R. v. Kalligeris, 2010 ONCJ 174

Citation: R. v. Kalligeris , 2010 ONCJ 174 ONTARIO COURT OF JUSTICE Old City Hall - Toronto BETWEEN: ) ) ) HER MAJESTY THE QUEEN ) ) L. Stuart For the Crown ) ) — AND — ) ) ) ) Kalliroy kalligeris ) ) ) D. Lerner For the Defendant ) ) Heard: February 2-3 and March 22, 2010 ) REASONS for RULING and JUDGEMENT GREEN, J.: A. INTRODUCTION [ 1 ] The defendant, Kalliroy Kalligeris, was involved in an apparent single vehicle accident in central Toronto in the early hours of December 12, 2008.

She was subsequently charged with having care or control of a motor vehicle while her ability to do so was impaired by alcohol and while her blood alcohol concentration (BAC) was in excess of the legal limit. [ 2 ] The defendant was transported from the scene of the accident directly to the closest station where, following a Level 2 search, she provided the requisite two breath samples. She was then returned to the officer in charge, S/Sgt Kemp, for processing. PC Greavette, the arresting officer, recommended that the defendant be released from the station pending her first court appearance.

Following a brief exchange with her in the booking room, Kemp decided she should be held for a show cause hearing. Defence counsel does not challenge the propriety of Kemp’s decision. [ 3 ] Hours later, PC Greavette transported the defendant to a second station from where she was to be taken to court. She was there brought before S/Sgt Vandale, the officer-in-charge. He too declined to release the defendant. Defence counsel does challenge the constitutional propriety of Vandale’s decision to detain the defendant.

The Crown agrees that it resulted in a breach of the defendant’s Charter s. 9 right not to be arbitrarily detained. However, Crown counsel does not agree that the appropriate and just remedy for this constitutional infringement is, as urged by the defence, a stay of the proceedings. [ 4 ] Alternatively, the defence position is that the Crown has failed to meet its burden to establish that the warrantless seizure of the defendant’s breath samples and BAC readings was reasonable, and that this evidence should therefore be properly excluded, resulting in dismissal of the “over 80”.

This charge, claims the defence, is also defeated because the Crown has not satisfied the conditions necessary for it to rely on the presumption of identity. As regards the charge of impaired care or control, the defence says that while the defendant may well have consumed some alcohol a reasonable doubt remains as to whether she was impaired. [ 5 ] The evidence was led by way of a Charter voir dire followed a by a trial incorporating portions of the voir dire evidence.

Three police officers testified for the Crown (the arresting officer Greavette, a second officer who later attended the scene and, on the voir dire only, S/Sgt Vandale), as did a civilian witness and one of the emergency medical personnel who responded to a 911 call. The defendant did not testify, nor did the defence call any other witnesses during the voir dire or trial.

Apart from the s. 8 claim (which arises from a warrantless search and seizure), the burden of persuasion, on a balance of probabilities, rests on the defence regarding the establishment of any alleged Charter breaches and the appropriate remedy, if any. As always, the ultimate burden – that of satisfying each of the essential elements of the two offences charged to a standard of proof beyond reasonable doubt – remains with the Crown. B. EVIDENCE

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a) Introduction [ 6 ] I intend to review cumulatively and sequentially the evidence called on the voir dire and the trial proper. The evidence upon which I rely includes that contained in DVDs of the defendant’s attendance before the two booking officers. However, my evidentiary review of the circumstances resulting in the defendant being held for a show cause hearing is likely less detailed than might otherwise be the case by virtue of the Crown’s concession that the defendant was arbitrarily detained. (

b) Roadside [ 7 ] Shane Winsor, a construction worker, arrived at his Toronto job site on Bloor Street, just east of Yonge, at about 6:20am on December 12, 2008. Winsor was confident about the time; he checked it on the company truck clock which accords with the time on his cell phone. He spent about ten minutes in the cab of the truck drinking a coffee. As he got out of the truck he noticed a Toyota Corolla which, by all accounts, was abutting a wire construction fence on the south side of Bloor. Part of the vehicle protruded about a metre into the east-bound traffic lane.

There was no damage to the car attributable to this apparent accident. [ 8 ] Winsor ran to the car. The defendant was in the driver’s seat. She was face-down and slouched over the console. Winsor initially could not tell if she was sleeping. Nor did he notice any smell emanating from the car or the driver through the partly open window. Based on his arrival time, he estimated he first saw the defendant at about 6:30am. She was the only occupant of the Corolla. The keys were in the ignition, the car was running and the radio was playing.

