R. v. Quilang, 2017 ONCJ 54

ONTARIO COURT OF JUSTICE CITATION: R. v. Quilang, 2017 ONCJ 54 DATE: January 20, 2017 COURT FILE No.: 15-35006060 BETWEEN: HER MAJESTY THE QUEEN — AND — JUSTIN QUILANG Before Justice M.

Speyer Heard on November 30, 2015, April 15, 2016 and November 1, 2016 Reasons for Judgment released on January 20, 2017 Paul Kelly ................................................................................................ counsel for the Crown Peter Lindsay ......................................................... counsel for the defendant Justin Quilang SPEYER J.: INTRODUCTION: [ 1 ] Justin Quilang is charged with operating a motor vehicle with a blood alcohol concentration of over 80 milligrams of alcohol in 100 millilitres of blood. [ 2 ] The charge stems from a traffic stop that occurred at approximately 01:46 on January 25, 2015.

Toronto Police Constable Darryl Norman had been driving a marked police car eastbound on Progress Avenue in the area of Scarborough Town Centre, when he observed ahead of him, a silver Acura travelling at about 80 kilometers per hour in a 60 kilometer per hour zone. The officer stopped the car and Mr. Quilang identified himself as the driver. He was the sole occupant of the vehicle. Constable Norman observed what appeared to him to be a glass with rum and coke in the front center console. Constable Norman testified he smelled alcohol but was not sure if was from the car or the driver. He asked Mr.

Quilang if he been drinking, and Mr. Quilang denied it, saying he had come from a function where there was no alcohol. The officer questioned him about the drink in the car and Mr. Quilang admitted it was a rum and coke. [ 3 ] Constable Norman testified he was suspicious that Mr. Quilang had consumed alcohol and at 01:50, he made a demand pursuant to s. 254(2) (

b) of the Criminal Code , demanding that Mr. Quilang provide a sample of his breath into an approved screening device. He asked Mr. Quilang to sit in the rear seat of the police cruiser for the purpose of taking the test. Mr. Quilang complied and at 01:52 his breath registered a “fail” on the approved screening device. [ 4 ] As a consequence, at 01:53, Constable Norman arrested Mr. Quilang for operating a motor vehicle with a blood alcohol concentration in excess of 80 mg of alcohol in 100 ml of blood. After advising him of his right to counsel and caution, the officer made a

demand pursuant to s. 254(3)(

a) of the Criminal Code, demanding that Mr. Quilang provide a sample of his breath into an approvedinstrument for the purpose of determining the level of alcohol concentration in his blood. At 02:05, Mr. Quilang was taken to 41 Divisionwhere, after speaking to duty counsel, he provided two breath samples directly into an approved instrument. The first sample was takenat 03:15 and was analysed as containing 150 mg of alcohol in 100 ml of blood. The taking of the second sample was completed at 03:38and was analysed as containing 140 mg of alcohol in 100 ml of blood. [5] Mr.

Quilang objects to the admission of the Certificate of a Qualified Technician into evidence at this trial on the basis thathis rights under s. 8 and 9 of the Charter of Rights and Freedoms were violated. He seeks to exclude this evidence pursuant to s. 24(2) ofthe Charter. As this was a warrantless seizure of Mr. Quilang’s breath, both at the roadside and at the police station, the Crown bears theonus of proving that the seizures were in accordance with the provisions of s. 254(2) and s. 254(3) of the Criminal Code. In this regard,Mr. Quilang points to three deficiencies in the Crown’s evidence. [6] First, Mr.

Quilang submits there is no evidence that Constable Norman had the requisite suspicion that the accused hadalcohol in his blood when he made the roadside screening demand. He argues that the officer’s suspicion that Mr. Quilang “had beendrinking” does not conform to the requirements of s. 254(2) of the Code. [7] Second, the defendant argues that the result from the approved screening device was unreliable and Constable Norman oughtnot to have relied on it to formulate his grounds to a make a breath demand under s. 254(3)(

a) of the Code. Mr. Quilang argues that theofficer ought to have turned his mind to the potential that residual mouth alcohol from recent alcohol consumption might result in a false“fail”. In addition, there were two unspecified error messages during the screening test which further undermined the reliability of the“fail” result. Accordingly, the officer could not, objectively, have had reasonable grounds to make a s. 254(3) demand and the seizure ofthe breath samples at the police station was unlawful. [8] Third, Mr.

