R. v. Urban, 2011 ONCJ 547

Information No.: 08-2663 Citation: R. v. Urban , 2011 ONCJ 547 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — PAUL URBAN Before Justice Lloyd Dean July 19, 2011 S. Pratt ..................................................................................................................... for the Crown B.

Ducharme ...................................................................................................... for the Accused REASONS FOR JUDGMENT DEAN J.: Introduction [ 1 ] Paul Urban, the defendant, was operating his motor vehicle on October 18, 2008 eastbound on Morningside Avenue here in the city of Windsor at 1:11 AM. His driving drew the attention of two officers. He was arrested for impaired driving at 1:13 AM. Subsequent testing of his breath to determine his blood alcohol level resulted in a further charge of “over 80". [ 2 ] Although the Defence had advanced a

section eight Charter application it was not pursued at the conclusion of the case. By agreement of counsel, the trial proceeded by way of a blended hearing. Three Crown witnesses were called, the two officers who observed the defendant operating his vehicle and the breathalyser technician. A DVD of the defendant’s Intoxilyzer testing also forms part of the evidentiary record. [ 3 ] The Defence advances three arguments with respect to the Crown having failed to prove its case. With respect to the impaired driving charge the Defence argues the Crown has not proven beyond a reasonable doubt that Mr.

Urban’s ability to operate a motor vehicle was impaired. With respect to the “over 80” charge the Defence argues that the breath samples were not taken as soon as practicable and that the accused was not served with a true copy of the certificate. Evidence (note: all times hereafter refer to AM) [ 4 ] At approximately 1:11 Windsor Police Service officers Gill and Dileva were on patrol in a fully marked police cruiser northbound on Goyeau St. approaching the intersection at Wyandotte St. at approximately 1:11. The traffic signal was green for their direction.

Both officers observed a vehicle being driven eastbound on Wyandotte approaching the intersection at Goyeau. The traffic signal for eastbound traffic on Wyandotte was red. They observed the vehicle drive through the intersection without stopping for the red light. They immediately followed the vehicle eastbound on Wyandotte. Both officers observed the same vehicle go through a red light at the intersection of Wyandotte and Windsor Ave., which was one block further east. Officer Dileva estimated the speed of the vehicle to

be 50 to 60 km/h. The speed limit was 50 km/h. They continued to follow the vehicle and observed it turn without signalling southboundonto McDougall, which was one further block east. While travelling on McDougall both officers observed the vehicle almost strikeseveral cars parked on the southwest side. Officer Gill activated the emergency lights on the cruiser. In a normal fashion the vehiclestopped in the curb lane, just south of Elliott St. which was one block away from Wyandotte. Officer Gill approached the driver side ofthe vehicle while Officer Dileva stood at the rear of the vehicle.

Upon approaching the driver side window officer Gil noted there wasone occupant, who was sitting in the driver’s seat. The driver side window was down when the officer approached. Officer Gillimmediately detected a strong order of alcohol on the driver's breath and observed his eyes were red and glossy. The officer asked theaccused for his driver's license. The accused did not respond. The officer asked the accused to exit the vehicle. He complied without anyapparent difficulty. The accused was escorted four or five feet to the rear of the vehicle, off the roadway.

The officer observed that theaccused was very unsteady on his feet, swaying back and forth while standing and when he spoke his speech was slurred. Theseobservations were consistent with the observations made by Officer Dileva. As well, both officers noted the answers the accused gave tothe questions surrounding alcohol consumption did not make any sense. Neither officer recorded the words that were spoken, or had anyrecollection of what the accused said. Both simply wrote in their notebooks that the accused responses did not make any sense.

Further,both officers made reference to the accused having a very bad of aroma coming from him which was as a result of the accused havingdefecated in his pants. [5] As a result of his observations Officer Gill at 1:13 formed the opinion the accused ability to operate a motor vehiclewas impaired due to the previous consumption of an alcoholic beverage. The officer attempted to place the accused under arrest forimpaired driving and at that time the accused pulled away violently. Officer Dileva assisted and the two officers were able to takecontrol of the accused and handcuff him.