Winsor banged on the half-open driver’s window for five minutes without obtaining a response. A co-worker, Fernando, joined Winsor at approximately 6:40am. He called 911 at Winsor’s request. Fernando then opened the driver’s door and turned off the radio and the ignition. He also tried to shake the defendant into consciousness but, again, there was no response. [ 9 ] According to Winsor, paramedics arrived about 7am. One of them, Aron Sperling, opened the car’s door and identified himself to the defendant. She appeared conscious and was mumbling, “Leave me alone”.

The defendant became verbally abusive when Sperling identified himself a second time; she refused to get out of the car. She later did, staggering or stumbling on her way to the ambulance. According to Sperling, the defendant had a moderate to strong odour of alcohol on her breath but no odour of marijuana. She did not appear to be physically injured. [ 10 ] The police, says Winsor, arrived about the same time as or slightly after the paramedics. According to PC Greavette, this was at 6:55am in response to a dispatch received at 6:44am.

Greavette spoke with Winsor and the second construction worker about their initial observations and impressions. Greavette learned the car was running when the workers first approached it and occupied by a single person, the defendant, who they could not rouse and who had been transferred to the ambulance. Greavette joined the defendant and the paramedics in the ambulance. The defendant was very argumentative, loudly shouting profanities at the medical personnel.

Her speech was rapid and slurred, her face was flushed, her eyes bloodshot and watery, there was a strong odour of alcohol on her breath and she appeared disoriented. He overheard the defendant tell the paramedics that she had had some drinks after work. She did not seem to know where she was or how she had got there. [ 11 ] After several requests, the defendant, with Greavette’s assistance, left the ambulance at about 7:04am. She was rocking side to side and veered left and right as she walked the 15 metres unescorted to Greavette’s scout.

At that point Greavette formed the opinion that the defendant’s ability to be in care or control of a motor vehicle was impaired by alcohol. It was still 7:04am when he arrested her for this offence. Given the apparent indicia of impairment, Greavette did not feel any need to conduct a roadside screening test. The arrest was immediately followed by his reading appropriate cautions, rights to counsel and a formal breath demand to the defendant, all of which she said she understood. Greavette detailed other officers to take witness statements and arrange for the defendant’s vehicle to be towed.

He determined the closest station for the provision of breath tests and, at 7:12am, left the scene with the defendant. They arrived at Traffic Services at 7:31am. Greavette at no time smelled marijuana on the defendant, although he volunteered that his sense of smell was not particularly acute. [ 12 ] PC Zombrowski arrived at the scene at 7:16am. He arranged the tow of the defendant’s car. He also tested the vehicle’s brakes before it was towed. He concluded that they were in proper working order. (

c) Traffic Services [ 13 ] Greavette escorted the defendant into the booking room at Traffic Services at 7:36am where she was paraded before S/Sgt Kemp. She abruptly asked, “How did you find me?” Another question soon followed: “Can you tell me what the rest of the guests were doing while I was getting incriminated? … Drinking and fucking and doing lots of drugs”. Kemp asked the defendant if she had used any drugs as he “smell[ed] marijuana”. The defendant replied that it “must have been a guy I work with”.

She denied using drugs. [ 14 ] Greavette, “out of an abundance of caution”, placed a call to duty counsel on the defendant’s behalf at 7:50am. Greavette conceded that the defendant never “positively” asked to speak to duty counsel but she had been asking him if she needed to speak to a lawyer and about what she should do. To Greavette, the defendant appeared to be unsettled and vacillating about whether or not to obtain legal advice. Duty counsel called back at 7:57am and the defendant spoke with him for about ten minutes, until 8:07am.

Five minutes later, and pursuant to Kemp’s instructions, two female constables attended and conducted a private, two-to-three minute Level 2 search of the defendant for drugs. She was returned to Greavette at 8:23am at which time she was permitted two calls to family members, lasting two to three minutes in total. [ 15 ] The qualified breath technician was then ready to conduct the breath tests and, at 8:26am, the defendant entered the breath test room. She completed her first test at 8:32am. She left the room just before 8:34am. At the defendant’s request, a call was placed to her mother between tests.

The defendant’s mother called back at 8:37am and spoke with her daughter, the defendant, in a privacy booth until 8:54am. The defendant then immediately returned to the breath room at 8:55am where she completed the second test. She registered a

BAC of twice the legal limit: 170 on the first test and 160 on the second. The defendant’s BAC readings were adduced by way of a Certificate of a Qualified Technician pursuant to s. 258(1)(

g) of the Code. [ 16 ] The defendant was again paraded before S/Sgt Kemp at 10:28am. Greavette recommended she be released from the station on a Promise to Appear. Advised by Kemp that a pre-condition for her release rom the station was her promise to appear in court, the defendant defiantly replied words to the effect of “Forget it” or “Not a chance”. As a result, she was returned to an interview room and held pending her transfer to court for a show cause hearing some time that day.

