Court File and Parties

COURT FILE NO.: 159/16 DATE: 20170612

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Appellant – and – Christopher Danton Respondent

Counsel: Leonard Kim, for the Crown Michael J. Venturi, for the Respondent

HEARD: June 5, 2017

REASONS FOR DECISION ON SUMMARY CONVICTION APPEAL

Gauthier J.:

Overview

[1] This is a Crown appeal of an acquittal in the Ontario Court of Justice on June 13, 2016. On that date, the respondent was acquitted after trial of the charges of impaired driving and over 80mgs.

[2] The ground of appeal is that the trial judge erroneously held that the Intoxilyzer samples were not taken as soon as practicable. Within this ground of appeal is the issue waiver of rights to counsel. Specifically, the Crown alleges that the trial judge incorrectly found that the respondent had unequivocally waived his right to counsel and that delay in the Intoxilyzer testing arising from police efforts to facilitate contact between the respondent and counsel was unreasonable.

[3] The Crown requests that the appeal be granted, the acquittal on the over 80mgs be set aside and a conviction entered based on the Intoxilyzer readings and the provisions of section 258(1)(c) of the Criminal Code.

[4] For his part, the respondent requests that I dismiss the appeal, or, in the alternative, if I grant it, that I order a new trial.

Facts

[5] The facts are not largely in dispute, and the facts relevant to this proceeding relate to events that occurred from the time the respondent was arrested, at 1:23 a.m. on February 8, 2014, after the respondent had failed the approved screening device test, until he had provided two suitable samples of his breath.

[6] I have borrowed liberally from the Facts portion of the Appellant’s Factum.

At 1:23 a.m., after the Respondent failed the approved screening device test, the police placed him under arrest for impaired driving and demanded that he provide samples of his breath for testing by the Intoxilyzer. The police advised the Respondent of his rights to counsel and silence and the Respondent appeared to understand both. Constable Porringa asked the Respondent if he would like to call a lawyer. The Respondent answered “No”. He was asked the question again, and answered, “I’m from Toronto. Okay, whoever.”

The police and the Respondent left the scene at 1:32 a.m. after other police officers arrived to take control of the Respondent’s vehicle, which was still parked in a live lane of traffic on Paris Street in downtown Sudbury. The police then took the most direct route to police headquarters, arriving at 1:34 a.m.

At 1:41:08 hours, the Respondent was taken out of the cruiser, in the sally port, and helped into the booking area of the police station by Constable Porringa, one of the two officers present at the arrest. According to Constable Porringa’s testimony, the Respondent was unable to exit the vehicle on his own, requested police assistance, and asked for his cane.

Throughout the booking process, Constable Porringa noted that the Respondent was unsteady on his feet and had to use to counter (sic) to stand up. Throughout the booking process the Respondent continued to tell the police that he was from Toronto, making a movie and that he had spent a lot of money in Sudbury. Constable Porringa observed that the Respondent “didn’t really seem to care what had occurred and the severity of the situation.”

[7] According to the testimony of Constable Porringa, he asked the respondent again, at 1:39 a.m. if he’d like to call a lawyer. The officer testified that the Respondent “didn’t seem to care as he said whoever. He said he was from Toronto. He said he didn’t care and just wanted to go to his hotel and sleep” (Transcript, page 23).

[8] Constable Porringa asked the Respondent again, and explained that it was the Respondent’s right to call a lawyer, to which the Respondent replied, “he didn’t know because he was from Toronto.” Constable Porringa showed the respondent a list of lawyers. The respondent called more than one lawyer and reached Mr. Beckett at 1:42 a.m. He spoke with Mr. Beckett until 1:50 a.m. (Transcript, page 23.)

[9] The respondent was escorted into the breath testing room, following the conclusion of the telephone call with counsel. Constable Porringa provided the grounds for the arrest to Constable MacKay, who had been present at the arrest and was also acting as the qualified Intoxilyzer technician.

The Respondent provided two suitable samples of his breath which were tested by a properly functioning Intoxilyzer 8000c and registered the following truncated readings:

• 150 mgs of alcohol per 100 ml of blood at 2:10 a.m.;
• 160 mgs of alcohol per 100 ml of blood at 2:32 a.m.

The trial judge held that the Intoxilyzer samples were not taken as soon as practicable, concluding that the respondent had waived his right to counsel, therefore Constable Porringa’s conduct in producing a list of counsel and facilitating contact between the respondent and counsel was unreasonable. The trial judge did not permit the Crown to rely on the s. 258 presumption, and acquitted the respondent of both the impaired driving charge, and the over 80 mgs charge.

Trial Judge’s Reasons

[10] I reproduce the relevant portions of the Trial Judge’s Reasons:

[18] Counsel on behalf of the accused, Mr. Keaney, submits that the samples of breath were not taken as soon as practicable and that the Crown should not be entitled to rely on the presumption of identity. Counsel submits that there has been a delay in the range of 35 to 37 minutes and that the crown has not offered any explanation for the delay. He argues that in the absence of an explanation for the delay the court cannot find that the tests were taken as soon as practicable.