At 1:14 the rights to counsel, caution and breath demand were given. The accused was thensearched and his driver’s licence was found. [6] At 1:45 the accused was transported from the scene to the police station by the transport officer. The Windsor Policestation is about a five minute drive from that location. Officers Gill and Dileva arrived at the police station at 1:56. [7] At 1:15 the qualified Intoxilyzer technician, Officer Brnardic, was informed by his Sergeant that he was needed toconduct a breath test. He began preparing the instrument at 1:20. The instrument was ready to receive samples at 1:51.

He indicated hespoke to the arresting officers at 2:00 and received details of their observations of the accused and his driving. At 2:05 Officer Brnardicattended the detention area and observed the accused standing at the counter. He observed the accused face to be red, his eyes wereglossy and while the accused was standing unassisted at the counter he was swaying back and forth.

He also detected a strong odour ofalcohol coming from his breath. [8] Officer Brnardic gave further evidence that after 2:05 the accused was given an oppourtunity to speak with counsel anddid speak to a lawyer (on the phone) from 2:11 until 2:41. At 2:41 he brought the accused into the breath room and had him sit next tothe Intoxilyzer. He indicated in cross-examination that the accused went into the breath room and sat down without any difficulty. Healso agreed that the accused stood up to give samples of his breath and sat down after giving each sample without any difficulty.

Thevideo of the breath room, which included audio, was made an exhibit in the proceeding. It supported the evidence that the accused hadno difficulty standing up or sitting down during the procedure. It was difficult to hear everything the accused said but what I could hearwas understandable and I could not detect a slur. The first sample was completed at 2:49, with a result of 187 mg of alcohol in 100 ml.of blood. The second sample commenced being taken at 3:08. The result of the second sample was 194 mg of alcohol in 100 ml. ofblood.

As a result of the tests the accused was charged with “over 80”. [9] The only evidence on behalf of the Defence was the playing and filing as an exhibit the video and audio recording ofthe breath tests performed by the accused. Analysis The Impaired Driving Charge [10] The Criminal Code does not prescribe any special test for determining impairment. Impairment is an issue of fact whichthe trial judge must decide on the evidence and the standard of proof is neither more nor less than that required for any other element ofa criminal offence.

Before convicting an accused of impaired driving, the trial judge must be satisfied that the accused ability to operatea motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonabledoubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging fromslight to great, the offence has been made out: see R. v. Stellato (1993), (ON CA), 78 C.C.C. (3d) 380 (Ont. C.A.);affirmed (SCC), 90 C.C.C. (3d) 160 (S.C.C.).

[11] Determining whether an accused ability to operate a motor vehicle was impaired is to be determined by considering thetotality of the relevant evidence tendered which include observations not only of the accused driving conduct but, as well, hisappearance, demeanour, behaviour and dexterity once confronted by the police. Defence counsel submits that the Crown hasn’t met its burden, which he described as a high burden. He describes the sum total of theCrown’s evidence as being equivocal, pointing to several examples in the evidence, from the police officers as well as on the video. Heprovided the case of R. v.

Peterson [2009] O.J. No. 671 to support his position that when the evidence of impairment is equivocal, itwould be dangerous to convict the accused. In the Peterson case Green J. of the Ontario Court of Justice at paragraph 35 cites thefollowing passage from the Alberta Court of Appeal case, R. v. Andrews (1996), 1996 ABCA 23 , 104 C.C.C. (3d) 392 (Alta.C.A.); leave to appeal refused, [1996] S.C.C.A. No.115, (S.C.C.): It is not deviation from normal conduct, slight or otherwise, that is in issue. What is in issue is the ability to drive.

