R. v. Tonelli, 2011 ONCJ 542

COURT FILE No.: 108898 DATE: 2011·18·10 Citation: R. v. Tonelli , 2011 ONCJ 542 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — GORDON TONELLI Before Justice P. Boucher Heard on August 17, 2011 Reasons for Judgment released on October 18, 2011 J.A. McGill .............................................................................................................. for the Crown The defendant Gordon Tonelli on his own behalf BOUCHER, J.: [ 1 ] The defendant entered a plea of not guilty to the charge of operating a motor vehicle while his ability to do so was impaired by a drug.

He represented himself at trial and called one witness in his defence, although the defendant did not testify. [ 2 ] Two Provincial Constables involved in the detention and arrest of the defendant, as well as the evaluating officer, testified for the Crown. [ 3 ] The issues to be determined in this case are as follows: (a)Has the Crown established that the evaluation pursuant to section 254(3.1) of the Criminal Code of Canada (the Code) took place as soon as practicable? (

b) Must the evaluating officer be qualified as an expert pursuant to the Mohan test in order that his or her evidence be admitted as opinion evidence with respect to the issue of impairment by drug?

OVERVIEW OF THE FACTS [ 4 ] The following is a chronology of the relevant events that took place on November 5, 2010 in this matter: (a)20:00h -- PC Babin, located in Opasatika, Ontario, notices a pick-up truck with an enclosed trailer headed east-bound swerving within its lane and crossing over the white line; (b) 20:03h -- PC Babin calls PC MacGillivray, located in Kapuskasing, Ontario, for assistance to stop the subject motor vehicle in Kapuskasing for safety reasons; (c) 20:25h -- PC Babin stops the subject vehicle and when he approaches the driver’s door he sees the defendant behind the wheel of the truck.

He smells a strong odour of cannabis marijuana emanating from the vehicle. Based on questions he puts to the driver and passenger the latter pulls a baggie of marijuana from under the seat and provides it to PC Babin. PC Babin places the passenger under arrest for possession of marijuana and then conducts a search of the vehicle; (d) 20:34h -- PC Vienneau arrests the defendant for impaired operation of a motor vehicle by drug.

The indicia he listed as the basis for his reasonable grounds included: Slow deliberate movements, speech was slow and deliberate, pupils considerably small (size of a tip of a pen), eyes watery, droopy and red, unsteady on his feet when exited vehicle, odour of marijuana on his breath (and defendant admitted to smoking marijuana in Longlac, Ontario), absence of an odour of alcohol;

(e) 20:35h -- PC Vienneau reads the right to counsel to the defendant and the latter refused to contact counsel; (f) 20:36h -- PC Vienneau reads the caution to the defendant as well as the demand pursuant to section 254(3.1) of the Code thathe submit, as soon as practicable, to an evaluation conducted by an evaluating officer. The defendant is handcuffed and placed in PCVienneau’s cruiser. PC Vienneau then contacts his communications centre for details regarding the availability of an evaluating officer.

He is instructed that the evaluating officer is located one and a half hours from Smooth Rock Falls and they are to meet him at thedetachment in Smooth Rock Falls; (g) 21:25h -- PC Vienneau and PC Babin leave the scene with the defendant and drive to Smooth Rock Falls. The reason forthe delay in leaving is that PC Babin has arrested the defendant’s passenger and releases him on a promise to appear.

A search of thetruck also takes place and both provincial constables indicated that arrangements had to be made for coverage in their absence, althoughthere were two other provincial constables present at the scene (for a total of four) who apparently had no dealings with the defendant. (h) 22:10h -- PC Vienneau and PC Babin arrive at the detachment in Smooth Rock Falls with the defendant; (i) 22:30h -- PC Hiebert, the evaluating officer who had been on duty in Gogama, Ontario, arrives at the detachment in SmoothRock Falls.

He hears the grounds from the other officers, makes the 254(3.1) demand and prepares his evaluation kit; and (j) 22:40h -- The defendant completes a phone call to Duty Counsel and is turned over to PC Hiebert. The latter begins theevaluation at 22:50h. (k) 23:46h -- Based on his observations during the evaluation, PC Hiebert makes a demand for a urine sample. The Centre forForensic Sciences report dated March 3, 2011 confirmed a metabolite of cannabis was found in the defendant’s urine.

