R. v. Him, 2011 ONCJ 885

Citation: R. v. Him , 2011 ONCJ 885 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN against WILLIE HIM ************* R E A S O N S F O R J U D G M E N T BEFORE THE HONOURABLE MR. JUSTICE J. MOORE AT TORONTO, ONTARIO, ON JANUARY 25, 2011 ********** APPEARANCES : M. Malleson, Esq. Counsel for the Crown S. Taraniuk, Esq. Counsel for the accused ********** ONTARIO COURT OF JUSTICE

T A B L E O F C O N T E N T S Exam In- Cr- Re- WITNESSES Chief Exam Exam ********** E X H I B I T S EXHIBIT NUMBER PUT IN ON PAGE ********** TRANSCRIPT ORDERED: ............................. TRANSCRIPT COMPLETED: ............................. ORDERING PARTY NOTIFIED: ............................. R E A S O N S F O R J U D G M E N T THE COURT: The defendant, Mr. Willie Him, was arrested and charged with the offence of over 80 care and control on May 9 th , 2009. He appeared before me for trial on December 8, 2010, and entered a plea of not guilty.

Prior to his trial date, counsel, on his behalf, had filed a Charter motion seeking to exclude the evidence of his Intoxilyzer readings of 120 and 110 milligrams of alcohol in 100 milliliters of blood. This application was abandoned on the trial date. Two witnesses testified on behalf of the Crown. No witnesses were called by the defence. In addition, the Certificate of a Qualified Technician was filed as an exhibit by the Crown. As well, the booking video of Mr. Him was entered as an exhibit. The Crown is relying on the presumption afforded in s.258(1) (

c) of the Criminal Code . The only issue raised at this trial is whether the Crown has proven beyond a reasonable doubt that the tests were taken as soon as practicable, such that the Crown is then entitled to rely on the presumption without the necessity of calling expert testimony to prove what the readings would be at the time the defendant was found in care and control of his vehicle by the police. The case for the Crown is straightforward, with very little dispute over the facts.

The reliability and credibility of the two police witnesses is not seriously in issue, and there is no reason not to accept their testimony. In addition to the Certificate of Analysis and the booking tape, the evidence consisted of the testimony of the two Toronto Police Officers, P.C.'s Robertson and Bibeau, that is B-I-B-E-A-U. The two officers were on duty in a marked scout car on May 8, 2009, on general patrol. They were approached by a citizen who expressed a concern over a vehicle stopped on the roadway in a curb lane. The two officers investigated and found Mr.

Him, the sole occupant of the vehicle, in the driver's seat slumped over the steering wheel, apparently asleep. As a result of their observations, a demand was made of the defendant to provide a sample of his breath into a roadside screening device. The result was an "F," i.e. Fail, which meant he had over 100 milligrams of alcohol in 100 milliliters of blood in his system at that time. Therefore, he was arrested and charged with the criminal offence of over 80.

A demand was made that he then accompany them to the police station so that he could provide further samples of his breath into an approved instrument operated by a qualified breath technician. Although 41 Division was the closest Division, they were told to take him to 32 Division, where a machine and technician were available. Once at the Station, he was booked, spoke to Duty Counsel, and provided readings of 120 and 110 milligrams of alcohol in 100 milliliters of blood. He was then processed and released.

The relevant times in this matter are as follows; 11:59 p.m., officers flagged down. 12:02 a.m., the roadside screening device demand. 12:11 a.m., roadside screening device on scene. 12:16 a.m., defendant attempts to blow. 12:19 a.m., an "F" is registered.

The defendant is arrested and charged, given his rights to counsel, breath demand, and caution. 12:25 a.m., the defendant and the police leave the scene. 12:44 a.m., at 32 Division. 1:00 a.m., booking process commences. 1:13 a.m., defendant taken to Report Room. 1:23 a.m., telephone call to Duty Counsel. 1:27 a.m., Duty Counsel returns the call. 1:44 a.m., call with Duty Counsel complete, and defendant taken to Breath Tech room.