Quilang argues that his s. 8 and 9 rights were violated when he was detained in the rear of the police cruiser toperform the roadside screening test. He argues that this was not necessary and therefore not in accordance with s. 254(2)(

b) of theCriminal Code. [9] Lastly, Mr. Quilang submits that even if the Certificate of a Qualified Technician is admitted into evidence, the Crowncannot rely on the presumption of identity as the breath samples were not taken as soon as practicable as required s. 258(1)(

c) of theCriminal Code. [10] For the reasons stated herein, I find that the police did not violate Mr. Quilang’s rights under either s. 9 or 8 of the Charterand the Certificate of the Qualified Breath Technician is admissible at the trial of this matter. REASONABLE SUSPICION: [11] Section 254(2)(

b) of the Code states:

(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, withinthe preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment orhad the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officermay, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (

a) and (b),in the case of alcohol: (

b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made bymeans of an approved screening device and, if necessary, to accompany the peace officer for that purpose. [12] In R. v. Latour, (ON CA), [1997] O.J. No. 2445, Justice Charron described what a police officer mustbelieve at the time of making the roadside screening demand: The

section simply provides that, prior to making the demand, the peace officer must reasonably suspect that a person who is operating amotor vehicle (or who is engaged in any one of the other named activities) has alcohol in his or her body. If the peace officer forms therequired suspicion, he or she may make a demand that the person provide "forthwith" a sample of breath for analysis in an approvedscreening device. [13] In R. v. Schouten [2016] O.J.

No. 5908, 2016 ONCA 872, the Court of Appeal summarized the law as it relates to thestandard of reasonable suspicion: [26] It is not necessary that a person show signs of impairment to found a basis for making a roadside breath demand. Nor is itnecessary that a police officer suspect the person is committing a crime. All that is required is that the police officer making the demandhas reasonable grounds to suspect that a person has alcohol in their body: s. 254(2) of the Criminal Code; Lindsay. [27] Moreover, the standard of “reasonable grounds to suspect” involves possibilities, not probabilities: R. v.

Williams, 2013 ONCA772 , [2013] O.J. No. 5880, at para. 22, citing R. v. MacKenzie, 2013 SCC 50 , [2013] 3 S.C.R. 250, at para. 38; R. v.Chehil, at para. 27; R. v. Kang-Brown, 2008 SCC 18 , [2008] 1 S.C.R. 456, at para 75. [14] The law requires not only that the officer have a subjective belief that the person under investigation may possibly havealcohol in his body, but that such belief is grounded in “objectively discernible facts, which can then be subject to independent judicialscrutiny”. Reasonable suspicion remains a concept of possibility not probability (see: R. v.

MacKenzie, supra, paras. 38 and 41, R. v.Chehil, supra, para 26). [15] In examination in chief Constable Norman testified that based on the presence of an alcoholic beverage in Mr. Quilang’s car

and the slight odour of alcohol emanating from either the driver or the car, he had a suspicion that Mr. Quilang may possibly have beendrinking. The officer elaborated by saying, “I formed the opinion that he may have had alcohol in his blood stream”[1]. [16] In cross examination, Constable Norman was specifically asked by defence counsel what test he applied to make theapproved screening device demand. The officer replied that he would make the demand if he had suspicion that the person had beendrinking.

He went on to say that if the person had mouth alcohol because he had been drinking, that would satisfy the requirement.Counsel submits that this is not the test set out in s. 254(2) as it does not take into account the timing of consumption or the possibilitythat alcohol was eliminated from the body. [17] On the evidence before me, I am satisfied that Constable Norman understood the basis upon which he was legally permittedto make an approved screening demand. The officer’s evidence must be considered in context and as a whole.

