R. v. Ventura, 2011 ONCJ 31

Citation: R. v. Ventura , 2011 ONCJ 31 ONTARIO COURT OF JUSTICE Old City Hall – Toronto BETWEEN: ) ) ) ) HER MAJESTY THE QUEEN ) K. Valente ) for the Crown ) — AND — ) ) ) zachary VENTURA ) B. Brody ) for the Defendant ) ) ) ) ) ) HEARD: January 14, 2011 R E A S O N S F O R J U D G E M E N T M. GREEN, J.: A. INTRODUCTION [ 1 ] The defendant, Zachary Ventura, was stopped and investigated for speeding in Toronto in the early hours of April 9, 2010. He registered a “fail” on a roadside-screening test resulting from that investigation.

Following an appropriate demand, he was transported to a police station where he registered blood alcohol concentration (BAC) readings well in excess of the legal limit. He was charged with driving with a legally excessive BAC and with two Highway Traffic Act (HTA) offences: speeding (74 kph in a 50 kph zone) and a license status offence. The latter charge was dismissed mid-trial at the request of the Crown. [ 2 ] The arresting officer and a qualified breath technician testified as Crown witnesses.

The defence called no evidence. [ 3 ] The defence contents that a reasonable doubt exists as to the statutory basis for the roadside screening demand made by the arresting officer, thus ultimately rendering the taking of the defendant’s breath an unlawful seizure, the analytical results of which should be excluded in evidence. In addition, the defence says that the breath samples were not taken “as soon as practicable”, thus defeating Crown reliance on the presumption of identity upon which a successful prosecution here depends.

And, finally, the defence says that the unposted nature of the speed limit in the area in which the defendant was stopped precludes his conviction for speeding in all the circumstances. [ 4 ] The defence bears the burden of proof, on a balance of probabilities, respecting its Charter claims. However, and as always, the ultimate burden of proof respecting both charges rests with the Crown on a standard of proof beyond reasonable doubt. B. EVIDENCE [ 5 ] PC Guy Hughes is a very experienced traffic enforcement officer. He had conducted hundreds of roadside investigations over

the course of his 21 years of service by April 9, 2010. He set up and tested an approved speed-measuring device at Bloor and Humber atabout 3am that day. He was working alone that evening. At 3:12am he clocked the defendant’s vehicle driving westbound at 74 kph inan unposted 50 kph zone. Hughes described the area as residential, the primary structures being apartment complexes. [6] The speeding vehicle stopped for a red light and then U-turned and drove east. Hughes pulled out and followed the car,clocking its velocity at 81 kph on a handheld approved device as he did so.

The car pulled over in response to Hughes activating hisemergency equipment. The defendant was seated in the driver’s seat. Hughes asked for his identification and related documents while,as is his ordinary practice, getting his own head within six to ten inches of the defendant’s face as the latter sat in the car. Hughestestified he noticed the odour of alcohol on the defendant’s breath and asked him if he had anything to drink that night.

The defendantsaid, “no, but they have”, indicating the three passengers in his car. “I can smell it from you”, Hughes responded, and told the defendanthe was going to ask him for a breath test. “OK. Sure”, the defendant replied. [7] The defendant was co-operative and displayed no signs of impairment. Hughes did “not think there was anything out of theordinary” about the defendant’s condition. Nonetheless, and based, he testified, exclusively on the odour of alcohol he detected on thedefendant’s breath, the officer formed a reasonable suspicion that the defendant had alcohol in his body.

He read the approved screeningdevice demand to the defendant at 3:14am. The defendant then admitted having had one beer between 11:30 and 12pm that evening. At3:16am, the defendant registered a “Fail” on the recently calibrated roadside screening device. Hughes testified to then havingreasonable grounds to believe the defendant had operated a motor vehicle with an excessive BAC. He arrested the defendant for thisoffence and read him his rights to counsel. [8] The defendant advised Hughes that the other occupants of his vehicle were in no shape to drive.