[19] Not surprisingly, Ms. Quinn on behalf of the Crown submits that the police acted reasonably in all of the circumstances and that the delay is not as lengthy as suggested by defence counsel. Ms. Quinn submits that when this court considers all of the relevant circumstances associated with the delay she should be entitled to rely upon the presumption of identity pursuant to s. 258(1)(c) of the Criminal Code.

[20] In this case the time period in question is from 01:23:00 hours, the time of arrest, to 02:33:30 hours, the time when Constable MacKay completed taking the second sample of the accused’s breath. The total time being scrutinized is 70 minutes.

[21] Mr. Keaney identified several discrete time intervals of delay in his submissions. I will address each of these in my decision.

[22] The first time frame questioned by Mr. Keaney was the delay between the time of the arrest at 01:23:00 hours and the time of departure from the scene at 01:32:00 hours – 9 minutes. Mr. Keaney acknowledges that the first couple of minutes following the ASD fail were taken up by the arrest of the accused. He submits that there is no evidence before me that would explain why the police had to wait nine minutes before leaving the scene.

[23] Ms. Quinn argues that the officers could not leave the vehicle unattended on a busy Sudbury thoroughfare and that they accordingly had to wait for the arrival of other officers to assume custody of the accused’s vehicle until it could be safely towed. In these circumstances a brief delay of nine minutes is not unreasonable.

[24] At first blush nine minutes does not seem like a lot of time, and ordinarily it would not be an issue. In this case however it is significant that the accused was stopped about a block away from the police station – a two minute drive at most. Unfortunately there is no evidence before me as to:

1. When backup was called;
2. Was backup readily available;
3. When did backup actually arrive on scene?

The only evidence elicited on this point at trial came from Constable Porringa. In response to the Crown’s question, “Now did you leave the scene?...Okay. At what time?” The officer replied, “That would have been at 01: 32: 00 hours and that was to wait for relieving officers to stay with the vehicle.” This evidence still leaves the three aforementioned questions unanswered.

[25] Mr. Keaney submits that the second unexplained delay takes place upon the accused’s arrival at the police station. The video of the sally port area shows the accused arriving at the Greater Sudbury Police Station at 01:34:50 hours. For some unknown reason he remains in the cruiser until 01:41:08 hours, at which time he is then escorted from the police cruiser to the booking in room.

[26] This six minute delay remains unexplained.

[28] In cross-examination Constable Porringa confirmed that the accused had waived his right to counsel both at the scene and later at the police station. The following exchange took place between Mr. Keaney and Constable Porringa:

Q. Now there’s one more-when you gave-when you gave Mr. Danton his rights to counsel at the time of arrest being 1:23, you asked him whether or not he wished to contact a lawyer, correct? A. Yeah. Q. And he said no. A. No. Q. All right. So it was clear that he was waving his rights to counsel at that time. A. At that time. Q. In fact, when you got to the police station you asked him again whether or not he wished to call a lawyer and he said no I’m from Toronto and he essentially said no to calling a lawyer, correct? A. Yes. Q. All right. But he ended up contacting a lawyer at your urging, correct? A. Yes.

[29] Shortly after this series of questions Mr. Keaney again confirmed the issue of waiver with the following question:

Q. So I think we’ve got it. He told you at the scene he didn’t want a lawyer. He told you at the police station he didn’t want a lawyer. You thought it was in his best interest to do so and he ended up contacting a lawyer at your urging, correct? A. Yes.

[31] While I do not wish to be perceived as critical of the officer’s benevolent motive, I come to the conclusion that those efforts were not, in law, required. The evidence of Constable Porringa was clear – the accused had waived his right to counsel. The officer did not express any uncertainty in this regard. The accused did not testify. Constable Porringa’s conclusion regarding the accused’s waiver of his rights to counsel stands unchallenged. The evidence is ambiguous as to whether the accused subsequently expressed a clear change of mind about consulting counsel.

[32] In the context of an over 80 investigation where statutory time limits are important, once an accused has expressly waived his right to counsel, there is no need for the police to take any further steps in order to encourage the accused to exercise his right to counsel.

[34] Before leaving this issue of waiver, I wish to make one final observation. In this case there was no evidence before me that the accused had actually invoked his right to counsel. Having said that, the end result is the same. Absent the invocation of counsel, the section 10(b) implementational obligations of the police officers were not triggered. While the time spent was clearly accounted for, the 11 minutes of delay was unreasonable in the circumstances.

[35] The next period to be considered is the time from when the accused enters the breathalyzer room, 01:53:20 hours, and the completion of the accused’s first breath sample at 02:10:53 hours - a total of approximately 18 minutes. Mr. Keaney, in his submissions, calculated this time to be 21 minutes. His calculation is based on the accused entering the breath room at 01:50:00 hours. However, a review of the videotape clearly shows the accused entering at 01:53:20 hours.

[37] At 02:03:40 hours Constable MacKay makes a breath demand of the accused. At 02:04:04 hours Constable MacKay is seen entering data into the breathalyzer unit. He is also making inquiries of the accused regarding his medications, medical conditions and the amount of sleep he has had in the last 24 hours. Finally he explains to the accused the consequences of a refusal. All of the foregoing took approximately 6 minutes. At 02:10:10 hours the accused provides an unsuitable sample. A proper sample is finally obtained at 02:10:53 hours.