He articulated the testdifferently in cross-examination and used the term “mouth alcohol”, meaning that this was an indication that the person has ingestedalcohol. In my view this does not diminish Constable Norman’s earlier testimony where he correctly articulated the test to be a suspicionof alcohol in the person’s body. [18] The evidence in this case is distinguishable from that in R. v. Dignum, 2013 ONCJ 668 and R. v. Rahman [2014] O.J. No.5773 (O.C.J.), wherein the trail judge found that the investigating officer fundamentally misunderstood the test in s. 254(2).

Moreover, inlight of the recent Court of Appeal’s decision in R. v. Schouten, supra, I am not persuaded by the correctness of the decision in R. v.Keats [2013] O.J. No. 2336 (O.C.J.). [19] Constable Norman’s observations of an alcoholic beverage in Mr. Quilang’s car and the odour of alcohol are objectivelydiscernible facts which support the officer’s suspicion that Mr. Quilang may possibly have consumed alcohol at some point before thestop and that he had alcohol in his body. I am satisfied that Constable Norman possessed the requisite reasonable suspicion to make ademand pursuant to s. 254(2) of the Code.

RELIABILITY OF THE SCREEING TEST RESULTS: 1. Mouth Alcohol [20] Defence counsel argues that the presence of an alcoholic beverage in the vehicle within easy reach of his client, ought to havealerted Constable Norman to the possibility that Mr. Quilang had recently consumed alcohol. He argues that the officer should havewaited 15 minutes to eliminate the possibility that mouth alcohol would interfere with the reliability of the screening test. [21] The evidence establishes that there was a nearly full glass of rum and coke in the front console of the car. Constable Normantestified he did not know whether Mr.

Quilang had consumed any of the drink prior to being stopped or if some of the drink had spilledfrom the top of the glass as the vehicle was moving. The officer testified he is aware that mouth alcohol can result in a falsely high breathtest result on the approved screening device. He admitted that he is trained to ask a suspect about recent consumption of alcohol.Constable Norman testified that he did not ask Mr. Quilang about his last drink because Mr. Quilang had already denied drinking anyalcohol. Constable Norman testified that based Mr.

Quilang’s response, he did not think mouth alcohol would be an issue and so he didnot turn his mind to waiting 15 minutes. He testified that had Mr. Quilang not denied drinking, he would have asked about when he hadhis last drink. [22] Mr. Quilang testified on the Charter application. He testified that he had been at a party earlier in the evening and hadconsumed 4 to 6 alcoholic drinks. Upon leaving the party, he drove to a bar called Jack Astor’s where he ordered a rum and coke. Hetook a sip of this drink and decided he did not want to stay at the bar, so he left with the drink concealed under his coat. Mr.

Quilangtestified he went to his car, had another sip of the drink in the car and then drove out of the parking lot. He testified that he was stoppedwithin minutes of leaving the parking lot. There is no evidence that Mr. Quilang told Constable Norman that he had a sip of the drink inthe parking lot or that he had consumed any alcohol at any time prior to being stopped. [23] Section 254(2)(

b) of the Code requires that a roadside screening test be administered “forthwith”. In R. v. Bernshaw, (SCC), [1994] S.C.J. No. 87 at para. 51, the Supreme Court of Canada held that an officer who is aware that a suspect hasrecently consumed alcohol and that a screening device test would be unreliable, in that circumstance is entitled to wait up to 15 minutesto ensure a proper test. [24] In R. v. Einarson, (ON CA), [2004] O.J. No. 852, the Court of Appeal dealt with a similar issue wherethe police stopped a driver shortly after she left a bar.

The arresting officer suspected the driver had alcohol in her body because of thesmell of alcohol on her breath and other indications of alcohol consumption. When the officer asked her, Ms. Einarson denied drinking.The officer did not know when Ms. Einarson had taken her last drink, but knew it was possible she had consumed alcohol within the 15minutes preceding the demand.

