Court File and Parties

COURT FILE NO.: 42/18 DATE: 20181212 ONTARIO SUPERIOR COURT OF JUSTICE

RE: Her Majesty the Queen v. Miguel Santiesteban

BEFORE: K.L. Campbell J.

COUNSEL: Melissa Mandel, for the Crown/appellant Miguel Santiesteban, the accused/respondent, unrepresented

HEARD: December 12, 2018

Endorsement

[Summary Conviction Appeal]

A. Introduction

[1] The respondent, Miguel Santiesteban, was tried by the Honourable Madam Justice L. Pringle of the Ontario Court of Justice on charges of: (1) operating a motor vehicle while his ability to do so was impaired by alcohol; and (2) operating a motor vehicle with a blood-alcohol concentration that exceeded 80 mgs. of alcohol per 100 mls. of blood. The offences were allegedly committed in Toronto on or about July 10, 2016. At the conclusion of his trial, the respondent was acquitted of both charges.

[2] The Crown now appeals against the acquittal of the respondent on the charge of operating a vehicle with more than 80 mgs. of alcohol per 100 mls. of his blood. The Crown contends that the trial judge erred in concluding that the Crown had failed to establish that the respondent’s breath samples were taken “as soon as practicable” within the meaning of s. 258(1)(c)(ii) of the Criminal Code, R.S.C. 1985, chap. C-46.

B. The Basic Factual Chronology

[3] The relevant chronology of events in relation to the investigation and arrest of the respondent and the taking of his breath samples on July 10, 2016, is as follows:

• At 12:33 a.m. the respondent was stopped by the investigating police officer, Cst. Adrian Diaconu, of the Toronto Police Service, at a “Reduce Impaired Driving Everywhere” (R.I.D.E.) program on Oakwood Avenue in Toronto. The respondent was driving a Dodge Caravan. The respondent admitted having consumed a “few drinks” at a festival he had just attended, and the officer noticed that the respondent had watery, bloodshot eyes, his speech was slurred, and there was a strong odour of alcohol coming from his direction.
• At 12:36 a.m. the police officer formed the reasonable suspicion that the respondent had consumed alcohol and had been driving a motor vehicle, and he demanded, pursuant to s. 254(2) of the Criminal Code, that the respondent provide a sample of his breath into an approved screening device. When the respondent exited his vehicle to comply with this demand, the officer noticed the respondent “stumbling” toward the police cruiser, unsteady on his feet.
• The respondent seemed to have some initial difficulties providing a sample of his breath but, at 12:45 a.m., the respondent provided an adequate sample of his breath and the approved screening device registered a “fail.” Given the calibration of the device, this “fail” reading indicated that the respondent had a blood-alcohol concentration of greater than 100 mgs. of alcohol per 100 mls. of his blood.
• At 12:48 a.m. the respondent was arrested for impaired operation of a motor vehicle. The officer handcuffed the respondent, conducted a brief pat-down search, and placed the respondent in the back of the police cruiser.
• At 12:50 a.m. Cst. Diaconu advised the respondent of his right to counsel as required by s. 10(b) of the Canadian Charter of Rights and Freedoms.
• At 12:55 a.m. the officer left the scene on Oakwood Avenue, and transported the respondent to the 32 Division police station. They arrived in the parking lot of the station at 1:09 a.m. The officer announced their arrival in the parking lot, to the officer-in-charge of the station, by means of phone located outside the station, and they waited their turn to enter the sally port.
• Cst. Diaconu and the respondent entered the sally port at the 32 Division station at 1:18 a.m., and the respondent was paraded before the officer-in-charge of the station at 1:23 a.m. This parading process was concluded at 1:32 a.m.
• After he was permitted to use the washroom, at 1:52 a.m. the respondent was taken to the room where the breath technician was located.
• At 2:04 a.m. the respondent provided the first sample of his breath into an approved instrument, which revealed that he had a blood-alcohol concentration of 140 mgs. of alcohol per 100 mls. of blood.
• At 2:27 a.m. the respondent provided his second breath sample, which revealed that he had a blood-alcohol concentration of 130 mgs. of alcohol per 100 mls. of blood.
• The respondent was, throughout his dealings with the police, cooperative and compliant, and he was eventually released from custody and sent home in a taxi.

C. The Reasons for Judgment of the Trial Judge

[4] In written reasons for judgment, Pringle J. concluded, among other things, that she was not satisfied beyond a reasonable doubt that the respondent’s breath samples were taken “as soon as practicable.” More particularly, Pringle J. concluded that, while Cst. Diaconu “acted reasonably and professionally throughout his interactions” with the respondent, he was “completely unable to explain” the “delay of 14 minutes” at the 32 Division station, between 1:09 a.m., when they first arrived in the station parking lot, and 1:23 a.m., when the respondent was paraded before the officer-in-charge of the station.

