Court File and Parties
COURT FILE NO.: 41/16AP DATE: 20161206 SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL TORONTO REGION
BETWEEN: HER MAJESTY THE QUEEN Respondent – and – SUNG HEE KIM Appellant
Counsel: Robert Wright, for the Crown Peter Lindsay, for the Appellant
HEARD: November 17, 2016
K.P. Wright J.
[1] On April 28, 2016, the appellant, Sung Lee Kim was found guilty, after trial in the Ontario Court of Justice, of operating a motor vehicle with a blood alcohol concentration over the legal limit, contrary to s.253(1)(b) of the Criminal Code, R.S.C. 1985, c.C-46.
[2] The appellant appeals this conviction alleging the following errors:
(1) The trial judge erred in law by finding that the breath samples were taken as soon as practicable; and
(2) The trial judge erred in law by dismissing the defendant’s s.8 Charter application, which alleged that the arresting officer did not have sufficient grounds to make a breath demand because he was required to wait before administering an approved screening device (“ASD”) test due to the issue of mouth alcohol in order to rely on the results.
[3] For the following reasons, I would dismiss the appeal.
The Facts
[4] The following is a very brief summary of the facts. I will further develop the facts when necessary in my analysis.
[5] On December 13, 2013, Ms. Kim was pulled over by Officer Daryaram, who was investigating an expired validation tag on her license plate. During the course of his interaction with Ms. Kim, Officer Daryaram detected the odour of alcohol. After questioning Ms. Kim, Officer Daryaram formed the suspicion that there was alcohol in her system. Officer Daryaram made an approved screening device (ASD) demand and had Ms. Kim provide a sample of her breath into that device. The device registered a fail and Officer Daryaram arrested Ms. Kim for the offence of driving “over 80”. Ms. Kim was taken to the police station, where she provided samples of her breath into an approved instrument. Her blood alcohol concentration was analyzed at 160 milligrams of alcohol in 100 milliliters of blood on both the first and second tests.
The Meaning of “As Soon As Practicable”
[6] The legal test to be applied to the meaning of “as soon as practicable” was set out by the Ontario Court of Appeal in R. v. Vanderbruggen (2006), 2006 ONCA 9039, 208 O.A.C. 379, at paras. 12-13:
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), 42 C.C.C. (3d) 150 (Ont. C.A.) at 156; R. v. Ashby (1980), 57 C.C.C. (2d) 348 (Ont. C.A.) at 351; and R. 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), 56 C.C.C. (3d) 548 (Ont. C.A.) at 552; R. v. Carter (1981), 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; and R. v. Seed.]
In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing 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. In particular, while the Crown is obligated to demonstrate that – in all the circumstances – the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody. [See R. v. Letford (2000), 150 C.C.C. (3d) 225 (Ont. C.A.) at para 20; R. v. Carter, supra; R. v. Cambrin (1982), 1 C.C.C. (3d) 59 (B.C.C.A.) at 61-3, and R. v. Seed at para. 7.]
This approach was recently reaffirmed in R. v. Singh, 2014 ONCA 293 at paras. 13-16.
[7] 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 blood-alcohol level. Interpreting “as soon as practicable” to require an exact accounting of every moment in the chronology from the time of the offence to the breath test runs counter to this purpose.
[8] The appellant argues that the trial judge erred in finding that the breath tests were done as soon as practicable and focuses on three periods of delay:
(1) A five minute delay where the officer was writing notes before he left the scene;
(2) A fourteen minute delay prior to booking Ms. Kim caused by the police Versadex system; and
(3) A three minute delay waiting for the booking sergeant to arrive.
[9] The appellant’s oral arguments focused solely on the fourteen minute delay occasioned by the Versadex system. The appellant declined to make any submissions in relation to the other delays.
[10] The following events occurred in the early morning hours of December 13, 2015 before the appellant provided breath samples:
2:50 Arrest 2:55 Rights to Counsel/Approved Screening Device demand/request and waiting a tow truck / request and wait for taxi for passengers / cataloging the appellant’s property 3:09 depart for station 3:11 arrive at station – begin entering data into Versadex system 3:26 enter booking hall
[11] There was also a three minute delay of waiting for the booking sergeant once the officer and the appellant arrived inside the booking hall.
[12] The officer testified at trial that, approximately one month before the appellant’s arrest, the Toronto Police Service implemented a new booking system referred as the Versadex. He explained that this new system required all officers to enter certain information into the Versadex system prior to a prisoner being booked.
[13] There is no dispute that this new system creates added delay in the booking of prisoners and that, in this case, the delay amounted to approximately 14 minutes.
[14] The trial judge ruled as follows with respect to the delay caused by the Versadex system:
The officer transported the defendant to 32 Division, which was approximately two minutes away. They and [sic] entered the gates of 32 Division at 3:12 a.m. Once at 32 Division, the officer had to complete a Versadex report, which had to be “published” before the booking officer could initiate the booking process. That process took until 3:26.
PC Daryaram explained the process and the information that he had to enter into the system. The delay of approximately fourteen minutes, before the officer could have the defendant booked into the station, was taken up entering information into the Versadex system and waiting for the report to be “published.” The officer also re-explained duty counsel to the defendant, at this time, and answered the defendant’s questions about duty counsel and the absorption of alcohol.