[38] I agree with Mr. Keaney’s submission that I have no idea whether it was necessary for the officer to be inputting data into the machine prior to the taking of the first sample. Similarly, was it reasonably necessary for him to be asking questions regarding his medical conditions or sleep pattern prior to taking the breath sample? I really do not know and I am not prepared to infer that those steps or inquiries were reasonably necessary prior to providing the first sample of breath. Ultimately, this amounts to a delay of about six minutes (02:04:04 to 02:10:10).

[39] The final period of delay to be considered is the time between the two breath samples, a total of 22 minutes. It is acknowledged by Mr. Keaney that it is not unreasonable to wait 17 minutes. Mr. Keaney submits however that there is no explanation for the remaining five minute delay. I would have to agree.

[40] Accordingly, there are 37 minutes of unreasonable or unaccounted delay.

[11] The trial judge relied upon and cited R. v. MacCoubrey, 2015 ONSC 3339, 81 M.V.R. (6th) 110, and specifically set out paragraphs 42 and 43 of that decision for their reference to waiver. He also referenced R. v. Vanderbruggen, 206 C.C.C. (3d) 489, and recognized it as the leading case on the issue of “as soon as practicable”. The trial judge’s decision continues as follows.

[41] There is no doubt that the decision of R. v. Vanderbruggen, [2006] O.J. No. 1138 from our Court of Appeal is the leading case in this area. There have been many subsequent decisions interpreting and applying Vanderbruggen. A helpful and succinct summary of the law in this area was provided by Justice J. Stribopoulos in the recent decision of R. v. Moiz, [2015] O.J. No. 392. At paragraph 31 he states:

31 The Court of Appeal has explained the "as soon as practicable" requirement.21 The Court has clarified that this phrase does not mean that the breath samples must be taken as soon as possible.22 Rather, it simply requires that the tests be "taken within a reasonably prompt time under the circum-stances."23 The Court has explained that the "touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably."24 In making this assessment, I am required to consider the whole chain of events, remembering that the Criminal Code permits an out-side limit of two hours from the time of the alleged offence to the taking of the first sample.25 In establishing this requirement the Crown is not required to provide a detailed explanation of what occurred during every minute that the accused was in custody.26 Rather, the Court of Appeal has instructed that the "as soon as practicable" requirement "must be applied with reason."27

[42] At paragraph 32, Stribopoulos J. states:

"... As the Court of Appeal has made clear, the specific reasons for any delay must be considered. It is only where the evidence casts doubt on the reasonableness of any delays that this essential precondition for the Crown to rely upon the presumption of identity will be called into question.

[43] When I apply these principles to the facts that I have before me I come to the conclusion that the cumulative delay of 37 minutes results in the breath samples not being taken as soon as practicable. The crown will not be entitled to rely on the statutory presumption of identity.

The Issue

[12] Did the trial judge err in concluding that the Intoxilyzer samples had not been taken as soon as practicable, and in finding that the respondent had waived his right to counsel.

Appellant’s Position

(Certain of the following paragraphs are reproduced directly from the Factum)

[13] The Crown reasonably relies heavily on Vanderbruggen and says that in the present case, the trial judge held that, of the 47 minutes from the time of arrest to the time of the first sample, 37 of those minutes constituted an unreasonable delay within the meaning of s. 258 of the Criminal Code. This means that the trial judge concluded it should take the police ten minutes to complete the following tasks: arrest the respondent, read him the demand and rights, secure the respondent’s car, transport him, book him, facilitate a conversation with counsel, have Constable MacKay then assume breath technician duties, prepare the machine, explain the testing procedure and obtain the sample. This is clearly impossible. In fact, the Court of Appeal in Vanderbruggen held that it was reasonable for the police to take one hour and fifteen minutes to complete these same tasks.

[14] Respectfully, the appellant suggests that the trial judge engaged in exactly the kind of minute-to-minute calculation of the delay, which the Court of Appeal warned judges against. In short, the trial judge asked for a “detailed explanation of what occurred during every minute that the accused is in custody”: Vanderbruggen, at para. 16.

[15] Moreover, the evidence unequivocally establishes that the police diligently and wholly focussed on the investigation. All of their movements were geared toward the end of bringing the respondent to the completion of the testing procedure. There was, in the words of the court in Vanderbruggen, at para. 14:

[N]o 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 tests to the appellant as soon as practicable. There was no evidence that the officers gave unreasonable priority to any other task.

[16] The appellant submits that, despite having set out the proper test to assess whether the samples were taken as soon as practicable, the trial judge nonetheless misapplied the test, engaging in a microscopic, minute by minute assessment of the time between arrest and the taking of the samples.

[17] Although Parliament has set 120 minutes as the outside limit of time within which breath tests must be taken in order for the presumption set out in section 258(1)(c) to be available to the Crown, the trial judge concluded that 47 minutes was too long.

[18] It appears that the trial judge in fact applied the “as soon as possible” standard, rather than “as soon as practicable”. The trial judge accepted the argument that there was a need for an explanation in the form of evidence for every minute between the time of arrest and the taking of the samples.

