ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 143/15

DATE: 2015-10-26

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

Lawrence Pullen
Applicant

Len Walker, for the Crown

Michael J. Venturi, for the Applicant

HEARD: October 19, 2015

DECISION ON APPEAL

Gauthier, j.

The Appeal

[1] The appellant appeals from his conviction, by Justice Andrew Buttazzoni of the Ontario Court of Justice, of the offence of having care and control of a motor vehicle with a blood alcohol concentration in excess of .08, contrary to s. 253(1)(b) of the Criminal Code of Canada. That conviction was entered on February 9, 2015.

Facts

[2] To a large extent, the facts are not in dispute, therefore I have borrowed liberally from the factum of each of the appellant and the respondent.

[3] On December 1, 2013, between 2:00 a.m. and 3:00 a.m., Glenn Martel, a City of Sudbury employee, was pulled over on Skead Road. He observed a car (occupied by the appellant) drive “straight at” his snow plow truck, swerve to his passenger door and stop beside his truck approximately 10 feet away.

[4] The appellant exited his vehicle, was talking “irrationally, very belligerent”, began to urinate on his own vehicle door with his genitals exposed to Mr. Martel, and appeared to Mr. Martel to be incoherent, in distress and possibly under the influence, Mr. Martel called 911. After doing so, the appellant became belligerent, swore at Mr. Martel, got back in his vehicle, and drove off. Mr. Martel pursued him and saw him at one point driving down the middle of the road swerving back and forth.

[5] Mr. Martel came upon the appellant’s vehicle again, which was pulled over. He parked his vehicle in front of the appellant’s. At this point Mr. Martel was in the company of his foreman, Mr. Lalonde. They engaged with the appellant who threatened that if they got in his way he would run them over and kill them. The appellant drove off again.

[6] Sergeant Sanderson of the GSPS received a radio call of a possible impaired driver at approximately 3:18 a.m. He attended Radar Road and observed a motor vehicle (ultimately determined to have been driven by the appellant) pull out from behind a snow plow, in front of his SUV and drive southbound on Radar Road; Sergeant Sanderson conducted a U-turn and pursued the vehicle. He observed it on and off its brakes, come to a near stop at one point, then accelerate to approximately 90 kms an hour, finally coming to a sudden stop on the shoulder of the road.

[7] At 3:22 a.m. Sergeant Sanderson stopped the appellant’s motor vehicle.

[8] While Sergeant Sanderson escorted the appellant to his cruiser he observed him to be unsteady in his walk, and while in his cruiser, he noted the appellant’s speech to be poor, his comments erratic, and a strong odour of alcohol emanating from him.

[9] Sergeant Sanderson used his observation to further his grounds for a roadside sample of the appellant’s breath into an approved screening device (hereafter ASD) and at 3:35 a.m. Sergeant Sanderson began the ASD process and continued to make observations.

[10] After making the ASD demand, the officer spent ‘at the most’ the next 3-4 minutes getting the appellant to the police cruiser (3:38 a.m. – 3:39 a.m.).

[11] While in the cruiser Sergeant Sanderson noted that the impairment of the appellant became clearly evident.

[12] At 3:45 a.m. Sergeant Sanderson removed the appellant from the back of the police cruiser and advised him he was under arrest for impaired driving.

[13] Constable Smuland attended the scene at 3:30 a.m.

[14] Subsequently, Constable Smuland attended the vehicle at 3:48 a.m. and was advised by Sergeant Sanderson that he had the appellant in custody for impaired driving.

[15] After taking carriage of the appellant, Constable Smuland brought the appellant to his cruiser, conducted a field search and read the Intoxilyzer 8000C demand at 3:54 a.m.

[16] The appellant was transported to the Greater Sudbury Police Headquarters, arriving at 4:17 a.m. He went through the booking-in and property documenting process with Sergeant Sanderson and Constable Smuland.

[17] The appellant exercised his right to consult counsel, and spoke to a local lawyer by telephone from 4:42 a.m. to 4:47 a.m.

[18] The appellant was turned over to the Constable Smuland, a qualified breathalyzer technician at 4:50 a.m.

[19] At 5:00 am, Constable Smuland read the breath demand to the appellant; he also attended to inputting information into the Intoxilyzer and completed the diagnostic and internal standard checks.

