R. v. Anastas, 2010 ONCJ 704

Information No. 09-1404 Citation: R. v. Anastas , 2010 ONCJ 704 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. GRANT ANASTAS ********** R E A S O N S F O R J U D G M E N T BY THE HONOURABLE JUSTICE B. E. PUGSLEY On December 13, 2010, at ORANGEVILLE, Ontario ********** APPEARANCES: L. Marcon Counsel for the Crown M. Caroline Counsel for Grant Anastas 1 REASONS FOR DECISION PUGSLEY, J. MONDAY, DECEMBER 13, 2010

REASONS FOR DECISION PUGSLEY, J. (Orally): Grant Anastas faces a single count of driving with excess alcohol. In the late evening of November 18th, 2009, police in the Town of Caledon responded to a call about a possible domestic dispute. When Constable Turner of the Caledon Detachment of the O.P.P. arrived on scene, the defendant’s wife made a complaint about the conduct of her husband, the defendant. She also told Constable Turner that her husband was possibly impaired by alcohol and had driven away from the residence.

A description of the defendant and the vehicle he was driving was broadcast to all Caledon O.P.P. units in the early hours of November 19th, 2009. Constable Gurpal Bhatti of the Caledon Detachment of the O.P.P. heard that radio call, including a description of the defendant’s motor vehicle. The call included information that there was reasonable and probable grounds to arrest the defendant with respect to the domestic occurrence.

At about 1:54 a.m., Constable Bhatti spotted 2 REASONS FOR DECISION PUGSLEY, J. the defendant’s motor vehicle and confirmed this with his dispatcher by way of the licence plate number that had been given by a previous officer. He followed the defendant’s vehicle into a gas station and stopped his cruiser behind that vehicle. At that point, the defendant was out of the vehicle. At the same time, a second Caledon O.P.P. officer, Constable Kinapen, had pulled his police car into the gas station taking up a position ahead of the defendant’s car.

When Constable Bhatti got out of his car, Constable Kinapen was already speaking to the defendant who was, as already indicated, outside of his vehicle. Constable Kinapen told Constable Bhatti that he had detected a strong odour of an alcoholic beverage on the defendant’s breath and that the defendant had been required to provide a breath sample into an approved screening device and that the result of the A.S.D. test had been a fail. Constable Kinapen arrested the defendant, provided him with rights to counsel and caution, and Constable Bhatti transported the defendant to the police station for breath tests.

Constable Bhatti identified the defendant in court as the driver and sole occupant of the defendant’s motor vehicle. 3 REASONS FOR DECISION PUGSLEY, J. In cross-examination, Constable Bhatti stated he did not note and could not recall if the defendant was already out of his vehicle and pumping gas when Constable Bhatti entered into the gas station after following the defendant’s vehicle on Regional Road 50. At about 11:30 p.m., the day before the events that bring the defendant to court, Constable Kinapen of the O.P.P. learned about a domestic dispute said to have involved the defendant.

The dispatcher had sent out a general be on the lookout radio call identifying the defendant’s motor vehicle and providing the licence number.

At 1:55 a.m., the next day, Constable Kinapen learned over his radio that Constable Bhatti had found the defendant, driving. Constable Kinapen responded to assist Constable Bhatti. He arrived at the gas station at about 2:00 a.m. and found the subject vehicle in the station with Constable Bhatti’s cruiser parked behind it. Constable Kinapen pulled his police cruiser in ahead of the defendant’s vehicle. The defendant was moving to start to fill the gas tank of the vehicle as Constable Kinapen arrived on scene.

There was no one else at the vehicle except the defendant and the two officers. 4 REASONS FOR DECISION PUGSLEY, J. The vehicle was the same make, model and had the same licence number of the vehicle the police were looking for and Constable Kinapen approached the defendant and asked him if he was Grant. The defendant admitted his identity and was forthwith arrested for a charge related to the domestic occurrence. Constable Kinapen placed the defendant into the rear of Constable Bhatti’s police cruiser and provided the defendant with his rights to counsel and caution on the mischief charge.

