply park the appellant’s vehicle “safely and out of danger” and “leave the vehicle at the scene.”

[21] In his trial testimony, Cst. Schafhauser explained why it was “necessary” for him to wait for the tow truck, or the arrival of another police officer. More specifically, Cst. Schafhauser stated:

Once a person is under arrest, the motor vehicle becomes my responsibility. I can’t just leave it there, so I have to wait for the tow truck, a contract tow truck, to come and take it to their pound for safe keeping, or for another officer to show up to take over control of that motor vehicle.

[22] Given this reasonable and uncontradicted testimonial explanation for this particular period of delay, it is not surprising that the trial judge was driven to the conclusion that Cst. Schafhauser left the scene with the appellant within a reasonably prompt period of time. Cst. Schafhauser called the dispatcher for a tow truck and another police officer (for the appellant’s vehicle) as soon as he was able to arrest the appellant and advise him of his constitutional rights. Of course, the officer was obliged by s. 10(b) of the Charter to advise the appellant of his right to counsel immediately upon his arrest. See R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 2, 37-42.

[23] Thereafter, as Cst. Schafhauser explained in his evidence, he had no choice but to await the arrival of either the tow truck or another police officer officer who could take responsibility for the appellant’s vehicle pending the arrival of the tow truck. Cst. Zetler arrived approximately 13 minutes later, and Cst. Schafhauser and the appellant left the scene about two minutes thereafter.

[24] The arresting officer could not responsibly have left the vehicle (even locked) wherever the appellant had stopped it, as the officer could not ensure it’s safe-keeping in the interim period. Indeed, the appellant expressed his own worry about his vehicle being left at the scene. Nor could the officer have asked the appellant to drive the vehicle to any other location. The appellant had just been arrested for operating a motor vehicle while having an illegal blood-alcohol concentration. Nor could the officer himself have moved the appellant’s vehicle to a safe location. Cst. Schafhauser was working “solo” that night, and he was responsible for the appellant, who was in the officer’s custody, under arrest. The officer could not responsibly abandon the appellant in order to try to park the appellant’s vehicle in some “safe” location.

[25] In my view, Cst. Schafhauser did the only thing he could reasonably do in such circumstances. He waited the period of 13 minutes it took for Cst. Zetler to appear on the scene and assume responsibility for the appellant’s car. Cst. Schafhauser then promptly transported the appellant to the Traffic Services facility for his breath tests. This short period of delay was, in my opinion, reasonably prompt in all of the circumstances. The trial judge implicitly drew this same conclusion.

[26] While the appellant raised no objection to the overall time period between the time that Cst. Schafhauser demanded that the appellant provided samples of his breath into an approved instrument (at 11:49 p.m.), and the time that the appellant provided his first breath sample into the Intoxilyzer (at 1:00 a.m.), this total elapsed time of approximately one hour and 11 minutes is well within the two hour time period prescribed in s. 258(1)(c)(ii) of the Criminal Code and, in the totality of the circumstances, when subjected to a detailed factual analysis, confirms that the appellant’s breath samples were taken “as soon as practicable.” Moreover, in his testimony Cst. Schafhauser confirmed that, from the moment that he stopped the appellant’s vehicle until the conclusion of the appellant’s two breath tests, he was not engaged in any other unrelated investigations, but rather was focused solely on his investigation of the appellant.

D. Conclusion

[27] In the result, the appeal against the appellant’s “over 80” conviction must be dismissed. Further, his appeal against sentence is dismissed as an abandoned appeal. An order shall issue accordingly.

Kenneth L. Campbell J.

Released: September 17, 2015