ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 84/14

DATE: 20150921

RE: Her Majesty The Queen v. Alex Peter Waisanen

BEFORE: K.L. Campbell J.

COUNSEL:
Luke Schwalm, for the Crown, appellant

Douglas R. Lent, for the accused, respondent

HEARD: June 12, 2015

REASONS FOR DECISION

[Summary Conviction Appeal]

A. Overview

[1] The respondent, Alex Peter Waisanen, was tried by the Honourable Mr. Justice J.C. Moore of the Ontario Court of Justice on charges of operating a motor vehicle while his ability to do so was impaired by alcohol, and operating a motor vehicle with over 80 mgs. of alcohol per 100 mls. of blood. Both offences were alleged to have been committed in Toronto just before midnight on November 7, 2012.

[2] The trial judge acquitted the respondent on the “over 80” charge after excluding the Certificate of Analysis that would have established the offence because the respondent’s breath samples were not obtained as a result of a proper demand, and because the Crown was not able to establish that the respondent had been operating or in care or control of his vehicle within two hours of the taking of his breath samples. The trial judge concluded that the respondent was, in fact, guilty of the “impaired driving” offence, but he stayed the proceedings in relation to that charge because the police had arbitrarily detained the respondent for approximately ten hours after he had provided his breath samples, and no other remedy would adequately address that violation of the respondent’s rights under ss. 7 and 9 of the Canadian Charter of Rights and Freedoms.

[3] The Crown appeals against both the acquittal and the stay of proceedings entered by the trial judge, and challenges the legal propriety of these conclusions by the trial judge. For the following reasons, the appeal is allowed in relation to the “impaired driving” charge, but is dismissed in relation to the “over 80” charge.

B. The Relevant Factual Background

[4] The respondent drove his vehicle onto the grassy and treed center island of the roundabout at the foot of Cherry Street, by Clarke Beach Park in Toronto. The vehicle ended up stranded on top of some large landscape boulders on the center of the roundabout. The respondent tried diligently to extricate his vehicle from this predicament by personally attempting to push/lift the vehicle off the rocks and alternatively putting the vehicle in drive and reverse on a number of occasions. These efforts were not successful. These efforts were observed by two nearby civilian witnesses who fortuitously happened to be in the area at that time of night. Both of these civilian witnesses independently called the police fearing that the respondent was drunk and would eventually be able to get his vehicle back on the road. One of these witnesses was afraid that, if the respondent was able to free his vehicle and “take off” he was likely to “take someone out.”

[5] Cst. Lee of the Toronto Police Service (TPS) was dispatched to the scene at 11:33 p.m., and arrived there just a few minutes later. Upon his arrival, he found the respondent located in the driver’s seat of his vehicle. The engine of the vehicle was running, the transmission was in reverse and the front wheels of the vehicle were turning. Cst. Lee parked his vehicle behind the respondent’s vehicle to prevent it from leaving the scene. When the officer approached the respondent’s vehicle, the respondent got out of his vehicle, but left it in reverse with the engine running. According to Cst. Lee, the respondent displayed the usual indicia of alcohol impairment. He appeared unsteady on his feet, his eyes were glassy and slow to react, and there was an overwhelming odour of alcohol coming from his breath and his clothes. The officer took hold of the respondent for his own safety as the respondent could not walk properly. At 11:37 p.m., Cst. Lee concluded that he had the necessary reasonable grounds to believe that the respondent’s ability to operate a motor vehicle was impaired by alcohol, and he arrested the respondent for that offence. Before leaving the scene, Cst. Lee checked the respondent’s vehicle and found an empty can of beer in the center console.

[6] After advising the respondent of his right to counsel, Cst. Lee made a demand for a breath sample from the respondent. This was mistakenly a demand pursuant to s. 254(2)(b) of the Criminal Code, R.S.C. 1985, c. C-46, that the respondent provide a sample of his breath for analysis in an approved screening device. Cst. Lee testified that he had intended to make the demand authorized by s. 254(3)(a)(i) of the Criminal Code, that the respondent provide samples of his breath for analysis in an approved instrument. Cst. Lee was an inexperienced police officer. This was just his second impaired driving investigation.

[7] Cst. Lee arrived at the “Traffic Services” facility just before midnight, and the respondent went through the booking process at 12:05 a.m. The respondent was then permitted to exercise his right to counsel, and he spoke to a lawyer between 12:32 and 12:40 a.m.

[8] Thereafter the respondent provided two samples of his breath, with the assistance of a qualified technician, Cst. Kim of the TPS. While Cst. Kim did not make any formal demand of the respondent, he informed the respondent that he had to provide two samples of his breath. The Intoxilyzer 8000C results of these two breath samples revealed that the respondent had 246 and 249 mgs. of alcohol in 100 mls. of his blood at 12:54 a.m. and 1:19 a.m. on November 8, 2012, respectively. These readings showed that the respondent had more than three times the legal limit of alcohol in his blood. Cst. Kim testified that the respondent’s impairment from alcohol was obvious. More particularly, Cst. Kim noticed the strong odour of alcohol on the respondent’s breath, his red, bloodshot eyes, the redness of the sinus area of his face, his slurring of words when he spoke, and his difficulty focusing.