[19] The appellant relied on the Ontario Court of Appeal decision R. v. Singh, 2014 ONCA 293, 120 O.R. (3d) 76, as establishing that “the Crown was not required to provide a detailed explanation of what occurred ‘during every minute that the accused is in custody’”: para. 13.

[20] Additionally, the trial judge overlooked certain evidence that in fact did provide evidence of what was transpiring at specific time periods.

[21] At paragraph 24 of the trial judge’s decision reproduced above, he indicates that there is insufficient evidence to explain the nine-minute period that elapsed from arrest to departure for the police station, located a two-minute drive away.

[22] In fact, a review of the trial transcript reveals that Constable MacKay did give evidence of what he did between the time of the arrest, and the arrival at the detachment.

Q. And did you make note of the time that you observed Constable Porringa do these things? A. Yes, at 1:23 a.m. Q. Okay. And what do you do next after that? A. After that I requested – made a radio request that intoxilyzer be turned on as I would be the one doing the breath. And then I did request for a tow and another unit to come relieve us to wait for the tow. Q. Okay. And after that was done did you leave the scene? A. I waited for the other police cruiser to show up to wait for the tow and then we went to the station with Mr. Danton. Q. Okay. So at what time did you leave the scene? A. I don’t know exactly. I know we were right around the corner and we got back at about 1:34, 1:35. So probably at 1:33 I’d have to say. I can’t be for sure because I didn’t note it because I was driving. Q. And did you go directly there? A. Yes, I did. Q. Okay. And you arrived at the detachment maybe 1:34, 1:35. What do you do next?

[23] The appellant further submits that the trial judge applied the wrong test when assessing the time between the arrival at the detachment and the escorting of the respondent from the cruiser to the booking area of the detachment, which is six minutes. The trial judge said that the six-minute period was unexplained. However, as part of the evidence during the trial was the video taken during the entrance into the detachment and the booking of the respondent. The appellant maintains that that evidence shows that Constable MacKay exited the cruiser upon arrival at the detachment, in order to prepare the breathalyzer machine. He re-appears on the video at 1:39:41 and is seen gesturing to Constable Porringa to come into the booking area. It is at this point that the respondent is escorted into the booking area, a process that took approximately two minutes.

[24] According to the appellant, even if the evidence does not account for every minute between the arrival at the detachment and the entry into the booking area, there is no requirement for the Crown to do so, in accordance with Singh.

[25] Turning now to the issue of waiver, the appellant maintains that there was no clear and unequivocal waiver by the respondent of his right to counsel. He stresses the importance of the respondent’s words about being from Toronto, and “whoever”, in response to Constable Porringa’s query about whether the respondent wished to communicate with counsel.

[26] The appellant respectfully submits that the learned trial judge erroneously held that the respondent had waived his right to counsel and that the police efforts to link him with counsel notwithstanding his waiver constituted an unreasonable delay in the administration of Intoxilyzer testing.

[27] As stated in R. v. Prosper, [1994] 3 S.C.R. 236, the test for waiver of a Charter right is a strict one and “the standard required for an effective waiver of the right is very high.”: p. 275. While it is possible to implicitly waive a Charter right, the standard is also “very high.” It is well-established law that officers are obliged to go beyond basic discharging of the informational component in circumstances in which an accused person gives a response which is ambiguous or which demonstrates a misunderstanding of the rights to counsel. Moreover, courts have recognized that the police must be particularly aware of circumstances – such as intoxication – which have the potential to undercut an accused’s person’s ability to understand the right to counsel and the ramifications of a complete waiver of it: see Prosper; R. v. Manninen; R. v. Wilford, 115 C.R.R. (2d) 189, at para. 10; R. v. Devries, 2009 ONCA 477, 95 O.R. (3d) 721, at para. 38; R. v. Anderson, 45 O.R. (2d) 225.

[28] In the present case, there is simply no evidence that the respondent explicitly or implicitly waived his right to counsel on the “very high” standard mandated by the Supreme Court of Canada in Prosper and Manninen. Instead, his answers were ambiguous, equivocating and apparently premised on the notion that because he was from Toronto, speaking to a lawyer was not an option. The following excerpts from the evidence of Constable Porringa about his conversations with the respondent are illustrative:

• He replied yes that he understood both and I do remember he said that he didn’t want to call a lawyer… because he was from Toronto;
• At 1:39 I asked him if he’d like to call a lawyer and again he didn’t seem to care as he said whoever. He said he was from Toronto. He said he didn’t care and he just wanted to go home, or sorry, go to his hotel and sleep;
• Yeah, I again asked him, explained that, you know, it’s your right to call a lawyer, at which time he said he didn’t know because he was from Toronto. So I showed him a list of all the lawyers that we provide in our booking-in room, at which time he initially made a decision;
• Called Baker and he called a few lawyers until we reached one.

[29] The fact that the respondent had not intended to waive his right to counsel was confirmed by his assumption of control of the process of selecting a lawyer from the materials provided by police, by his placing calls to lawyers and then by apparently speaking to a lawyer for a length of time suggestive of something more than a perfunctory discussion. R. v. Kusnir, [2002] O.J. No. 10 (S.C.), R. v. McCann [2006] O.J. No. 1582 (S.C.)

