R. v. Bacchus, 2011 ONCJ 448

Citation: R. v. Bacchus , 2011 ONCJ 448 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) Mr. J. Hanna ) for the Crown ) — AND — ) ) ) raza bacchus ) Mr. G. Henderson ) for the defendant ) ) ) ) lipson J.: REASONS FOR JUDGMENT [ 1 ] Mr. Bacchus pleaded not guilty to charges of impaired operation and drive over 80mgs. [ 2 ] Police officers observed Mr. Bacchus driving his vehicle eastbound on Finch Avenue East. Mr. Bacchus was travelling above the posted speed limit. He poorly executed a left turn from Finch Avenue onto northbound Brimley Road.

The officers saw the vehicle slow down considerably and cross the centre line dividing the two northbound lanes on two occasions. At that point, the officers pulled over Mr. Bacchus’ vehicle. Mr. Bacchus displayed indicia of impairment. He was arrested for impaired operation and then taken to 41 Division where he provided two breath samples of 200 mgs and 197 mgs per 100 millilitres of blood. [ 3 ] There are three issues to be determined: 1. Was a proper demand for breath samples made? 2. Were the samples taken “as soon as practicable”? 3. Has the Crown proven beyond a reasonable doubt that Mr.

Bacchus’ ability to operate a motor vehicle was impaired by the consumption of alcohol? Was a proper demand made? [ 4 ] Mr. Henderson submitted that the Crown failed to establish that the arresting officer made a s. 254(3) demand at the roadside. I disagree. While it is true that P.C. Guy made no specific notation that he made the demand, he testified that he had an independent recollection of doing so. He also had substantial experience with this type of investigation. His partner, P. C. Chen, confirmed in his testimony that P.C. Guy made the demand. P.C. Chen noted this in his notebook. In the breath room, Mr.

Bacchus acknowledged to the intoxyliser operator that he was there to provide samples of his breath. I accept the explanation of P.C. Guy that his failure to note the demand in his notebook was an oversight. I am satisfied beyond any doubt that a proper demand was made in this case. Were the samples taken as soon as practicable? [ 5 ] The arresting officers stopped Mr. Bacchus’ vehicle at 12:11 a.m. The arrest took place at 12:18 a.m. P.C. Guy advised the accused of his right to counsel. Mr. Bacchus indicated that he understood and told P.C. Guy that he did not wish to consult with counsel.

Arrangements for a tow truck and another police officer to supervise the towing were completed by 12:35 a.m. at which time Mr. Bacchus was transported to 41 Division. No issue is taken with this period of delay. [ 6 ] Mr. Bacchus arrived at this police station at 12:48 a.m. From 12:48 a.m. to 1:10 a.m. the officers and the accused waited for the booking process to begin. The accused’s booking was completed by 1:15a.m. Then P.C. Guy, on his own initiative, contacted duty counsel. Duty counsel called back at 1:22 a.m. and spoke with Mr. Bacchus until 1:25 a.m. At 1:28 a.m. Mr.

Bacchus was taken to the breath room for testing. The breath technician, P.C. Tomaszewski, testified that after conducting the necessary testing to ensure the intoxyliser was in proper working order, he was ready to commence testing at 1:03 a.m. The first sample was taken from Mr. Bacchus at 1:34 a.m. [ 7 ] The Crown led no evidence to explain the 22 minute delay from the time the arresting officers and Mr. Bacchus arrived at 41 Division. There is no evidence to suggest that it was necessary for P.C. Guy to put the accused in touch with duty counsel. I am satisfied that while at the roadside, Mr.

Bacchus had unequivocally waived his right to counsel, as he was perfectly entitled to do. I am satisfied on the evidence that his waiver was informed, clear and unequivocal. There is no basis to believe that the accused did not understand the informational component or was not competent to waive his rights. Mr. Bacchus was not required to reassert his waiver of his right to counsel at the station. I do not doubt that P.C. Guy had embarked on a well-intentioned and cautious exercise in contacting duty counsel in order to assist the accused and prevent a future

section 10(

b) Charter challenge. Nevertheless, the 13 minute delay from

approximately 1:15 a.m. when the booking process had been completed and 1:28 a.m. when Mr.

Bacchus was taken to the breath roomwas, in my view, unnecessary given that the accused did not wish to speak with a lawyer. [8] There is an approximately 35 minutes of either unexplained or unnecessary delay at 41 Division before thecommencement of breath testing. [9] In order to relate the breath sample results obtained at the station back to the time of driving, the Crown is required toestablish beyond a reasonable doubt that the tests were taken as soon as practicable: s. 258(1)(c). [10] The requirement that the samples be taken as soon as practicable does not mean as soon as possible.

