ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-14-115 (Cornwall)

DATE: December 9, 2015

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

PETER GAGNON
Appellant

Matthew Collins, for the Respondent

Douglas Grenkie, for the Appellant

HEARD: September 24, 2015 (Cornwall)

The honourable mr. justice j. m. johnston

REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL

[1] This is an Appeal by Peter Gagnon (the Appellant) from conviction on a charge of operate a motor vehicle having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood contrary to Section 253(1)(b) of the Criminal Code of Canada at Morrisburg, Ontario. Mr. Gagnon was found guilty on November 25, 2014 as a result of his driving on April 20th, 2014 at the Township of North Dundas.

Issue Raised on Appeal:

[2] The Appellant raises two arguments in this Appeal: first: the learned trial judge erred in ruling that Mr. Gagnon’s breath samples were taken as soon as practicable after the time when the offence was alleged to have been committed, as required by Section 258(1)(c)(ii) of the Criminal Code. The Appellant argues that the trial judge further erred by admitting into evidence the Certificate of the qualified breath technician and allowing the Crown to rely upon the presumption. Second, the Appellant argues that the trial judge erred in finding that Mr. Gagnon’s Section 10(b) rights pursuant to the Canadian Charter of Rights and Freedoms were not violated, by reason of the alleged lengthy delay between the time of the alleged offence and the accused’s opportunity to speak with Legal Aid counsel.

[3] Counsel for the Appellant maintains both arguments, although he only pursued in oral argument the ground that the breath samples were not taken as soon as practicable after the time of the alleged offence. Counsel for the Appellant relies upon his written argument to support the Section 10 (b) Charter of Rights argument.

Issue #1: Were the Appellant’s breath samples taken as soon as practicable?

Facts:

[4] The Appellant argues that there was a delay of one hour and thirty minutes between the when the Appellant was stopped by Provincial Constable Lamarche of the Ontario Provincial Police while conducting a R.I.D.E. program at 7:47 p.m. on April 20th, 2014 and the first breath test.

[5] Constable Lamarche and Constable Meireles initiated a R.I.D.E. program at the westerly limit of Zone 1, at the intersection of County Road 1 and Highway 43.

[6] Constable Lamarche testified at trial that he is an officer with twelve years experience and he knew that if he has a reasonable suspicion that a driver has alcohol in his or her body, he would conduct a roadside test. Constable Meireles testified he kept an approved screening device in his patrol car for such purposes. If a driver fails the road test, Constable Lamarche testified that he would make an arrest, handcuff the person, search the individual, read the detainee his or her rights to counsel, pursuant to Section 10(b) of the Canadian Charter of Rights and Freedoms, caution and provide the breath demand. The officer testified he next would transport the person to a police detachment to meet a qualified breath technician in order to conduct the breath tests.

[7] On April 20th, At 7:47 p.m. Constable Lamarche stopped the Appellant, who was travelling northbound on County Road 1. The Appellant was asked to provide a suitable breath sample into the approved screening device, which he did at 7:52 p.m. and registered a fail. Constable Lamarche then asked the Appellant to exit his vehicle and arrested him for driving over 80 milligrams in 100 millilitres of blood.

[8] Following his arrest the Appellant, Constable Lamarche requested a breath technician. His usual method of doing so, was to advise his dispatcher that he had an impaired driver, or that he made an arrest for over .80, at a particular location, and request a breath technician. The officer testified he is then directed to a location chosen by the breath technician. Constable Lamarche followed his usual method on this occasion and is told that Constable Bray would meet him at the Long Sault OPP Detachment. Constable Lamarche did not make a note of his contact or conversation with dispatch. The officer did not question the choice of location.

[9] In an easterly location from the scene of the R.I.D.E. program, Constable Bray was conducting a traffic stop on Highway 17 westbound near Highland Road in North Glengarry Township. At 7:55 p.m. Constable Bray heard over his radio that a breath technician was required. He cannot recall whether he only heard Constable Lamarche talking over the radio, or if he was dispatched by the Communication Centre. Constable Bray made himself available and proceeded to the Long Sault OPP Detachment. Constable Bray went to the Long Sault Detachment because this was his home detachment and it is the closest detachment to him with an Intoxilyzer machine. The evidence established that Constables Lamarche and Bray agreed that they would rendezvous at the Long Sault Detachment.

