Court File and Parties

COURT FILE NO.: 3034-19-00AP DATE: 2019/07/16 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – Robert Meersseman Appellant

Counsel: Scott Kerwin, for the Crown Kenneth Marley, for the Appellant

HEARD: June 17, 2019

On appeal from the conviction entered on January 4, 2019 by Justice Gerri L. Wong of the Ontario Court of Justice.

George J.

Reasons for Decision on Summary Conviction Appeal

[1] The Appellant was convicted of “operating a motor vehicle over .080” contrary to s. 253(1)(b) of the Criminal Code of Canada. He appeals against conviction.

[2] Two issues arise. First, did the trial judge reverse the burden of proof? And second, did the trial judge properly apply the law to the question of whether the Appellant’s breath samples were obtained as soon as practicable?

[3] He argues that the trial judge’s reasons do not reflect an adequate assessment of the elements of the offence, and do not demonstrate how, in her view, the Crown satisfied those elements.

[4] On June 10, 2017 the Appellant was driving a tractor-trailer on Highway 401. He had two passengers. He was pulled over by an OPP constable at 8:54p.m. and later transported to the local detachment. Two samples of his breath were taken by Constable Van Wyk, a certified Intoxilyzer technician. The first sample was obtained at 10:48p.m.; the second at 11:10p.m. The readings were .170 and .166 respectively.

[5] The drive from the scene to the detachment lasted approximately 30 minutes. The first test was administered 1 hour and 54 minutes after detention.

[6] The Appellant testified that he had consumed one beer, the day before, and believed the readings were the result of isopropyl alcohol he had been applying to his mouth to ease dental pain he was experiencing.

[7] The trial judge disbelieved the Appellant and rejected the notion that isopropyl alcohol could have generated erroneous readings.

[8] The Appellant asserts that the trial judge mischaracterized evidence when she said this, at page 25 of her reasons:

The second period of time that Mr. Marley asked me to focus on is between 9:40, which is the arrival at the detachment or station, to 10:09, when Constable Main [sic] made the call to duty counsel at the Legal Aid Office. This is a period of 16 minutes.

[9] One point of correction. As I understand it the officer and Appellant arrived at the station at 9:43p.m., not 9:40p.m. Therefore, this passage of time was in fact 26 minutes, not 16 as indicated by the trial judge, or 29 minutes as suggested by the Appellant. In any event, the Appellant argues that this miscalculation is symptomatic of the trial judge’s failure to properly assess and appreciate the significance of the delay between the time of driving and the obtaining of the first sample.

[10] The relevant sections of the Code at the time read as follows:

253(1) Everyone commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,

(b) having consumed alcohol in such quality that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.

254(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person

(a) to provide, as soon as practicable,

(i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood.

258(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 and, if the results of the analyses are different, the lowest of the concentrations 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 exceeded 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.

[11] As the tests were administered within two hours the Crown is entitled to rely upon the evidentiary shortcut provided for in s. 258(1)(c). The Appellant concedes this. He also agrees that the trial judge cited all of the relevant and applicable authorities. He, however, takes the position that, while within two hours, the tests were still not taken as soon as practicable. His counsel argues that while the trial judge seems to have appreciated the significance of the evidentiary shortcut afforded the Crown she appears to have been prepared to excuse “unnecessary delays” caused by the police.

[12] As it relates specifically to the burden of proof – and to the Appellant’s suggestion that the trial judge improperly reversed it – he points to this passage from her reasons, found at its conclusion:

Could you, please, stand Mr. Meersseman. I reject your evidence. I do not find it to be believable and it certainly does not give me a reasonable doubt. I found that the Crown has proven its case beyond a reasonable doubt and, as a result, there will be a conviction with respect to this count.

[13] I can quickly dispose of this ground of appeal. The trial judge did not reverse the burden. She disbelieved the Appellant then clearly stated that the Crown had established guilt beyond a reasonable doubt. A trial judge’s assessment of credibility is to be afforded great deference and as such I will not interfere with this finding. She was not required to recite W(D) verbatim. Not only that, she accepted the breath technician’s evidence and found that a sufficient amount of time had passed between the two breath tests which, together with her credibility finding, effectively ruled out the possibility that mouth alcohol impacted the results.

[14] The Appellant argues that the trial judge’s reasons reveal a tone and tenor that seems to presume guilt. I do not agree. Her decision was sound. In no way did she reverse the burden.

[15] That leaves me to consider whether, even though the first sample was obtained within two hours - with at least a fifteen minute interval between the two tests – the trial judge erred in concluding that the tests were administered as soon as practicable?

[16] I find that she committed no error. Consequently, and for the reasons that follow, I dismiss the appeal.