ANALYSIS Has the Crown established that the evaluation pursuant to section 254(3.1) of the Criminal Code of Canada (the Code) took place assoon as practicable? [5] The Ontario Court of Appeal recently confirmed the proper test to be applied to the term “as soon as practicable” in thecontext of breathalyser demands in the case R. v. Vanderbruggen (ON CA), [2006] O.J. No. 1138. The Court held:

(12) That leaves the question that is at the heart of this appeal -- the meaning of as soon as practicable. Decisions of this and other courtsindicate that the phrase means nothing more than that the tests were taken within a reasonably prompt time under the circumstances. SeeR. v. Phillips (1988), (ON CA), 42 C.C.C. (3d) 150 (Ont. C.A.) at 156; R. v. Ashby (1980), (ONCA), 57 C.C.C. (2d) 348 (Ont. C.A.) at 351; and R. v. Mudry, R. v. Coverly (1979), 1979 ABCA 286 , 50 C.C.C. (2d) 518(Alta. C.A.) at 522. There is no requirement that the tests be taken as soon as possible.

The touchstone for determining whether the testswere taken as soon as practicable is whether the police acted reasonably. See R. v. Payne (1990), (ON CA), 56C.C.C. (3d) 548 (Ont. C.A.) at 552; R. v. Carter (1981), (SK CA), 59 C.C.C. (2d) 450 (Sask. C.A.) at 453; R. v. VanDer Veen (1988), 1988 ABCA 277 , 44 C.C.C. (3d) 38 (Alta. C.A.) at 47; R. v. Clarke, [1991] O.J. No. 3065 (C.A.); and R. v.Seed, (ON CA), [1998] O.J. No. 4362 (C.A.).

(13) In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing inmind 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 soonas practicable" requirement must be applied with reason.

In particular, while the Crown is obligated to demonstrate that -- in all thecircumstances -- the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide adetailed explanation of what occurred during every minute that the accused is in custody. See R. v. Letford (2000), (ON CA), 150 C.C.C. (3d) 225 (Ont. C.A.) at para. 20; R. v. Carter, supra; R. v. Cambrin (1982), (BC CA), 1 C.C.C.(3d) 59 (B.C.C.A.) at 61-3, and R. v. Seed at para. 7.

(14) Whether the samples were taken as soon as practicable in this case was an issue of fact for the trial judge. See R. v. Lightfoot(1980), 4 M.V.R. 238 (Ont. C.A.) and R. v. Renda, [2005] O.J. No. 1453 (C.A.). [6] In the case at bar there was a delay of two hours and four minutes from the making of the demand pursuant to section254(3.1) of the Code and the turning over of the defendant to the evaluating officer.

There was a delay of two hours and twenty-sevenminutes from the making of the demand to the start of the evaluation. [7] Ten minutes of the delay can be attributed to the defendant speaking to Duty Counsel at the Smooth Rock Fallsdetachment. Twenty three minutes of the delay to the start of the evaluation can be attributed to the evaluating officer readying hisevaluation kit. The evidence discloses that the rest of the delay can be attributed to the fact that the only available evaluating officer waslocated in Gogama, Ontario.

He was required to travel to Smooth Rock Falls, as were the investigating officers; however, theinvestigating officers arrived in Smooth Rock Falls twenty minutes prior to the evaluating officer.

The delay that was occasioned priorto the departure from the scene of arrest is of no consequence in this case; ie., whether they waited at the scene or waited in the SmoothRock Falls detachment, the evaluating officer did not arrive in Smooth Rock Falls until 21:30h, almost two hours after the demand wasmade. [8] The Crown’s position is that the analysis of the issue of “as soon as practicable” should be made in the same manner asthe jurisprudence dealing with roadside screening devices and breathalyser devices.

The Crown’s position is that it is not incumbent onthe Ontario Provincial Police to have breathalyser technicians in each detachment in rural areas and the same reasoning should be appliedto evaluating officers. [9] The Court takes judicial notice of the distance between Smooth Rock Falls and Gogama as being approximately 213

kilometres. The same notice is taken of the distance between Kapuskasing and Smooth Rock Falls as being approximately 64 kilometres. The evaluating officer’s evidence was that he would have preferred that another evaluating officer closer to the scene be engaged to conduct the evaluation; however, he was advised by the communications centre that the other two evaluating officers were unavailable.

Although he indicated that he had worked in Gogama that day he also said that “it was after the end of my shift and I overheard on the radio that...Kapuskasing was looking for a Drug Recognition Expert...” He had earlier testified that he is based out of the South Porcupine detachment but worked mostly in Gogama. It is not clear, therefore, on the record if he left Gogama or South Porcupine, or was somewhere in between, when he received the call.

