R. v. Makacek, 2015 ONSC 69
COURT FILE NO.: CR-13-10000119-00AP
DATE: 20150106
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JURAJ MAKACEK
Appellant
Darren J. Hogan, for the Respondent
Michael Dineen, for the Appellant
HEARD: December 11, 2014
B. P. O’Marra, J
JUDGMENT ON SUMMARY CONVICTION APPEAL
[1] On September 17, 2013 the Appellant was convicted by Justice B. Cavion of the Ontario Court of Justice of operating a motor vehicle with excess blood alcohol contrary to s. 253(1)>(b) of the Criminal Code. He appeals that conviction.
[2] The timeline of events on the morning of the alleged offence was as follows:
1:19 p.m. The appellant is pulled over by police.
1:28 a.m. The appellant provides a breath sample at the roadside into an approved screening device with a “fail” result.
1:30 a.m. The appellant was arrested and given a demand for a breath sample. He was also advised of his right to counsel.
1:42 a.m. The appellant was transported from the scene.
1:52 a.m. The appellant and arresting officer arrive at Traffic Services and wait in the sally port until 2:11 a.m.
2:10 a.m. The intoxilyzer technician is contacted at another station and was told he was needed at Traffic Services because the technician who was there was also a veterinarian and was needed elsewhere to attend to an injured police horse.
2:11 a.m. The arresting officer is notified that Traffic Services is ready to receive them and appellant is paraded before the staff sergeant.
2:19 a.m. The arresting officer and appellant left the parading area
2:25 a.m. Arresting officer contacted Duty Counsel.
2:31 a.m. The intoxilyzer technician arrives at Traffic Services and was told there were already two subjects waiting to be tested.
2:50 a.m. The intoxilyzer technician prioritized the other subject instead of the appellant because he understood that the appellant was still waiting to speak to Duty Counsel.
3:10 a.m. The arresting officer was notified that the intoxilyzer technician was ready and the appellant was brought into the room.
3:18 a.m. First breath sample provided – result 165 milligrams.
3:40 a.m. Second breath sample provided – result 152 milligrams.
[3] The Crown relied on the presumption set out in s. 258(1)(c) of the Criminal Code to prove the blood alcohol concentration of the appellant at the time of operating a motor vehicle. The prerequisites for reliance on this presumption include proof of the following:
i) that each sample was taken as soon as practicable.
ii) that the first sample was taken not later than two hours after the time of the alleged offence.
Criminal Code s. 258(1)(c)(ii)
[4] The first sample was taken within one minute of the two hour period from the time of the alleged offence.
AS SOON AS PRACTICABLE
[5] This phrase means that the breath tests must have been taken within a reasonably prompt time under the circumstances. In the absence of a reasonable explanation any significant periods of delay may negate proof of compliance with this requirement.
R. v. Vanderbruggen, (2006) 2006 ONCA 9039 (ON CA), 206 C.C.C. (3d) 489 (OCA)
R. v. Letford, (2000) 2000 ONCA 17024 (ON CA), 150 C.C.C. (3d) 225 (OCA)
[6] The “as soon as practicable” requirement is an important protection for the accused where the presumption of identity is invoked by the Crown. It assists in ensuring that the presumption operates fairly and leads to accurate results.
R. v. Davidson [2005] O.J. No. 3474 (S.C.J.) at para. 19.
[7] In considering the issue of “as soon as practicable” there were three time periods that required an explanation:
The 12 minutes at the roadside between the arrest and departure for Traffic Services.
The 19 minute delay at the sally port.
The 20 minutes between completion of speaking to Duty Counsel and the presentation of the appellant to the intoxilyzer technician.
THE HEARSAY ISSUE
[8] The appellant submits that the trial judge relied on inadmissible hearsay to find that the latter two time periods, totaling 39 minutes, were explained and that the test for “as soon as practicable” had been satisfied.
[9] The portion of the Reasons for Judgment at trial dealing with the issue of as soon as practicable is as follows:
The last argument turns on the meaning of “as soon as practicable”. In other words, the tests have to be done, the tests on the accused have to be done as soon as practicable. What does “as soon as practicable” mean? A lot of ink has been spilled interpreting this phrase. Defence counsel argued that there was no admissible evidence led by the Crown to explain the timeline, there are three gaps.
The first gap of time consists of 10 minutes between the officer’s arrival at the scene and his departure for the police station. The officer pointed out there were three other passengers in the vehicle, that he had to wait for another police car to arrive to make sure that the tow truck got to the scene to secure the vehicle that was to be impounded for the week, according to the law. He then had to drive to 31 Division to do the breath test.
The second gap is 19 minutes. Most of this time, apparently, was spent in the police car by the accused and the policeman at the station in the sallyport waiting for the arresting officer to get clearance to bring the accused into the station to be paraded, to be shown before the desk sergeant, which is the procedure when a person is arrested.
The breath technician testified and tried to explain, over counsel’s objections, that there was a problem at Traffic Services. The officer said the only other qualified breath tech on duty was, interestingly enough, a qualified veterinarian and she was called away due to some issue with a police horse. As a result, everything got backed up. There were other drivers waiting for breath tests and the breath technician was desperately trying to juggle the order of the tests so that he could keep everybody within the two hour requirement of the Criminal Code.
Defence counsel says all of this about the horse and the vet is all hearsay. It may well be true, and it may well have justified the delay, but he said the evidence should have gone in from either the technician veterinarian or the sergeant at the desk, or somebody. As hearsay, it should not be admitted, and as such, the requirement “as soon as practicable” is violated because it is not explained lawfully.