Hughes then arranged for acab to transport the three passengers and left the defendant’s car at the roadside. Although he had no note to this effect, he agreed it was“quite possible” a second officer attended the scene before he left with the defendant at 3:27am. Hughes recognized the urgency oftransporting the defendant for purposes of breath-testing. He also agreed that he could have left the scene with the defendant as early as3:18am if another officer was then present to take charge of the occupants and secure them a taxi.

However, he had no recall of when asecond officer arrived. [9] Hughes reached the Traffic Services station at 3:36am. Although there were no other cars in the sallyport, there was a “slightdelay” before he was able to parade the defendant at 3:43am. The defendant declined to speak to private or duty counsel. He was takento an interview room and then almost immediately into the breath room where, at 3:47am, he recorded a BAC of 147 in the first of twotests conducted by PC Christopher Poynter, a qualified breath technician.

The BAC recorded on a second test at 4:21 am was 140. [10] Hughes agreed in cross-examination that he did not expressly source the smell of alcohol to the defendant’s breath anywherein his notes of the event. He insisted, however, that the alcohol odour emanated from the defendant’s breath and pointed out that hisnotebook did include the notation “I can smell it from you”, in reference to the defendant as he asked him to get out of his car. C. ANALYSIS (

a) Introduction [11] The defendant is not charged with impaired operation of a motor vehicle. His criminal liability, if any, rests on the Crownproving to the requisite standard that his BAC was in excess of 80 milligrams of alcohol in 100 millilitres of blood. This, says thedefence, the Crown has failed to do for two reasons: First, because the capture of the defendant’s BAC was a derivative product of anunlawful seizure, the appropriate Charter remedy for which is the exclusion of the defendant’s BAC readings from his trial.

Thedefence’s second position is that absent an expert witness (and none was called) to read-back the defendant’s breathalyzer results to thetime of his driving, the delay in completing the breath tests was such as to defeat Crown reliance on the evidentiary shortcut, known asthe presumption of identity, designed to avoid the need for such toxicological expertise. I address these arguments before turning to thecharge the defendant faces under the HTA. (

b) The Charter Claim [12] Put briefly, the architecture of the defendant’s Charter is as follows: Section 254(2) requires an officer who makes aroadside screening demand to first have “reasonable grounds to suspect” that, among things, a driver has alcohol in his body. PC Hughesrelied exclusively on the odour of alcohol emanating from the defendant to ground his reasonable suspicion. This single observation,says the defence, was insufficient to meet the admittedly low statutory threshold in all the circumstances.

Nor, says the defence, couldthe defendant’s subsequent admission of alcohol consumption legally rehabilitate Hughes’ defective demand as he neither expresslyrelied on this admission in forming his suspicion nor repeated or reframed the demand after learning this information. In the result, theroadside demand was without legal authority and amounted to an unreasonable search in violation of the protections afforded by s. 8 ofthe Charter. (See, for example, R. v.

Grant (1991), (SCC), 67 C.C.C. (3d) 268 (S.C.C.).) The product of thatunreasonable search (that is, the register of a “Fail” on the approved screening device) then formed the basis of Hughes’ “reasonablegrounds to believe” that the defendant had been driving with a legally excessive BAC.

The defendant’s immediate arrest for this offenceand the demand then made of him to provide samples of his breath to determine the concentration of alcohol in his blood were, thedefence continues, therefore both without lawful foundation and, as a result, the defendant’s breathalyzer testing and BAC readings alsoamount to unreasonable searches and seizures.

And finally, the circumstances surrounding these breaches of the defendant’s Charter-guaranteed rights were such that the only appropriate and just remedy is the exclusion of unlawfully seized evidence – the BAC readings– from the trial. [13] The defendant’s argument is facially attractive and the question of the rehabilitability of a constitutionally defective demandraises a number of legally and intellectually intriguing issues. In the end, however, it all depends on the quality of the evidence, and Ifind that wanting in this case – at least from the defendant’s perspective.

[14] The defence reasoning ultimately rests on Hughes’ assertion that he formed a reasonable suspicion that the defendant hadalcohol in his body based on the odour of alcohol emanating from his breath. Defence counsel suggests that Hughes enhanced theprobative force of his observations by inserting the word “breath” into his testimony when that word nowhere appears in his notes of theevent. As an experienced traffic officer, says defence counsel, Hughes would have known how important the source – particularly if itis a driver’s breath – is to an assessment of his evidence at an “over 80” trial.

