Court File and Parties

Court File: SCA(P) 937/15 Date: 2017 04 11 Ontario Superior Court of Justice (Summary Conviction Appeal Court)

Between: Her Majesty the Queen A. H. Gluzman, for the Respondent Respondent

- and -

Faris Mumtaz N. Gorham, for the Appellant Appellant

Heard: April 7, 2017, at Brampton

Reasons for Judgment

[on appeal from conviction by Nelson J. on March 30, 2015]

Hill J.

Introduction

[1] Faris Mumtaz appeals his conviction for having care or control of a motor vehicle while having a legally prohibited blood/alcohol level.

Factual Background

[2] On Saturday, February 6, 2010, Ms. P. Vijayarajah was employed at a Burger King restaurant at 769 Burnhamthorpe Road in Mississauga. At about 1:45 a.m., the appellant drove his vehicle through the drive-through ordering food and paying. Ms. Vijayarajah was of the view that the appellant smelled like an alcoholic beverage.

[3] Soon afterward, the appellant came through the drive-through a second time where a dispute of five to ten minutes’ duration took place about the appellant’s food order. As Ms. Vijayarajah phoned the police to report the appellant as an impaired driver, the appellant parked in the Burger King lot. She saw the police arrive shortly afterward and take the appellant into custody.

[4] On February 6, 2010, John Lontoc was a constable with the Peel Regional Police (PRPS) working in a marked cruiser with his training officer, Constable Adrienne Santoro. He was in his final month of training and had made arrests prior to this date.

[5] The two officers informed the trial court that between 2:02 and 2:04 a.m. they received direction to attend the Burger King parking lot to investigate a possible impaired driver – a customer who had been involved in an argument with the caller to the police.

[6] The police witnesses recorded their arrival at the parking lot at 2:08 a.m. Const. Lontoc observed the subject vehicle parked with its engine running. There were two occupants.

[7] When the constables approached the vehicle, the appellant was seated in the driver’s seat eating food. Const. Santoro knocked on the driver’s window three times to get the appellant’s detention before he looked toward the officers and opened his car window. The appellant continued eating.

[8] Const. Lontoc observed the appellant to be “slow responsive” and slow in his eating actions. The constable smelled an odour of an alcoholic beverage coming from the appellant’s breath. As well, the driver’s eyes were glossy and his mouth was pasty white. Const. Santoro found the appellant to be very slow to respond. She detected an odour of alcohol emanating from the vehicle and observed an open beer bottle in the car’s centre console.

[9] The appellant was directed to exit his vehicle. Const. Santoro had to instruct the appellant three or four times to put his food down and to step out of the vehicle before the appellant complied. Once he did so, Const. Lontoc had a conversation with the appellant during which the officer confirmed that there was an odour of alcohol on the driver’s breath. As well, the constable observed the appellant to be swaying slightly. Const. Santoro recalled the appellant being upset and annoyed that Burger King had shortchanged him on the number of burgers he had ordered. She observed the appellant to have watery, glossy eyes and an odour of alcohol on his breath.

[10] At 2:10 a.m., Const. Lontoc arrested the appellant for care or control of a motor vehicle while impaired by alcohol. The officer performed a pat-down search for officer safety. Const. Santoro agreed that grounds existed for the arrest. Both constables then escorted the appellant to their cruiser. In the approximately 15-second walk, as Const. Lontoc held one of the appellant’s arms guiding the arrestee, there who was “a little bit of dead weight at that time” – it took some force to hold the appellant’s arm up as he “was swaying back and forth” – there was no excessive swaying as the appellant was able to walk on his own. Although Const. Santoro assisted in the escort to the cruiser, she could not recall if she or Lontoc physically assisted the appellant during the walk.

[11] The appellant was handcuffed and placed in the rear of the cruiser. According to Const. Lontoc, he believes that he next followed his practice of using the cruiser computer to confirm the appellant’s identity.