Where circumstantialevidence alone or equivocal evidence is relied on to prove impairment of that ability, and the totality of that evidence indicates only aslight deviation from normal conduct, it would be dangerous to find proof beyond a reasonable doubt of impairment of the ability todrive, slight or otherwise. [Emphasis added] [12] Green J. then goes on to find the evidence of the accused ability to operate the motor vehicle before him was equivocalat best and, after applying the requisite burden of proof on the Crown, finds the evidence viewed globally falls short of meeting thatburden.

The accused is found not guilty. [13] The Defence in support of its argument also relied on the apparently unreported case of R. v. Singh, a 1997 decision ofthen Chief Justice P. Lesage wherein he made a ruling on a

summary conviction appeal. His decision centered on the video evidence ofthe accused at the police station and his conclusion as to the accused level of impairment after watching the video. Defence counselbefore me asks me to observe the video in the case at bar and come to a similar conclusion that, despite the evidence of bad driving andwhat the Defence submits is equivocal evidence regarding physical impairment, it would be dangerous to convict the accused as thereare no indicia of impairment seen on the video. [14] The Crown submits that both of the cases the Defence is relying on can be distinguished.

I agree. [15] In the Peterson case Green J. concluded that there was “very little evidence” of suspect driving. There was no evidenceof swaying and there were no signature facial signs of intoxication and he ultimately indicated that he was left in doubt whether thephysical indicia of impairment testified to by one of the officers actually occurred. The evidence before me in the case at bar is muchstronger than that before Green J. The portion of R. v.

Andrews case, supra , relied upon by Green J. and which I italicized states: Where circumstantial evidence alone or equivocal evidence is relied on to prove impairment of that ability, and the totality of thatevidence indicates only a slight deviation from normal conduct, it would be dangerous to find proof beyond a reasonable doubt ofimpairment of the ability to drive, slight or otherwise. [16] The evidence I have before me supports a finding that there is conduct which is beyond a slight deviation from normalconduct.

I come to that conclusion despite the observations made watching the video introduced by the Defence. When watching thevideo it is difficult to come to a settled conclusion about the accused impairment because of the limited conversation taking place, thesound quality, and the minimal amount of movement made by the accused. I suppose one could say that because the video is inclusiveand it is not apparent from the video that the accused ability to operate a motor vehicle was impaired than the evidence shown on thevideo is equivocal and does not help the Crown meet its case.

But in this case my observation of the video does not cause me concernabout the other evidence I have before me. I have not concluded that the totality of the evidence is equivocal, only that the evidence onthe video is equivocal or falls short of proving the accused is impaired. [17] In the Singh case Lesage C.J. states, The question is can the driving of a person who has been drinking of itself be evidence upon which the conviction can be supportedalmost totally: see page 3, line 26. [18] In that case there was evidence of very bad driving but the physical symptoms observed were very good and found by Lesage

C.J. to be consistent with a person who is not impaired. That is clearly distinguishable from the case before me. [19] The ultimate question to be answered is whether or not the totality of the evidence, including the equivocal evidence seen in thevideo, leaves me with a reasonable doubt about the accused ability to operate a motor vehicle while his ability was impaired. [20] I am satisfied on the totality of the evidence before me that the Crown has proven beyond a reasonable doubt that the accusedwas operating his motor vehicle while his ability to do so was impaired by the previous consumption of alcohol.

As soon as practicable [21] The time of arrest was 1:14 and the first sample was taken at 2:49, one hour and 35 minutes later. Defence points out that theaccused was stopped at a place very close to the police station. It was approximately 5 blocks from the station. The Defence submitsthat there is no evidence provided as to when the call was made for a transportation vehicle. The transport vehicle arrived at 1:45. Thisis the first of what the Defence describes as two major gaps for which there is no evidence before the court to support a finding that thepolice acted reasonably under the circumstances.