The leading authorityis R. v. Vanderbruggen, (ON CA), [2006] O.J. No. 1138 (C.A.) where the court stated at para. 12 that "the touchstonefor determining whether the tests were taken as soon as practicable is whether the police acted reasonably." The law requires that thetests be taken within a reasonably prompt time. Durno J. observed in R. v. Price 2010 ONSC 1898 (S.C.O.) at para. 16: It must be remembered that focusing on one aspect of the total time is not the appropriate way to determine if the tests were taken assoon as practicable.

Rather, it is the entire time period that must be examined. [11] The Crown has not established that the breath tests were taken as soon as reasonably practicable or in a reasonably prompttime. As indicated before there is a significant period of 22 minutes that requires a reasonable explanation.

There was a further period of13 minutes spent unnecessarily contacting duty counsel. [12] The requirement that the accused’s breath samples be taken as soon as practicable is part of a legislative scheme designedto assist the Crown and ease proof of an accused’s blood alcohol concentration at the time of the alleged offence of driving over 80 mgscontrary to s. 253 of the Criminal Code. Section 258(1)(

c) contains a number of preconditions, which if fulfilled, deem the results of thebreath tests to be proof of the accused’s blood alcohol concentration at the time of driving, in the absence of any evidence to the contrary:Vanderbruggen, supra, at para.8. [13] The rationale for the “as soon as practicable” requirement found in s. 258(1)(c) (ii) was recently explained in R. v. Willette[2011] O.J. No. 504(S.C.

J) at paras 46-49 as follows: The "as soon as practicable" requirement was enacted as a protection for the accused, since the presumption operates to fix the accusedwith a blood alcohol content that existed sometime after the time of driving. This requirement mandates that the breath test be conductedas soon after the time of driving as reasonably possible in order to ensure that the presumption operates fairly and that the breath testingleads to accurate results: R. v. Davidson, [2005] O.J. No. 3474 at para. 12 (S.C.J.); R. v. Phillips, (ON CA), [1988] O.J.No. 415 (C.A.).

In enacting the "as soon as practicable" requirement, Parliament was concerned that it protect against the manipulation of the results bydelaying testing to allow for increased absorption of alcohol into the accused's blood: R. v. MacMillan, [2004] O.J. No. 4523 at para. 37(O.C.J.) Accordingly, any delay encroaches on a protection that Parliament has enacted for the benefit of the accused: Davidson, supra, at para.19.

It is also necessary that compliance with this statutory scheme be strictly construed, since it relieves the Crown of the obligation toadduce additional extrapolation evidence and the necessity of calling an expert: R. v. Noble, [1977] S.C.J. No. 68 at pages 7 and 8(S.C.C.); R. v. Walker, [2006] O.J. No. 2679 at para. 2 (S.C.J.); R. v. Wolff, [1976] O.J. No. 694 (H.C.J). [14] The Crown submitted that even if the samples were not taken as soon as practicable, this should not result in the exclusionof evidence of the test results.

In support, The Crown relies on a decision of the Manitoba Court of Appeal in R. v Forsythe [2009] M.J.No. 438 (Man. C.A.), leave to appeal refused, [2010] S.C.C.A. No.60 The court held that the requirement that the police take anaccused’s breath sample as soon as practicable was a not a pre-condition to the admissibility of the test results. Evidence gathered incontravention of s. 254(3) should not be automatically excluded.

Rather the admissibility of evidence obtained in contravention of s.254(3) should be challenged by way of an application for exclusion under the Charter. [15] This case does not involve the issue considered in Forsythe. The defence is not applying for a Charter remedy based on anyalleged Charter breach. Nor does the defence challenge the admissibility of the breath test results. What the defence does challenge isthe Crown’s ability to rely on the presumption found in 258(1) (c) (ii).

Put another way, the defence contends that because the sampleswere not taken as soon as practicable, the Crown is required to adduce additional extrapolation evidence by way of expert evidence inorder to relate the readings to the time of driving. [16] I agree with the defence position. The breath sample results obtained are admissible but in the absence of additionalextrapolation evidence that would ordinarily be adduced through the testimony of a qualified toxicologist, those results cannot be relatedback to the time of the driving.

The Crown has not called such evidence in this trial. [17] In the result, the Crown has not established beyond a reasonable doubt that the accused is guilty of drive over 80 mgs. Thecharge is therefore dismissed. The impaired operation charge [18] There is evidence from the arresting officers of poor driving which I accept. Both P.C. Guy and his partner P.C. Chenobserved the following: • The accused’s vehicle was speeding “well above” the posted 60km zone on Finch Avenue East.