[20] The appellant provided two samples: one at 5:09:04 a.m. and the second at 5:39:50 a.m. They revealed a blood alcohol concentration in excess of the permissible limit:110 milligrams of alcohol in 100 millilitres of blood.

[21] The appellant’s trial took place on May 6, June 19, October 8, 2014, and January 12, 2015.

Issue

[22] The sole issue on this appeal is whether the two breath samples were taken “as soon as practicable”, and whether the respondent could rely on the presumption of accuracy of the results.

The Appellant’s Position

[23] The judge’s reasons indicate that he only considered two periods of delay, i.e., (a) 4:17 a.m. to 4:55 a.m. while at the detachment, and (b) 5:09 a.m. to 5:39 a.m., the time period between the samples. He failed to address the time period from 3:22 a.m., when Sergeant Sanderson arrived at the scene, and 3:34 a.m. at which time Sergeant Sanderson noted the odour of an alcoholic beverage on the appellant.

[24] The twelve minute delay between 3:22 a.m. and 3:34 a.m. should have been considered by the trial judge, along with the other “pockets” of delay already identified. His failure to do so resulted in a miscarriage of justice.

[25] The trial judge disregarded the principle elucidated in R. v. Blacklock, 2008 16199 (ON SC), [2008] O.J. No. 1472, that, where a delay between breath samples exceeds 20 minutes, the Crown is required to provide an explanation for the delay. Absent such an explanation, no evidentiary basis existed for the judge to conclude that the tests were taken as soon as practicable.

[26] The trial judge failed to conduct a critical assessment of the 30 minute delay between the two breath samples, as he was required to do.

[27] The failure to consider the initial 12 minute delay, coupled with the lack of evidentiary foundation for the trial judge’s finding of fact that the 30 minute delay between the taking of the two breath samples was reasonable, resulted in a miscarriage of justice.

[28] The appellant seeks an order setting aside the findings of the trial judge and the entering of a finding of not guilty or, alternatively, an order for a new trial.

The Respondent’s Position

[29] The respondent submits that an issue about the 12 minute period between 3:22 a.m. and 3:34 a.m. is being raised for the first time on appeal and ought to be dismissed for that reason alone.

[30] As that 12 minute period was not identified as an issue at the trial, there was no need for the trial judge to address it in his reasons.

[31] The respondent submits that the trial judge’s reasons cannot now be impugned for failing to consider the 12 minute period, when it was never made an issue at the trial.

[32] The next argument put forward by the respondent, is that the 12 minute period is not a “period of delay” at all. The record of the trial discloses sufficient evidence of what took place during that 12 minute period. There is no unexplained delay. In fact, there is no delay whatsoever.

[33] Even if the 12 minute period is a “period of delay”, the trial judge was not required to consider every minute of time that the appellant was detained in police custody.

[34] The trial judge’s reasons make it clear that he was very much aware of the jurisprudence on the issue of “as soon as practicable”; he referred to it quite extensively in his reasons.

[35] Even if the judge was obligated to assess the 12 minute period, his failure to do so (if there is such a failure) was not central in his decision to find the appellant guilty.

[36] The respondent submits that there is no rule that when delay between the first and second samples exceeds 20 minutes that there must be an explanation.

[37] The trial judge did not disregard the unexplained delay between the two samples. Rather, he correctly considered the totality of the circumstances to conclude that the unexplained delay of 30 minutes between samples was not unreasonable. Contrary to what is suggested by the appellant, in doing so, Buttazzoni J. did not make improper assumptions about Constable Smuland’s conduct.

[38] The respondent invites me to dismiss the appeal.

General Principles

Standard of Review

[39] The standard of review on a summary conviction appeal is whether, based upon the evidence, the decision made by a trial judge is a finding that COULD have been reasonably reached. A court sitting on appeal should only allow an appeal of the decision if:

a. The decision cannot be supported by the evidence, or it is clearly wrong in law, or

b. It is clearly unreasonable; or

c. There was a miscarriage of justice.

