R. v. Beharry, 2011 ONCJ 787

COURT FILE No.: Toronto Region Citation: R. v. Beharry , 2011 ONCJ 787 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) M. Sokolsky, ) for the Crown ) — AND — ) ) ) MICHAEL BEHARRY ) S. Yeghoyan, ) for the accused ) ) ) ) HEARD: April 18, August 16, October 4, 31, December 19, 2011 FELDMAN J.: Introduction [ 1 ] Michael Beharry entered a not guilty plea to Blow Over 80.

It is alleged he was driving his motor vehicle while having more than the legal limit of alcohol in his blood system. [ 2 ] The Crown called two investigating officers and an Intoxilyzer technician in support of its case. [ 3 ] I must weigh the evidence and the credibility of the witnesses in making my findings of fact.

I am mindful of the prosecution’s onus of proof. [ 4 ] It is the position of the defendant that his breath tests were not taken as soon as practicable as required in Code s. 258(1)©(ii) leading, he says, to the result that the Crown is not entitled to rely upon the presumption that his blood alcohol level at the time of the Intoxilyzer tests was the same as at the time of driving. The Evidence [ 5 ] On January 23, 2010, Sgt. Amarjit Singh was with a trainee, P.C. Balakumarian Piraisoody, in a traffic response unit in Scarborough. At 2:23 am., Mr. Beharry drove by them at 96 kmh in a 60 kmh zone. P.C.

Piraisoody put on his emergency equipment and followed the defendant for about 500 metres until the defendant pulled over on to a soft shoulder where he took 10-15 seconds to come to a complete stop. [ 6 ] Sgt. Singh went over to the passenger side where he could smell alcohol inside the car through an open window. Mr. Beharry said his wife had been drinking but he had not, clearly a lie. [ 7 ] The officer directed the accused to get out of the car. He did so. Sgt. Singh observed that the defendant walked normally and that his eyes were red and bloodshot. He smelled alcohol on his breath.

The defendant admitted to having consumed one- half glass of wine. It can be inferred that the indicia of impairment were slight. [ 8 ] Sgt. Singh demanded that the accused provide a sample of his breath into a roadside screening device. Mr. Beharry provided a suitable sample and registered a Fail at 2:31 a.m. He was arrested, given his rights to counsel and a demand made for a sample of his breath. [ 9 ] It appeared to the officer that Mrs. Beharry had also been drinking and was unfit to drive.

An officer was called to secure the car and attend to the defendant’s wife so that the accused could be transported to 41 Division where a breathalyser technician was available. A tow truck had been ordered through the dispatcher. The officers left with the defendant at 2:47 a.m., about 5 minutes after P.C. Cronin attended to take charge of the scene. They arrived at the sallyport at 3:05 a.m. [ 10 ] Mr. Beharry was paraded from 3:08 a.m. to 3:17 a.m. The booking video indicates that the defendant spoke normally and was responsive, polite and cooperative.

However, he tended to talk too much. [ 11 ] He was then taken to the report room. There, the officer saw other detainees waiting for breath tests. Sgt. Singh contacted duty counsel for the accused and left a message at 3:21 a.m. Duty counsel returned the call at 3:37 a.m. The defendant spoke to him in private until 3:46 a.m. when he was turned over to the custody of P.C. Kim Greener, a qualified breathalyzer technician. Mr. Beharry provided a sample of his breath at 3:57 a.m. and was retuned to the report room.

His reading was 125 mgs. [ 12 ] Fifty-nine minutes later, the defendant was taken in for his second test at 4:57 a.m. and at 5:02 a.m. provided a reading of 106 mgs. He was not served with the Certificate of Qualified Technician until 6:18 a.m. He was kept in the cells and not released until 7:29 a.m. because of delay caused by a shift change.