The omission of any reference to “breath” in his notes,defence counsel continues, raises at least a reasonable doubt as to Hughes’ credibility. Without this tight nexus, it is said, the odour ofalcohol cannot be reasonably attributed to the seated defendant as it may well have come from the other occupants of the vehicle. [15] Buying-in to the defence Charter argument requires me, at minimum, to have a doubt as this predicate proposition: that is,that Hughes smelled the odour of alcohol on the defendant’s breath. To be clear: I have no such doubt.

Hughes testimony was clear andconsistent, in direct and cross-examination. It was also uncontradicted. His evidence was generally favourable to the defendant. DespiteCrown counsel’s effective invitation in re-examination to have him pad his evidence as to the defendant’s indicia of alcohol ingestion,Hughes never wavered from his position that but for the odour of alcohol the defendant exhibited no signs of such consumption. WhileHughes’ notes do not include the word “breath”, they, like his testimony, reflect him saying “I can smell it from you” to the defendantwhile their faces were inches apart.

In short, I accept Hughes’ evidence. Having smelled alcohol on the defendant’s breath, Hughesreasonably inferred that he had alcohol in his body. The roadside screening demand that followed thus met the standard of reasonablesuspicion as required by s. 254(2). The ensuing searches and seizures of the defendant’s breath were therefore reasonable. There was, Ifind, no breach of s. 8 of the Charter.

Accordingly, there is no need to conduct an exclusionary analysis under s. 24(2) of the Charter. (c) “As Soon as Practicable” [16] One challenge to the successful prosecution of “over 80” cases is persuading a court that a driver’s BAC at the time the timeof the alleged offence is the same as it was at the time (usually at least an hour later) it was analyzed and documented on an approvedinstrument such as a Breathalyzer.

One method by which the Crown can endeavour to establish this critical fact (that is, the defendant’sBAC at the time he was operating or in care or control of the vehicle) is to call a qualified expert, usually a toxicologist, to express anexpert opinion on the matter. A much simpler method is afforded the Crown through what is known as the “presumption of identity” asset out in s. 258(1)(c).

Subject to a narrowly circumscribed basis for rebuttal, as long as the statutory pre-conditions are met the BACresults of a Breathalyzer analysis “is conclusive proof” that the defendant’s BAC at the time of the analysis and at the time when theoffence was alleged to have been committed are identical.

One of the necessary pre-conditions to this evidentiary shortcut requires theCrown to establish that, Each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in thecase of the first sample, not later than two hours after that time … . [Emphasis added.] [17] The defence argues, in brief, that this necessary condition to Crown reliance on the presumption of identity has not beensatisfied. Counsel points to two gaps, totaling approximately 16 minutes, which, he says, are unreasonable or unexplained.

The first isthe nine minutes between the time PC Hughes completed the roadside testing, arrested the defendant, made the Breathalyzer demandand read him his rights to counsel (3:18am) and the time he and the defendant finally left the scene (3:27am).

The second period is theseven minutes that elapsed between the time Hughes and the defendant arrived at the Traffic Services sallyport (3:36am) and the timethey were finally admitted to the station (3:43am). [18] Satisfaction of the “as soon as practicable” requirement does not admit to mechanical application, nor is there an inflexiblelimitation period beyond which s. 258(1)(

c) will not avail the Crown. The test, rather, is one of good sense and reason. As explained bythe Court of Appeal in R. v. Vandergruggen (2006), (ON CA), 206 C.C.C. (3d) 489, at paras. 12, 13 and 16: Decisions of this and other courts indicate that the phrase means nothing more than that the tests were taken within a reasonablyprompt time under the circumstances. There is no requirement that the tests be taken as soon as possible. The touchstone fordetermining 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 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 “assoon as 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. … To conclude, these provisions, which are designed to expedite trials and aid in proof of the suspect’s blood alcohol level, should not beinterpreted so as to require an exact accounting of every moment in the chronology.