[10] Constable Lamarche arrested the Appellant, handcuffed him, searched him, and placed him in the rear of his police cruiser. At 7:59 p.m. Constable Lamarche read the Appellant his right to counsel, asked him if he understood and if he wished to speak with a lawyer. The Appellant indicated that he initially hesitated but after having the matter re-explained to him asked to speak with a Legal Aid lawyer.

[11] At 8:02 p.m. Constable Lamarche read the Appellant his caution and breath demand to which the Appellant replied that he understood.

[12] At 8:09 p.m. Constable Lamarche left the scene with the Appellant in his car for the purpose of meeting Constable Bray at the Long Sault OPP Detachment. Constable Meireles remained at the scene of the arrest with the Appellant’s motor vehicle, waiting for a tow truck to arrive.

[13] Constable Lamarche and the Appellant travel from the scene of the arrest to Highway 31 at Winchester, south down Highway 31 to Morrisburg, next they take the 401 east to Long Sault, Ontario. Constable Lamarche estimates the total distance was 60 – 70 kilometers.

[14] Constable Lamarche knows the location of the R.I.D.E. program was half-way between the Winchester OPP Detachment to the east and the Kemptville OPP Detachment to the west. From the location of the R.I.D.E. program, the Kemptville Detachment is ten to fifteen minutes’ drive.

[15] Constable Lamarche also knew that there was an OPP detachment in Prescott, Ontario, which would have been close to twenty-five minutes southwest of the location of the R.I.D.E. program/ scene of the arrest.

[16] Thirty-nine minutes after leaving the scene of the R.I.D.E. program and the arrest of the Appellant and after driving past Winchester and Morrisburg Detachments, the Appellant is delivered to the Long Sault Detachment at 8:48 p.m. Constable Lamarche contacts Legal Aid Ontario at 8:50 p.m. A Legal Aid lawyer returned the call at 8:55 p.m. The Appellant was escorted to speak with the Legal Aid lawyer at 8:57 p.m. At 9:05 p.m., the Appellant is handed over to the qualified breath technician, Constable Bray.

[17] The Appellant provided his first sample of breath into the Intoxilyzer 8000C at 9:17 p.m. and registered a reading of 97 milligrams of alcohol in 100 millilitres of blood. A second sample is later taken at 9:38 p.m. and registers a reading of 91 milligrams.

[18] At 10:38 p.m., the Appellant is released from custody on a Promise to Appear.

Appellant Argument:

[19] The Appellant argues that the delay of one hour and thirty minutes between the time the Appellant was stopped at 7:47 p.m. and the time that his first sample of breath was taken by Constable Bray at 9:17 p.m. was “not as soon as practicable”. Thirty-nine minutes of the alleged delay is attributable to the time taken to transport Gagnon from the location of his arrest, to the Long Sault OPP Detachment at 8:48 p.m.

[20] The Appellant argues in the circumstances of this case the police in organizing themselves for the R.I.D.E. program that resulted in his arrest, failed to act reasonably. Counsel for the Appellant argues “although it is not realistic to assume that the police will have a breath technician available at every conceivable detachment, by taking absolutely no steps to determine whether a breath technician would even be available if required, the circumstances of this case would render the ‘as soon as practicable’ requirement hollow, without a breath technician within a reasonably close proximity to the R.I.D.E. program.” The Appellant argues that the delay he experienced from the time of his arrest to the time of his his first breath sample was as a result of the failure of the police to organize themselves properly and was unreasonable. The Appellant argues that it was unreasonable for Constable Lamarche to drive the Appellant from the scene of arrest to Long Sault OPP Detachment. The requirement of “as soon as practicable” required the police to deliver the Appellant to a closer detachment, in order that the tests could be administered “as soon as practicable”. The Appellant argues that this could have been achieved by a shorter ride to OPP detachments in : Winchester, Morrisburg Kemptville, Prescott or perhaps even Ottawa.

