R. v. Hill, 2017 ONSC 6988
CITATION: R. v. Hill, 2017 ONSC 6988 COURT FILE: 1849/16 DATE: 2017 11 22
ONTARIO SUPERIOR COURT OF JUSTICE (Summary Conviction Appeal Court)
B E T W E E N:
HER MAJESTY THE QUEEN Respondent
- and -
DONALD HILL Appellant
COUNSEL: A. Khoorshed, for the Respondent S. Menzies, for the Appellant
HEARD: October 18, 2017, at Milton
REASONS FOR JUDGMENT
[on appeal from the decision of Justice LeDressay On January 30, 2017]
D. E. Harris J.
[1] In this appeal from his conviction for “over 80” the Appellant argues that the first breath sample was not taken “as soon as practicable” as required by the Criminal Code.
[2] In a drinking and driving case, the results from the accused’s breath samples provided at the police station are not sufficient, without more, for the Crown to prove its case.
[3] The alcohol concentration measured by the breathalyzer is, due to the metabolic processes in the human body, necessarily different than the concentration at the time of driving. In order to assist in proof of the allegation of driving over the legal limit, the results must somehow be related back.
[4] To this end, Parliament has enacted what is commonly termed the “presumption of identity” which, upon certain conditions being met, advances a legal fiction that the alcohol concentration at the police station is identical to the concentration while driving.
[5] Without this statutory assist, the prosecution would have to go to the costly, cumbersome and time consuming effort of calling an expert toxicology witness to relate the readings back. While this does occur occasionally, in the average case, the prosecution uses the presumption of identity and proves it by viva voce evidence and the Section 258(1)(g) certificate.
[6] The presumption of identity is found in Section 258(1)(c) of the Criminal Code. There are several main prerequisites to its operation:
- The breath samples must be taken by a qualified technician using an approved machine;
- The first sample must be taken not more than two hours after the alleged offence; and
- The samples must be taken “as soon as practicable” after the alleged offence (see Section 258(1)(c)(ii).
[7] If the defence is successful at leaving the court in a reasonable doubt with respect to any one of these three, the presumption of identity falls and the accused must be acquitted.
[8] There has been an inordinate amount of judicial ink spilled on the question of the meaning and application of the “as soon as practicable” requirement in Section 258(1)(c)(ii). This subsection is a frequent target of defence attack on the presumption because, based on the language of the provision, there is an elasticity to its time based requirement. It is open to interpretation. Unlike the other pre-conditions of the presumption, it does not always result in a definite, clear answer.
[9] The pertinent facts in this case are that the Appellant was pulled over by the police at 11:12 p.m. The officer and the Appellant arrived at the OPP detachment in Burlington at 11:44 p.m. The first breath sample was commenced at 12:48 a.m., one hour and 36 minutes after the time of the alleged offence.
[10] The Appellant spoke to duty counsel, concluding at 12:15 a.m. The arresting officer’s testimony was clear that the breath technician was at the station when the arresting officer arrived with the Appellant. The breath technician let them in. The detachment was otherwise empty at the time. The breath technician was not available at the trial and did not testify.
[11] There was no evidence of what the breath technician did other than take the breath samples as evidenced by the Section 258(1)(g) certificate introduced into evidence.
[12] The “as soon as practicable” problem arose because there was no direct evidence of what occurred between 12:15 a.m. and the first breath sample at 12:48 a.m., a gap of 33 minutes.
[13] Did the 33 minute unexplained gap between the end of the call to duty counsel to the taking of the first sample raise a doubt that the sample was not taken “as soon as practicable” after the alleged offence?
[14] The trial judge held the 33 minute period did not raise a doubt about the operation of the presumption. Importantly, he made no factual findings about what happened in the 33 minute gap. The trial judge said at pp. 60-61:
The fourth argument raised by the Defence, which in my view is the one that carries the most weight with respect to the as soon as practicable issue, is that between 12:15 a.m. on May 29th, 2016, when Mr. Hill finished his telephone call with the Duty Counsel, there is no evidence as to what took place between that time, which is 12:15 a.m., and the administering of the first test at 12:48 a.m., which is some 33 minutes.
Of course, the case law is clear that not every second has to be accounted for, on behalf of the Crown. I note that Mr. Hill was first observed driving at about 11:11 p.m. on May the 28th, and the first test was administered at 12:48 a.m. on May the 29th, which is some one hour and 37 minutes after the initial stop. So, it is well within the two-hour time period.
In the totality of the circumstances and what is before me, and applying the test set out by the Ontario Court of Appeal, that I have already read out, in both the Vanderbruggen case and the Singh case, in my view the fact that there was some 33 minutes here that was unexplained, in the totality of the circumstances, taking into consideration everything that occurred, it does not fall outside the ambit of whether these tests were taken as soon as practicable.
As Justice of Appeal Rosenberg said in Paragraph 14 of Vanderbruggen,
“there was no evidence that either the arresting officer of the technician acted unreasonably. The record only shows that they were attentive to their duties and to the need to administer the test to the appellant as soon as practicable. There was no evidence that the officers gave unreasonable priority to any other task.”
Taking into consideration, as I say, the totality of the circumstances, the totality of the timeline, and the fact that there was some 33-minute gap in the evidence between when Mr. Hill finished speaking with Duty Counsel until the first breath test was taken, in my view, in looking at the Court of Appeal authority, it does not amount to a defence to the Over 80 charge.