[30] If indeed there was a waiver by the respondent upon arrest, his conduct in consulting the list provided to him, and his contacting counsel and spending a not insignificant amount of time engaged in that communication indicates a change of mind about any prior s. 10(b) waiver.

[31] The appellant submits that s. 10(b) rights should not be sacrificed for the sake of efficiency and the obtaining of breath samples as quickly as possible.

[32] However, were this court able to find an explicit or implicit waiver had been established on the equivocating responses and behaviour of the respondent, surely the police cannot be criticized as acting unreasonably after subjectively believing the respondent had not waived his right to counsel. Moreover, had the police been less fair to the respondent and not pursued clarity on the issue of rights to counsel, it seems inevitable that their conduct would have been the subject of an allegation that they had infringed the respondent’s rights to counsel.

[33] The appellant distinguishes the MacCoubrey decision with regard to both the words used by the accused in that case (“I’m not impaired”) and the amount of time at play, being 33 minutes. It is also significant that in MacCoubrey, the police officer placed the call for the accused. In the case at bar, the respondent placed the telephone calls himself. Finally, in MacCoubrey, there was no evidence as to what the police officer actually told the accused about his right to counsel, or what precise response was given by the accused.

[34] The Appellant requests that the acquittal on the over 80mgs charge be set aside and that a guilty verdict be entered.

The Respondent’s Position

(Portions of the Respondent’s Factum have been reproduced verbatim)

[35] The respondent also acknowledges that Vanderbruggen is the leading case on the issue of as soon as practicable, however, also points out that whether samples were taken as soon as practicable is a question of fact for a trial judge, that trial judges are entitled to deference, and he relies on R. v. Landrie, 2016 ONSC 2131, at paragraph 26:

In a proceeding under section 686(1)(a)(i), a Court of Appeal is entitled to review the evidence, re-examining it and reweighing it, only for the purpose of determining if it is reasonably capable of supporting the trial judge’s conclusions; that is, determining whether the trier of fact could reasonably have reached the conclusion that it did on the evidence before it. Provided this threshold 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. [Footnote omitted.]

[36] The respondent reiterates that “[W]hile there need not be a minute by minute accounting of the officers [sic] time, whether an officer was acting reasonably in the context of the issue of whether tests were taken ‘as soon as practicable’ must nonetheless have an evidentiary foundation.” R. v. McDonald, 2014 ONSC 208, at para. 8.

[37] The trial judge’s awareness of the above established standard is evidenced at paragraphs 24, 26, and 34 of his decision.

[38] In taking issue with the trial judge’s assessment of the 47 minutes between arrest and the taking of the first sample, and his conclusion that 37 of the 47 minutes were unreasonable delay, the appellant lists the following tasks performed in that time frame:

• arresting the Respondent,
• making an 8000C demand,
• securing the Respondent’s motor vehicle,
• transporting the Respondent to the Greater Sudbury Police Service,
• booking the Respondent in,
• facilitating a conversation with counsel,
• breath technician duties,
• preparing the machine and
• obtaining the sample.

[39] There is no presumption of reasonableness when assessing police action in terms of reasonableness. Evidence must be lead to establish the time it takes for such duties to be completed and why they were completed in the way they were. The respondent points out that not all of the tasks outlined by the appellant would have been performed by one single officer.

[40] With regard to the issue of waiver, the respondent refers to paragraph 31 of the decision, set out above, and says that, on the evidence, the trial judge was entitled to make the finding that he did, namely, that the respondent had waived his s. 10(b) right to counsel, and therefore the time spent in facilitating contact with counsel was unreasonable delay. The respondent relies upon MacCoubrey, at paragraph 42:

Unless a detainee, having been fully informed of his or her s. 10(b) Charter right, invokes the right there is no correlative duty upon the police to have the detainee exercise the right to contacting counsel: Bartle, at paras. 18, 21. While, in an ordinary case, the police might voluntarily provide an arrestee access to consult counsel without criticism despite not being requested to do so, that option is not reasonably available in a drinking/driving investigation where the state intends to rely on the s. 258(1)(c)(ii) evidentiary process at trial. In other words, a detour by the police to implement unrequested access to counsel has serious ramifications as to whether it can reasonably be said that breath samples were taken as soon as practicable.

[41] The respondent suggests as well that no issue of waiver arises until there is evidence that s. 10(b) has been violated. On evidence of violation, the onus then shifts to the Crown to lead evidence to rebut the allegation of a Charter breach, or to lead evidence that the accused waived his right under s. 10(b). If there is no evidence of a Charter breach, the issue of waiver does not arise.

[42] The respondent goes further and suggests that, should I accept the appellant’s argument that there was no waiver of the right to counsel, I would have to find a s. 10(b) breach that was not previously litigated, but also then determine why the officer, aware that the respondent was ‘from Toronto’ did not provide for a Toronto lawyers list, Toronto phonebook or ask the respondent if he had a lawyer in Toronto or if he could call someone who could facilitate Toronto counsel. That s. 10(b) breach would then have to be assessed in the context of s. 24(2).