This first gap is from 1:14 to 1:45, a total of 31 minutes. The Defence submits thesecond major gap is from 1:45 to 2:05 (which is the earliest time supported by the evidence that the accused is at the police station). Thisis a gap of 20 minutes. The Defence argues that there is no evidence given as to where the accused was and what was happeningbetween 1:45 and 2:05. The Defence points to two other intervals, 2:05 - 2:11 and 2:41- 2:49 but focuses the argument on the two largergaps. [22] The Defence relies on the cases of R. v. Lemarchant [2009] O.J. No. 4297 (S.C.J.), R. v.

Forsythe [M.J.] No. 428 (MBQB), andR. v. Chung [2009] O.J. No. 1546 (S.C.J.). The Crown provided a further case for the court to consider, R. v. Price 2010 ONSC 1898, [2010] O.J. No. 1587 (S.C.J.). 1:14 – 1:45 time frame [23] There are a few reasonable inferences that can be drawn from the evidence. At 1:14 the accused was given his rights tocounsel, legal aid numbers, caution and breath demand.

A reasonable inference can be made that this took at least a minute or two.Another reasonable inference that can be drawn is that one of the two officers at the scene called for a third officer to come to the sceneto transport the accused. But there is no evidence as to exactly when Officer Carmickle was called. Officer Gill testified that OfficerCarmickle arrived at 1:45. Officer Gill testified that it is Windsor Police policy to have a transport officer come to the scene to transportthose under arrest.

A further reasonable inference can be drawn that one of the officers called the police station to indicate an Intoxilyzertechnician would be needed because the technician, Officer Brnardic, stated he was notified by his Sergeant at 1:15 that he would beneeded to conduct a breath test. That is all the evidence we have as to what was happening at the scene of arrest during this time frame. 1:45 – 2:05 time frame [24] During this time frame we know that the two officers at the scene of arrest were waiting for a tow truck to take away theaccused vehicle.

They arrived at the police station at 1:56 and continued with their reports. At 2:00 Officer Gill met with OfficerBrnardic and gave him his grounds for the arrest. Officer Brnardic testified that he observed the accused in the detention area at 2:05. Officer Gill testified that officer Brnardic took custody of the accused at that time. Despite not having any direct evidence a reasonableinference can be drawn that it took a period of time to transport the accused from the scene to the police station. The police station is inthe same building as the courthouse.

This area of the city is well known to me and to counsel. From where the accused was arrested tothe headquarters is five, no more than six blocks. Given the time of day and without any direct evidence to the contrary one wouldexpect it to take no more than five minutes to drive that distance. Again a reasonable inference can be drawn that it takes a period oftime to get the accused out of the transport vehicle and into the police station to the detention area. Without any direct evidence as tohow long this took it would not be appropriate in my view to allow more than five minutes for this action.

That would put the accusedinto the detention area at 1:55. We also know from Officer Brnardic that the Intoxilyzer was ready to receive a sample at 1:51. Analysis

[25] Section 258(1)(

c) of the Criminal Code provides: (

c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if (ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case ofthe first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the sampleswere taken, … evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused's blood both at thetime when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of theanalyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of theconcentrations determined by the analyses, in the absence of evidence tending to show all of the following three things - that theapproved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in thedetermination that the concentration of alcohol in the accused's blood exceeded 80 mg of alcohol in 100 ml of blood, and that theconcentration of alcohol in the accused's blood would not in fact have exceeded 80 mg of alcohol in 100 ml of blood at the time when theoffence was alleged to have been committed; [Emphasis added] [26] In order for the Crown to take advantage of the evidentiary presumption that the results obtained reflected the blood alcohollevel at the time of driving in the absence of evidence to the contrary, the Crown had to establish the tests were taken as soon aspracticable. [27] The leading authority on this issue is the Court of Appeal judgment in R. v.

Vanderbruggen (2006), (ONCA), 206 C.C.C. (3d) 489. Since this case trial courts have been directed to view the time period between the offence and testing as awhole and not require explanation for each minute or period in the process. The Ontario Court of Appeal has clearly decided that “assoon as practicable” does not mean “as soon as possible”. Rather, the samples must be taken in a reasonably prompt manner. Thedetermination is a factual one to be considered by the trial judge.