In the interim, Greavette prepared the necessary documentation for that hearing. (d) 52 Division [ 17 ] Greavette transported the defendant to 52 Division from where she was to be transferred to court for her show cause hearing. She appeared before S/Sgt Vandale, the officer-in-charge, at 12:25pm. The belligerence and truculence that characterized the defendant’s appearance before S/Sgt Kemp at Traffic Services some four hours earlier was now replaced by an attitude of politeness and co- operation.

PC Greavette explained that the defendant was arrested for “impaired” and, after investigation at Traffic Services, was taken before the staff sergeant for release on a Form 10. There was a “misunderstanding”, as Greavette put it, between the staff sergeant and the defendant, and as a result the staff sergeant ordered the defendant held for a show cause hearing. The defendant, he continued, had been brought to 52 Division for fingerprints, photographs and transport to College Park courthouse.

Vandale doubted the defendant would make it to court before it closed that Friday afternoon, meaning she would be held until at least the next day. [ 18 ] Greavette continued to plead the defendant’s case, explaining that a Form 10, permitting the defendant’s release from the station, had been drafted and that the defendant had been upset when she initially rejected the conditions of release. Turning to the defendant, Vandale asked if she was “just being flippant there?” The defendant answered that she “was upset about where [she] was at the time”.

Greavette interrupted to vouch for the defendant, saying, “I’m satisfied she’ll appear in court”. Vandale was not persuaded. “I’m not going to go over the staff sergeant”, he said. He then explained to the defendant that she would spend the night in jail and be taken to court the next day, Saturday, where she would likely be released. “I am not releasing her”, he repeated. Asked why she couldn’t be released to attend court on a later date, Vandale told the defendant that she had “had that opportunity” and, in effect, had blown it.

Although Vandale testified that he believed the defendant, if released, would not appear at court when required, he did not assert this during the booking procedure, nor did he tender any reason for this belief while under oath. [ 19 ] Based on his conversations with and observations of the defendant in the intervening hours, Greavette testified that he was satisfied by about 10:30am, even before they left Traffic Services, that she was “releasable”, which is the position he conveyed to Vandale when the defendant appeared in the booking room at 52 division. [ 20 ] Following Vandale’s decisions, the defendant was fingerprinted and photographed at 52 Division and then returned to the booking room at about 2pm.

Vandale then advised her that she would be taken to court that day. [ 21 ] Vandale had been a member of the Toronto Police Service for 33 years. He had been a booking sergeant for three years when the defendant appeared before him. He did not believe he had a discretion to exercise in that situation; the defendant, as he saw it, was just “passing through” and he was just a cog in the administrative wheel, just carrying out another officer’s decision.

Vandale agreed that he didn’t know what happened at Traffic Services nor did he consider calling his colleague at that station to seek clarification or explain the change in circumstances.

He volunteered that by “taking away” the decision from the defendant and thereby facilitating her attendance at court for her show cause hearing he had afforded her a number of benefits including an opportunity to speak with duty counsel, getting her first court appearance “out of the way” and sparing her having to return for fingerprints and photographs on another date, thereby relieving her of having to take a day off work to attend for these obligations. (

e) Aftermath [ 22 ] The defendant’s show cause hearing occurred at College Park courthouse on the afternoon of December 12 th . The defendant was released on a surety recognizance in the amount of $500.00 at 4:23pm. By then she had been in state custody for over nine hours. C. ANALYSIS (

a) Charter

Section 9: Arbitrary Detention (

i) Introduction [ 23 ]

Section 9 of the Charter guarantees everyone “the right not to be arbitrarily detained or imprisoned”. The defence claim is that, in all the circumstances, the defendant’s s. 9 rights were infringed when S/Sgt Vandale ordered her detained pending a show cause hearing rather than agreeing to her release from the station on a Promise to Appear (Form 10) or other form of release.

Crown counsel concedes the s. 9 breach of the defendant’s rights, thus leaving at issue – at least as between the parties – the question of the appropriate and just remedy, if any. (ii) Breach [ 24 ] Vandale was the “officer in charge” of the station (as defined in s. 493 of the Code) at the time the defendant was brought before him. His obligations at that point are informed by s. 498. That provision, in its immediately relevant parts, commands, in sub.-s. (1), that “the officer in charge … shall, as soon as practicable” release the arrested person by way of a process compelling their attendance in

court unless, as directed by sub.-s. (1.1), he or she “ believes, on reasonable grounds … that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law” (emphasis added).