[12] According to Const. Lontoc’s notes, at 2:15 a.m., the constable began to read the appellant his rights to counsel directly from “the yellow notes” – a form used by PRPS officers to provide and record information during a drinking/driving investigation. During the multi-part sequence of questions within the right-to-counsel communication, Const. Lontoc recorded such responses as were provided by the appellant. The constable had to repeat some information for the appellant once, twice or three times. At times, it seemed as though the appellant was ignoring the officer. At a point, the appellant stopped responding. Communication of the rights to counsel continued to 2:21 a.m. The appellant wished to speak with counsel.

[13] Const. Lontoc testified that, while he formed the grounds for arrest, executed the arrest, and the processing of the appellant, Const. Santoro assisted him in some of the steps to take and with preparation of the yellow page notes. Const. Santoro testified that Const. Lontoc was however the officer-in-charge of the investigation. She assisted him to follow protocol – however, in the witness’ words, “there were some points that I was not with him”. In her testimony, Const. Santoro conceded that had she been in charge of this investigation she would have made more detailed notes.

[14] In her evidence in-chief, Const. Santoro stated that a CPIC or MTO check as to the appellant’s identity would have been made on the cruiser computer. She was questioned as well about rights to counsel:

Q. … were you there when rights to counsel were read? A. I, I don’t recall. Q. Do you know where rights to counsel were read? A. I believe that they were read in the cruiser.

[15] In cross-examination, the witness gave this evidence:

Q. … you don’t recall where rights to counsel were given? A. No, I don’t. Q. Well, were you – did you have in your mind that as a supervising officer, you were sort of doing double duty and, and it was part of your job to make sure that you recorded when and where rights to counsel were taken? A. Yes. Q. All right. And do you have it in your notes when and where rights to counsel were, were done? A. No, I do not. Q. All right. I guess – was that just inadvertence on your part that you didn’t get them in there? A. I suppose, yes. Q. All right. And just --- I mean, I appreciate you’re a busy officer and a lot of cases happened since then but the, the reason you can’t tell us today where and when they happened is just because you’ve – like any human being, you’ve forgotten over time. A. Correct.

[16] Const. Lontoc testified that, at 2:22 a.m., he read the breath sample demand to the appellant. At 2:23 a.m., a primary caution was read to the appellant.

[17] A request to the police communications centre was made to arrange for a qualified breath technician. Asked at trial how he knew that this step was required, Const. Lontoc answered that Santoro “guided me that was the procedure next”. Typically, an answer would come back within about a minute directing as to which police Division to attend to meet a breath technician. Const. Lontoc further testified that while on scene at the Burger King parking lot, he completed the first two pages of the yellow notes including biographical material relating to the arrestee.

[18] On Const. Lontoc’s evidence, they left the parking lot at 2:34 a.m. and arrived at PRPS 11 Division at 2:39 a.m., entering the sallyport and proceeding to the cell area to meet with a Staff Sergeant for the booking process. A more thorough search of the appellant was conducted by a cells officer.

[19] Const. Santoro testified that to her recall nothing delayed leaving the parking lot apart from the wait for a breath tech notification and “training purposes”. The witness had no note or recall as to when the appellant was placed in the cruiser. At 2:14 a.m. she radioed in to arrange for a qualified breath technician. In cross-examination, Const. Santoro gave this evidence in cross-examination:

Q. All right, so at 2:14 – by the time 2:14 happens, Mr. Mumtaz has been placed under arrest. He’s been searched and handcuffed and he’s in the police vehicle, right? A. Yes. Q. There’s nothing you’re aware of, at that point in time, that’s preventing his transport back to the police division, right? A. Other than maybe assisting Constable Lontoc, no. Q. Well, I don’t want to get into assumptions or speculation here. My, my question, I’m trying to be pretty precise by this. There’s nothing that you’re aware of, at that point in time, 2:14, that is – making it so that he can’t be transported right then, right? A. Other than just, once against, assisting Constable Lontoc and maybe guiding him along, no, I don’t, I don’t recall any major incident. Q. Well, you don’t have anything in your notes about needing to delay at the scene to help Constable Lontoc with anything after 2:14, right? A. No, I don’t. Q. And you don’t have any independent recollection that, that some issue came up that caused you to stay at the scene to assist Constable Lontoc, right? A. Other than just general - - like if he had any questions for me, but I don’t remember anything specific. Q. Okay. A. But once again, just if he had any questions or needed guidance, that would be the only reason. Q. Okay, well, what, what guidance do you remember that he – are, are you saying that you remember him asking you for guidance that caused you to be delayed at the scene after 2:12 - - 2:14? A. Well, I don’t recall off the top of my head, no. Q. Okay. All right, so nothing in your notes, and you don’t recall anything that caused you to stay at the scene after 2:14, in order to assist Constable Lontoc? A. No.

[20] Const. Santoro testified that Const. Lontoc, the appellant and her left Burger King at 2:23 a.m. and arrived at PRPS 11 Division at 2:32 a.m. At 11 Division, to Const. Santoro’s recall, as the appellant was being escorted to the cells area, he tripped or stumbled over his own feet and then recovered his balance.

[21] PRPS Const. Jean-Guy Caissie, a qualified breath technician, arrived at PRPS 11 Division at 2:30 a.m. The witness recorded the appellant’s arrival in the cells area at 2:38 a.m. He began his intoxilyzer diagnostic tests at 2:42 a.m.

[22] Const. Lontoc testified that the booking process lasted from 2:39 to 2:54 a.m. when he turned custody of the appellant over to Const. Caissie. The appellant changed his mind about consulting counsel. Const. Lontoc related his grounds relating to the arrest and breath demand to Caissie. Const. Caissie observed indicia of alcohol consumption on the part of the appellant. Between 2:58 and 3:03 a.m., Const. Caissie provided the appellant his right to counsel and a caution.

[23] At the appellant’s request, with Const. Lontoc as an escort, the appellant went to the washroom from 3:03 to 3:08 a.m. Const. Lontoc observed the appellant washing his face and washing out his mouth while in the washroom.

[24] Breath samples taken from the appellant at 3:11 a.m. and 3:35 a.m. with Intoxilyzer 5000C testing resulted in respective readings of 120 and 130 mg. alcohol/100 ml. blood.

Trial Submissions

The Defence

[25] It was submitted on the appellant’s behalf at trial that the breath tests were not conducted “as soon as practicable” because the police witnesses’ evidence of timing was not credible and reliable. While there was no suggestion of Consts. Lontoc and Santoro deliberately misleading the court, their evidence considered together meant that “there is 20 minutes that the Crown hasn’t plugged all the holes on”.

[26] It was argued that the officers’ evidence significantly diverged respecting what occurred after the 2:10 a.m. arrest. While Const. Lontoc detailed what he was doing with the appellant in the cruiser, with a departure time of 2:34 a.m., Const. Santoro claimed that, as of 2:14 a.m., “there was nothing stopping them from leaving the scene” except her speculation or assumption relating to “training or waiting for the breath tech”. Const. Santoro had the officers leaving the scene earlier, at 2:23 a.m. with arrival at the police facility at 2:32 a.m.

[27] While defence counsel accepted Caissie’s evidence as reliable that the appellant was at PRPS 11 Division at about 2:38 a.m., he submitted to the trial judge that there was “a hole for 20 minutes”. Any proffered explanations for remaining on the scene after 2:14 a.m. should not be considered as reliable.

The Prosecution

[28] Crown counsel submitted to the trial judge that the “as soon as practicable” issue must be considered within the context of the total time to the taking of the tests – from 2:08 (police arrival at Burger King) to 3:11 a.m. (first test) was 1 hour and 3 minutes. This was not an inordinate delay and the police witnesses provided detailed and legitimate explanations of their activities.

[29] It was submitted that Const. Lontoc was the arresting officer, making notes and directly processing the arrestee, while Const. Santoro, though involved, was less involved in handling the investigation and self-admittedly, less detailed in her notes. Given the relevant jurisprudence, and the facts of this case, there was no delay sufficient to conclude that the Crown had failed to prove that the appellant’s breath samples were taken as soon as practicable.