PC Daryaram testified that the delay, caused by the Versadex system, was necessary before the defendant could be booked and provide her breath samples. The system had been put into place in November 2013, approximately a month before this offence occurred. It was compulsory to use the system, in order to book any defendant at any station. He testified that the delay was “pretty fast” compared to other delays caused by the Versadex system. He testified that the defendant was booked “as quickly as I can do it.”
The fourteen-minute delay here was necessary and reasonable. There is no doubt that the Versadex system and its implementation caused some delay in the booking process. That delay, however; is accounted for by the booking system and, on the officer’s unchallenged evidence, it was not unreasonable delay in the context of typical delays generated by the Versadex system.
Reasons for Judgment, Appeal Book, Tab 5, at paras. 13-16.
[15] The appellant argues that the trial judge substituted the test “necessary because of police policy” for the correct test of “as soon as practicable.”
[16] I disagree. By using the term necessary, the trial judge was simply acknowledging that the Versadex system was a compulsory component of the booking procedure and nothing more.
[17] I find that that trial judge applied the correct legal test to the question of whether the breath samples were taken as soon as practicable. Although the language used by the trial judge is unfortunate, I find no error in his characterization of the legal standard or its application. He was satisfied on the totality of the evidence that the police acted reasonably and promptly throughout their dealings with the appellant.
Reasons for Judgment, Appeal Book, Tab 5 at paras. 4, 19
[18] Having applied the correct legal standard, the trial judge’s findings are reviewable on the standard of palpable and overriding error. I find that there is no error in his findings and that they are supported on the evidence before him.
[19] The trial judge found the officer could not proceed with the booking until he had completed the input and, as such, the 14 minutes of delay was necessary and reasonable.
[20] The appellant argues that the trials judge’s Reasons amount to a judicial endorsement that the police can implement systems that cause delay and, as such, run contrary to the legal standard. I disagree. I find that the trial judge considered only the facts that were before him. At no point do I interpret his judgment to be a commentary on the implementation or effectiveness of the Versadex system at large.
Mouth Alcohol
[21] A police officer who has cause to make a demand for a sample into an ASD must administer that test “forthwith”. The officer must turn his or her mind to whether or not he or she would obtain a reliable result by administering the test without a brief delay. If officers do not, or reasonably should not, rely on the accuracy of the test results, the results cannot assist in determining whether there are reasonable and probable grounds to arrest.
R. v. Einarson (2004), 70 O.R. (3d) 286 (C.A.) at paras. 14-15, 24-29, 35. R. v. Mastromartino (2004), 70 O.R. (3d) 540 (S.C.) at para. 23.
[22] If, in an officer’s opinion there is credible evidence which causes him/her to doubt that the test result would be accurate unless there was a brief delay, an officer may briefly delay administering the test. The mere possibility that a driver has consumed alcohol within the preceding 15 minutes does not preclude an officer from relying on the accuracy of the ASD.
R. v. Einarson R. v. Mastromartino
[23] If the officer decides not to delay taking the sample and the decision is challenged at trial, the Court must decide whether the officer honestly and reasonably believed that he could rely on the test results.
R. v. Einarson, supra R. v. Mastromartino, supra
[24] PC Daryaram’s evidence was that the issue of fresh mouth alcohol did not occur to him at the time he made the ASD demand. He chose to administer the test immediately.
[25] The trial judge found that, in the circumstances of this case, and based on the information available to PC Daryaram, there was no basis on which to delay administration of the test. That information included:
(1) That time of night, well after the bars had closed;
(2) No alcohol found in the vehicle the appellant was driving;
(3) Appellant said she was coming from a friend’s house; and
(4) Appellants denied drinking, then claimed she had consumed alcohol “earlier in the evening”.
Reasons for Judgment, Appeal Book, Tab 5 at paras. 25-26.
[26] In cross examination, PC Daryaram agreed that in retrospect recent alcohol consumption could have been a possibility and that he could have asked more questions.
[27] An officer is not in law required to ask about when a driver last consumed alcohol and the mere possibility that a driver has consumed alcohol in the last 15 minutes does not preclude an officer from relying on the accuracy of the ASD.
R. v. Einarson R. v. Mastromartino
[28] The question for the trial judge is whether the officer believed he would receive an accurate, reliable result from administering the ASD immediately. In other words, on the facts known to him at the time, was it reasonable for him to form that belief and would it be unreasonable for him to delay the ASD.
[29] The trial judge set out the test correctly when he stated:
The issue here is not the accuracy of PC Daryaram’s belief. If it was, I agree he could have asked further questions about when the defendant’s last drink was. But the issue here is whether PC Daryaram formed an honest belief, based on reasonable grounds, about whether a short delay was necessary to obtain a reliable reading.
Reasons for Judgment, Appeal Book, Tab 5, at para. 25.
[30] It is clear from a fulsome review of the entirety of PC Daryaram’s evidence that he believed he would receive an accurate and reliable result for the administration of the ASD test immediately. It was open to the trial judge to accept that evidence. I find no misapprehension of this evidence by the trial judge.
[31] After a thorough review of the written materials, the law, and the submissions of counsel, I find no basis for this Court to interfere with the findings of the trial judge.
[32] The appeal is therefore dismissed.
K.P. Wright J.
Released: December 6, 2016
SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL TORONTO REGION HER MAJESTY THE QUEEN Respondent – and – SUNG HEE KIM Appellant REASONS FOR JUDGMENT K.P. Wright, J. Released: December 6, 2016