Put otherwise, Vandale had a discretion to exercise: he could, as directed by the statutory default position, have released the defendant, or he could have ordered her detained so long as he subjectively believed on an objectively cogent basis that she, if released, would not appear in court when required. [ 25 ] Vandale, as an officer in charge, does not sit in review of the decision made by another officer charged with an equivalent duty.

However, once Greavette advised him that, in his opinion, the defendant would “appear in court”, Vandale was obliged to consider the matter afresh and, at minimum, make further inquiries. He failed to do so. There is no evidence that Vandale ever turned his mind to the discretion reposed in him. Indeed, he appears to have fettered his own discretion, exclusively resting his decision to detain the defendant on a determination made by another officer a number of hours earlier.

While Vandale may have subjectively believed the defendant would not appear in court, there is no apparent or articulated objective basis for this conviction. The defendant’s demeanour and apparent sobriety by the time she appeared before Vandale, coupled with Greavette’s vouchsafing her ‘releasability’, dispel concerns as to her failing to appear when required. There was a material change in circumstances, communicated by Greavette, that Vandale was either deaf to or ignored. In effect, he simply rubber-stamped the decision made by another officer.

The litany of advantages which he says inured to the defendant’s benefit as a result of her being detained are not among those factors listed in s. 498(1.1) as germane to Vandale’s decision. Nor, I find, were they in fact operative in Vandale’s mind at the time he ordered the defendant held for a show cause hearing.

They are, rather, irrelevant post facto rationalizations for conduct resulting in the defendant unjustifiably being held beyond the “as soon as practicable” requirement in s. 498(1) and in breach of her s. 9 Charter rights. [ 26 ] Crown and defence counsel are ad idem as to the defendant having been arbitrarily detained. There is, however, a residual consideration that arises by virtue of s. 498(3) of the Code.

That provision reads: 1 An officer in charge or another peace officer who has the custody of a person taken into or detained in custody for an offence described in subsection (1) and who does not release the person from custody as soon as practicable in the manner described in that subsection shall be deemed to be acting lawfully and in the execution of the officer's duty for the purposes of (a) 1 any proceedings under this or any other Act of Parliament; or (b) 1 any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the officer in charge or other peace officer did not comply with the requirements of subsection (1). [Emphasis added.] [ 27 ] At first blush, the statutory language of “deemed to be acting lawfully” suggests that the detention of an arrestee beyond the release- as-soon-as-practicable dictate of s. 498(1) remains “lawful” and therefore beyond effective constitutional challenge.

This logic derives from a key passage respecting s. 9 rights in R. v. Grant (2009), 2009 SCC 32 (CanLII) , 66 C.R. (6th) 1 , at para. 54 , where the Supreme Court held that, A lawful detention is not arbitrary within the meaning of s. 9 [citation omitted], unless the law authorizing the detention is itself arbitrary. Conversely, a detention not authorized by law is arbitrary and violates s. 9. [Emphasis added.] There is no direct attack here on the arrestee detention and release regime codified in s. 498 of the Code.

That said, I cannot subscribe to the notion that Parliament, in sub.-s. (3) of that provision, has endeavoured to insulate over-detentions (to coin an awkward neologism), from constitutional scrutiny. [ 28 ] Subsection (3) of s. 498 is almost identically worded to similar saving provisions in ss. 495 and 497, all of which, as said by the Saskatchewan Court of Appeal in R. v.

Munson (2003), 2003 SKCA 28 (CanLII) , 172 C.C.C. (3d) 515 , at para. 57 , … apply to situations where a person is arrested and then detained in circumstances where he has been charged with an offence or the officers involved intend to charge him with an offence. They are concerned with requiring pre-trial release of the person charged or to be charged, except in the very limited circumstances set out therein. There is a paucity of appellate consideration of s. 498(3).

It is, then, hardly surprising that the Munson court, in endeavouring to purposively construe its meaning and scope, looked to the more developed jurisprudence respecting the comparable saving provision in s. 495(3). It then noted, at para, 58, that, … the only reported authorities respecting s. 495(3) and its predecessor provisions seem to indicate that the purpose of the provision is to prevent persons escaping conviction for resisting arrest if it later transpires that the person was not convicted of the offence for which he was arrested: R. v. Adams, 1972 CanLII 867 (SK CA) , [1973] 2 W.W.R. 371 (Sask.