Reasons for Judgment of Trial Court

[30] Following completion of the evidence and the submissions of counsel, a lunch recess was taken at trial after which oral reasons for judgment were delivered.

[31] In her reasons for judgment, the trial judge noted the discrepancy in the police witnesses’ evidence as to when they left the Burger King scene and arrived at PRPS 11 Division. The trial judge found Const. Lontoc’s evidence to be largely reliable as he acted conscientiously and made notes as he went along, which notes allowed refreshment of memory at trial. The trial judge did however take issue with the reliability of Const. Santoro’s evidence who seemed to have a lack of recall leaving details of the investigation to Lontoc with her notes being “of little assistance”.

[32] The trial court concluded that the total time period from 2:08 to 3:11 a.m. amounted to a relatively short turnaround which “on its face demonstrates a commitment to an expeditious investigation”.

[33] After reviewing the relevant evidence, the trial judge concluded:

I cannot determine the issue of departure and arrival with precision on the evidence. I do accept Constable Longtoc’s evidence that he was reading cautions at 2:23 a.m. and I do accept Constable Caissie’s evidence that Mr. Mumtaz entered the cells at 2:38 a.m.

The intervening time is 16 minutes. The drive took between five minutes, by implication from Constable Longtoc’s evidence and 15 minutes, Officer Santoro’s evidence. Thus, there is a delay of between one and 11 minutes. Either way, such a delay in the context of just over an hour between offence and the first test is clearly reasonable on its face. Such a delay does not require any explanation. Certainly the explanation tendered by Constable Longtoc that he was making his notes is entirely reasonable. Constable Santoro could not recall any reason for a delay. Of course, on [her] evidence as to timing, there would have been no delay.

Further, any delay at the station between arrival at 2:38 a.m. and the first test at 3:11 a.m., 32 minutes in total, is explained by the evidence. The time between the 2:38 arrival until the 2:54 transfer to the breath tech, 16 minutes, is explained by Constable Longtoc’s evidence as to entry into the station through the sally port, booking, search, and lodging procedures. The time between the transfer of custody of Mr. Mumtaz to the breath tech at 2:54 a.m. until the first breath test at 3:11 a.m., 17 minutes, is explained as the breath video shows exactly what transpired. You can see Mr. Mumtaz deciding that he wanted to speak to counsel after all, and then changing his mind, and then visiting the washroom, followed by Constable Caissie readying the machine and explaining the process to Mr. Mumtaz.

As the Court of Appeal made clear in Vanderbruggen, that soon as practicable does not mean as soon as possible. It means that the Crown must prove that the breath tests were taken within a reasonably prompt time, looking at the whole chain of events. That is precisely what occurred here. The Crown has satisfied me on the basis of beyond a reasonable doubt that the breath tests were taken as soon as practical.

Analysis

[34] On behalf of the appellant, Mr. Gorham attacked the reasonableness of the trial court’s conclusion that the appellant’s breath samples were taken “as soon as practicable”, emphasizing the irreconcilable timing evidence of Consts. Lontoc and Santoro, in particular as to what precisely occurred between 2:14 a.m. and 2:39 a.m. It was submitted that the trial judge misapprehended the evidence by failing to consider inconsistencies and differences between the police witnesses’ evidence relating to the appellant’s physical coordination as he was walked to their cruiser, by dismissing the significance of the absence of a note by Lontoc about this matter, and by failing to consider or unreasonably undervaluing the significance of differences in these witnesses’ testimony respecting rights to counsel, scene departure time, Lontoc’s inexperience as a delay factor, and observations of the appellant’s physical coordination at PRPS 11 Division.

[35] It was further submitted that the trial judge engaged in speculative reasoning and adopted an impermissible, piecemeal approach in the manner in which she found Const. Lontoc to be a reliable witness, and, the manner in which she swept away inconsistencies in the constables’ evidence which were capable of undermining the credibility of both officers’ evidence.