• The accused’s car came to angled position in the left hand turn lane of Finch Avenue East at Brimley Road whereby the front ofthe car was in the turn lane and the other part of the car was in the adjoining lane. • The car made a wide improper left turn into the curb lane of northbound Brimley. • The accused’s car then travelled at only 20-30 kilometres per hour in a 60 zone on northbound Brimley. • The vehicle swerved between lanes twice on Brimley. [19] As pointed out by Mr. Henderson on behalf of Mr.

Bacchus, there was a clear inconsistency in the evidence between thetwo arresting officers with respect the vehicle stop. P.C. Guy testified that he made concerted efforts to pull over the accused’s vehiclewhich included activating the emergency lights, air horn and siren and then pulling alongside the vehicle of Mr. Bacchus. P.C. Guy saidit was necessary to “cut off” the accused’s vehicle to force Mr. Bacchus to stop his car. P. C. Chen testified that the accused stopped hisvehicle when the police car pulled alongside his car. In general, I preferred the evidence of P. C. Guy to that of his partner. P.C.

Guy wasmore directly involved with the accused and was the arresting officer in this case. I thought his testimony was fair and balanced.Nevertheless, because of the officers’ inconsistent testimony regarding this area, I am unable to make a finding that the police had to cutoff Mr. Bacchus to get him to stop. [20] There is also evidence of impairment at the roadside. I accept the evidence of P.C. Guy that: • When he approached Mr. Bacchus, the accused did not roll down his window. The officer had to knock on the window. Theaccused struggled with the window which led to P. C.

Guy opening the driver’s door. • The accused stumbled as he exited his car and had to grab onto the vehicle for support. • The accused stumbled falling to one knee as he walked over to the curb lane • Besides smelling of alcohol, Mr. Bacchus exhibited watery eyes and slurred speech • When asked where he was, Mr. Bacchus said he was on Markham Road. He was not on Markham Road but Brimley Road • He was unsteady on his feet. He had difficulty standing. • He slept throughout the entire trip in the scout car to 41 Division. [21] P.C. Chen confirmed much of the above testimony.

He didn’t note or recall the accused falling to one knee on the way tothe curb but he was sure that Mr. Bacchus stumbled as he exited his car. As well, he had to assist the accused to the curb because hecouldn’t stand on his own. He also noted the accused had bloodshot eyes. [22] During the breath test procedure, P.C Tomaszewski, an experienced and qualified technician, observed that when theaccused entered the breath room he was directed to the only available chair but made a wrong turn toward the opposite wall. The officerwas required to redirect Mr. Bacchus where to sit.

This witness observed that the accused had very dry lips, bloodshot and watery eyesand that he smelled of alcohol. The accused’s speech was slightly slurred. Mr. Bacchus had difficulty focussing on the officer. Mr.Bacchus appeared at first to be “slightly impaired” but as time went on, the breath technician noticed more indicia to the point of formingthe opinion that the accused was “obviously impaired”. [23] The offence of impaired operation requires proof that the ability of the accused to operate a motor vehicle was impaired byalcohol at the time of driving.

The Crown is not required to prove any specific level of impairment. Evidence that establishes any level ofimpairment in the ability to drive caused by alcohol is sufficient proof of the offence. In the leading case of R. v. Stellato, (ON CA), [1993] O.J. No 18 (C.A.), aff’d (SCC), [1994] 2 S.C.R. 478n, the court specifically rejected theassertion that s. 2539(

a) required proof of a marked level of impairment. In this case the evidence of Mr. Bacchus’ driving conduct andindicia of impairment establishes beyond any reasonable doubt that his ability to drive was impaired by the consumption of alcohol.Leaving aside the conflicting evidence concerning the circumstances of the vehicle stop, I do accept the evidence of P.C. Guy and hispartner P.C. Chen regarding the poor driving of the accused which included, speeding on Finch Avenue East, an improper left hand turnonto Brimley Road and some weaving on Brimley while travelling at half the posted speed limit. Mr.

Bacchus was clearly under theinfluence of alcohol at the time. He not only exhibited the smell of alcohol, bloodshot and watery eyes, slurred speech but he also hadproblems exiting the car, walking to the curb and standing at the roadside. Despite just having been placed under arrest, he passed outduring the drive to the police station. When I consider the totality of the evidence, I am driven to conclude beyond a reasonable doubtthat the Crown has established the offence of impaired operation. Accordingly, Mr. Bacchus is found guilty of that offence. Released: August 19, 2011 Justice T. Lipson