[5] Pringle J. explained that, as Cst. Diaconu noted in his testimony, during this 14-minute time period, they were just playing a “waiting game.” The officer had “no idea what was going on inside the station” and made no inquiries or observations in this regard. Pringle J. expressly noted that there “is no onus on the Crown” to provide a “minute-by-minute account,” and the “litmus test” for the phrase “as soon as practicable” is “reasonableness” in the “context of the whole chain of events.” However, Pringle J. concluded that the “time for the entire chain of events was not insignificant,” in that the respondent did not provide his first breath sample until about 90 minutes after being first stopped by the police, and that, in that context, the “14 minutes was not an insubstantial wait” and it was “completely unexplained.”

[6] In the result, Pringle J. concluded that the Crown had not met its burden of proving that the respondent’s breath samples were taken “as soon as practicable” within the meaning of s. 258(1)(c)(ii) of the Criminal Code.

D. The Legal Meaning of the Phrase “As Soon As Practicable”

[7] It is well established that the phrase “as soon as practicable” in this statutory context does not require that the breath samples be taken “as soon as possible,” but only that the breath samples be taken within a reasonably prompt time under the circumstances. The Crown is not obliged to account for every minute of the elapsed time between the alleged offence and the taking of the breath samples. The recognized touchstone for determining whether or not the samples were taken as soon as practicable in the circumstances is whether the police acted reasonably having regard to the entire chain of events. See R. v. Mudry (1979), 1979 ABCA 286, 50 C.C.C. (2d) 518 (Alta.C.A.), at pp. 521-523; R. v. Ashby (1980), 57 C.C.C. (2d) 348 (Ont.C.A.), at p. 351, leave denied, (1981) 37 N.R. 393 (S.C.C.); R. v. Rasmussen (1981), 64 C.C.C. (2d) 304 (B.C.C.A.), at pp. 311-312, 313, leave denied, (1982) 42 N.R. 122 (S.C.C.); R. v. Altseimer (1982), 1 C.C.C. (3d) 7 (Ont.C.A.), at p. 10; R. v. Seed (1998), 114 O.A.C. 326 (C.A.), at paras. 6-8; R. v. Letford (2000), 150 C.C.C. (3d) 225 (Ont.C.A.), at paras. 14-20; R. v. Lemieux, [2002] O.J. No. 979 (C.A.); R. v. Schouten, [2002] O.J. No. 4777 (S.C.J.), at paras. 8-10; R. v. Vanderbruggen (2006), 206 C.C.C. (3d) 489 (Ont.C.A.), at para. 12; R. v. Furlong, 2011 ONSC 6707, at paras. 12-13.

[8] The phrase “as soon as practicable” has the same legal meaning regardless of whether that statutory phrase is construed in determining whether the breath sample demand was made “as soon as practicable” as required by s. 254(3) of the Criminal Code, or whether the breath samples were taken “as soon as practicable” for purposes of the evidentiary assistance provided by s. 258(1)(c)(ii) of the Criminal Code. See R. v. Squires (2002), 59 O.R. (3d) 765 (C.A.), at paras. 31-32; R. v. Singh, 2014 ONCA 293, at paras. 7, 13-14.

[9] The Crown does not contend that the trial judge committed any error in her articulation of this governing legal standard. Indeed, the Crown concedes that Pringle J. expressly outlined, in her reasons for judgment, the correct legal standard for the phrase “as soon as practicable.” The Crown contends only that the trial judge erred in her application of this standard in failing to conclude that the Crown had established that the respondent’s breath samples were taken “as soon as practicable” in all of the circumstances of this case.

E. The Governing Standard of Appellate Review

[10] In assessing the merits of the Crown appeal in this case, it is critical to keep in mind the proper scope of appellate review.

[11] The interpretation of the phrase “as soon as practicable” in s. 258(1)(c)(ii) of the Criminal Code is clearly a question of law that is subject to appellate review on a correctness standard. However, the application of the legal standard created by the “as soon as practicable” requirement to the facts of any individual case is only subject to appellate review on the standard of “palpable and overriding error,” as such determinations are largely questions of fact. With respect to such factual issues, it is not the role of an appellate court to simply retry the case or substitute its own opinion for the views expressed by the trial judge. Rather, with respect to such factual issues the role of the appellate court is to determine whether the trial judge committed a “palpable and overriding error.”