Where the time is prima facie unreasonable the Crown will need toexplain to the satisfaction of the judge how the delay meets the requirement set out in s. 258(1)(c)(ii). If there is a reasonable doubt aboutwhether the samples were taken "as soon as practicable," then the Crown will not be able to rely upon the presumption of identity. [28] In R. v. Vanderbruggen, (ON CA), [2006] O.J. No. 1138 at paragraphs. 12, 13 and 16, the Ontario Court ofAppeal summarizes the relevant law as follows: 12 That leaves the question that is at the heart of this appeal -- the meaning of as soon as practicable.

Decisions of this and othercourts indicate that the phrase means nothing more than that the tests were taken within a reasonably prompt time under thecircumstances. See R. v. Phillips (1988), (ON CA), 42 C.C.C. (3d) 150 (Ont. C.A.) at 156; R. v. Ashby (1980), (ON CA), 57 C.C.C. (2d) 348 (Ont. C.A.) at 351; and R. v. Mudry, R. v. Coverly (1979), 1979 ABCA 286 , 50C.C.C. (2d) 518 (Alta. C.A.) at 522. There is no requirement that the tests be taken as soon as possible. The touchstone for determiningwhether the tests were taken as soon as practicable is whether the police acted reasonably. See R. v.

Payne (1990), (ON CA), 56 C.C.C. (3d) 548 (Ont. C.A.) at 552; R. v. Carter (1981), (SK CA), 59 C.C.C. (2d) 450 (Sask. C.A.) at453; R. v. Van Der Veen (1988), 1988 ABCA 277 , 44 C.C.C. (3d) 38 (Alta. C.A.) at 47; R. v. Clarke, [1991] O.J. No. 3065(C.A.); and R. v. Seed, (ON CA), [1998] O.J. No. 4362 (C.A.). 13 In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearingin mind 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. See R. v. Letford (2000), (ON CA), 150 C.C.C. (3d) 225 (Ont. C.A.) at para. 20; R. v. Carter, supra; R. v. Cambrin (1982), (BC CA), 1 C.C.C.(3d) 59 (B.C.C.A.) at 61-3, and R. v.

Seed at para. 7. … 16 To conclude, these provisions, which are designed to expedite trials and aid in proof of the suspect's blood alcohol level, should not

be interpreted 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. [29] With respect to the second time frame (1:45-2:05), I have no concerns given the evidence provided and the reasonableinferences that can be drawn. [30] The first time frame (1:14-1:45) is not as easy. It is not entirely clear as to what the police were doing during this time frame. Areasonable inference can be drawn that some time was spent waiting for the transport officer, but how much is not known.

There is noevidence as to when the transport officer was contacted. Was he contacted right away? How long did it take him to arrive after he wascontacted? Is the lack of this evidence fatal to the Crown’s case when analyzed within the framework of Vanderbruggen, supra? [31] As stated in Vanderbruggen, supra, there is no need to explain every incident which occurred from the time the offence isalleged to have been committed until the samples were taken unless on the evidence before me, I am not satisfied the samples were takenas soon as practicable.

Focusing on one aspect of the total time is not the appropriate way to determine if the tests were taken as soon aspracticable. It is the overall time in the circumstances that must be shown not to be as soon as practicable: see R. v. Price 2010 ONSC1898 , [2010] O.J. No. 1587 (S.C.J.) at paragraph 16. [32] The issue becomes what is an unreasonable delay. There is no consensus in the case law about what length of delay isunreasonable. The cases are largely determined on the unique facts of each case.

In the case before me the time span from the arrest tothe first sample being completed was 1 hour and 33 minutes, well within the 2 hour time limit. Although every minute of every timeframe is not accounted for in the evidence, enough evidence has been tendered by the Crown to meet its burden.

