R. v. Albert, 2011 ONCJ 153

Information No. 092064 Citation: R. v. Albert , 2011 ONCJ 153 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. GUY ALBERT ********** R E A S O N S F O R J U D G E M E N T BEFORE THE HONOURABLE JUSTICE R.E.W. CARR, on January 4, 2011, at TIMMINS, Ontario **********

APPEARANCES : D. Cox Counsel for Crown P. Bragagnolo Agent for R. Sellar Counsel for Guy Albert CARR, J. (Orally): Guy Albert stands charged with the single count of having operated a motor vehicle in the City of Timmins on November 29 th , 2009 with more than 80 milligrams of alcohol in 100 millilitres of his blood, contrary to section 253(1) (

b) of the Criminal Code of Canada . The defendant raises only one issue and it has to do with the time between when the offence was committed, i.e., when the defendant had care and control of his motor vehicle and when the first breath test was taken. Section 258(1)(c)(ii) reads as follows: “258(1) In any proceeding under section 255(1) in respect of an offence committed under

section 253... (

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 15 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 offence 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.” The evidence of Tara Palaszewski, the arresting officer, is that she first encountered the defendant’s motor vehicle at “about three o’clock” in the morning on Pine Street South – not too far from the city dump.

She stopped the defendant’s motor vehicle at three a.m. she said. The defendant was very cooperative. Officer Palaszewski had reasonable suspicion that the defendant had alcohol in his body and made a section 254(2) demand for a roadside sample of the defendant’s breath. He failed the test and was consequently arrested and given rights to counsel. The section 254(3) demand for a sample of the defendant’s breath was made at the scene on Pine Street South and ultimately (subsequent to his arrival at O.P.P. headquarters), the tests were taken.

According to Constable Derek Johnston, a qualified breath technician, the first test reading was taken at 4:47:58 in the morning. The first test, therefore, was prima facie , taken within two hours of the offence time; in fact, one hour and 48 minutes after the offence time. The issue before the court is simply whether or not the Crown has proven as fact – beyond a reasonable doubt that the first test was completed within the two hours following the time of the offence.

The following question must be answered. Firstly, has the Crown proven beyond a reasonable doubt that the defendant had care and control of his motor vehicle at three a.m. and, secondly, that the first test took place at 4:47:58 a.m.? The answer to the first question is no. The Time of the Offence – Care and Control Constable Beaven was with Constable Palaszewski at the time of the stop and throughout the police dealings with the defendant. Constable Beaven says that the stop took place at 2:58 a.m. Both officers took notes – of the times of the following events: (1) the 254(2) demand for a roadside breath sample, (2) the

section 10(

b) rights to counsel and (3) the section 254(3) breath demand. Constable Palaszewski recorded the section 254(2) demand as to having taken place at 3:08 a.m. Constable Beaven recorded this event as having taken place at 3:15 a.m. – a seven-minute difference. Constable Palaszewski recorded the

section 10(

b) rights to counsel as having been given at 3:15 a.m. whereas Constable Beaven had this having occurred at 3:23 a.m. – an eight-minute difference. Constable Palaszewski recorded the section 254(3) breath sample demand as having taken place at 3:19 a.m., whereas Constable Beaven had this having occurred at 3:25 a.m. – a six-minute difference. To recapitulate: the times recorded for the section 254(2) demand, the

section 10(

b) Charter rights to counsel and the section 254(3) demand by the two officers, differed by margins of seven minutes, eight minutes and six minutes respectively. The fact that the gaps between Constable Palaszewskis’ times (for the s.254(2) demand, the s.10(

b) rights and the s.254(3) demand) and Constable Beaven’s times vary by one and two minutes is not that troublesome given that the watches were digital, without second hand timing capabilities. Therefore, in one officer’s view one watch may have just turned to the next minute while the other officer’s watch is about to do so, and one officer may have noted the time when the demands were being given and the other when the demands were completed and this could account for the differences varying with each measurement as opposed to being consistently six or seven or eight minutes in terms of the gap.

But what is impossible to reconcile are the times for the original stop or in the words of section 258(1)(c) “The time when the offence was alleged to have been committed.” Here, Officer Palaszewski had that occurring at three a.m. and Officer Beaven had it occurring not six, seven or eight minutes after as in the other times but two minutes before (emphasis mine) at 2:58 a.m.

If Officer Palaszewski’s times were consistent with themselves then one would expect Officer Beaven’s times to be six, seven or eight minutes after three a.m. as in the other times and not two minutes before Officer Palaszewski’s time, that is at 2:58 a.m. If Officer Beaven’s times are consistent with themselves then Officer Palaszewski’s times should have been six, seven or eight minutes before 2:58 a.m., that is as early as 2:50 a.m. We do not know which officers’ times are consistent with themselves and we do know that one of the two has an aberrant time for the roadside stop.