In conversation, Constable Kinapen noted that there was an odour of alcohol on the defendant’s breath and he also had been told by Constable Bhatti that he had followed the defendant as he drove his Grand Am motor vehicle. Constable Kinapen formed the suspicion that the defendant had operated a motor vehicle with alcohol in his blood and made an approved screening device demand at 2:09 a.m. He had an approved screening device available which he tested and found to be properly operating and at 2:14 a.m., the defendant provided a suitable sample of his breath into the approved screening device.

The result was analyzed as a fail. Constable Kinapen knew that this result gave him reasonable 5 REASONS FOR DECISION PUGSLEY, J. and probable grounds to arrest the defendant for the offence of driving with excess alcohol and he then arrested the defendant on this count. The officer provided the defendant with his rights to counsel again which the defendant again stated that he understood. Constable Kinapen stated that he was taking the defendant to the station so that the defendant could provide a sample of his breath into an approved instrument.

He was asked how he communicated this to the defendant and he said, “from the card”, but agreed that he did not note this fact in his police officer’s notebook. The officer then repeated the sequence of events and stated that although he did not note the fact that he did, in fact, make a demand of the defendant that he provide a breath sample into the approved instrument at the police station.

He then read that advice to the court from the card in his wallet stating that he gave that demand to the defendant and that the defendant stated he understood, although, again, he admitted he did not note any reply and could not be certain. The defendant was, in fact, taken to the Bolton Detachment of the O.P.P. in Constable 6 REASONS FOR DECISION

PUGSLEY, J. Bhatti’s car with Constable Kinapen following. Duty counsel was contacted and the defendant spoke to that lawyer in private. After that, the defendant was given into the custody of Constable Turner, the qualified breathalyzer technician for breath tests at 3:16 a.m. Constable Kinapen had prepared a grounds sheet for Constable Turner so that she would have the grounds to continue the breath test process. Constable Kinapen identified the grounds sheet he had given to Constable Turner with regard to this particular defendant.

Constable Kinapen noted that in filling out the sheet, he stated he had reversed the times of the A.S.D. demand and the approved instrument demand on the grounds sheet. The proper order, he said, was the A.S.D. demand at 2:09 a.m. and 2:14 would have been the over 80 arrest and subsequent breath demand, although this was not noted in his notebook. He later received the result of Mr. Anastas’ breath test from Constable Turner and served certain documents upon the defendant.

In cross-examination, Constable Kinapen accepted that he did not see the defendant driving a motor vehicle but knew that Constable Bhatti had been following the defendant before the vehicles entered into the 7 REASONS FOR DECISION PUGSLEY, J. gas station. After his arrest on the mischief charge, the defendant and Constable Kinapen spoke in Constable Bhatti’s car and the officer noted that the defendant had been drinking. After the A.S.D. demand, the defendant provided a breath sample and the result of the analysis was a fail at 2:14 a.m.

The officer testified that at that time he arrested, provided rights to counsel and caution to the defendant on the over 80 count, all of which he made note of in his notebook. He agreed that at no time did he note that he had made a demand of the defendant for breath samples into the approved instrument. Constable Kinapen then testified that he made the breath demand of the approved instrument at the same time as the A.S.D. fail, that is, at 2:14 a.m. He testified that he mixed up the times when he wrote out the grounds sheet. He did not note the demand in his notes.

He stated that he had mixed up these times on events on previous grounds sheets. He also did not make note that he compared the original certificate of qualified technician to the copy that he served on the defendant that morning but 8 REASONS FOR DECISION PUGSLEY, J. testified that he knew, in fact, that he did so, side by side, because that is his consistent practice.

Before the start of the evidence, the defence raised the subject of having a chance to cross-examine the qualified technician in this case although no earlier request had been made to do so and the qualified technician was not present at the start of the trial. After Kinapen’s evidence, the defence then advised that they did not require Constable Turner to attend to give evidence. The Crown, however, then decided that Constable Turner’s evidence was necessary as part of the Crown’s case and the trial was held down until her appearance at court in the afternoon after certain medical commitments.

Constable Turner of the Caledon O.P.P. therefore testified as the last Crown witness. She is a qualified Intoxilyzer Technician. She was also the officer who attended on the late evening of November 18th, 2009 at the domestic occurrence call at the defendant’s wife’s residence. As part of her investigation there, she obtained the defendant’s description, the make 9 REASONS FOR DECISION PUGSLEY, J. and model of the vehicle he was driving and the licence number of that vehicle. The complainant also told her during her investigation that the defendant was possibly impaired by alcohol.