Standard for Appellate Review:

[21] Pursuant to Section 686(1)(a) of the Code, an Appeal Court hearing a conviction appeal may allow the appeal where it is of the opinion that:

(a) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence;

(b) the judgment of the trial court should be set aside on the ground of a wrong decision on the question of law, or

(c) any ground where there is a miscarriage of justice.

[22] Considerable deference should be afforded the trial judge on his findings of fact, the proper inferences to be drawn from them, in assessment of the credibility of witnesses, and the ultimate assessment of whether or not the allegations before the Court have been made out beyond a reasonable doubt. As Arbour J. wrote in R. v. Biniaris 2000 SCC 15, [2000] S.C.J. No. 16 (SCC) at para 24:

All factual findings are open to the trier of fact, except unreasonable ones embodied in a legally binding conviction.

[23] The standard of review on appeal where the Appellant asserts his conviction is unreasonable, is set out by the Supreme Court of Canada in R. v. Burns 1994 127 (SCC), [1994] S.C.J. No. 30 (SCC) at para 14:

Proceeding under s.686(1)(a) the Court of Appeal is entitled to review the evidence, re-examining it and re-weighing it, but only for the purpose of determining if it is reasonable capable of supporting the trial judge’s conclusion; that is, determining whether the trier of fact could reasonably have reached the conclusion it did on the evidence before it…provided this threshold test is met, the Court of Appeal is not to substitute its view for that of the trial judge, nor permit doubts it may have to persuade it to order a new trial.

[24] This Court must not substitute its own opinion of the facts found by Justice Renaud. The Court sitting as an Appellate Court may disagree with the verdict, but provided the accused has had a trial in which the legal rules have been observed, no complaint can be upheld if there is, on the evidence, a reasonable basis for the verdict.

Analysis:

“As soon as practicable”

[25] In the case at bar, the trial judge made factual findings upon which he determined that the breath samples taken from the Appellant were taken “as soon as practicable”. I conclude that from the evidence heard at trial by the trial judge, he was entitled to come to the factual findings that he did and his legal determination upon the issue of “as soon as practicable” was a finding open to him based on those findings and the facts at trial.

[26] At page 84 of the transcript the trial judge found that P.C. Lamarche was aware at the start of his shift and at the material time that P.C. Bray was on duty. The trial judge turned his mind (page 85 of the transcript) to the issue of the reasonableness of the police conduct in driving the Appellant from the scene of arrest to the Long Sault Detachment for purposes of the breath tests. The trial judge referenced the evidence of Officer Bray that “it’s a wide large area, but I don’t think in the circumstance the anticipated drive to Long Sault, because I have exhaustive evidence as to the variety of placements, would be inappropriate. In the circumstances, I find that officers did allocate their resources in such a way that the requirement in the Criminal Code that the test be taken “as soon as practicable” was in fact made out.” The trial judge stated that “I find that there was necessary discussion about what is to occur and the officer then proceeded directly to the Long Sault area, being told that’s where he should go.” (Page 86 line 29) The trial judge applied the appropriate test in the question to be answered and at page 86 line 8 quoted R. v. Vanderbruggen 2006 9039 (ON CA), [2006] O.J. No. 1138 (O.C.A.) citing paragraphs 14 to 16. In Vanderbruggen the Court stated, “whether the samples were taken as soon as practicable in this case is an issue of fact for the trial judge.” Further the Court there stated, “there was no evidence that either the arresting officer or the technician acted unreasonably. The record only shows that they were attentive to their duties and to the need to administer the test to the Appellant as soon as practicable. There was no evidence that the officers gave unreasonable priority to any other task.”

[27] The law requires that the police provide some evidence to explain the delay so that the Court may be satisfied that the police acted reasonably and that the test was performed as soon as practicable.