[15] In my view, this conclusion is unsustainable based on the jurisprudence interpreting the “as soon as practicable” requirement in Section 258(1)(c)(ii).
[16] The leading case in Ontario as the trial judge recognized is R. v. Vanderbruggen, [2006] O.J. No. 1138 (C.A.). In that case, the Court of Appeal, reflecting on the prior jurisprudence, defined the phrase in this way,
12… [the as soon as practicable provision] means nothing more than that the tests were taken within a reasonably prompt time under the circumstances…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…
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.
[Citations Omitted]
Also see R. v. Seed, [1998] O.J. No. 4362 (C.A.) at paras. 7-8
[17] The “as soon as practicable” requirement is highly technical. The rationale behind the provision is more than a little obscure. Judgments in the area have not unearthed a substantial rationale or policy basis. The most that can be said is that it ensures that the first sample is taken as close to the time as driving as is reasonably possible. The closer to the time of driving, the closer to reality is the fiction established by the presumption. The presumption can also be seen as attempting to minimize the accused’s length of detention at the police station.
[18] Much of the more recent appellate jurisprudence is rightly concerned with the provision’s overly strict and non-contextual use in defeating the presumption. This has occurred frequently over the years. In Vanderbruggen, supra the late Justice Rosenberg wrote at the end of his judgement dismissing the Appellant’s appeal from conviction:
16 … To conclude, these provisions, which are designed to expedite trials and aid in proof of the suspect's blood alcohol level, should not be interpreted so as to require an exact accounting of every moment in the chronology. We are now far removed from the days when the breathalyser was first introduced into Canada and there may have been some suspicion and scepticism about its accuracy and value and about the science underlying the presumption of identity. These provisions must be interpreted reasonably in a manner that is consistent with Parliament's purpose in facilitating the use of this reliable evidence.
[19] I approach this appeal in the same spirit. “As soon as practicable” should not be applied in a way divorced from its limited, one dimensional purpose. Police only have to act reasonably and be reasonably prompt. The Crown does not have to account for every minute of a time gap. Practically speaking, it should be a rare case in which the defence is available to block the operation of the presumption by invoking the as soon as practicable requirement.
[20] There was no controversy about what the facts were at trial nor is there on this appeal. There were several problems for the Crown. First, the breath technician was at the detachment before the arresting officer and let him and the Appellant in. The breath technician had plenty of time to get the machine ready during the almost 30 minutes in which the Appellant was exercising his right to counsel. There was no evidence of any other case or other duties taking up his time.
[21] By the time the Appellant was ready to blow into the machine, the machine must have been ready. Both counsel on appeal agreed that this was the case.
[22] Second, there was no direct or circumstantial evidence indicating what happened in the 33 minute gap between when the Appellant was finished with duty counsel and when he provided the first sample into the machine.
[23] As is evident from the excerpt I have set out above from his reasons, the trial judge made no effort to make findings about what happened in the 33 minute space between the end of the exercise of the right to counsel and the first breath sample. I am left with no evidence or judicial findings of what occurred. This is to be contrasted with R. v. Price, 2010 ONSC 1898, [2010] O.J No. 1587 (S.C.) in which the trial judge drew conclusions of what likely happened in the unexplained period of time relied upon by the defence.
[24] While I can use my judicial experience to infer that the breathalyzer technician would have interviewed the Appellant and filled out the breathalyzer form in the 33 minute period, the fact is the trial judge did not make this finding. Even if I could and should fill in the evidentiary lacunae from my position sitting on appeal, I do not believe it would make any real difference.
[25] I accept that very little evidence is needed to demonstrate the police were acting reasonably and promptly. In Vanderbruggen, supra the arresting officer merely glimpsed the breathalzyer technician preparing the machine. That was all. Here there was not even this minimal evidence.
[26] The first sample must be taken as soon as practicable after the time of the offence. Police efficiency must be evaluated within the context of the entire one hour and 36 minute period, not based only on the unexplained period of time: R. v. Brigham [1994] O.J. No. 3075 (S.C.) at para. 24; R. v. Singh, 2014 ONCA 293, [2014] O.J. No. 1858 (C.A.) at para. 14.
[27] Here, the total period from the traffic stop to the first sample was one hour and 36 minutes. This is 24 minutes short of the maximum time before the running of the 2 hour time prescribed by the presumption. The unexplained delay was 33 minutes or almost exactly one-third of the total time period from driving to providing the sample. This is a substantial proportion of time in context.
[28] In light of the total lack of explanation or findings by the trial judge with respect to the 33 minute period of time, the Crown did not prove the police acted reasonably and were reasonably prompt. There was no evidence upon which a reasonable finder of fact could find that the “as soon as practicable” condition was proved beyond a reasonable doubt. The verdict is unreasonable: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381.
[29] The appeal is allowed, the conviction vacated and an acquittal entered.
D. E. Harris J.
DATE: November 22, 2017
CITATION: R. v. Hill, 2017 ONSC 6988 COURT FILE: 1849/16 DATE: 2017 11 22
ONTARIO SUPERIOR COURT OF JUSTICE (Summary Conviction Appeal Court)
RE: Her Majesty the Queen v. Donald Hill
COUNSEL: A. Khoorshed, for the Respondent S. Menzies, for the Appellant
REASONS FOR JUDGMENT [on appeal from the decision of Justice LeDressay On January 30, 2017]
D. E. Harris J.
DATE: November 22, 2017