1:49 a.m., first sample finished. 1:50 a.m., defendant leaves the room. 2:10 a.m., defendant re-enters the room. 2:13 a.m., second sample commenced. In this case, a demand to provide a suitable sample as pursuant to s.254(3) was made of the defendant soon after 12:19 a.m., i.e., after he provided a sample of his breath into the roadside screening device, registered a fail, been arrested and charged with over 80, given his rights to counsel, the demand of him, and cautioned. There is no issue, but that the original demand was made as soon as practicable.

What is in issue is the time period subsequent to the initial demand, that he provide samples of his breath to a qualified technician. The Crown has an option as to how it wishes to prove the readings of the defendant at the time of the alleged offence. It can call viva- voce and expert evidence to relate the readings back to the time of the offence, or it can rely on a short-cut provided in s.258(1) (

c) of the Criminal Code . So long as certain statutory conditions are met, the Crown can rely on the presumption that the readings as analyzed at the time they were taken is the same as they would be at the time of the offence. In other words, Mr. Him's readings of 120 and 110 taken at 1:49 a.m. and 2:13 a.m., would have been the same at 12:00 midnight, the time when he was first observed to be in care and control of his vehicle by the police. In this case, the Crown has chosen to prove its case by relying on the presumption afforded it in s.258(1) (c).

In order to do so, the Crown must prove beyond a reasonable doubt that the two tests were taken as soon as practicable. Mr. Taraniuk, counsel for the defendant, submits that the Crown has failed to do so. The Crown, Mr. Heeney, takes the position that the onus has been met. If I rule in favour of the Crown, then it follows that the Crown has proven its case beyond a reasonable doubt, and a conviction will follow with the readings being admitted into evidence via the Certificate of the Qualified Technician. There are three periods of time during which Mr. Him was in the presence of the police that Mr.

Taraniuk submits bear scrutiny, and it is the cumulative amount of time of these periods that are the cause for concern. Those three periods of time are; ( 1 ) The booking of Mr. Him into 32 Division at about 1:00 a.m. ( 2 ) The placing of a call to Duty Counsel. ( 3 ) The taking of the two breath samples. It is submitted by Mr. Taraniuk that the total time arising from those three stages is approximately 22 minutes, and it results in the test not being taken as soon as practicable. He breaks down the total as follows;

(1) An extra 3 minutes while Mr. Him is being booked by two different Booking Sergeants.

(2) An unexplained delay of 10 minutes between 1:13 a.m. and 1:23 a.m. before a call was placed to Duty Counsel.

(3) An unexplained increase in the time between the two tests that is prescribed by the Code of approximately 9 minutes. I will deal with them in the order in which they occurred;

(1) The booking of Mr. Him : The video of the booking process shows one Sergeant commencing the process by asking certain questions of Mr. Him, and the arresting officers. Then, without explanation, either in the video or at the trial, he leaves part-way through and is replaced by a second officer, who repeats some of the same questions, asks others, and then completes the process. From watching the video, we can see the cause of the delay amounting to approximately 3 minutes, but no explanation was proffered by the Crown to account for that delay.

(2) The time period between 1:13 a.m. and 1:23 a.m : No evidence was called by the Crown to indicate what occurred during this period of time, nor was any explanation offered. The 10 minutes is simply unaccounted for by the police who had custody of Mr. Him.

(3) The lapse in time between the completion of the first test and the commencement of the second test : The total time here is one of 24 minutes. The Criminal Code mandates that there be at least 15 minutes between the end of the first test and the beginning of the second test. In this case, we have 24 minutes, and no evidence to account for the need to take the extra 9 minutes. These three stages in the process represent in total approximately 22 or 23 minutes of the total elapsed time between 12:00 midnight and 2:13 a.m., i.e., 133 minutes, or over 15 percent of that time.

This period of time represents the period from the time he first came into contact with the police and the time when his second breath test was commenced. The Crown in this case is relying on the Certificate of a qualified technician, rather than calling viva-voce evidence, coupled with the evidence of an expert in order to prove the readings at the time the defendant was seen in care or control of his vehicle in order to prove the offence of over 80. This short-cut is available to the Crown so long as the conditions in s.258(1) (c)(ii), (iii), and (iv) are met, i.e, proven beyond a reasonable doubt.