The Evidence of P.C. Greener [13] P.C. Greener has 9 years of experience at Traffic Services. On January 23, she had been on duty at 41 Division since 1:22a.m. Prior to receiving Mr. Beharry for his first test at 3:45 a.m., she had completed the second test of another detainee at 3:13 a.m. Sgt.Singh’s notes indicate he turned Mr. Beharry over to her at 3:46 a.m. after the defendant had spoken with duty counsel. [14] As noted earlier, the first test was completed at 3:57 a.m. and the defendant returned to the report room.

At this point, P.C.Greener found she had to juggle 2 more detainees who had been arrested sometime after the accused. She required 17 minutes betweentests, so that she could not receive Mr. Beharry for his second test until 4:14 a.m. It is to be noted that s. 258(1)©(ii) requires only aninterval of at least 15 minutes between tests. [15] P.C. Greener decided to accept the next individual at 4:09 a.m., rather than wait to finish with the defendant who ultimatelyspent only 10 minutes with her on his next round.

She was of the view that it was important to give priority to the first test for those inher charge because of the 2 hour time limit, particularly so, in her view, since there was nothing in the scientific protocol to limit the timebetween the two tests so long as there was less than a 20 mg. percent discrepancy between them. She said it was a judgement call. [16] It was here that things seemed to go a little off the rails. The officer felt sick and had to leave the room. It was unhelpfulthat she has no note of what ailed her, where she went and for how long.

She also recalls that when she returned to the breath room shehad to send that person away at 4:26 a.m. because he had been chewing gum and she was concerned that any test result would be taintedby mouth alcohol. Although she made notes about this interlude until 4:40 a.m., it is surprising she did not include any reference in themto her mouth alcohol concerns. [17] Mr. Beharry was now ready to be received. However, P.C. Greener decided rather to take a first test from a secondindividual who had been arrested at 3:24 a.m., significantly after the defendant.

She called him in at 4:40 a.m. and completed his testwithin 10 minutes. She brought Mr. Beharry in at 4:57 a.m. As noted earlier, he was out in 10 minutes. [18] It is of note that the second tests for the two other individuals took only 6 and 5 minutes respectively. On the evidence, Icannot infer that had the officer brought the defendant in at 4:14 a.m., or even after the first detainee at 4:40 a.m., the integrity of theirtwo hour limit would have been jeopardized. Were the Tests Taken as Soon as Practicable? [19] As pointed out by Rosenberg J.A. in R. v. Vanderbruggen, (ON CA), [2006] O.J. No. 1138 (Ont.

C.A.),s. 258(1)©(ii) advantages the prosecution in easing proof of the concentration of alcohol in the accused’s blood. Once it fulfills certainprerequisites set out in this provision, the Crown may rely on the presumption of identity, extrapolating the results of the breath tests,absent evidence to the contrary, back to the time of the alleged offence. One of those prerequisites is that the tests be taken as soon aspracticable. [20] This does not mean that the tests need be taken as soon as possible, but rather within a reasonably prompt time under thecircumstances.

In relation to this standard, Justice Rosenberg explained, at para. 12, that, “the touchstone for determining whether thetests were taken as soon as practicable is whether the police acted reasonably”. [21] In her evidence, P.C. Greener acknowledged that in exercising her discretion in relation to the choices she made as to theorder of detainee testing there was a risk she might not meet the “as soon as practicable” standard in Mr. Beharry’s case. In hindsight,she might have waited 5 minutes to complete his second test at 4:14 a.m. What is more difficult to understand is her decision not to testhim at 4:40 a.m.

She had to have realized then that there was the possibility of jeopardy to the admissibility of his test results, much lessso for the individual she chose to test who had been arrested significantly after the accused. [22] P.C. Greener clearly acted conscientiously and in good faith. But the prosecution must bear responsibility for the impact ofher decision to delay the defendant’s second test when she had other workable options. The delay here was neither expeditious nornecessary.

I am left in reasonable doubt in the circumstances that the officer acted reasonably in delaying the defendant’s tests as long asshe did and that they were taken as soon as practicable. Conclusion [23] In the result, the Crown is unable to rely on the presumption extrapolating the test results back to the time of driving. Thecharge is dismissed.

Released: December 19, 2011 Signed: “Justice L. Feldman”