In my view there is hearsay and there is hearsay. The old rigid rules of hearsay have been slowly loosened by the court in this age of internet and instant communication. In my view, the courts have adopted a more sensible flexible approach. The rationale for hearsay exclusion is to ensure accuracy, to ensure the evidence can be tested by cross-examination.
The evidence is that the police officer and the accused had to wait because there was a problem with the [sic] staffing and processing the accused. There is no evidence that the officers were waiting in the police car for some inappropriate reasons. I appreciate that different reasonable jurists may differ on this point, but I feel that the process as seen on the video was expeditious from the beginning. The officer had the screening device ready almost instantly upon arrest. He waited for the tow truck. He was dispatched to the other end of town for breath tests. He had to wait because he was told there was some kind of emergency. There were other persons to be tested. The breath tech was juggling the order of tests and squeaked in the accused barely within the two hours.
I appreciate defence counsel’s excellent arguments about the rule of hearsay. There is no question that Mr. Anders is an excellent counsel and he knows where the weaknesses are, but in my view, the evidence here was reliable and rang true. I have no problem accepting it.
Finally, defence counsel pointed out the length of time it took to bring the accused to the breath tech. The breath tech explained the reasons for the delay, which, as I have indicated earlier, were related to the fact there were other people waiting in the queue. While, again, as I said, I respect his excellent arguments, I find they do not raise a reasonable doubt, and as a result I have to find Mr. Makacek guilty.
[10] Trial counsel for the appellant objected to the admission of hearsay evidence to explain the time periods in issue. The Crown did not seek to admit that evidence under a principled approach to hearsay and instead sought to rely on it for a non-hearsay purpose. On appeal the Crown fairly concedes that the trial judge’s reliance on this evidence for the truth of its content constituted a misapprehension of the basis on which it was tendered.
[11] The respondent now submits that the hearsay evidence was properly admissible not for the truth of its content but rather to assess the reasonableness of the actions of the police. Unfortunately that is not the basis upon which the trial judge acted on this evidence.
[12] An important cause of the delay in this case was the unavailability of the original technician assigned to Traffic Services. The reason for his unavailability and the need for a second technician to arrive from another station may well have been reasonable. That did not obviate the requirement that there be admissible evidence on the issue. The Crown could have called the first technician at trial to explain why he was unavailable. It would then be a question of fact at trial whether in all the circumstances the tests were taken as soon as possible.
[13] Hearsay evidence is presumptively inadmissible if it is tendered to prove the truth of its content. The principal reason for exclusion of such evidence is the absence of opportunity for cross examination. If such evidence does not overcome the presumption of inadmissibility because it does not fall within any traditional exception it may nonetheless be admitted under the principled approach by satisfying the principles of necessity and reliability.
R. v. Kelawon 2006 SCC 57, [2006] 2 S.C.R. 787
R. v. Baldree 2013 SCC 35, [2013] 2 S.C.R. 520.
[14] The trial judge relied on the hearsay evidence on the issue of “as soon as practicable” over the objection of defence counsel and for a use beyond what the Crown proposed. He did not resort to a traditional exception or a principled approach. In a summary fashion he simply referred to the evidence as reliable and that it rang true.
[15] At one point in the Reasons for Judgment the trial judge referred to there being “no evidence that the officers were waiting in the police car for some inappropriate reasons”. This comment appears to reverse the onus of proof. The defence had no obligation to elicit or call evidence of any inappropriate reasons for the delay.
[16] The error by the trial judge in relying on inadmissible hearsay evidence in assessing “as soon as practical” requires a new trial.
CHARTER CONSIDERATIONS
[17] Based on the pre-Charter case of Rilling the respondent submits that there remains disagreement about whether a finding that a breath sample was not taken as soon as practicable automatically precludes the Crown from relying on both the results of the breath tests and the presumption of identity or whether an application for exclusion of evidence under the Charter is required. He refers to authorities that indicate a Charter application is a precondition to the exclusion of this evidence, R. v. Morrison [2012] A.J. No. 1373, R. v. Charette [2008] O.J. No. 1506, R. v. Forsythe [2009] M.J. No. 438, R. v. Gundy 2008 ONCA 284, [2008] O.J. No. 1410, R. v. Rilling 1975 SCC 159 (SCC), [1975] S.C.J. No. 72, contra R. v. Willette [2011] O.J. No. 504 (S.C.J.), R. v. Searle (2006) 2006 NBCA 118, 215 C.C.C. (3d) 374 (N.B.C.A.).
[18] At trial there was an exchange between counsel and the court as to the applicability of Rilling. However, the court ultimately found that the tests were taken as soon as practicable so the potential Charter issue did not factor into the judgment. It is not necessary for purposes of this appeal to say more about the impact of Rilling in a case where the court is not satisfied that the statutory precondition has been met.
RESULT
[19] Appeal from conviction is allowed and a new trial ordered before a different judge.
Mr. Justice B. P. O’Marra
Released: January 6, 2015
CITATION: R. v. Makacek, 2015 ONSC 69
COURT FILE NO.: CR-13-10000119-00AP
DATE: 20150106
ONTARIO
SUPERIOR COURT OF JUSTICE
R. v. Makacek
REASONS FOR JUDGMENT
Mr. Justice B. P. O’Marra
Released: January 6, 2015