[36] Despite Mr. Gorham’s usual capable submissions, the submissions of error are unpersuasive.

[37] In a Part XXVII summary conviction appeal, this court cannot be asked to retry the case. The trial judge held the inestimable advantage of seeing and hearing the witnesses. In the busy Ontario Court of Justice, judgment was given the same day the evidence was completed. The trial judge was, of course, under no obligation to review the entirety of the evidence or to reconcile all inconsistencies in the trial evidence.

[38] In R. v. Kendall (2005), 75 O.R. (3d) 565, 2005 ONCA 21349 (leave to appeal refused [2005] S.C.C.A. No. 387 (S.C.C.)), the court stated at para. 46:

Under s. 813 of the Criminal Code, the Crown may appeal from an order that stays proceedings on an information or dismisses an information. Unlike in indictable matters, the Crown's right of appeal in summary proceedings is not limited to questions of law alone and the Crown may appeal on questions of fact, including on the basis of an allegation that the verdict is unreasonable: see R. v. Wilke (1980), 56 C.C.C. (2d) 61 (Ont. C.A.), 1980 ONCA 2878 at the end of the document]. As on an appeal by an accused, the summary conviction appeal court may not retry the case: see R. v. Century 21 Ramos Realty Inc. (1987), 58 O.R. (2d) 737, 1987 ONCA 171, [1987] O.J. No. 178, 32 C.C.C. (3d) 353 (C.A.), leave to appeal to S.C.C. refused (1987), 38 C.C.C. (3d) vi.

(emphasis added)

[39] At trial, care and control was admitted. The appellant was in care or control of his vehicle when the constables arrived at the Burger King parking lot at 2:08 a.m. and it seems closer to 2:10 a.m. when the arrest occurred. At trial, and on this appeal, it was accepted that Const. Caissie’s evidence was reliable as to the appellant being in the cells area of PRPS 11 Division at 2:38 a.m. There was no serious suggestion of unreasonable delay at the police facility. Accordingly, there was a time period of about 30 minutes which became the real focus at trial as to what the officers were doing and whether they were acting reasonably.

[40] Section 258(1)(c)(ii) of the Criminal Code provides:

258. PROCEEDINGS UNDER SECTION 255 -- (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254 (5) or in any proceedings under any of subsections 255(2) to (3.2),

(c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if

(ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken,

evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused's blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses, in the absence of evidence tending to show all of the following three things -- that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused's blood exceed 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused's blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed;

(emphasis added)

[41] There was no disagreement between the parties as to the applicable law relating to the “as soon as practicable” issues. The leading case summarizing the interpretive principles relating to s. 258(1)(c)(ii) is R. v. Vanderbruggen (2006), 206 C.C.C. (3d) 489 (Ont. C.A.), 2006 ONCA 9039. The principles from this case were helpfully summarized in R. v. Burwell, 2015 SKCA 37, at para. 18 (and adopted in R. v. Fenske, 2016 MBCA 117, at para. 28, and, R. v. Prestupa, 2016 SKCA 118, at paras. 16-19):

(a) The phrase "as soon as practicable" means nothing more than that the breath samples be taken within a reasonably prompt time under the circumstances. (b) Where a demand for breath samples had been made, there is no requirement that the breath tests be taken as soon as possible. (c) The touchstone for determining whether the breath samples were taken as soon as practicable is whether the police acted reasonably. (d) The trial judge is to look at the whole chain of events, bearing in mind what occurred within the two-hour limit prescribed by the Criminal Code. (e) While the Crown is obligated to demonstrate--in all the circumstances--that breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailed explanation of what occurred while the accused was in custody.