Justice Doherty, speaking for the Court of Appeal held at para. 35: Bernshaw makes it clear that the mere possibility that a driver has consumed alcohol within 15 minutes before taking the test does notpreclude an officer from relying on the accuracy of the statutorily approved screening device. Where an officer honestly and reasonablyconcludes on the basis of available information that he can form no opinion as to whether the driver consumed alcohol within the prior15 to 20 minutes, the officer is entitled to rely on the accuracy of the statutorily approved screening device and administer the testwithout delay.

That is not to say that another officer might not assess the same situation differently and have legitimate concerns aboutthe reliability of a test administered without a brief delay and act accordingly. In each case, the officer's task is to form an honest beliefbased on reasonable grounds about whether a short delay is necessary to obtain a reliable reading and to act on that belief. [25] In R. v. Mastromartino, [2004] 70 O.J. No. 1435 (S.C.J.), at para 23, Justice Durno summarized the essential points made inBernshaw and Einarson: 1.

Officers making ASD demands must address their minds to whether or not they would be obtaining a reliable reading by

administering the test without a brief delay. 2. If officers do not, or reasonably could not, rely on the accuracy of the test results, the results cannot assist in determining whetherthere are reasonable and probable grounds to arrest. 3. Officers making ASD demands may briefly delay administering the test if, in their opinion, there is credible evidence which causesthem to doubt the accuracy of the test result unless the test was briefly delayed. 4. Officers are not required to wait before administering the test in every case where a driver may have been in a bar shortly beforebeing stopped.

The mere possibility that a driver has consumed alcohol within 15 minutes before taking the test does not preclude anofficer from relying on the accuracy of the screening device. 5. Whether or not officers are required to wait before administering the screening test is determined on a case-by-case analysis,focusing on the officer's belief as to the accuracy of the test results if the tests were administered without delay, and the reasonablenessof that belief 6.

The fact the driver is observed leaving a bar is a relevant circumstance in deter-mining whether it was reasonable for the officer todelay the taking of the test in order to obtain an accurate sample. However, officers are not required to ask drivers when they lastconsumed alcohol. 7. If the officer decides to delay taking the sample and that delay is challenged at trial, the court must decide whether the officerhonestly and reasonably felt that an appropriately short delay was necessary to obtain a reliable reading. 8.

If the officer decides not to delay taking the sample and that decision is challenged at trial, the court must decide whether the officerhonestly and reasonably believed that he could rely on the test result if the sample was taken without delay. [26] Justice Durno also addressed the question of whether the trial judge's assessment of the officer's grounds includes evidencegiven at trial but which was not known to the officer at the time of the arrest and Intoxilyzer demand.

Based on a review of appellatedecisions, Justice Durno concluded that the question of the existence of reasonable and probable grounds must be based upon factsknown by or available to the peace officer at the roadside when he formed the requisite belief, not at the time of trial: see Mastromartino,supra, para 24 to 28. [27] I find as a fact that Constable Norman did not consider whether to delay the test because Mr. Quilang denied drinking anyalcohol. The officer testified, and I accept, that had Mr. Quilang admitted drinking, he would have asked him about when he had his lastdrink.

Since the accused denied any alcohol consumption, the officer logically saw no point in asking any further questions about it. Iam satisfied that the presence of open alcohol in the car led Constable Norman to reasonably and honestly suspect that Mr. Quilang hadalcohol in his body, but based on the information available to him, he had no reason to believe that Mr. Quilang had consumed alcoholwithin 15 minutes of the stop.

Any conclusion that the accused had consumed alcohol within 15 minutes of being stopped would bebased on speculation and could have resulted in the test not being administered “forthwith”. [28] On all of the evidence before me, I find that arresting officer honestly and reasonably believed that the result from theapproved screening device would be accurate and there was no basis to delay the testing. Based on the information available to theofficer, there was no reason to doubt the accuracy of the test result. The mere possibility that Mr.

Quilang had consumed some of thealcoholic beverage in his car within 15 minutes of the stop did not preclude the officer from relying on the accuracy of the screeningdevice. Mr. Quilang’s evidence that he had consumed alcohol within a few minutes of being stopped does not assist his argument as thisinformation was not known to Constable Norman when he made the roadside screening demand. 2. The Error Messages: [29] Mr.

