Court File and Parties

COURT FILE NO.: CR-16-50000051-00AP DATE: 20170615 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – NICOLE ROJCIK Appellant

Counsel: Danielle Carbonneau, for the Crown, Respondent Heather Spencer, for the Appellant

HEARD: June 14, 2017

R.F. GOLDSTEIN J.

REASONS FOR JUDGMENT on summary conviction appeal

[1] At 2:53 am on January 16, 2015 Constable Nicole Bedard received a radio call about a car at the side of the road. She arrived on scene at 3:00 am. The Appellant was in the car. At 3:10 am Constable Bedard made a demand for a sample of her breath for the approved screening device. The Appellant failed. Constable Bedard arrested her. She transported the Appellant to 22 Division. They arrived at 3:30 am. They waited outside the sally port. At 3:52 am the Appellant was paraded before the officer-in-charge of the station. The Appellant provided breath samples at 4:29 am and 4:48 am. Her readings were 121 mg and 125 mg of alcohol in 100 ml of blood.

[2] The Appellant was tried by Justice Budzinski of the Ontario Court of Justice. There were two key issues: first, whether Constable Bedard made the breath demand without reasonable suspicion that there was alcohol in her body; and second, whether the breath samples were taken “as soon as practicable”. Justice Budzinski found that there was a basis for the officer to suspect that there was alcohol in the Appellant’s body. The Appellant does not appeal from that finding.

[3] The trial then focussed on the “as soon as practicable” requirement. There was a 22-minute period from 3:30 am to 3:52 am where the Appellant and Constable Bedard waited outside the sally port. The trial judge found that this there was no direct evidence regarding the reason or the 22-minute wait. The trial judge said this:

It wasn’t a lack of diligence on her part or negligence on her part or conscious decisions on her part. She was subject to that gate being opened before you could be transported in.

The reason for that gate to be opened was not given by any direct evidence, and in some cases that both counsel referred to, there is some evidence as to the breath technician being occupied with another person.

In this case the officer merely speculated and it’s a reasonable speculation based on her experience that it was because they were busy with other things in the station at the time.

[4] The trial judge then went on to find that the 22-minute delay did not require specific explanation. He then went on to say:

Although that would not necessarily be enough. But I do find that the explanation given by the officer as far as the gate and her speculation as to what may be happening, would be sufficient considering the 22-minute delay.

[5] Ms. Spence, for the Appellant, argues that the trial judge speculated impermissibly. The 22-minute delay called for explanation in the context of the entirety of the investigation. There was no explanation.

[6] I respectfully disagree, for two reasons: first, the trial judge was permitted to rely on his vast experience. He relied on R. v Belchevski, 2012 ONSC 6158 in this regard. Second, the trial judge evaluated the 22-minute period of time in the overall context of the case and found that that it was reasonable. In my view, he did not err in doing so.

[7] I deal first with the question of speculation. Ms. Spence aruges that the trial judge did not draw an inference of fact – he drew an inference of speculation. That distinguishes it from Belchevski.

[8] The trial judge said this:

I’ve read the decision of Justice Trotter in Christopher Belchevski and I find that within the context of the case, the 22 minutes here is not unusual delay or one requiring any further explanation.

[9] In Belchevski, Trotter J. (as he then was) commented at para. 36:

In determining whether the police acted reasonably in the circumstances, trial judges may draw reasonable inferences based on the totality of the evidence. Trial judges may also draw upon on their experience, gained through adjudicating over countless drinking and driving cases, about routine procedures at police stations: see R. v. Price (2010), 2010 ONSC 1898, 94 M.V.R. (5th) 23 (Ont.Sup.Ct.).

[10] The trial judge has presided over countless drinking and driving cases in this jurisdiction. He drew on that experience in finding that a 22-minute wait outside a sally port is not unusual. Furthermore, there was a basis for it in the evidence. Constable Bedard testified as follows in cross-examination:

Q: And then you get to 22 Division and you wait for 22 minutes before entering the sally port? A: That’s right. Q: And that’s unusually amount of time? A: I actually wouldn’t agree. Q: Okay. A: But… Q: I’ve done probably a couple hundred drinking and driving cases. Many of out the, out of Toronto. Over 100 out of Toronto. Twenty-two is unusual time. Let’s be real A: I’ve arrested many and I’ve sometimes waited upwards an hour at some point. Simply because, I don’t know what’s going on at some point. Simply because, I don’t know what’s going on in the station but there’s always things’ There could be people being released. There could be people being arrested ahead of me. I don’t know what’s going on in the station, but 22 minutes is, it doesn’t happen all the time, but I wouldn’t say it’s out of the ordinary either.