C.A.) ; R. v. McKibbon (1973), 1973 CanLII 1395 (BC CA) , 12 C.C.C. (2d) 66 (B.C.C.A.) ; R. v. Fuhr , 1975 CanLII 1520 (AB CA) , [1975] 4 W.W.R. 403 (Alta. C.A.) ; R. v. Bunn (1986), 1986 CanLII 4735 (MB KB) , 29 C.C.C. (3d) 133 (Man. Q.B.) ; and R. v. Delong (1989), 1989 CanLII 7164 (ON CA) , 47 C.C.C. (3d) 402 (Ont. C.A.) . That is to say, the purpose is to discourage persons resisting arrest where they believe they will not be convicted of the offence for which they are being arrested.

There seems no reason to interpret 498(3) any differently. (For a pre- Grant and - Munson review of the relevant authorities, see G. T. Trotter, The Law of Bail in Canada , 2 nd Ed. (Toronto: Carswell, 1999), pp. 76 to 81.)

[ 29 ] Applying Munson , “lawfulness” in s. 498(3) is contextually very different than the meaning ascribed to that concept by the Supreme Court in Grant . In these circumstances, and as directed by the governing authorities (see, for example, Bell ExpressVu Limited Partnership v.

Rex , 2002 SCC 42 (CanLII) , [2002] 2 S.C.R. 559 , esp. at para. 62), I hold that Parliament’s intention in the aforementioned provision is to not to inoculate a species of arguably unjustified or unwarranted detentions from constitutional review but, rather and only, to preclude or at least blunt the possibility of certain common law defences founded on claims of unlawful arrest or detention.

As a result, I am satisfied that s. 498(3) affords no impediment to my finding that the defendant’s s. 9 rights were infringed in this case. (iii) Remedy [ 30 ] It is hardly surprising that the defence has pressed for a stay of proceedings, pursuant to s. 24(1) of the Charter, as fit redress for the breach of the defendant’s s. 9 rights. Exclusion of evidence, on application of s. 24(2) of the Charter, is not an available remedy as the s. 9 infringement substantially follows the collection of the evidence of the defendant’s breath samples.

Further, exclusion of such evidence would do nothing to relieve the defendant of the charge of impaired care or control of her vehicle. [ 31 ] Indeed, there are a number of cases where trial courts have stayed charges for similar breaches in not entirely dissimilar circumstances. However, as I read these authorities it appears that the cases in which judicial stays of proceedings have been ordered are almost always ones in which the detention at issue involves a strip-search of the arrestee and thus, and primarily, s. 8 considerations (e.g., R. v.

Samuels (2008), 2008 ONCJ 85 (CanLII) , 67 M.V.R. (5 th ) 132 )), a lengthy (usually overnight) detention (e.g., R. v. Simpson , [1993] N.J. No. 292 (Prov. Ct.) , revd. 1994 CanLII 4528 (NL CA) , [1994], 88 C.C.C. (3d) 377 (Nfld. C.A.) , revd. 1995 CanLII 120 (SCC) , [1995] 1 S.C.R. 449 ) or the application of a force-wide policy that fails to accommodate the individualized circumstances of each detainee (e.g., R. v. Tikaram (2008), 2008 ONCJ 124 (CanLII) , 168 C.R.R. (2d) 358 (Ont.C.J.) ; R. v. Sawatzky , [2010] S.J. No. 46 (P.C.) , and R. v. Simpson, supra ).

To be clear, the physical search of Ms Kalligeris followed the unchallenged decision of S/Sgt Kemp – rather than that made by S/Sgt Vandale – not to release her pending a show cause hearing; Ms Kalligeris was detained for less than three hours beyond the very earliest point at which S/Sgt Vandale could have permitted her release from the station; and there is no evidence of a routine Toronto Police Service policy or institutionalized practice compelling detention of persons in Ms Kalligeris’ position beyond the statutory directives in s. 498. [ 32 ] As has been repeated in many cases, a judicial stay of proceedings is an exceptional remedy that is reserved for the clearest of cases.

The leading authorities are generally recognized as R. v. O’Connor , 1995 CanLII 51 (SCC) , [1995] 4 S.C.R. 411 , Canada (M.C.I.) v. Tobiass , [1977] 3 S.C.R. 391 , and R. v. Regan , 2002 SCC 12 (CanLII) , [2002] 1 S.C.R. 297 . The principles that emerge from these three cases have very recently been summarized by the Court of Appeal in R. v. Zarinchang , 2010 ONCA 286 , at para. 57 :

(1) There are two categories of cases that may attract a stay of proceedings. The first category implicates the fairness of an individual’s trial resulting from state misconduct. The second involves a residual category unrelated to the fairness of the trial, but involves state conduct that contravenes fundamental notions of justice, which undermines the integrity of the judicial process.