[9] After the results of the breath samples were obtained, Cst. Lee was of the opinion that the respondent should not be immediately released from the police station in light of his high blood-alcohol concentration. He was afraid that the respondent would not be able to understand the conditions of his release, and he was not comfortable releasing him on a promise to appear. He wanted to permit the respondent to “sober up” so that he would be able to understand and meet the conditions of his release. There were no holding cells at the “Traffic Services” facility where the breath samples had been obtained, so Cst. Lee obtained the necessary permission to transport the respondent to 51 Division, so that he could be detained in that location.

[10] At 2:45 a.m., Cst. Lee paraded the respondent before the officer-in-charge at 51 Division, explained why the respondent was being brought to that station and, shortly thereafter, the officer-in-charge concluded that the respondent would continue to be detained. Cst. Lee then lodged the respondent in one of the holding cells at the station. Subsequently, at approximately 4:10 a.m., Cst. Lee served certain documents on the respondent, including documents temporarily suspending his driver’s license and impounding his vehicle, the Certificate of a Qualified Technician, and a copy of the notes made by the qualified technician.

[11] The respondent was not released from custody until approximately 12:00 noon on November 8, 2012. Sgt. Tracey of the TPS, who was the booking sergeant responsible for prisoners at the time, explained that, given standard alcohol eliminations rates, it was anticipated that the respondent would be sufficiently sober so that he could be released at that time (i.e. the respondent would no longer be “over 80” by that time). Sgt. Tracey testified that he used the respondent’s blood-alcohol concentration to determine when he should be released from custody, to ensure the safety of the public and the respondent, and to ensure that the respondent understood the conditions of his release.

[12] At trial, the respondent, a 27-year-old with no prior criminal record, testified that he wanted to go home after completing his second breath test. However, he conceded that he did not voice this interest to any police officer. He testified that he understood his rights to counsel, and the caution that he was also provided, and he understood that his driver’s license had been suspended and that his motor vehicle had been seized. The respondent testified that a family member could have picked him up from the police station, or he could have called a taxi to get home. The respondent’s father confirmed in his testimony that he, or his wife, or one of his daughters would have been available to pick up the respondent at the police station.

[13] The respondent also testified that he was uncomfortable in the small holding cell as there was only a concrete slab for a bed, and he did not receive any food between approximately 3:00 a.m. and 12:00 noon. However, he acknowledged that he was told that he would remain in custody until he had sobered up, and that he had managed to sleep for at least half of the time he was in custody.

C. The Reasons for Judgment by the Trial Judge

[14] In his reasons for judgment the trial judge excluded from evidence the Certificate of Analysis that potentially could have established the “over 80” charge, and acquitted the respondent of that offence. The trial judge reached this conclusion for essentially two reasons, namely: (1) the respondent’s breath samples were not obtained as a result of a proper “demand” made pursuant to s. 254(3) of the Criminal Code; and (2) the Crown was not able to establish that the respondent was operating or in care or control of a motor vehicle within two hours of the taking of the breath samples as required by s. 258(1)(c)(ii) of the Criminal Code.

[15] With respect to the impaired driving charge, the trial judge concluded that he was satisfied beyond reasonable doubt that the respondent was guilty of this offence, but he stayed the charge on the basis that, in arbitrarily detaining the respondent for approximately ten hours after he had provided his breath samples, the police engaged in a “blatant exercise of abuse of power” and had violated the rights of the respondent under ss. 7 and 9 of the Charter of Rights, and there was no other appropriate remedy but to stay the proceedings against the respondent.

D. Analysis

1. The Acquittal on the “Over 80” Charge

[16] While there were a number of issues addressed by the parties in relation to the acquittal of the respondent on the “over 80” charge, I need address only one of them, as I am satisfied that the conclusion of the trial judge on this single issue properly led him to find the respondent not guilty of this alleged offence.

[17] The parties are agreed, and the evidence clearly established, that the only demand that was ever made to the respondent was the “approved screening device” demand outlined in s. 254(2)(b) of the Criminal Code. No police officer ever made the “approved instrument” demand authorized by s. 254(3)(a)(i) of the Criminal Code. The trial judge effectively concluded that as the respondent’s breath samples were not taken pursuant to an “approved instrument” demand, as required by s. 258(1)(c) of the Criminal Code, the conclusive statutory presumption regarding the results of the analyses of the respondent’s breath samples was not operative, and the respondent had to be acquitted. The trial judge did not err in reaching this conclusion.