All of this information was broadcast by the O.P.P. Communication Centre to other officers in the area. At 1:55 a.m., on November 19th, 2009, Constable Turner left the scene of the domestic occurrence. As she did so, she received a communication that Constable Bhatti had a visual of the suspect vehicle and a person matching the defendant’s description at the Petro Canada Gas Station in Bolton in this Region. She went to the scene in her own police cruiser to assist.

Her help was not needed there so she then to the Bolton Detachment, arriving at 2:08 a.m. to start the paperwork for a bail hearing brief for the domestic occurrence because she knew that the defendant was going to be arrested on the domestic related charge. At 2:15 a.m., she then learned that the defendant was also under arrest on the charge of over 80 and that she was going to be needed as the qualified technician to test the defendant on the approved instrument. She started the warm up and testing of the approved instrument at 2:16 a.m. 10 REASONS FOR DECISION PUGSLEY, J.

She determined that the instrument was in proper working order. At 3:15 a.m., the defendant was in her company and ready for testing. At 3:16 a.m., she made a formal technician’s breath demand which the defendant indicated he understood. Constable Turner based her demand on the grounds sheet she had received from Constable Kinapen at 2:50 a.m. that morning. She also knew directly from the defendant’s wife that the defendant had consumed alcohol that evening and that he often drove while impaired, in that wife’s opinion.

At 3:17 a.m., the defendant’s first breath sample was analyzed with the result of 124 milligrams of alcohol in 100 millilitres of blood. She accepted that this sample was suitable and that it was properly introduced into the approved instrument. The defendant was returned to a holding cell pending a second breath sample. At 3:41 a.m., the defendant attempted a second sample but stopped blowing into the instrument. Constable Turner assessed this sample as not suitable and required the defendant to stop.

She told the defendant what he needed to do to provide a suitable sample and invited him to do so and at 3:44 a.m., the defendant provided a suitable 11 REASONS FOR DECISION PUGSLEY, J.

sample of his breath which was then analyzed by the approved instrument resulting in a reading of 119 milligrams of alcohol in 100 millilitres of blood. The video record of the samples from the O.P.P. breath room video was played as part of the Crown’s case. The defendant appeared relaxed and unconcerned on the video, joking with the officer and asking her sometimes personal questions. There was no apparent defect in the breath test procedure. In cross-examination, Constable Turner agreed that she relied upon Constable Kinapen’s grounds sheet for details of the background of the alleged offence.

She was asked if she was continuing Kinapen’s demand and she stated that she did a technician’s demand. She agreed it was important to know that Kinapen had made the demand as it stated on the grounds sheet and that she had no other way of knowing what happened at the time of the defendant’s arrest other than what was said on the grounds sheet. The officer was cross-examined about the invalidated breath sample at 3:14 a.m.

She explained that when she invalidated the first sample at the second breath - the first attempt, rather, at the second breath sample, she had five 12 REASONS FOR DECISION PUGSLEY, J. more minutes to have the defendant provide a suitable sample before the instrument would reset and show an error message. This did not happen in this case. The defendant’s counsel suggested to her that the instrument’s manual required that she wait a further 17 minutes after the 3:41 a.m. abortive sample.

The officer disagreed, noting that it is up to her to determine if a sample is suitable and then to continue to coach the subject to make a better sample. This type of break in a breath sample happens frequently and her process is to stop the subject, have them take a breath and effectively to calm down and then to continue with the breath sample process. The defendant called no evidence.

The Crown submitted that while there was some question as to whether Constable Kinapen made an Intoxilyzer demand at the gas station, the Crown can rely on either Constable Kinapen’s demand or Constable Turner’s demand at the station. Constable Kinapen noted that he transposed numbers on the grounds sheet and the Crown submits that Constable Turner took the same

interpretation 13 REASONS FOR DECISION PUGSLEY, J. as Constable Kinapen of the transposed numbers and continued the breath test process. In any event, the Crown notes that Constable Kinapen testified that he made the breath demand, but conceded that he did not note this fact in his notebook. The Crown submits finally that there was no defect in the breath test process here. The defence submits that there are three defects in the Crown case. First, that there is no proof beyond a reasonable doubt that the defendant was the driver of a motor vehicle. It is submitted that he was seen standing beside the motor vehicle at the gas pumps.