[42] A trial court is obliged to assess “the totality of circumstances” (R. v. Crewson, 2015 ONCA 264, at para. 3) looking to “the whole chain of events” (R. v. Singh, 2014 ONCA 293, at para. 14). Whether breath samples were taken as soon as practicable is essentially an issue of fact: R. v. Torsney (2009), 81 M.V.R. (5th) 212 (Ont. C.A.), 2009 ONCA 700, at para. 5; R. v. Burbidge, 2008 ONCA 765, at para. 8; Singh, at para. 16.

[43] The appellant is quite right that there was an asymmetry in the evidence of Consts. Lontoc and Santoro as to various times and events between 2:14 and 2:39 a.m. These inconsistencies were raised in closing submissions before the experienced trial judge. The trial judge preferred Const. Lontoc’s evidence on most of these issues for reasons provided including:

(1) in giving his testimony, Lontoc appeared to have been conscientious in the investigation and his note-taking, whereas Const. Santoro’s notes, such as they were, seemed to be of little assistance to her in giving evidence (2) the “dead weight” omission by Lontoc from his notes was inconsequential and did not bear directly on the “as soon as practicable” issue (3) Const. Santoro left “the details of the investigation to Constable Lontoc” (4) Lontoc’s evidence of a 2:39 a.m. arrival at PRPS 11 Division is relatively consistent with Const. Caissie’s reported time of seeing the appellant’s arrival in the cells area at 2:38 a.m.

[44] I think that a fair reading of the trial judge’s reasons reflect her acceptance that Const. Lontoc, after placing the appellant in the cruiser at about 2:14 a.m., gave the appellant his rights to counsel as well as a breath demand and a caution, and “was making his notes”. This was an entirely reasonable conclusion supported by the evidence. There was no suggestion at trial in cross-examination of Lontoc suggesting that he was mistaken or untruthful in his account of communicating these matters to the appellant. Const. Santoro was unable to say when or where the rights to counsel were communicated. This does not mean they were not given or that Const. Santoro’s answer suggesting that they could have left the scene by 2:14 a.m. suggests that the rights were skipped over.

[45] The trial judge, squarely within her factual jurisdiction, found Const. Santoro to be a largely unimpressive witness. Although she was a training officer, on her own evidence, she was not at Const. Lontoc’s side every minute at the Burger King scene. The constable acknowledged that her notes were not as detailed as they would have been had she been the officer in charge. Testifying over 4 ½ years after the appellant’s arrest, the witness’ testimony was replete with answers of “I don’t recall” or its equivalent (in-chief x 7, cross-examination x 16, re-examination x 1).

[46] The trial judge did not adopt a piecemeal approach to the evidence or fail to consider evidence relevant to the s. 258(1)(c)(ii) issue.

[47] The trial court quite properly stepped back from a minute-by-minute dissection of the police investigation. It was unnecessary, given the overall time period of time and the activities performed by the officers, to determine precisely the amount of hands-on training assistance Santoro provided at the scene of the arrest, or the precise departure and arrival times. Put differently, despite differences in the officers’ evidence, there was evidentiary support for the trial court’s conclusion that there was no hole, gap or significantly unexplained number of minutes threatening a firm and reasonable finding of fact that the breath tests were taken within a reasonably prompt time under the circumstances. From the time of care or control (2:08 – 2:10 a.m.) to the taking of the first same (3:11 a.m.), a period of about one (1) hour, and within the prescribed 2-hour limit, the following occurred:

• arrest of the appellant
• pat-down search
• escort to cruiser
• handcuffing
• computer confirmation of identification
• communication of rights to counsel
• breath demand
• caution to appellant
• yellow sheet notes by Lontoc
• cruiser travel to PRPS 11 Division
• booking process with Staff Sergeant
• thorough search of arrestee at cells area
• communication of grounds for arrest and breath demand from Lontoc to Caissie
• 5 minutes in washroom at appellant’s request
• communication of right to counsel, caution and intoxilyzer instructions from Const. Caissie to appellant.

Conclusion

[48] The appeal is dismissed.

[49] It is ordered that the clerk of the appeal court comply with Rule 40.23(1) of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) as to distribution of these Reasons for Judgment.

Hill J. Date: April 11, 2017