R. v. Rivera, 2011 ONCA 225, [2011] O.J. No. 1233 (Ont. C.A.) para. 32 (my emphasis).

[40] If a judge relies on findings that are tainted by errors caused by a misapprehension of the evidence, or a failure to appreciate relevant evidence, then an accused may not have received a fair trial. In such a case, a miscarriage of justice has occurred.

[41] Where a misapprehension of the evidence is alleged, appellate interference is only warranted where the misapprehension is material rather than peripheral to the reasoning process which resulted in the conviction. A misapprehension of evidence may refer to a failure to consider evidence relevant to a material issue, a mistake concerning the substance of the evidence, or the failure to give proper effect to the evidence. R. v. C.R., 2010 ONCA 176, [2010] O.J. No. 911 (C.A.); R. v. Morrissey, 1995 3498 (ON CA), [1995] O.J. No. 639 (C.A.); R. v. C.L.Y., 2008 SCC 2, [2008] S.C.J. No. 2; R. v. J.H., 2005 253 (ON CA), [2005] O.J. No. 39; R. v. Lohrer, 2004 SCC 80.

[42] A trial judge is not required to detail every piece of evidence, and examine every question of law that may be raised (R.E.M. at paras. 15-21, 35). If an issue, either factual or legal, is not raised as an issue, it is not an error not to refer to it (R.E.M. at para. 55)

R. v. Wang, 2013 BCJ No. 1407 (C.A.) at para.78.

As Soon As Practicable

[43] A demand complies with this requirement if it is made “within a reasonably prompt time”. R. v. Squires, 2002 44982 (ON CA), [2002] O.J. No. 2314 (C.A.).

[44] “As soon as practicable” does not mean “as soon as possible”. R. v. James (1987), 1987 6800 (NS CA), 40 C.C.C. (3d) 209, [1987] N.S.J. 395 (N.S.C.A.).

[45] The overall circumstances of the case are to be considered. R. v. Singh, 2014 ONCA 293.

[46] In R. v. Vanderbruggen, the Ontario Court of Appeal said this:

That leaves the question that is at the heart of this appeal – the meaning of as soon as practicable. Decisions of this and other courts indicate that the phrase means nothing more than that the tests were taken within a reasonably prompt time under the circumstances. See R. v. Phillips (1988), 1988 198 (ON CA), 42 C.C.C. (3d) 150 (Ont. C.A.) at 156; R. v. Ashby (1980), 1980 2920 (ON CA), 57 C.C.C. (2d) 348 (Ont. C.A.) at 351; and R. v. Mudry, R. v. Coverly (1979), 1979 ABCA 286, 50 C.C.C. (2d) 518 (Alta. C.A.) at 522. There is no requirement that the tests be taken as soon as possible. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably. See R. v. Payne, (1990), 1990 10931 (ON CA), 56 C.C.C. (3d) 548 (Ont. C.A.) at 522; R. V. Carter (1981), 1981 2063 (SK CA), 59 C.C.C. (2d) 450 (Sask. C.A.) at 453; R. v. Van Der Veen (1988), 1988 ABCA 277, 44 C.C.C. (3d) 38 (Alta. C.A.) at 47; R. v. Clarke, [1991] O.J. No. 3065 (C.A.); and R. v. Seed, [1998] O.J. No. 4372 (C.A.).

[47] A trial judge should look at the whole chain of events, keeping in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The “as soon as practicable” requirement must be applied with reason.

[48] … the Crown is not required to call evidence to provide a detailed explanation of what occurred during every minute that the accused is in custody. These provisions of the Criminal Code were enacted to expedite the trial process by facilitating the introduction of reliable evidence to prove an accused’s alcohol level. Interpreting these provisions to require an exact accounting of every moment in the chronology from the time of the offence to the second test runs counter to their purpose…

R. v. Singh, at para. 14 and 15.

[49] There must be an evidentiary basis for a trial judge’s finding that breath samples were taken “as soon as practicable”.

The Trial Judge’s Reasons

[50] In his review of the facts, the trial judge outlined the steps taken by Sergeant Sanderson and Constable Smuland in the early hours of December 1, 2013. He referred to Sergeant Sanderson pursuing the appellant’s vehicle, and the accused stopping his vehicle at approximately 3:15 a.m. In fact the evidence was that Sergeant Sanderson stopped the appellant’s vehicle at 3:22 a.m.

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