What is clear on the record is that he was engaged in the calls between 20:45h and 21:00h and he arrived in Smooth Rock Falls at 22:30h. [ 10 ] No evidence was tendered to suggest why the other evaluating officers were unavailable. It is not known whether or not they were on duty or whether or not they were already engaged in an investigation. It could very well be that if they were involved in an investigation they may have still been able to conduct the defendant’s evaluation sooner. [ 11 ] No evidence was tendered to suggest that the evaluating officer was delayed on his trip to Smooth Rock Falls.

The Court is therefore left with the assumption that the time required for him to attend in Smooth Rock Falls was based entirely on his need to travel to that location. The evaluating officer was sensitive to the need to have the evaluation done as soon as practicable. He said so through his desire to have a closer evaluating officer engaged.

He repeated this when he instructed the investigating officers to drive the defendant to Smooth Rock Falls and thus save the time that would be required for him to attend in Kapuskasing. [ 12 ] The question to be determined, therefore, is whether or not the police acted reasonably in the circumstances. In determining this issue the Court must consider not only the conduct of the officers involved but as well the availability of an evaluating officer. It is clear based on the distances involved that the officers did not delay any more than what the evaluating officer’s distance dictated.

Is it reasonable for the Ontario Provincial Police, in these circumstances, to have had only one evaluating officer available some 200 kilometres away? When the delay of one and a half hours for travel is combined with the delay of setting up the evaluating kit, the total delay is approximately two hours and twenty minutes from the time of the demand. Only an evaluating officer, duly certified, could conduct the evaluation.

The defendant was therefore detained for this very long period of time prior to the evaluation because the Ontario Provincial Police did not have an evaluating officer closer than this great distance. The Court, on these facts, cannot find that the testing occurred “as soon as practicable”. [ 13 ] It is important to remember that the consequences of the Crown’s failure to prove that breath samples were taken “as soon as practicable” results in the inability of the Crown to rely on the presumption of identity. In the case at bar, although the wording of the demand

section is similar, there is no presumption with respect to the results of the evaluation. A failure of the Crown to establish that the evaluation was not conducted “as soon as practicable” does not therefore result in the inability of the Crown to rely on a presumption. [ 14 ] The Court could not find any jurisprudence that deals directly with the issue of the failure of the Crown to establish that the evaluation took place “as soon as practicable”. The Court finds that on the facts of this case, this failure resulted in a breach of the defendant’s right to not be arbitrarily detained pursuant to

section 9 of the Charter . [ 15 ] The initial reasonable grounds for making the arrest and the s. 254(3.1) demand existed when they were made; however, the delay of over two hours from the time of the demand to the arrival of the evaluating officer made the arrest unlawful and the detention arbitrary. [ 16 ] The Supreme Court of Canada clarified the test for determining whether or not evidence obtained pursuant to a breach of a defendant’s Charter rights should be excluded pursuant to section 24(2) of the Charter .

The test established in Grant requires the Court to balance and assess the effect of admitting the evidence on Society’s confidence in the administration of justice having regard to: (a)The seriousness of the state conduct that lead to the breach; (

b) The impact of the breach on the Charter protected rights of the accused; and (

c) Society’s interest in the adjudication of the case on its merits. [ 17 ] The state conduct on the facts of this case was serious. While there was no malice or ill will on the part of the arresting officers or the evaluating officer the system that was in place that evening for evaluations was a complete failure. The Court cannot condone decisions by the state that result in stretching the “as soon as practicable” timeframe to over two hours. Even though the officers did everything they could to get the defendant to the evaluating officer, the delay was still over two hours.

No evidence was lead to suggest why only the evaluating officer in Gogama, Ontario was available. If the state intends to detain citizens for evaluations by evaluating officers, then the mechanisms must be in place to ensure that citizens’ Charter rights are not infringed or that such infringement is minimized. They were clearly not in place on the evening that the defendant was detained. [ 18 ] The impact of the breach on the defendant was significant. He was initially detained for approximately an hour in a police cruiser in Kapuskasing. He was then transported to Smooth Rock Falls in the police cruiser.