Amongst other things, the Code requires that the first test must be taken with two hours of the alleged offence. Mr. Him provided the first sample within the two hour time limit. The second sample was provided outside the two hour time limit. Unlike a Charter application, wherein the onus rests, for the most part, on the defendant to prove that a breach of one or more of his Charter rights occurred, which could lead to the exclusion of evidence, the onus here rests with the Crown to prove beyond a reasonable doubt that each sample of Mr. Him's breath was taken as soon as practicable.

If the Crown falls short in this regard, then it follows that the Crown has failed to prove its case, as it chose to rely on the Certificate of Analysis to prove its case. Several cases were filed with the court by Mr. Taraniuk, counsel for the defendant, to support his position that in this incident the test samples taken from Mr. Him were not taken as soon as practicable. The question as to what is the meaning of "as soon as practicable" has been dealt with in countless numbers of cases across the land.

As indicated by the Ontario Court of Appeal, in the 2006 decision of Vanderbruggen , and I quote as follows; "Decisions of this and other Courts indicate that the phrase means nothing more than that the tests were taken within a reasonably prompt time under the circumstances." The second quote is as follows; "There is no requirement that the test be taken as soon as possible.

The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably." And the third quote, "There is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the defendant is in custody." As pointed out by Mr. Justice Durno, of the Ontario Superior Court, in the case of Regina v. Schouten ,

"In order for the Crown to prove that the police acted reasonably and expeditiously under the circumstances of the case, an explanation presented by way of evidence should be forthcoming to show that the tests were taken as soon as practicable, otherwise, how can the court come to the conclusion that the Crown seeks." The case law appears to be quite clear that absent any evidentiary basis upon which the court can come to a decision, the court is left to speculate as to the reason or reasons for any significant delay in the process of dealing with the defendant, and that factor alone can result in the court being left in doubt as to whether the Crown has met its onus of proving beyond a reasonable doubt that the tests were taken as soon as practicable." In the case of Mr.

Him, we know that the switch in the two booking officers resulted in additional delay, but no reason was ever given for that switch. No evidence was led by the Crown to explain the 10 minute gap between 1:13 and 1:23 a.m., or the 24 minute lapse in time between the two tests, at least 15 minutes of which are mandated in the Criminal Code . As Mr. Justice Hill, of the Ontario Superior Court stated in Regina v.

Walker , and I quote, "Compliance with the statutory scheme must be strictly construed where the prosecution is relieved of the obligation of adducing expert evidence on the subject." In this case, the total delay is a significant portion of the total time it took for the police to complete the two tests. Furthermore, the second test is conducted outside the 2 hour time period referred to in the Code. There is absolutely no evidence to suggest that Mr. Him, in any way, contributed to or caused any delay in this matter.

To the contrary, it appeared that he fully cooperated with the police, and, despite the circumstances, had a good rapport with the police. No singular factors standing alone in this case would be sufficient to raise a doubt, but when one takes into account the following, that is, in my mind, a sufficient basis upon which to conclude that the Crown has not proven beyond a reasonable doubt that the two tests were taken as soon as practicable, i.e;

(1) Three separate periods of unexplained delay;

(2) Total of the three periods is approximately 22 minutes; (3) 22 minutes is a significant percentage of the overall time between detention and testing; ( 4 ) The defendant in no way contributed to, or caused any delay; ( 5 ) The two tests border either side of the two hour limit; ( 6 ) The evidentiary short-cut afforded the Crown must be strictly construed and adhered to as evidenced by the relevant case law. The Crown elected to proceed by way of a Certificate of a Qualified Technician to prove the readings of Mr. Him. By taking this approach, the Crown must meet the statutory conditions set out in s.258(1) (

c) of the Criminal Code . One of the conditions that the Crown must prove by way of evidence, that it has met and do so beyond a reasonable doubt, is that Mr. Him's two breath tests were taken as soon as practicable. Having failed to do so, the Crown has not proven its case beyond a reasonable doubt, and the charge is thereby dismissed.

*************** THIS IS TO CERTIFY that the foregoing is a true and accurate transcription of the recordings of MS. JUDITH SMITH, as reviewed by Mr. Justice Moore, to the best of my skill and ability. ............................ Arlene Gorewicz Certified Verbatim Reporter