Quilang argues that a second reason that Constable Norman ought not to have relied on the approved screening devicetest result is due to the fact that he did not satisfy himself that the device was functioning properly. He points to two unknown errormessages from the device before the “fail” result. The Crown argues there is no evidence that the device was not working properly andthe officer reasonably and honestly believed that it was. [30] Constable Norman testified he believed the device was working properly based on a self-test that accurately resulted in a “0”reading indicating he had no alcohol in his body.

Immediately after the self-test, he administered the test to Mr. Quilang. He testified thatMr. Quilang made three attempts to provide a suitable sample. On the first attempt, Mr. Quilang covered his mouth. On the secondattempt, he stopped blowing before the machine could register a reading. On the third attempt, the officer coached Mr. Quilang bysaying “blow, blow, blow” until the machine indicated it had received a suitable sample. This third attempt resulted in the “fail” message. [31] In cross examination, Constable Norman acknowledged that there were two error messages from the device before the “fail”result.

He did not recall whether he looked at those error messages and he did not make a note of what they were. He believed that theerror messages resulted from insufficient air flow. Constable Norman testified he did not believe that either of the error messagesindicated that the device was not working properly and should not be used. He relied on the fact that the device had worked properlyduring the self-test a minute before.

He testified that if he believed the machine was not working properly, he would not have used it. [32] It is not the task of this court to assess whether the evidence establishes that the approved screening device was in goodworking order. Rather the court must be satisfied that the officer had reasonable grounds for believing that the device was in goodworking order: see R. v. Topaltsis, (ON CA), [2006] O.J. No. 3181(C.A.). [33] On the evidence before me, I am satisfied that the two error messages were for insufficient air flow. The roadside screeningtest was performed inside Constable Norman’s cruiser.

There is an audio recording of the testing procedure: see Exhibit 2A. The audiotape confirms Constable Norman’s evidence that Mr. Quilang made two failed attempts before successfully providing a suitable sample.The audio tape supports the officer’s testimony that he believed the two error messages were as a result of insufficient air flow due to

Mr. Quilang not providing suitable samples. There is no evidence before me to suggest that the error messages indicated that the machine should not be used. Indeed, there is no evidence that the device was not functioning properly or that Constable Norman could not rely on the test result. [ 34 ] I am therefore satisfied on the evidence before me that based on the “fail” result from the approved screening device, Constable Norman had reasonable and probable grounds to believe that Mr. Quilang had a blood alcohol concentration in excess of 80 mg of alcohol per 100 ml of blood.

He therefore had reasonable and probable grounds to make the s. 254(3) demand, and there was no breach of Mr. Quilang’s rights under s. 8 of the Charter . DETENTION IN THE POLICE CRUISER FOR THE SCREENING DEVICE TEST [ 35 ] Defence counsel argues that placing his client in the police cruiser for the purpose of administering the approved screening device test was not necessary and contrary to s. 254(2)(

b) of the Code . He argues that this was a serious breach of Mr. Quilang’s rights under s. 9 and 8 of the Charter . He seeks to exclude evidence of the approved screening device test result and the Intoxilyzer readings. [ 36 ] Section 254(2)(

b) states that a peace officer may demand that a motorist provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary , to accompany the peace officer for that purpose (emphasis added). [ 37 ] Constable Norman read the approved screening device demand to the Mr. Quinlan at 01:50, while he was still seated in his car. The officer then asked Mr. Quilang to accompany him to his police cruiser for the purpose of administering the test. According to the in-car video, Mr.

Quinlan was taken to the rear passenger side of the police cruiser at about 01:50:30. The test was administered immediately. The “fail” result was received at about 01:53:20 at which time Mr. Quilang was advised he was under arrest for driving with more than 80 mg of alcohol per 100 ml of blood. The total length of time that Mr. Quilang was detained in the police cruiser prior to his arrest was less than three minutes. [ 38 ] Constable Norman testified that it is usually his practice to conduct a roadside screening test either in front of his police car, or in the back seat of his car.