[43] The Respondent requests that the appeal be dismissed, or, in the alternative, that a new trial be ordered. Paragraph 82 of the Factum says this:

…this is not an appropriate case for a substituted decision. The Appellant’s argument, if accepted, would place the Appellant [sic] Court in a position where the findings of Justice Buttazzoni that are not clear and overriding errors are to be arduously adhered to. That would include being bound by the findings of fact, credibility, and reliability.

Standard of Review

[44] A summary conviction court is to determine on the whole of the evidence whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered: R. v. Yebes.

[45] On appeal, the court should only allow an appeal if:

(a) It cannot be supported by the evidence; or (b) It is clearly wrong in law; or (c) It is clearly unreasonable; or (d) There was a miscarriage of justice.

R. v. Rivera, 2011 ONCA 225, at para. 32

Analysis

[46] Section 258(1)(c) of the Criminal Code provides that the results of an approved instrument analysis are conclusive proof that the concentration of alcohol in an accused’s blood at the time of the analyses and at the time of the driving are the same.

[47] In order for the Crown to rely, at trial, on the presumption of identity afforded by s. 258(1)(c), the Crown must prove beyond a reasonable doubt that the breath samples that an accused is compelled to provide were obtained “as soon as practicable” after the alleged offence.

[48] The Ontario Court of Appeal decision in Vanderbruggen provided some guiding principles regarding the phrase “as soon as practicable”, which were succinctly summarized by the Summary Conviction Appeal Judge in McDonald, at para. 4:

(a) That there was no requirement that the testing be taken as soon as possible. (b) The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably. (c) 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 tests 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 was in custody. (d) The question of whether a breath test was taken as soon as practicable is an issue of fact for the trial judge. (e) There must be sufficient evidence upon which the trial judge could conclude that the samples were taken as soon as practicable. (f) The provisions should not be interpreted so as to require an exact accounting and every moment chronology.

[49] In its recent decision in Singh, the Court of Appeal repeated the words of Rosenberg J.A., upholding the principle that the Crown is not required to provide a detailed explanation of what occurred “during every minute that the accused is in custody”: para. 13.

[50] The Court of Appeal went on to say the following, at para. 15:

It is worth repeating that 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 or reliable evidence to prove an accused’s blood-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. As Rosenberg J.A. said in Vanderbruggen, at para. 12, ‘The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably.’

[51] The trial judge’s Reasons indicate that he in fact, despite having set out the principles in Vanderbruggen, engaged in a minute examination of the time from arrest of the respondent to the taking of the second sample.

[52] He identified five discrete periods, which he ultimately concluded resulted in unreasonable delay because of a lack of evidence, or for which he characterized the conduct of the police as unreasonable.

1:20 a.m. to 1:32 a.m.

[53] The first of the five periods relates to the time between arrest and departure from the scene. This is a 9 minute period. The trial judge was of the view that there was no evidence to account for those 9 minutes; specifically, he said the evidence provided no answer to the three questions he raised, that is: (i) when back up was called; (ii) was backup readily available; and (iii) when did backup actually arrive on scene.

[54] As I have indicated earlier in these reasons, there was, in fact, direct evidence on the issue of the 9 minute delay between arrest and departure from the scene, and about what occurred during those 9 minutes. The portion of the transcript of the evidence of Constable MacKay, reproduced above, provides evidence to the effect that, between 1:23 a.m. and 1:34 a.m., the following events transpired:

(a) Constable MacKay made a radio request that the Intoxilyzer machine be turned on; (b) He requested a tow truck and another unit to relieve the arresting officers and to wait for the tow truck to arrive; (c) He waited for the other unit to arrive; and (d) They departed for the station, arriving there at 1:34 a.m.

[55] Although not providing precise times for when back up was called, if it was available, and when did it arrive on scene, Constable MacKay’s evidence establishes that another unit was readily available and arrived within minutes of being called, and, that steps were taken, within that time frame, to begin the process of activating the breathalyzer machine.

[56] The Crown was not required to do more than it did in leading the evidence of Constable MacKay. The Crown was not required to provide a detailed explanation of what occurred during every minute, although the evidence of Constable MacKay in fact did so. The trial judge erred when he indicated that the only evidence on that specific time period came from Constable Porringa.

1:34 a.m. to 1:41 a.m.

[57] The second period which the trial judge described as unexplained delay related to the time between arrival at the detachment and the respondent being escorted into the booking area, a period of six minutes, during which the respondent remained seated in the cruiser.

[58] A review of the trial transcript discloses the following. At 1:35 a.m., Constable MacKay had exited the cruiser, entered the detachment, turned on the video, and had begun doing quality assurance checks and getting the Intoxilyzer 8000C prepared for the respondent’s breath (Transcript, page 88). During that time frame, Constable MacKay also performed other duties, which he described in his evidence, i.e. inputting information into the alcohol influence report, and performing a diagnostic check and calibration check. The instrument preparation was completed and the machine was ultimately ready to receive the first sample of breath at 1:49 a.m (Transcript, page 89).