[17] The trial judge was tasked with determining whether the breath samples were obtained as soon as practicable. She cited the relevant authorities and, I find, properly applied them.

[18] The tests need not be taken as soon as possible. They must be administered within a reasonably prompt time having regard to the overall circumstances. We must remember that the evidentiary shortcut available to the Crown is intended to “…expedite trials and aid in proof of the suspect’s blood alcohol level”; see R. v. Vanderbruggen, [2006] O.J. No. 1138 (Ont. C.A.) and R. v. Singh, 2014 ONCA 293. That is its clear purpose which does not require a precise accounting for every moment.

[19] The important context is this. The Code permits an outside limit of two hours to the point the first test is taken. The trial judge took note of the overall time period and determined that the police acted reasonably. Perhaps the trial judge could have elaborated further, more fully explaining why she came to that conclusion, but I have reviewed the entire record and there was no other conclusion she could have reasonably arrived at. The police were attentive to their duties and did not give priority to any other task during the Appellant’s detention.

[20] In addition to the chronology I highlighted earlier, consider these additional facts. The arresting officer and Appellant arrived at the police station at 9:43p.m. Upon arrival the Appellant was searched. Nothing unusual or untoward occurred during the booking process. As he was alone the arresting officer called a guard to attend, who arrived at or around 10:09p.m. Duty counsel was called at 10:09p.m. The Appellant’s call with counsel ended at 10:29p.m. The arresting officer provided his grounds to the technician at 10:37p.m. And, as indicated, the first test was administered at 10:48p.m.

[21] As there is nothing unusual about the trip from the scene to the detachment, I am going to focus on the time period that begins upon their arrival at the station at 9:43p.m. Despite the miscalculation of the time lapse, it is clear, on a review of the trial judge’s entire reasons, that she was aware of the times and simply misspoke, and that she was apprised of and fully appreciated what the police had done during this period. She reviewed what steps the police had taken throughout (see trial judge’s reasons at pgs. 25-26). At pgs. 27 - 29 she expressly finds that the police acted reasonably and that the various time periods were sufficiently explained. She writes this:

There were two issues. One is suggestions through questioning that Van Wyk’s decision to type as opposed to handwrite the grounds that were being relayed by Constable Main[e] is somehow unreasonable.

I disagree. It is not, in my view, for the court to micromanage and determine whether or not a police officer should take handwritten notes or type or enter into a computer. It is up to the individual officers, and absent evidence to suggest that Constable Van Wyk was a two-finger typer, which he was not, and he indicated from his point of view it is actually faster to type than handwrite, I do not see this to be an area that the court should be commenting in a critical way about.

The second issue is whether or not it was necessary for all of the grounds to be relayed before Mr. Meersseman was turned over to Constable Van Wyk. Constable Van Wyk spoke to that issue and indicated that, from his point of view, the grounds needed to be completed as, in his own words, “no grounds, no test”.

I know that the call ended between duty counsel and Mr. Meersseman at 10:29. Constable Main[e] then took Mr. Meersseman back to his cell area, returned to the area where he was relaying the grounds to Constable Van Wyk.

Constable Main[e] testified that he completed the giving of the grounds at 10:37. This is confirmed by Van Wyk. Constable Main[e] indicated he had nothing further to do with Mr. Meersseman until much later in the evening.

Constable Van Wyk, after having received the grounds, went to cells. This, he says, occurred at 10:43. He retrieved Mr. Meersseman, brought him to the breath room, explained the process and did the set up specific to Mr. Meersseman.

I see no unexplained or unreasonable behaviour in the conduct of Constables Main[e] or Van Wyk as it relates to this timeframe identified by Mr. Marley. As a result, I find individually and collectively that the results were taken as soon as practicable.

[22] The trial judge addressed the fundamental issue head on concluding that the samples were taken as soon as practicable. She explained why she made that finding; a finding that, based on this record, was available to her.

[23] My task is not to nit-pick, second-guess, or substitute my own finding. I am to read the reasons as a whole and place the issues in their proper context having regard to all of the evidence, and counsel’s submissions. Having done so, it is abundantly clear that the trial judge simply misspoke when she referenced a 16 minute interval; a misstatement that did not, and could not have in the circumstances, materially impacted her analysis or conclusion.

[24] The trial judge’s reasons reveal an understanding of the issues, including time restrictions imposed upon the police, and an appreciation of the evidence that detailed what the police did during the relevant time. She was responsive to each issue raised by the parties.

[25] There is no ambiguity in the trial judge’s findings and ultimate conclusion. Her reasons adequately explain why she found as she did.

[26] The appeal is dismissed. The driving prohibition that had been stayed pending this appeal is to be immediately reinstated.

“Justice Jonathon C. George” Justice Jonathon C. George Released: July 16, 2019