He did not recall what specific training he had regarding where the test should be performed. He acknowledged that “they prefer you to do it in front of the car”. He testified that in this particular case, he did the test inside his own car because it was bitterly cold outside. The in-car audio tape confirms that there was a discussion between Mr. Quilang and Constable Norman regarding how cold it was. [ 39 ] Defence counsel argues that placing Mr. Quilang in the police cruiser was not necessary and therefore unlawful. He relies on R. v.

Aucoin , [2013] 3 S.C.R. 408 wherein the court held that a search will be reasonable only if it is authorized by law, the law is itself reasonable and the manner in which the search was carried out is reasonable. In that case, Mr. Aucoin had been detained for a traffic infraction and placed in the rear seat of the police cruiser while the investigating officer completed paper work. The court held that in the circumstances of that case, placing Mr. Aucoin in the rear seat of a police cruiser was not necessary to the investigation of the traffic infraction and was therefore unlawful.

Because the accused’s detention in the back of the police cruiser was unlawful, it could not constitute the requisite basis in law to authorize a warrantless pat down search. [ 40 ] In R. v. Azarnush [2016] O.J. No. 3248 (O.C.J.) a police officer held the accused in the back of his police cruiser with the doors locked for 15 minutes while lecturing him on his manner of driving. When the officer opened the cruiser door to give the accused a ticket for careless driving, he smelled alcohol and made an approved screening demand.

The accused failed the test and was charged with operating a motor vehicle with excess blood alcohol concentration. Justice Greene excluded the results of the approved screening device and the subsequent Intoxilyzer readings on the basis that the accused’s detention in the police cruiser was not necessary to the officer’s initial investigation into careless driving and was therefore arbitrary and unlawful. [ 41 ] The evidence before me is distinguishable from that in Aucoin or Azarnush .

In the case before me, Constable Norman had already formulated the necessary grounds to make a roadside screening demand before placing Mr. Quilang in his cruiser. Unlike the cases cited by the defence, Constable Norman did not obtain his grounds to make the s. 254(2)(

b) demand as a result of an unlawful detention. [ 42 ] Moreover, I am satisfied that in the circumstances of this case, Constable Norman’s demand that Mr. Quilang accompany him to his police cruiser for the purpose of administering the approved screening device test was both necessary and reasonable. Given the frigid conditions, taking the sample in a warm cruiser was both necessary and manifestly reasonable. Mr. Quilang was not searched or handcuffed prior to being placed in the cruiser. He was in the police car for no more than 3 minutes to take the test.

The test was performed at the site of the stop, within a few meters of the accused’s car. Mr. Quilang was not taken to a distant location such as at a police station. The test was performed with dispatch, with no danger to Mr. Quilang’s safety and with minimal interference with his liberty. In other words the manner in which the breath sample was obtained was entirely reasonable. [ 43 ] In all of the circumstances I find that administering the approved screening device test in the police cruiser was in accordance with s. 254(2)(

b) of the Code and not a violation of Mr. Quinlan’s rights under s. 9 or 8 of the Charter . Even if I had concluded otherwise, on a Grant analysis, I would not have excluded the results. [ 44 ] In conclusion, Mr. Quilang’s application to exclude the Certificate of a Qualified Technician is dismissed and the evidence of the Intoxilyzer readings is admitted at trial. AS SOON AS PRACTICABLE [ 45 ] The requirement that the samples be taken as soon as practicable provides an evidentiary short-cut for the Crown. Section

258(1)(c)(ii) of the Criminal Code provides that if the samples are taken as soon as practicable, then, provided certain other conditionsare fulfilled, the prosecution may rely upon the presumption of identity. This presumption simply deems the results of the breath tests tobe proof of the accused's blood alcohol level at the time of the offence in the absence of evidence to the contrary. [46] In determining whether the tests were taken as soon as practicable, I am guided by the instruction given by Justice Rosenbergof the Ontario Court of Appeal in R. v. Vanderbruggen, (ON CA), [2006] O.J.