Constable Palaszewski’s notes with respect to the times were made during the 20-minute interval when she sat in her cruiser waiting for the tow truck to arrive and this period would have commenced some time after the events subsequently recorded, i.e., the time of the stop, the time of the section 254(2) demand, the

section 10(

b) warning and the section 254(3) demand. There is no indication as to whether or not the times reduced to writing by Officer Palaszewski came from her memory or whether or not she had scratched

these times onto a notepad at the precise time of the event in question. Likewise with Officer Beaven – she made her notes while waiting for the tow truck to arrive and once again we have no evidence as to whether or not the precise times came from her memory at the time of the note-making or from a scrap of paper which she had written on at the time of the events. Officer Palaszewski, in her examination in-chief, used the word “approximately” with respect to four different time notations, although at other places she indicated that these times were precise times.

The officers never synchronized their watches, according to Constable Beaven, and that is abundantly clear from the discrepancy in the evidence. Asked about the discrepancies, Constable Beaven was asked these questions and gave these answers. Page 48: “Q: ...and the indication in Constable Palaszewski’s notes was that the stop was at 3, two-minute difference, would that surprise you? A: Not at all. Q: Okay. How about a five-minute difference? A: Not even. Not really. Q: Okay. How about a 15-minute difference? A: That might be a little bit odd... Q: Yeah.

A: ...but not – not overly.” With respect, I cannot agree that a time difference on the watches of the two police officers of 15 minutes involved in the arrest of an impaired driver might be only “a little bit odd” and not “surprising”, and as we know, there was, indeed, a difference of up to eight minutes between the watches. As stated earlier, the Crown has not established beyond a reasonable doubt that the stopping of the defendant in his motor vehicle took place at three a.m. – or 2:58 a.m. for that matter. It could have come as early as 2:50 a.m.

The First Breath Test Constable Johnston’s evidence was that the first test was taken at 4:47:58 a.m. This time – to the second, was taken from the Intoxilyzer machine. The officer did not check his own watch to mark the time of the test, nor did he at any time check the time of the instrument with his own watch to measure the difference, if any, between the two instruments. Constable Johnston seems to concede that the time piece on the Intoxilyzer could be off by more than two minutes from the time registering on his watch, and by extension the watches of his colleagues, but not by as much as half an hour.

He said that the time on his watch and the time on the Intoxilyzer could be different by a minute or two “but not off by an hour or half.” There is no evidence at all as to if or when the time piece on the Intoxilyzer was checked by anyone. When dealing with a close to the two-hour limitation case the exact times of the arrest and the subsequent first breath test (relative to Eastern Standard Time) are arguably of no moment so long as the times come from the same time piece or in the alternative, the time pieces are synchronized together. None of these things occurred here.

The significant time measurement is the two-hour time period within which the test much take place after the arrest. In conclusion, I cannot say that the time of the stop of the defendant’s motor vehicle and the time of the first testing of the defendant’s breath were established beyond a reasonable doubt in order to further establish that the testing took place within two hours of

the stop. It’s all too fuzzy and too close to the two-hour maximum for me to conclude that the Crown has proven beyond a reasonable doubt that the test took place within two hours. If the stop took place as early as 2:50 a.m. then the gap between the stop and the first test is 1 hour and 58 minutes, and if the Intoxilyzer time piece is off by two minutes, we have the two-hour window passing by.

I should also mention that a 38-minute delay was occasioned at the police headquarters because a call was set up for the defendant to speak with duty counsel notwithstanding that he had on three occasions – two times at the scene and once more at the police station, stated unequivocally that he did not wish to speak to duty counsel. The breath technician and his instrument were ready and waiting for the defendant during this time.

This, of course, arguably, goes to the first of the three prerequisite tests for the presumption of identity to be established pursuant to section 258(1)(c)(ii) – the soon-as-practicable test. And I make no finding here with respect to this issue, but this delay also ate up much of the two-hour window – perhaps needlessly. Having said that, I am of the view that the Crown is unable in this case to rely upon the section 258(1)(

c) presumption of identity because the statutory pre-conditions have not been proven beyond a reasonable doubt. The results of the breath test, therefore, are not admissible to establish the concentration of alcohol in the defendant’s blood at the time of the alleged offence. There will be a finding of not guilty. ********** Transcript Ordered: January 6, 2011 Transcript Completed: January 7, 2011 Ordering Party Notified: January 10, 2011