He was detained at the detachment in Smooth Rock Falls and cooperated with the evaluating officer’s testing protocol. This testing lasted fifty-six minutes. He then submitted a urine sample as a result of a demand made by the evaluating officer pursuant to s. 254(3.4) of the Code . This demand was unlawful as well given that it occurred after the defendant was arbitrarily detained. This resulted in an illegal seizure of the defendant’s bodily substance. [ 19 ] Impaired driving is a serious offence. Parliament has put in place presumptions that facilitate the prosecution of this offence for the Crown.

Parliament has also created minimum penalties for those convicted of this offence. The loss of life and other serious consequences associated with impaired driving are all too well documented. The Court must, however, look at the specific facts of this case to determine Society’s interest in having this case determined on its merits. [ 20 ] In determining this last factor Courts have often looked at the type of evidence that is being sought to be excluded. If the evidence is very strong, reliable and instrumental in the prosecution of the Crown’s case, Courts have been inclined to give more weight

to this branch of the test. If, however, the opposite can be said of the evidence, then the opposite can be said of its weight in the balancing that must be done. [ 21 ] In this case the Crown elected not to have the evaluating officer qualified as an expert pursuant to the Mohan test. The Crown’s position was that his evidence should be treated like the evidence of a breathalyser technician and should be elevated to the status of opinion evidence. On September 29, 2011 the Crown delivered a book of authorities containing eleven decisions that touch upon this issue.

For the reasons that follow the Court finds that the reasoning in R. v. Wakewich [2010] O.J. 1128 (OCJ) is applicable in the case at bar. [ 22 ] The cases provided by the Crown are all decisions from Provincial Courts and are not binding on this Court. Five of the cases followed the reasoning that the Mohan test must be met in order for an evaluating officer to give opinion evidence: ( R. v. Bright [2010] O.J. No. 2939 (OCJ) , R. v. Gardashnik [2010] O.J. No. 2235 (OCJ) , R. v. Jurcevic [2010] O.J. No. 959 (OCJ) , R. v. Wakewich , and R. v. Steeves [2010] N.B.J. No. 433 (NBPC) ). The decision in R. v.

Abbinnett (March 2, 2010 Welland OCJ, unreported) is not of assistance because it deals with whether or not an officer was in fact an evaluating officer for the purposes of conducting testing. The decision in R. v. J.B. [2009] O.J. No. 5728 (OCJ) is a pre-trial ruling on the admissibility of the evaluating officer’s evidence. The case is the transcript of the pre-trial hearing and includes the submissions of counsel. It appears that the Crown expected to conduct a Mohan – like test at the trial based on its submissions.

The Court concludes that opinion evidence is admissible but also indicates that this issue could be revisited by the trial judge. In the last four cases the Court allows the evidence of the evaluating officer to be admitted: ( R. v. Bois [2010] O.J. No. 3945 (OCJ) , R. v. Agostino (April 26, 2010 Thunder Bay OCJ, unreported), R. v. Jansen [2010] O.J. No. 959 (OCJ) , and R. v. Dunlop [2011] N.S.J. No. 297 (NSPC) ). It appears that the ability of the evaluating officers to give expert evidence was not in issue in these cases.

Accordingly, they do not contain an analysis either way with respect to the admissibility of the evaluating officers’ evidence. [ 23 ] The reasoning of the Court in R. v. Wakewich [2010] O.J. 1128 (OCJ) can be summarized as follows: “8 Opinion evidence is, generally speaking inadmissible. Evidence of expert opinion is an exception to the exclusionary rule. The admissibility of expert evidence depends on the application of four criteria: • (

i) relevance; • (ii) necessity in assisting the trier of fact; • (iii) absence of any exclusionary rule; and • (iv) a properly qualified expert. (See R. v. Mohan, supra) 9 The Crown seeks to tender the DRE as an expert witness, but submits that the legislative scheme in place eliminates the need to qualify the DRE as an expert. While Parliament has determined that opinion evidence of an evaluating officer is relevant and necessary to establish the grounds for a demand under s. 254( 3.4) of the Criminal Code and the laying of a charge under s. 253(1)(

a) of the Criminal Code , that officer must none the less be qualified as having acquired special or peculiar knowledge through training, study or experience. This is no different than qualifying a breath technician as to his ability to conduct breath tests, and to opine about the operation of an approved instrument. The fact that the defence routinely accepts the qualifications of a breath technician does not mean that such qualifications cannot be challenged.

The courts must still ensure that such person has been properly designated as a qualified technician. 10 Further, analogizing the status of a DRE to that of a qualified technician is flawed. There are significant differences between the two: • 1. Use of an approved instrument is largely a mechanical or technical skill; little expert opinion is used by the breath technician (see R. v. Nethery (2004), 10 M.V.R. (5th) 266 ) The evidence of a DRE on the other hand, involves observations and a subjective determination based on these observations.