[12] While there are conflicting authorities on this topic in other provinces, the law on this subject is well-settled in Ontario. See, for example, R. v. Renda, [2005] O.J. No. 1453 (C.A.), at para. 5; R. v. Vanderbruggen, at paras. 12-15; R. v. Burbridge, 2008 ONCA 765, at paras. 7-8; R. v. Torsney (2009), 81 M.V.R. (5th) 212 (Ont.C.A.), at para. 15; R. v. Taylor, 2010 ONSC 4850, at para. 37, leave denied, 2011 ONCA 681; R. v. Thompson, 2012 ONSC 4264, at para. 15; R. v. Cote, 2012 ONSC 5247, at paras. 25-28; R. v. Singh, 2014 ONCA 293, at para. 16; R. v. Beharry, 2014 ONSC 848, at paras. 15-19; R. v. Cargill, 2014 ONSC 3897, at paras. 9-13; R. v. Crewson, 2014 ONSC 4311, at paras. 10-16, leave denied, 2015 ONCA 264, at para. 2; R. v. Hejmo, 2015 ONSC 2641, at para. 15; R. v. Schaump, 2015 ONSC 3113, at para. 36; R. v. Duong, 2015 ONSC 5676, at para. 14; R. v. Mumtaz, 2017 ONSC 2253, at paras. 41-42. But see R. v. Burwell, 2015 SKCA 37, at paras. 10, 13-26, 66-85, 116-117, and R. v. Fenske, 2016 MBCA 117, at paras.7-14, which suggest a somewhat broader scope of appellate review.

F. Analysis of the Present Case

[13] In all of the circumstances of this case I can see no proper basis upon which to interfere with the decision of the trial judge on this issue.

[14] First, in concluding that the Crown had failed to establish that the respondent’s breath samples were not taken “as soon as practicable,” the trial judge clearly and expressly applied the correct legal standard. More particularly, in her discussion of this issue, Pringle J. expressly articulated the “well-known” and “current law” on the issue of the meaning of the phrase “as soon as practicable.” In so doing, Pringle J. cited the leading decision of the Court of Appeal for Ontario in R. v. Vanderbruggen, indicating that “the touchstone for determining whether the [breath] tests were taken as soon as practicable is whether the police acted reasonably” after taking into account “the whole chain of events” and “bearing in mind” that the Criminal Code “permits an outside limit of two hours” from the time of the alleged offence to the taking of the first breath sample. Importantly, Pringle J. expressly observed that, in Vanderbruggen, the Court of Appeal held that there was “no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody” – and does not require the Crown to provide “an exact accounting of every moment in the chronology.” Accordingly, it is clear that the trial judge made no legal error in the manner in which she described the governing legal standard that she was obliged to apply in the circumstances of this case.

[15] Second, I am not convinced that the trial judge made any “palpable and overriding error” in reaching the factual conclusion that, in all of the circumstances of this case, the Crown had failed to establish, beyond a reasonable doubt, that the respondent’s breath samples were taken “as soon as practicable.” The total overall delay in this case, between 12:33 a.m., when the alleged offence was committed, and 2:27 a.m., when the respondent provided his second breath sample, was nearly two hours. As Pringle J. noted, this was not an insignificant delay. With respect to the 14-minute wait outside the police station, Cst. Diaconu offered some of the explanations that are typically the cause of such delays, but he candidly admitted that he had no idea what events or circumstances may have, in fact, caused this particular 14-minute delay on the night of July 10, 2016, and he agreed that he made no inquiries or observations in that regard. Accordingly, it was not wrong for Pringle J. to describe that specific time period as “completely unexplained.” Nor am I persuaded that Pringle J. erred in concluding that the overall delay in the “entire chain of events” was “not insignificant” and that the unexplained 14-minute delay was “not an insubstantial wait” in this overall factual context.

[16] Finally, it is important to recall that the burden on the Crown in relation to the operation of s. 258(1)(c)(ii) of the Code is a heavy one – the Crown must establish that the breath samples of the accused were taken “as soon as practicable” beyond a reasonable doubt. This is so because evidence of the results of the analysis of the breath samples is virtually “conclusive proof” of the blood-alcohol level of the accused at the time of the alleged offence. See, for example, R. v. Crewson, at para. 15. In my view, based on the evidence in this case, the trial judge was entitled to conclude that the Crown had failed to satisfy that heavy burden of proof.

[17] In the result, I am driven to conclude that there is simply no proper basis upon which to interfere with the decision of the trial judge, or her verdict in relation to the acquittal of the respondent on the charge of operating a motor vehicle while having in excess of 80 mgs. of alcohol in 100 mls. of his blood. The trial judge did not err in law in her interpretation of the phrase “as soon as practicable,” and she did not commit any “palpable and overriding error” in factually concluding that the Crown had failed to establish beyond a reasonable doubt, in all of the circumstances of this case, that the respondent’s breath samples were taken “as soon as practicable.” It is not for me to now simply retry the issue and substitute my own conclusion in this regard.

G. Conclusion

[18] In the result, the Crown appeal must be dismissed. An order shall issue accordingly.

Kenneth L. Campbell J. Released: December 12, 2018