[59] According to the evidence provided by the video, Constable MacKay returned to the booking-in area/sally port and is observed, at 1:39:41 a.m. gesturing to Constable Porringa. At 1:39:46 a.m., Constable Porringa is observed exiting the cruiser and assisting the respondent to go from the rear of the cruiser to the booking-in area. Some two minutes later, at 1:42:22, after Constable Porringa had removed the handcuffs from the respondent, the respondent is observed conversing with the duty sergeant.

[60] The four or even six minutes, described by the trial judge as being unexplained (and therefore unreasonable delay) are largely accounted for by Constable MacKay engaging in tasks to facilitate the taking of the breath samples, and the respondent being escorted into the booking-in area.

1:43 a.m. to 1:52 a.m.

[61] The third period of delay called into question by defence counsel and accepted as such by the trial judge is the period from 1:43:30 a.m. and 01:52:00 or 01:53:00 a.m. This is the period of time that was involved in directing the respondent to the list of lawyers, and facilitating his contact with counsel. It appears to be undisputed that the Respondent was in the room with the telephone for an eight-minute period. The trial judge found that the time to implement the right to counsel was 11 minutes.

[62] According to the evidence of Constable MacKay, the respondent was brought into the breath room at 1:52 a.m. (Transcript, page 90). The video shows that the respondent entered the breath room at 1:53 a.m. Clearly, the time on the video and Constable MacKay’s watch or clock, are not synchronized. I do not find that this discrepancy affects the outcome of my analysis.

[63] The issue with this third period of time is whether or not it was reasonable in the circumstances for the police to assist the Respondent to consult counsel.

[64] The trial judge concluded that the respondent had waived his right to counsel at the roadside, and, that “the evidence is ambiguous as to whether the accused subsequently expressed a clear change of mind about consulting counsel.”

[65] The trial judge relied on a portion of the cross-examination of Constable Porringa, set out in paragraghs 28 and 29 of his Reasons. That portion of the testimony of the officer clearly establishes that, in the officer’s view, at the point in time when the respondent was detained at the roadside, he expressed a clear waiver of the right to counsel.

[66] However, what transpired and the exact words spoken between Constable Porringa and the respondent about consulting counsel at the station, reveals that the officer was concerned about the respondent’s appreciation of what was available to him.

[67] During examination in chief, there was the following questions and answers:

Q. Okay. A. At 1:39 I asked him if he’d like to call a lawyer and again he didn’t seem to care as he said whoever. He said he was from Toronto. He said he didn’t care and he just wanted to go..to his hotel and sleep. Q. Okay. When he said he didn’t care he would just rather go to his hotel room, did you do anything else regarding rights to counsel? A. Yeah, I again asked him, explained that, you, it’s your right to call a lawyer, at which time he said he didn’t know because he was from Toronto. So I showed him a list of all the lawyers that we provide in our booking in room, at which time he initially made a decision. Q. Okay. A. Called Baker and he called a few lawyers until we reached one.

(Transcript, pages 22-23).

[68] Later, in re-examination, the following exchange took place between the Crown and the officer:

Q. Okay. Now I’d like to take you back to 1:39. Can you please articulate to this court, verbatim if possible, the conversation you had with Mr. Danton about his rights to counsel? So what your question was, what his answer was. A. “Would you like to call a lawyer?” Q. And what was his exact answer in full to that question? A. “No.” That was the first and then I asked him again “Would you like to call a lawyer?” He said “I’m from Toronto. Okay, whoever.” Q. Did you ask more than twice? A. No. Q. And is there a reason you asked a second time? A. Because he said no and he said he was from Toronto. Q. Okay. So his answer was “no, I’m from Toronto” or just “no”? A. Yeah, it was – from what remember and my notes, he said “no, I’m from Toronto”. Q. That was his first full answer? A. Yes. Q. Okay. You asked a second time? A. Yes and he says “okay, whoever”. Q. Okay. So when you hear the answer “no, I’m from Toronto” is there something in that that made you ask a second time? A. Yeah, generally, in my experience, a lot of times when we arrest someone from out of town they don’t realize that they can call a local lawyer, that we do have a list of names if they don’t know a lawyer.

[69] This last exchange provides evidence of the officer’s motivation for repeating the right to counsel and taking steps to implement that right. He was not sure that the respondent fully appreciated what was available to him. In other words, the officer, at that point in time, had not formed the opinion that the respondent had expressed a clear and unequivocal waiver. This last exchange was also consistent with the trial judge’s finding that “The evidence is ambiguous as to whether the accused subsequently expressed a clear change of mind about consulting counsel”.

[70] On the evidence, the trial judge could reasonably have concluded that Constable Porringa’s conduct in facilitating access to counsel was reasonable in the circumstances.