The observations themselves have a subjective element. (see Regulation 2008-196 under the Criminal Code , particularly

section 3 ). • 2. The Crown enjoys certain presumptions under s. 258 of the Criminal Code with respect to samples of breath analyzed by an approved instrument; there are no such presumptions with respect to the evidence of a DRE; • 3.

While an evaluating officer is defined in the regulation as a certified drug recognition expert, the evidence of that officer, based on the evaluation performed, establishes only reasonable grounds to make a demand, and, unlike the readings from an approved instrument (provided certain statutory conditions have been met and there is no evidence to the contrary), is not dispositive of an issue before the Court. 11 References in s. 254 of the Criminal Code to evaluating officers and evaluations permit the officers to conduct an evaluation and make a demand upon a person to provide a sample of bodily substance.

There is nothing in the Criminal Code that elevates their evidence to that of an expert. In fact, absent a finding by a Court, they cannot give expert evidence on the issue of impairment by drugs. The fact that these evaluating officers and the evaluation tests and procedure are designated by regulation, does not exempt them from Mohan scrutiny.” [ 24 ] The Court adopts this reasoning and finds that the evidence of the evaluating officer in this case has not been elevated to that of an expert.

The evidence lead by the Crown suggested that in order to obtain his certification as a drug recognition expert or evaluator, Cst. Hiebert had to: (a)Complete two weeks of training in Kingston in May, 2010. He was required to take five tests and pass a final exam with an 80%

grade. According to Cst. Hiebert, this training consisted of learning “practical skills to do...the Drug Recognition Evaluation”; and (

b) Complete 12 drug evaluations on prisoners at the Maricopa County Jail in Phoenix, Arizona in June, 2010. Cst. Hiebert’s entire evidence on the specifics of his training in Phoenix was as follows: “Our...evaluations were confirmed with the use of a...toxicology test as well.

We had to do 12 evaluations that all had to be...approved by an instructor and then at the end of our time there, I believe we did three nights in Maricopa County Jail....[W]e wrote our final examination, again, with a minimum pass being 80% and...upon successful completion, I was advised that I could do...Drug Evaluations as an expert.” (page 61 of Transcript) [ 25 ] In order to maintain his certification Cst.

Hiebert testified that he is required, in a two year period, to “attend eight hours of...training plus...conduct four examinations, one of which has to be...observed by an instructor” (page 61 of Transcript). [ 26 ] As indicated earlier the Crown chose not to attempt to qualify Cst. Hiebert as an expert pursuant to the Mohan test. The evidence that was lead in this case falls far short of the standard required to establish that Cst. Hiebert has special or peculiar knowledge obtained through training, study or experience. There were no details about the training received.

There were no details about the testing that was conducted prior to certification. The evidence suggests that after less than a month of training Cst. Hiebert was qualified to conduct the evaluations. Can it, with the greatest respect, be said that this provides him with special or peculiar knowledge that would be of assistance to the Court? In this case, it cannot. [ 27 ] In balancing the three branches of the Grant test the Court finds that the seriousness of the state conduct and the impact on the Charter rights of the defendant far outweigh society’s interest in having this case determined on its merits.

The evidence obtained as a result of the breach of the defendant’s

section 9 Charter rights is therefore excluded. [ 28 ] There being no evidence other than that which constituted the reasonable grounds to make the s. 254(3.1) demand, the Crown has not proven its case beyond a reasonable doubt and there is a finding of not guilty. Must the evaluating officer be qualified as an expert pursuant to the Mohan test in order that his or her evidence be admitted as opinion evidence with respect to the issue of impairment by drug? [ 29 ] If the Court is wrong in its reasoning with respect to the “as soon as practicable” issue and the

section 9 Charter breach, it finds that the Crown has not proven the essential elements of the offence beyond a reasonable doubt. [ 30 ] On the basis of the analysis conducted above with respect to the evaluating officer’s training and the reasoning in Wakewich , the Court finds that the evaluating officer’s evidence cannot carry the weight of expert opinion. Absent expert evidence, the Court is not able to conclude that the testing results establish beyond a reasonable doubt that the defendant’s ability to operate a motor vehicle at the relevant time was impaired by a drug. A finding of not guilty must therefore be made. Released: October 18, 2011 Signed: “Justice P. Boucher”