(2) In considering whether to grant a stay of proceedings under either of the above categories, the following criteria must be satisfied: (

i) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; it must be directed at prospective prejudice, not to redress past prejudice; and (ii) no other remedy is reasonably capable of removing that prejudice.

(3) In cases in either of the above categories where there remains some uncertainty as to whether the abuse is sufficiently serious to create the prejudice to warrant a stay, there is a third criterion that the court may consider – the balancing of the interests in granting a stay against society’s interest in having a trial on the merits. [ 33 ] The claim before me clearly falls within the “residual category” of cases that may attract the remedy of a judicial stay.

In such cases, as said by the Supreme Court in an oft-quoted passage from Tobiass, supra , at para. 91 (and re- affirmed in Regan , supra , at para. 55 ), The mere fact that the state has treated an individual shabbily in the past is not enough to warrant a stay of proceedings.

For a stay of proceedings to be appropriate in a case falling into the residual category, it must appear that the state misconduct is likely to continue in the future or that the carrying forward of the prosecution will offend society’s sense of justice. [ 34 ] As restated by the Court of Appeal in Zarinchang , at para. 58 , the concern is “not … about continuing prejudice to the applicant by proceeding with the prosecution” but, “[r]ather, … for the integrity of the justice system”.

Accordingly, the Court notes, at para. 60, judges hearing residual category applications, as here, “will almost inevitably have to engage in the type of balancing exercise that is referred to in the third criterion”. This balancing, the Court then explains, commands regard for … the particulars of the case, the circumstances of the accused, the nature of the charges he or she faces, the interest of the victim and the broader interest of the community in having the particular charges disposed of on the merits. [ 35 ] A proper balancing of these factors militates against the remedy of a stay of proceedings.

There is a strong public interest in having drinking-and-driving offences resolved on their merits. While in no way trivial, the prejudice suffered by the defendant and attributable to the s. 9 breach is here measured in a delay of a few hours and, unlike a number of analogous cases, is unexacerbated by complaints of s. 8 violations or physical oppression or discomfort. And, perhaps most importantly, there is no evidence of systemic defects such that I

can infer any risk of perpetuating jeopardy for others in the defendant’s circumstances. While it is clear that S/Sgt Vandale did not “get it”, and while it is reasonable to infer that his misunderstanding of his legal obligations may well have prejudicially impacted on some other arrestees paraded before him, I have no basis for concluding that his defective appreciation of the law extended beyond himself or, following the issuance of these reasons, that it will extend into the future.

If evidence of systemic and uncorrected malpractice had been adduced I might well have concluded that, as put in Zarinchang , at para. 60 , “the advantage of staying the charges against this accused outweigh the interest in having the case decided on the merits”, irrespective of any “windfall” thereby realized by the defendant. [ 36 ] In the end, and mindful of which party bears the burden, I am obliged to dismiss the application for a judicial stay of proceedings. I recognize that at least one of my colleagues has reached a different result in a factually similar case, that of R. v.

Boyce (2003), 1 M.V.R. (5 th ) 97 (Ont. C.J.) . I note only that Boyce was decided long before the Court of Appeal’s directive in Zarinchang respecting the necessary balancing exercise in residual category cases. (

b) Charter S. 8 and Impairment [ 37 ] Defence counsel rightly concedes that the evidence reasonably supports an inference that the defendant had been drinking and that PC Greavette honestly believed she was impaired at the time he arrested her and made a formal breath demand. He says, however, that Greavette’s subjective belief is not objectively supported and, accordingly, his s. 254(3) demand and its sequelae amount to a warrantless and unreasonable seizure of the defendant’s breath samples, the analyses of which then ought to be excluded pursuant to s. 24(2) of the Charter.

With all due respect, I cannot accept counsel’s predicate reading of the evidence and, as a result, the legal consequences that are said to follow. [ 38 ] There is no statutory definition of impairment. It is simply a factual question to be decided on the evidence in each case. That question, however, is not the degree of impairment but whether the requisite impairment has occurred. As said by the Court of Appeal in R. v.