[18] In determining whether or a not a police officer has made a lawful demand to require an individual to provide a sample of his or her breath, courts should adopt a flexible and functional approach, focusing on whether or not the individual understood that he or she was required to provide a breath sample, and considering the entirety of the surrounding circumstances. See, for example R. v. Ghebretatiyos, [2000] O.J. No. 4982, 8 M.V.R. (4th) 132 (S.C.J.), at paras. 17-22; R. v. Tash, 2008 1541 (ON SC), [2008] O.J. No. 200, 64 M.V.R. (5th) 86 (S.C.J.), at paras. 24-28; R. v. Benson, [2008] O.J. No. 3056 (S.C.J.), at paras. 22-25.

[19] At the same time, the courts have consistently held that one of the important legal preconditions for the effective operation of the statutory presumption created by s. 258(1)(c) of the Criminal Code is that the “samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3)” of the Criminal Code, namely by means of an “approved instrument” demand. Approved screening device demands made pursuant to s. 254(2)(b) of the Criminal Code have been consistently held to be legally inadequate for this purpose. See R. v. Kagayalingam, 2006 ONCJ 196, [2006] O.J. No. 2201, at paras. 8-13; R. v. Cheng, 2008 ONCJ 368, [2008] O.J. No. 3215, at paras. 3-11; R. v. Ovchinikov, [2008] O.J. No. 5959 (C.J.), at paras. 12-32; R. v. Monsivais, 2012 ONCJ 106, [2012] O.J. No. 951, at paras. 26-42; R. v. Williams, 2014 ONCJ 582, [2014] O.J. No. 5270, at paras. 9-27; R. v. Nasseir, [1998] O.J. No. 2166, 36 M.V.R. (3d) 117 (S.C.J.), at paras. 37-43; R. v. Palanacki, [2001] O.J. No. 6254 (C.J.). The decisions in this line of authority persuasively explain that these two demands are significantly different in their content and in their practical consequences for the accused, and that strict technical compliance with s. 258(1)(c) of the Criminal Code is required given the considerable evidentiary assistance provided to the Crown by the provision.

[20] As I have indicated, in my view the trial judge did not err in following this persuasive body of jurisprudence. Accordingly, the Crown appeal against the respondent’s acquittal in respect of the “over 80” charge must be dismissed.

2. The Stay of Proceedings on the “Impaired Driving” Charge

a. Introduction

[21] While I am not convinced that the trial judge committed any error in concluding that the police “over-holding” of the respondent following the Intoxilyzer results of his breath samples amounted to an arbitrary detention, I have concluded that the trial judge erred in staying the proceedings against the respondent as a remedial measure. Accordingly, this aspect of the Crown appeal must be allowed.

b. The Over-Holding of the Respondent Was an Arbitrary Detention

[22] As I have indicated, I am not satisfied that the trial judge committed any error in concluding that the police, in “over-holding” the respondent by detaining him in custody for some ten hours after he had provided his breath samples, violated the respondent’s constitutional rights guaranteed by s. 9 of the Charter of Rights.

[23] On the facts of this case, it was open to the trial judge to conclude, as he did, that the police decision to detain the accused for this period of time was “made without any informed and meaningful consideration.” In this case, the respondent’s continued detention by the police, based entirely upon the respondent’s very high blood-alcohol concentration, was arbitrary. The jurisprudence on this topic requires the police to consider all of the relevant circumstances, and evaluate other possible options. While it may be appropriate to accord “primary weight” to the blood-alcohol level of the accused as a key factor in determining whether an accused should be required to temporarily remain in custody, to permit the blood-alcohol concentration of the accused to be the “sole determinant” factor in this assessment “results in too narrow a focus.” See R. v. Price, 2010 ONSC 1898, 94 M.V.R. (5th) 23, at para. 93, leave denied, 2010 ONCA 541, 266 O.A.C. 97, at paras. 29-34; R. v. Iseler (2004), 2004 34583 (ON CA), 191 O.A.C. 80, 109 C.C.C. (3d) 11 (C.A.), at paras. 1, 4, 22-29. However, the question of the appropriate remedy for this Charter breach is another matter.

E. Conclusion

[39] In summary, the Crown appeal against the acquittal of the respondent on the “over 80” charge must be dismissed. The trial judge simply did not err in concluding that the respondent’s breath samples were not taken pursuant to a lawful and proper “approved instrument” demand.

[40] The Crown appeal against the stay of proceedings imposed by the trial judge with respect to the “impaired driving” charge, however, must be allowed. While the trial judge did not err in concluding that the police had arbitrarily detained the respondent in violation of his rights under s. 9 of the Charter, the trial judge erred in staying the proceedings against the respondent in connection with this charge. In the result, the Crown appeal in relation to the “impaired driving” charge is allowed, the stay of proceedings is set aside, a conviction is entered, and the matter is remitted back to the trial judge for the sentencing of the respondent in accordance with these reasons. There is no need for a new trial in relation to the “impaired driving” charge as the trial judge has already concluded that the respondent is guilty of this offence, and it is apparent that, had he not erroneously stayed the proceedings on this charge, he would have convicted the respondent.

[41] An order shall issue accordingly.

Kenneth L. Campbell J.

Released: September 21, 2015