[11] Thus, although the trial judge called it “reasonable speculation” as I read his reasons what he really meant that under the circumstances an experienced officer – one with 18 years of experience as a police officer – could comment on the likely reasons for the 22-minute delay. He viewed that through the prism of his own vast experience. It is no great mystery why a police officer might be required to spend 22 minutes waiting to enter the sally port of an urban police station in a large and busy metropolitan area. It is not the same thing, for example, where a police officer might have to wait for an hour for an approved screening device to be delivered to the roadside from a police station 10 minutes away. That kind of delay surely would call for an explanation. The trial judge made no palpable and over-riding error when he found that no further explanation was required in the circumstances of this case.

[12] I now turn to the overall period from the time Constable Bedard arrived on scene until the samples were taken. Some reference to the scheme of the Criminal Code is in order to explain this point. The Crown is required to prove beyond a reasonable doubt that breath samples were taken “as soon as practicable” in order to rely on the presumption of identity: Criminal Code, s. 258(1)(c). The presumption of identity simply means that if the samples are taken as soon as practicable (and in any event no more than two hours) after the offence is alleged to have occurred, then the Crown is entitled to rely on the breath certificates. The breath certificates set out absolute proof that the accused’s blood alcohol concentration at the time of the samples was the same as at the time of the offence.

[13] It is the overall period of time that must be assessed. Whether or not samples are taken as soon as practicable is a question of fact: R. v. Vanderbruggen (2006), 2016 C.C.C. (3d) 489, [2006] O.J. No. 1138 (C.A.) at para. 14. In the absence of a palpable and over-riding error findings of fact are entitled to deference: R. v. Coates (2003), 176 C.C.C. (3d) 215 (Ont.C.A.) at para. 20.

[14] As the Court explained in Vanderbruggen, “as soon as practicable” simply means nothing more than the tests must be “taken within a reasonably prompt time under the circumstances”: para. 12. The Court went on to say at para. 13:

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.

[15] The Court of Appeal further explained in R. v. Singh, 2014 ONCA 293 at para. 15 that requiring “an exact accounting of every moment form the time of the offence to the second test runs counter” to the purpose of s. 258(1)(c). See also: R. v. Seed (1998), 114 O.A.C. 326 (C.A.) at para. 7.

[16] The amount of time itself is also of no moment. As Durno J. pointed out in R. v. Schouten, [2002] O.J. No. 4777 (Sup.Ct.) at paras. 9-10, what is “as soon as practicable” depends on the circumstances of the case:

The phrase "as soon as practicable" has been the subject of much litigation. As His Honour held, there is no evidentiary burden on the Crown to account for every minute between the time of arrest and the administration of the first test. The focus instead is whether the police acted reasonably and expeditiously in all the circumstances: R. v. Seed, [1998] O.J. No. 4362 (C.A.). In Seed, an unexplained 14 minute time period, where the time between the arrest and the first sample was 31 minutes, was found not to have resulted in the tests not being taken as soon as practicable.

However, each case must be examined on its own facts. One hour and forty-six minutes could be "as soon as practicable": R. v. Letford (2001), 150 C.C.C. (3d) 225 (Ont.C.A.); One hour and thirty minutes might not be "as soon as practicable" in another: R. v. Lightfoot (1980), 4 M.V.R. 238 (Ont. C.A.).

[17] In this case, the trial judge made reference to the 22-minute delay in the context of the whole of the reasons. He found that considering the time from offence to breath sample the 22 minutes was reasonable. To go further, the trial judge would have been imposing a test of “as soon as possible” rather than “as soon as practicable.” I see no error.

[18] The appeal is dismissed.

R.F. Goldstein J.

Released: June 15, 2017