Under thecircumstances of this case I am satisfied that the period of time between the time when the offence occurred and the samples taken wasreasonably prompt and therefore I am satisfied beyond a reasonable doubt that the samples were taken as soon as practicable as definedby the Ontario Court of Appeal in Vanderbruggen, supra. Similar to what the Court of Appeal stated at paragraph 14, I would add,“There was no evidence that either the arresting officer or the technician acted unreasonably...There was no evidence that the officersgave unreasonable priority to any other task”.

As further stated by that court when referring to Section 258(1)(c)(ii): 16…These provisions must be interpreted reasonably in a manner that is consistent with Parliament’s purpose in facilitating the use ofthis reliable evidence. [33] As I mentioned earlier, the Defence focused on the two time frames I have dealt with above. There were two other shorter timeframes that Defence mentioned in passing during their submissions. I have considered them but they do not cause me any concern as towhether the police acted reasonably under the circumstances.

As just mentioned I am satisfied beyond a reasonable doubt that they did. Did the accused receive a true copy of the certificate of analysis? [34] Defence submits that the evidence indicates that Officer Brnardic placed the copy in the property bag. My review of theevidence found that Officer Brnardic, during direct examination, indicated the accused signed the bottom portion of the certificate. Ofnote is that the signature is next to a clause indicating that the person signing acknowledges receiving a true copy of the certificate.

Healso testified that the accused was given a copy of the certificate and it was placed “in the property”. During cross-examination theofficer was asked whether the certificate was placed in the property bag and he confirmed that it was. Defence counsel asked no furtherquestions of the officer about the certificate. Officer Brnardic was not cross-examined about the nature of the copy and there was noevidence called by the Defence regarding the certificate. Section 258 (7) of the Criminal Code reads: 258.

(1) In any proceedings under subsection 255(1) in respect of an offence committed under

section 253 or subsection 254(5) or in anyproceedings under any of subsections 255(2) to (3.2), ... Notice of intention to produce certificate

(7) No certificate shall be received in evidence pursuant to paragraph (1)(e), (f), (g), (

h) or (

i) unless the party intending to produce it has,before the trial, given to the other party reasonable notice of his intention and a copy of the certificate. ... [Emphasis added] [35] Section 258(7) does not specify the type of evidence necessary to prove that a copy of a certificate was served. Absent a legalrequirement, the type and degree of evidence necessary to prove a fact in issue is a question of fact for the trial judge: see R. v. Hey, 2009ABCA 204, the Alberta Court of Appeal at paragraph 3. A case by case analysis is required. [36] The Ontario court of Appeal in R. v. MacKinnon (ON CA), [2003] O.J.

No. 3896, at paragraph 2 stated: …we wish to make it clear that in order to meet the requirements of s. 258(7), a provision that addresses the admissibility of thecertificate into evidence, it is only necessary that the trial judge be satisfied, on a balance of probabilities, that the certificate given tothe accused is a copy. With respect, the learned Justice on appeal erred in applying the criminal standard of proof to that question. [Emphasis added] [37] In R. v. MacMillan [1980] N.S.J.

No. 594, the Nova Scotia Supreme Court Appeal Division stated: 8 … Evidence by the Crown that a "copy" of the certificate has been served is prima facie evidence that the copy was an accurate copy.It must be admitted in evidence unless on cross-examination or otherwise reasonable doubt is raised whether the copy was in fact anaccurate copy. A copy of a document by definition must be prima facie assumed to be accurate.

The use of any other adjective, such as"exact" or "true', is quite unnecessary [*page273] as, indeed, may be the word "accurate" itself. [Emphasis added] [38] In the present case there is ample evidence, not challenged in cross-examination or otherwise, to satisfy me on the balance ofprobabilities that the requirements of s. 258 (7) were met. [39] Having decided the samples were taken as soon as practicable and having decided the requirement of s. 258 (7) have been metthe certificate of analysis will be admitted.

Conclusion [40] The Crown has proven beyond a reasonable doubt all essential elements of the offences before the court. The accused will befound guilty on both counts. Dated this 5th day of October, 2011

____________________________ Justice Lloyd Dean Ontario Court Justice