Second, has the Crown proven that the defendant was given the Intoxilyzer demand? Constable Kinapen, it is submitted, did not makea valid demand and Constable Turner’s demand could only have been based on the grounds sheet which contained clearly mistakentimes, putting the Intoxilyzer demand before the approved screening device fail. Third, the defence submits that the qualified technician erred in obtaining the second breath sample by not stopping and waiting 17minutes after the defendant paused when blowing into the Intoxilyzer at 3:41 a.m.

In this regard, the defence relies upon the decision ofmy brother 14 REASONS FOR DECISION PUGSLEY, J. Judge Robertson in R. v. Asim, which is reported at 2008, ONCJ, 345, on the website. I will refer to the last submission first. In my view, Asim, admittedly not binding upon me, is also not applicable to the facts of thiscase. And, further, and with great respect, is not correct in law and, certainly, as it now exists, after Bill C2.

In Asim, the Intoxilyzer technician agreed that the Intoxilyzer manual, as put to him, recommended that there be a 17 minute waitbefore a breath test is received after the printout of “invalid sample” is made. Interestingly, the manual quoted in Asim also stated thatthe retest option was available immediately. In other words, the manual states that the operator should wait not shall wait. Further, there was no invalid test here, a fact that the defence tried repeatedly to extract from the qualified technician in cross-examination in this trial.

Here, the defendant stopped blowing and the qualified technician found the sample was not suitable andrequired him to wait, explained the process again and then continued with the test with appropriate coaching. The qualified technician did not agree as was 15 REASONS FOR DECISION PUGSLEY, J. the case in Asim that the manual was presumptively the procedure to follow, nor that there was an invalid test, nor would such words, hadthey been uttered by Constable Turner, be fatal to the acceptance of the breath test results here.

First, the Criminal Code allows the qualified technician to determine, as here, the suitability of the test sample received. Qualifiedtechnicians are trained to operate the instrument and there is no evidence that Constable Turner made any error in testing Mr. Anastas. The manual is not unequivocal on the issue even if the test was “invalid”, nor is the manual a document with the force of law.

Theinstrument was an approved instrument operated by a qualified technician, properly trained and designated and the two reported breathsamples were identified as suitable by the qualified technician in her evidence and were analyzed by the approved instrument andproperly presented to the court. The instrument was properly prepared and properly operated on this occasion. The applicable Bill C2 Criminal Code amendment only ices the Crown’s cake, so to speak, on this argument.

I have no evidence butthat of Constable Turner on the preparation, operation and result of the analysis of this defendant’s 16 REASONS FOR DECISION PUGSLEY, J.

breath on this occasion. Her evidence stands alone and shows no defect in the test process used here. As I indicated to counsel during the defence submissions, the first argument that I cannot be satisfied beyond a reasonable doubt that the defendant, in fact, was operating a motor vehicle, simply cannot succeed. There was ample evidence. The defendant’s wife advised of his description, the make and model and licence number of the motor vehicle he was driving and that he had been drinking alcohol.

Constable Bhatti saw that very motor vehicle with one occupant and had followed it into a gas station blocking the vehicle from the rear. When he got out of his cruiser, Mr. Anastas was standing beside the vehicle, reported by his wife to be the vehicle that he had been driving. No one else was in the vehicle and it was 2:00 a.m. in the morning and no one else was at the scene. Constable Kinapen arrived at the same time and saw the defendant beside the very vehicle that the defendant’s wife said he had been driving, as if about to fill it with gas.

Beyond any doubt, the single person Constable Bhatti saw in the vehicle, as he followed it into the gas station, was the defendant who he immediately saw standing beside 17 REASONS FOR DECISION PUGSLEY, J. the vehicle. This submission must therefore fail. Breath samples must be taken pursuant to a peace officer’s demand. Constable Kinapen testified that he made such an Intoxilyzer demand at the time the defendant failed the approved screening device test. He did not note this very important fact in his notebook.