[28] The trial judge considered all of these principles including the location of the various police detachments, the fact that police in the jurisdiction in which the offence occurred is a geographically significant area with a finite number of resources. The factual findings of the trial judge are owed deference and the inferences that he drew from findings of fact are sustainable. In short, the trial judge found that the conduct of the police in this case on these particular circumstances was reasonable. This Court concludes that while it may have come to a different conclusion, the judge was entitled to come to the factual findings he did on the evidence. Accordingly, the Appeal on this ground is dismissed.

Second Issue: Was the Appellant’s s.10(b) right to counsel pursuant to the Charter infringed and, if so, should the evidence be excluded pursuant to s.24(2) of the Charter?

[29] The Appellant argues that, while on route to the Long Sault Detachment, Constable Lamarche passed by Winchester and Morrisburg Detachments, locations where he knew there to be telephones. Closer facilities were available where the Appellant could have exercised his right to retain and instruct counsel without delay, while awaiting arrival of the breath technician. The Appellant argues there was a 58 minute delay between the time the Appellant was given his right to counsel by Constable Lamarche and the time that he finally spoke to a Legal Aid lawyer and thereby his s.10(b) Charter rights were infringed.

[30] The trial judge found that there was no violation of the s.10(b) Charter rights. In the alternative, the trial judge found that, upon his s.24(2) review and the factors contained therein in the circumstances, if there was a violation of right to counsel, the judge would not have excluded the breath results.

Analysis:

[31] In the case at bar, the police transported the Appellant directly to the Long Sault Detachment upon arrest: which on the facts was the closest police station with an approved breath instrument and a breath technician.

[32] After being informed of his right to counsel and before being asked to provide samples of breath or any incriminating evidence, the officer put the Appellant in contact with counsel of choice as soon as he reasonably could in the circumstances.

[33] The Appellant provided samples of breath only after he spoke with Legal Aid counsel. There was no evidence at trial of how the Appellant was prejudiced on the alleged delay in talking to legal counsel.

[34] The purpose of s.10(b) of the Charter is to protect an individual against self-incrimination. It was unknown to Constable Lamarche whether there was a breath technician or breath machine available at either Winchester or Morrisburg OPP Detachment. He knew there was a technician and a breath machine at Long Sault and, on this basis, he drove directly to Long Sault with the Appellant, in order that the test could be taken “as soon as practicable”. The Officer had no reason, under these circumstances, to make a stop before arriving at the Long Sault Detachment. In the circumstances of this case, even if there were a breach to be found of right to counsel by reason of the fact that there was a delay in the Appellant speaking to legal counsel, there was no actual impact upon the Appellant and his Charter protected interests. Upon analysis of the factors outlines in R. v. Grant [2009] 245 C.C.C. (3d) (SCC) the impact of the breach, even if one is found, on the Charter protected interest is low and society’s interest in the adjudication of the case on its merits is high. In these circumstances there was ample evidence for the trial judge to conclude in this circumstance even if the Appellant’s right to counsel was violated by reason of the delay, admission of the breath results would not bring the administration of justice into disrepute.

[35] First and foremost, however, I find on the evidence before the trial judge, he was entitled to conclude that the Appellant’s s.10(b) Charter right was not violated. The trial judge made findings of fact, he was entitled to do so, and they were reasonable on the evidence. Accordingly, I dismiss the second ground of the Appellant’s appeal.

Summary:

[36] In summary, I conclude that the Appellant has not met its onus to establish that the trial judge erred either in concluding that the breath tests in this case were taken “as soon as practicable” or in finding that the breath results were taken contrary to s.10(b) of the Canadian Charter of Rights and Freedoms or, in the alternative, that if there was a breach that the evidence would nonetheless be admissible as it would not bring the administration of justice into disrepute.

[37] The Appeal is dismissed.

The Honourable Mr. Justice J. M. Johnston

Released: December 9, 2015

COURT FILE NO.: CR-14-115 (Cornwall)

DATE: December 9, 2015

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

-and-

PETER GAGNON
Appellant

REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL

Johnston, J.

Released: December 9, 2015