No. 1138 at paragraph 12 and 13,wherein he stated that the phrase “as soon as practicable” means nothing more than that the tests were taken within a reasonably prompttime under the circumstances. There is no requirement that the tests be taken as soon as possible. The touchstone for determining whetherthe tests were taken as soon as practicable, is whether the police acted reasonably. The trial judge should look at the whole chain ofevents 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 firsttest.

The "as soon as practicable" requirement must be applied with reason. In particular, while the Crown is obligated to demonstratethat – in all the circumstances – the breath samples were taken within a reasonably prompt time, there is no requirement that the Crownprovide a detailed explanation of what occurred during every minute that the accused is in custody. [47] Mr. Quilang submits that the samples of his breath at the police station were not taken as soon as practicable.

He points to anunexplained delay of about 22 minutes from arrival at 41 division at 02:18 to the time he is brought before the officer in charge of thestation at 02:40. Crown counsel argues that there are no unexplained delays and the samples were taken as soon as practicable. [48] The video tape from the in-car camera is a reliable source of evidence to determine whether the breath samples were taken assoon as practicable. The evidence establishes that the officer arrived at 41 Division with Mr. Quilang at 02:18. The vehicle entrance tothe sally port was closed.

Constable Norman is observed on videotape getting out of the cruiser and going to the telephone outside theentrance to the sally port. Constable Norman testified that the door to the sally port can only be opened from inside the station. Hetestified that he went to the phone to announce his presence and returned to his cruiser to wait for the door to open.

In his experience,when the door is closed, it means that there is already another car in the sally port and another person is being paraded before the officerin charge of the station. [49] The video tape shows the sally port door opening at 02:31 and a police car backing out. Constable Norman’s cruiser is seenentering the sally port at 02:32. Constable Norman exits the cruiser and walks to a door leading to the booking hall. Constable Normantestified he went to the booking hall to speak to the “booker”, an officer who assists the officer in charge of the station. He testified thathe gave the booker Mr.

Quinlan’s name and property to facilitate the parading process. [50] Constable Norman is next seen on the videotape returning to the car at 02:36 where he has a brief conversation with Mr.Quilang. He is heard telling Mr. Quilang that he is waiting for the officer in charge of the station. Constable Norman goes back insidethe station and is off screen for about 4 minutes. He is seen returning to the cruiser just before 02:40 at which time he takes Mr. Quilangout of the cruiser and brings him into the booking hall. The booking process takes about six minutes and is completed by 02:46. [51] Mr.

Lindsay argues that the delay at the sally port is fatal to the Crown’s ability to establish that the breath samples weretaken as soon as practicable. He points out that there is no explanation of why the other police car was in the sally port or why ConstableNorman could not have brought Mr. Quilang through another entrance. He argues that this lack of evidence raises a doubt that the testswere taken as soon as practicable. [52] I do not accept this argument. I find that there were no unexplained delays.

The first breath sample was taken at 03:15, wellwithin the 2 hour limit set out in s. 258(1)(c)(ii) of the Code. On a review of the whole chain of events from the time Mr. Quilang wasarrested to the time of the first test, I find that the police acted in a reasonably prompt manner. [53] I accept Constable Norman’s explanation that based on his knowledge of police procedure, he could not enter the sally portuntil the other police car left and the officer in charge was ready to receive Mr. Quilang.

This conclusion is supported by the in carcamera video showing Constable Norman entering the sally port immediately after the other cruiser backed out. It is also consistent withthe conversation between the officer and Mr. Quilang in the sally port wherein Constable Norman advised Mr. Quilang that they werewaiting for the officer in charge of the station. In my view it is not necessary for the Crown to call evidence of why the first cruiser wasin the sally port or why the accused could not be paraded immediately.

From the evidence before me, I can infer that the delay was forlegitimate police procedure, as explained by Constable Norman. [54] Accordingly, the presumption in section 258(1)(c)(ii) of the Code applies in this case. I am satisfied beyond a reasonabledoubt that at the time Mr. Quilang operated his motor vehicle, his blood alcohol level was 140 mg of alcohol in 100 ml of blood, a levelin excess of the legal limit. He is guilty as charged. Released: January 20, 2017 Signed: “Justice M. Speyer”