He did note the time of the demand on the grounds sheet but stated that he transposed the time of the Intoxilyzer demand and the time of the A.S.D. demand such that the A.S.D. test was after the Intoxilyzer demand on the sheet. The defence submission is that short of a notebook entry, I cannot credit Constable Kinapen with having made an Intoxilyzer demand at all. Constable Turner also made a demand at the Detachment. The defence submission is that her demand is fatally flawed because of the mistake in Constable Kinapen’s grounds sheet as to the time of the demand and the time of the A.S.D. fail.

In other words, on its face, the grounds sheet could not be correct so how could Constable Turner objectively and subjectively have reasonable and probable grounds to make her own breath demand. 18 REASONS FOR DECISION PUGSLEY, J. Constable Kinapen’s failure to note the Intoxilyzer demand, if made, was, at the least, sloppy. The sloppiness was continued when the grounds sheet was completed incorrectly. In the circumstances, it is hard to rely on Constable Kinapen’s evidence as to the demand being made. The same, I find, cannot be said of Constable Turner’s demand, however.

Constable Turner was not relying alone on Constable Kinapen’s synopsis of events because she, herself, had been involved twice in those events. First, she secured the information from the defendant’s wife that the defendant had been drinking that evening, had driven away from her residence in a specific vehicle and was a possible drunk driver. Constable Turner gathered information which triggered the defendant being stopped by Constable Bhatti. Further, Constable Turner actually attended briefly at the gas station when the defendant was stopped. She knew the approximate time of the stop from Constable

Bhatti’s radio call and from her own attendance at the scene just before 2:00 a.m. True, Constable Kinapen’s grounds sheet misstated the time of his demand but this could hardly have been determinative of her reasonable and probable grounds to believe that the over 80 19 REASONS FOR DECISION PUGSLEY, J. offence had been committed. Her R. and P.G. came from the events of the driving and the A.S.D. fail, not from the time of Constable Kinapen’s formal demand. The grounds sheet speaks to a sequence of events from which Constable Turner clearly had reasonable and probable grounds to make her own breath demand.

If, for example, the grounds sheet omitted the Constitutionally mandated rights to counsel or the caution, this might have raised Charter or statement issues, but would not have challenged the qualified technician’s R. and P.G. to believe that the defendant had committed the offence of driving with over 80 milligrams of alcohol in his blood. The R. and P.G. for that came from, first, her own knowledge and observations. Second, Constable Bhatti’s observation of the defendant’s driving, the wanted vehicle. And third, Constable Kinapen’s observations and subsequent A.S.D. fail results.

All this adds up to subjective and objective R. and P.G. for Constable Turner. The fact that Constable Kinapen’s Intoxilyzer demand may be suspect, a fact that is, in any event, not known to Constable Turner who was entitled to rely on the grounds sheet, does not impact the facts known to and relied upon by 20 REASONS FOR DECISION PUGSLEY, J. Constable Turner when making the technician’s demand. While taken alone Constable Kinapen’s demand may not have been made, the Crown is indeed entitled to rely on Constable Turner’s proper Intoxilyzer demand. This defence submission must also therefore fail.

The evidence discloses that the blood alcohol concentration of the defendant at the time of driving is necessarily more than 80 milligrams of alcohol in 100 millilitres of blood. The Crown has therefore proven every necessary element of the offence charge beyond a reasonable doubt and the defendant must be found guilty of driving with excess alcohol. **********

20 Certification FORM 2 Certificate of Transcript Evidence Act , Subsection 5(2) I, Joyce Tuyp, certify that this document is a true and accurate transcription of the recording of R. v. Grant Anastas in the Ontario Court of Justice, held at 10 Louisa Street, Orangeville, Ontario, to the best of my skill and ability, taken from Recording Number 476-2010, which has been certified in Form 1. _______________________________ ______________________________ Date Signature of Authorized Person (

i) Table of Contents ONTARIO COURT OF JUSTICE Exam. Cr- Re- WITNESS In-Ch. Exam. Exam. ...NO WITNESSES WERE CALLED AT THIS TIME ***********

Transcript Ordered: December 13, 2010 Transcript Completed: January 25, 2011 Ordering Party Notified: January 25, 2011