[71] The trial judge relied upon the MacCoubrey decision in support of the conclusion that once an accused has waived their right to counsel it constitutes unreasonable delay to take further steps to encourage or implement this right. However, the facts in that case are significantly different than the facts that were before the trial judge:

(a) The words “I am not impaired” in MacCoubrey were not equivocal as those words conveyed that the accused did not feel that he required legal advice. The respondent’s response of “I’m from Toronto. Whoever”, is vastly different than the words in MacCoubrey; (b) In MacCoubrey, “the respondent’s consultation with duty counsel engineered by the police amounted to custodial acquiescence and not a voluntary change of mind on the part of the respondent.” (para.45). In the case at bar, the respondent was directed to a list and placed his own calls. In MacCoubrey, the officer placed the call then required the accused to speak to duty counsel; (c) In MacCoubrey, the judge found that 33 minutes was a “significant delay occasioned by the police unnecessarily injecting a duty counsel consultation into the circumstances of detention.” (para. 45). The time spent in facilitating the respondent’s right to counsel was 11 minutes.

[72] However, in light of the facts of this case, I need not address the issue of waiver of the right to counsel; the period of “delay” involved was actually very short. The Intoxilyzer was ready to receive a sample at 1:49 a.m. The respondent entered the Breathalyzer room at 1:52 a.m. according to Constable MacKay’s evidence (Transcript, page 90). Therefore, the time period in question is only 3 minutes long, not 11 minutes.

[73] Whether or not the officer’s conduct in facilitating access to counsel was reasonable, in this case, must be considered in light of the fact that the actual delay, if any, in connection with that activity, is of 3 minutes only. For the purpose of these Reasons, it is not necessary for me to determine whether there was a waiver to the right to counsel, or whether or not the police acted reasonably.

1:52 a.m. to 2:10 a.m.

[74] I turn now to the fourth period of time considered by the trial judge, that is, the approximately 18 minute period between the time the respondent entered the breathalyzer room, 1:52:00 or 1:53:20 a.m., and the completion of the first breath sample at 2:10:53 a.m. Six of those 18 minutes are taken with Constable MacKay inputting data into the breath machine prior to the taking of the first sample, and with Constable MacKay questioning the respondent about his medical conditions and sleep pattern.

[75] At paragraph 38 of his Reasons, the trial judge questions whether it was necessary for Constable MacKay to be inputting data into the machine prior to the taking of the first sample. Likewise, he questions the necessity of the inquiries about the respondent’s medical condition or sleep pattern. He concludes that the six-minute period constituted unreasonable delay.

[76] With respect, that finding ignores the following evidence on both the inputting of data, and the respondent’s medical and physical condition:

(a) Constable MacKay testified that he entered information about the arrest and where the breath test is taking place; he typed that information onto the screen. Specifically, the officer said this: “that’s all on the screen as I type it in and then once I’m satisfied all of the information is entered under Mr. Danton’s then I wait for the instrument to go through its preparation to take a breath.” (Transcript, page 92). This suggests that such inputting of data relating to a specific accused whose breath is about to be analyzed is standard procedure. (b) The respondent had advised the officers that (i) he had been working for many hours (14) prior to his arrest and he was very tired (Transcript, page 22 and 116); (ii) he suffered from sciatica (Transcript, page 22 and 53); and (iii) he was taking pain killing medication (Transcript, page 53). It was not unreasonable for Constable MacKay to make the inquiries he did.

[77] The trial judge’s finding that what had transpired during the 6 minute period was explained, that that period of time constituted unreasonable delay cannot be sustained, on the above evidence.

2:10 a.m. to 2:32 a.m.

[78] The final period of time analyzed by the trial judge is 5 of the 22 minutes that elapsed between the two breath samples. Defence counsel acknowledged at trial that 17 minutes between the taking of two samples was not unreasonable.

[79] At paragraph 39, the trial judge noted, quite correctly, that there was no evidence to explain that five-minute time period. Once again, however, there is no requirement for “an exact accounting of every moment in the chronology…”: Singh, at para. 15. Although the 5 minutes are unexplained, in light of the foregoing analysis and when viewed as part of the total unexplained time, this delay cannot be characterized as unreasonable.

Conclusion

[80] A total of 70 minutes elapsed from the time of arrest until the taking of the second sample. Of that total, the trial judge found 37 minutes to be unexplained/unreasonable. However, the foregoing analysis shows that the evidence at trial explained all but some 9 minutes of those 37 minutes characterized by the trial judge as unexplained/unreasonable.

[81] I reiterate the words of Juriansz J.A. in Singh, at para. 15:

It is worth repeating that 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 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.

[82] Considering the whole chain of events, in the context of the outside limit of two hours permitted by the Criminal Code, from the time of the arrest to the taking of the first sample, and, applying the “as soon as practicable” requirement with reason, the only reasonable conclusion to be reached is that the tests were taken as soon as practicable.

[83] There is nothing to suggest that the police were anything but diligent in their attempts to obtain the breath samples “as soon as practicable”.

[84] The evidence does not cast any doubt on the reasonableness of any of the delay periods discussed in these Reasons. It is only where the evidence casts doubt on the reasonableness of any delay, that the essential precondition to the Crown relying upon the presumption of identity in s. 258(1)(c) will be called into question.

[85] The appeal is granted, and the acquittal is set aside. Based on the Intoxilyzer readings, the offence of over 80 mgs is made out. I will substitute a conviction to the offence set out in s. 253(1)(b).

[86] The matter is remitted to the trial judge for sentencing.

The Honourable Madam Justice Louise L. Gauthier

Released: June 12, 2017