We are now far removed from the days when thebreathalyser was first introduced into Canada and there may have been some suspicion and scepticism about its accuracy and value andabout the science underlying the presumption of identity. These provisions must be interpreted reasonably in a manner that is consistentwith Parliament’s purpose in facilitating the use of this reliable evidence. [Citations omitted; emphasis added.] [19] In my view, the tests were taken reasonably promptly in all the circumstances. PC Hughes understood the urgency of hisduties.

He attributed the initial delay to securing a taxi for the other occupants of the defendant’s vehicle (who, he had been advised,were too inebriated to drive), and I am certainly satisfied as the reasonableness of this explanation. While defence counsel has sought tomake much of Hughes’ failure to hand-off this assignment to a second officer, there is no positive evidence that such officer everattended the scene of the arrest or, if he did, how long before Hughes left for the station with the defendant in tow. I decline the

invitation to speculate about alternative scenarios in the absence of an adequate evidentiary foundation. [20] Nor do I find that the seven minute period between arriving at the sallyport and the defendant’s parade undermines Crownreliance on the s. 258(1)(

c) presumption. Sufficient explanation has been provided given the brevity of this delay, the good faith, as Ifind it, of the arresting officer, and the undisputed evidence that the defendant’s first Breathalyzer test occurred less than 50 minutesafter the occurrence of the Code offence with which he was charged and well within the “outside limit of two hours” afforded by thestatutory provision.

Given our more mature appreciation of the “value and about the science underlying the presumption of identity”, asput by the Court of Appeal, I have no difficulty holding that the Crown has here established the foundation for its reliance on thisevidentiary shortcut. [21] In the result, I find the defendant guilty of driving with an excessive BAC. (

d) The Highway Traffic Act Charge [22] The defendant is charged with driving at 74 kph in a 50 kph zone, contrary to s. 128 of the Highway Traffic Act. No speedlimit is posted on the portion of the highway on which he was observed by PC Hughes whose evidence is that this area consists ofresidential apartment complexes. I am personally unfamiliar with the area. Further, the conurbation that makes up much of extendedToronto is such that I am not prepared to take judicial notice of the urban topography in the vicinity of the intersection at issue. [23]

Section of 128 of the HTA creates the offence of speeding. As I read the provision, where, as here, the speed limit isunposted, the general rule, pursuant to sub-s. 128(1)(a), is that such limit is “50 kilometres per hour on a highway within a localmunicipality or within a built-up area”.

There are a number of statutory exceptions to this provision, one of which, sub-s. (1)(c), reads: 80 kilometres per hour on a highway designated by the Lieutenant Governor in Council as a controlled-access highway under the PublicTransportation and Highway Improvement Act, whether or not the highway is within a local municipality or built-up area. [Emphasisadded.] [24] If the highway on which the speeding offence is alleged to have occurred has been designated a “controlled access highway”under this Act, than the velocity at which the defendant’s motor vehicle was clocked (74 kph) is less than the statutory speed limit (80kph).

As I have no evidence before me as to whether the highway at issue is or is not so designated, the question arises as to whethernegativing the factual premise for the exception is part of the burden borne by the Crown The answer, it appears, is set out in s. 47(3) ofthe Provincial Offences Act: The burden of proving that an authorization, exception, exemption or qualification prescribed by law operates in favour of the defendantis on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the authorization, exception, exemption orqualification does not operate in favour of the defendant, whether or not it is set out in the information.

The constitutional validity of the identical precursor to this provision has been upheld by the Court of Appeal: R. v. Lee’s Poultry Ltd. (1985), (ON CA), 17 C.C.C. (3d) 539. [25] The defendant led no evidence to establish that the “controlled-access highway” exception obtained, nor does any evidenceled by the Crown afford a premise for such consideration. Accordingly, I find the defendant guilty of the HTA offence with which he ischarged. D.

CONCLUSION [26] In the result, I find the defendant guilty of both driving with an excessive blood alcohol concentration, contrary to theCriminal Code, and of speeding in violation of the Highway Traffic Act. Reasons released on February 1, 2011 __________________________ Justice Melvyn Green