Stellato (1993), 1993 CanLII 3375 (ON CA) , 78 C.C.C. (3d) 380 ; affd. 1994 CanLII 94 (SCC) , 90 C.C.C. (3d) 160 (S.C.C.) ): It is not an offence to drive a motor vehicle after having consumed some alcohol as long as it has not impaired the ability to drive. However, a person who drives while his or her ability to do so is impaired by alcohol is guilty of an offence regardless of whether his ability to drive is greatly or only slightly impaired . [Emphasis added.] [ 39 ] The standard of “reasonable and probable grounds” prescribed in s. 254(3) for the making of a breath demand is “not an onerous threshold”: R. v.

Censoni (2001), 22 M.V.R. (4 th ) 178 (Ont. S.C.) , at para. 43 . The review inquiry, as is often said, simply requires the trier to ask whether, on the basis of the record before it, a reasonable person placed in the position of, here, PC Greavette could conclude that there were reasonable and probable grounds to believe that the defendant’s ability to operate a motor vehicle was impaired by alcohol while in care or control of her vehicle. I find it difficult to imagine how any reasonable person could conclude otherwise on the evidence in this case.

The defendant was found slumped over the console in her car at the 6:30 in the morning as it somehow came to rest against a construction fence on a major Toronto thoroughfare. The car was running; the radio was playing; and yet the defendant was in a state of suspended consciousness. When finally roused she was loud, abusive and argumentative. She was disoriented, admitted she had had a few drinks and conspicuously reeked of alcohol. There was no evidence that the defendant had suffered any injuries or that the car had been damaged so as to otherwise explain her disorientation.

The defendant’s speech was slurred and rapid, her face was flushed, and her eyes were bloodshot and watery. Finally, she had trouble walking in a straight line.

This constellation of physical characteristics, behaviours and ambient circumstances afford ample objective evidence of impairment to ground Greavette’s demand and, accordingly, renders reasonable the ultimate seizure of the defendant’s breath for BAC purposes. [ 40 ] The evidence of these same indicia of impairment also satisfies me beyond reasonable doubt that the defendant was legally impaired while in care or control (as discussed more fully immediately below) of her motor vehicle. (

c) Merits: “Over 80 ” (

i) Introduction [ 41 ] There is no doubt that defendant was in “care or control” of the vehicle in which she was first located: see s. 258(1)(

a) of the Code and R. v. Toews , 1985 CanLII 46 (SCC) , [1985] 2 S.C.R. 119 , esp. at para. 10. In order to prove that she then had more than 80 milligrams of alcohol in 100 millilitres of her blood the Crown relies on an evidentiary shortcut, known as the presumption of identity, set out in s. 258(1)(c)(ii). As explained by the Court of Appeal in R. v. Vanderbruggen , 2006 CanLII 9039 (ON CA) , 206 C.C.C. (3d) 489 , at para. 8 : This presumption simply deems the results of the breath tests to be proof of the accused’s blood alcohol level at the time of the offence in the absence of evidence to the contrary.

Reliance on the statutory presumption depends on a number of conditions being satisfied, two of which attract attention in this case. The first is that each of the defendant’s two breath samples be taken “as soon as practicable” after the offence was alleged to have been committed. The second pertinent pre-condition is that the first breath sample be taken “not later than two hours” after that same time. I

address each of these concerns, beginning with the second. (ii) The Two Hour Rule [ 42 ] The first breath sample was taken at 8:32am. Crown reliance on the presumption of identity thus depends on establishing that the defendant was in care or control of her vehicle – in practical effect, still in the driver’s seat – at 6:32am or later. The evidence as to times provided by the paramedic Sperling is, I find, inadmissible for its truth value or otherwise unreliable.

Accepting, as I do, that PC Greavette did not arrive until 6:55am and that the defendant had by then already been escorted from her car, the narrow issue is whether that removal occurred before of after 6:32am. [ 43 ] The critical evidence in this regard is adduced through Winsor, the worker who first attended at the defendant’s vehicle.

On Winsor’s reconstruction, he arrived in the vicinity at 6:20am, drank a coffee in the company truck for about ten minutes and then ran to the defendant’s car where he spent the next five minutes or so futilely trying to attract the attention of the sleeping or unconscious defendant. At about 6:40am Winsor was joined by a co-worker who called 911 and then opened the Corolla’s door and tried to shake the defendant into consciousness.

Sometime after that, at approximately 7am in Winsor’s estimation, the paramedics arrived and, after some difficulty, managed to remove the defendant from her vehicle and move her to their ambulance. [ 44 ] Given the narrow window involved, a degree of temporal precision is essential. I do not need to know the exact minute when the defendant left her Corolla, but I do need to be satisfied that it was sometime after 6:32am to accept the Certificate readings of the defendant’s BAC.

Winsor, of course, was not employing a stopwatch or recording the time of each critical step in the drama with which he was suddenly confronted. He also fairly agreed that a number of the times he provided were approximations. However, he consistently fixed the time of his arrival on Bloor at 6:20am, his attendance at the defendant’s vehicle within a minute of 6:30am, and the time he was joined by his co-worker at 6:40am. I agree that some allowance – a few minutes here or there – can properly be accorded even those stated times to which Winsor most adamantly adheres.

Factoring-in, however, the events between the time Winsor was joined by his co-worker and the time the defendant was ultimately removed from her car, I have no doubt that the defendant was still in care or control of her Corolla for some minutes – perhaps as long as fifteen – after 6:32am. As a result, I find the Crown has met the “two hour” pre-condition for reliance on the presumption of identity. (iii) “ As Soon As Practicable ” [ 45 ] Defence counsel fastens on two delays on the forced march from the defendant’s arrest to her first breath test.

The first is the Level 2 search of the defendant ordered by S/Sgt Kemp and the second relates to PC Greavette’s call to duty counsel on behalf of the defendant. Each of these events consumed approximately 17 minutes and each, says the defence, amounts to an unacceptable departure from the statutory dictate that the tests be conducted “as soon as practicable”. [ 46 ] The measure of assessment for statutory compliance in this context is reasonableness.

As said in Vanderbruggen , at paras. 12 to 14 : Decisions of this and other courts indicate that the phrase [“as soon as practicable”] 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 .

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; emphasis added.] I have no difficulty concluding that, with respect to both impugned events, the police acted reasonably in the circumstances. [ 47 ] Given the defendant’s obstreperous behaviour at Traffic Services (as graphically disclosed in the booking hall videotape), her gratuitous reference to drug consumption (if by others) and S/Sgt Kemp’s detection of the odour of marijuana, it was reasonable that he direct that she be searched for drugs before entering the station proper.

The fact that some delay ensued to permit the search to be conducted by female officers seems consistent with respect and sensitivity for the defendant’s dignity rather than an exercise in unreasonableness. [ 48 ] I am mindful that Kemp did not testify. Neither the paramedic Sperling or PC Greavette smelled any odour of cannabis, although Greavette – whose evidence I found entirely reliable throughout – discounted his own capacity to detect such odours. Despite the apparent inconsistency with Sperling’s evidence, I see no reason to doubt the sincerity of Kemp’s report of his olfactory observation.

Further, I note that defence counsel, at the very commencement of the trial, abandoned any claim that the Level 2 search violated the defendant’s s. 8 Charter right to be secure against an unreasonable search. [ 49 ] PC Greavette’s placing a call to duty counsel of behalf of the defendant reflects similar consideration for the defendant. She never expressly requested contact with duty counsel and such call, and the delay it provoked, could not be considered reasonable if contrary to the defendant’s settled will. (See, e.g., R. v. Pruski (2006), 44 M.V.R. (5 th ) 106 (Ont.

C.J.) .) The situation, however, is very different where, as here, the defendant’s conduct reflects an unsettled or equivocal mind-set as to the wisdom of securing legal advise. In these circumstances the comments of the late Justice Archie Campbell on the importance of a purposive

interpretation of Charter rights in this context are particularly apposite. In R. v. Kusnir (2002), 22 M.V.R. (4 th ) 36 , a

summary conviction appeal involving a similar issue, he wrote, at paras. 20 and 21: The courts should encourage the police to err, if at all, on the side of ensuring that an accused actually gets access to counsel. Courts encourage the opposite when they penalize the police for ensuring access to counsel. It defeats the purpose of the Charter, trivializes the

right to counsel, and carries the wrong message to the police to penalize them for putting the accused in touch with counsel where there is the slightest doubt about waiver. … Where there is any doubt at all about waiver it should be clear that there is a bright line duty on the police to ensure access to counsel. [ 50 ] In the end I am satisfied that the first sample was taken “within a reasonably prompt time under the circumstances”. As with the two hour requirement, there is compliance with s. 258(1)(c)(ii).

As there is no evidence to the contrary, the Certificate evidence of the defendant’s breath test results is, I find, conclusive proof of the defendant’s excessive BAC at the time she was in care or control of her vehicle. D. CONCLUSION [ 51 ] In the result, and for the reasons just recited, I find the defendant guilty of the two offences with which she is charged. Released on May 4, 2010 __________________________ Justice Melvyn Green