R. v. St. Jean, 2012 ONCJ 378

Citation: R. v. St. Jean , 2012 ONCJ 378 ONTARIO COURT OF JUSTICE Central West Region Brampton Ontario B E T W E E N : HER MAJESTY THE QUEEN -and- JEAN ST. JEAN REASONS FOR JUDGMENT Duncan J. 1 . The defendant is charged with exceed 80, offence date January 20 2011. 2 . The single issue in this case is whether the breath samples were taken as soon as practicable. 3 . The timeline is as follows: [1] • 1:40 – Defendant seen driving a heavily damaged vehicle with the driver’s window smashed out.

Stopped by police • 1:43 – Asd demand made • 1:45 – Asd test conducted – fail • 1:47 – Arrest – right to counsel and caution • 1:52 – Demand • 1:53 – Second officer arrives at scene to take custody of defendant’s vehicle • 2:04 – Leave scene of arrest to 11 div • 2:07 – Qualified technician (QT) arrives at 11 Div – discovers problem with Intoxilizer – tries to fix it – not successful – decides to go to 12 Div • 2:10 – Defendant arrives at 11 Div • 2:17 – Defendant and arresting officer leave for 12 Div • 2:18 – QT leaves for 12 Div • 2:28 – QT arrives at 12 Div • 2:31 – Defendant and arresting officer arrive at 12 Division • 2:31 – QT begins to prepare the Intoxilizer • 2:31 – Defendant begins booking procedure

• 2:41 – Intoxilizer ready to receive sample • 2:47 – Call placed to duty counsel even though defendant had not requested it • 2:50 – Arresting officer finishes giving grounds to QT • 2:52 – Defendant brought into breath room • 2:55 – Duty counsel calls back – defendant does not want to speak to him • 2:57 – QT makes demand • 3:04 – First sample taken – result 143 • 3:27 – Second sample taken – result 142 As soon as practicable – What’s the Purpose? 4 . The relevant

section of the Criminal Code reads: 258(1) (

c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if i. (i) [Repealed before coming into force, 2008, c. 20, s. 3 ] ii. (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 of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken, iii. (iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and iv. (iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician, evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things — that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration 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 the offence was alleged to have been committed; 5 .

The phrase in question has generated an enormous amount of litigation and case law. Somewhat surprisingly however, there has been almost no discussion in the case law as to the purpose underlying the “as soon as practicable” requirement. Perhaps this is because in a sense it doesn’t matter – the requirement must be applied regardless of its purpose. Still, identification of the purpose or purposes would be a helpful interpretive aid. Beyond that, determination of compliance or non-compliance, as the case may be, with the ASAP requirement may turn, as discussed below, on the question of prejudice.

To assess prejudice, in my view it is necessary to identify what interests are intended to be protected by this requirement. 6 . I think there are two possible rationales for the ASAP requirement – to minimize the “myth” of the presumption of identity and to minimize the period of detention for breath testing of suspected offenders. 7 .

As for the first, a few relatively recent cases in Ontario have identified a single purpose behind the requirement – a purpose related to the presumption of identity, that is, the presumption that the blood alcohol level at the time of driving is identical to the BAC at the time of testing. Due to processes of absorption and elimination, this deemed identity is in fact untrue and the greater the time between driving and testing, the more untrue it is.

It is therefore said that the requirement of testing “as soon as practicable” ensures that the presumption operates fairly and produces accurate results: R v Willette [2011] OJ No 504 (Ont Sup Crt) ; R v Davidson [2005] OJ No3474 (Sup Crt) . Accordingly, on these authorities, the interest engaged may be considered a fairness, or fair trial interest. [2] 8 . With respect, I think there are some weaknesses in the view that concerns about identity provide the only - or even the main - rationale for the ASAP requirement. While its inclusion as a pre-requisite to the presumption of identity in subsection (

c) would favour linking its purpose to that presumption, the significance of that placement fades when one considers that neither of the other sub- paragraphs, iii or iv, have anything to do with the identity issue. Further, logically, the accuracy of the identity bridge is determined solely by the passage of time; it has nothing to do with the reasonableness of that passage of time. In other words, the BAC of a detainee who is tested 90 minutes after driving will change by the same biologically determined degree whether the delay was reasonable and “as soon as practicable” or it wasn’t.

Why should it be accepted as presumptively accurate and identical in the one case and not the other? 9 . I think another, and perhaps main, purpose behind the “as soon as practicable” requirement is to minimize the period of detention of breath test subjects. The scheme of the legislation as originally enacted contemplated detention by demand for testing, without necessarily placing the driver under arrest. [3] There were no roadside testing devices that could be used to screen those detained. I think

Parliament foresaw that, notwithstanding that grounds for a demand might exist, a number of subjects detained for testing would in factprove to be under the limit and innocent. To minimize the inconvenience and infringement on liberty, Parliament provided that the periodof detention be kept to the functional minimum and that it be capped at 2 hours. On this view, the interest engaged by the ASAPrequirement is a liberty interest. [4] 10.

Accordingly, while I agree with the statement from Davidson supra that the ASAP requirement was enacted for the benefit of theaccused, I think it is not solely because prompt testing will benefit him by yielding results more accurately corresponding to the time ofdriving. In fact, the opposite will usually be the case; he will benefit from delay. In my view the requirement was enacted primarily tobenefit the accused and all detainees by minimizing the period of detention to which they may be subject. The main interest at stake is aliberty interest with the fair trial interest playing a lesser role. The Law: 11.

The case law makes it clear that the test is “as soon as practicable” and not “as soon as possible”. The tests must be taken within areasonably prompt time under the circumstances. The question is whether the police acted reasonably. The Crown does not have toaccount for every moment of time. Rather, the Court should be concerned with the whole chain of events and the over-all passage oftime: R v Vanderbruggen (ON CA), [2006] OJ No 1138 (CA). 12.

The history of application of these principles has shown that Courts have been quite forgiving and have granted considerable leewayto the police in carrying out their duties under these sections. Comment was made thirty years ago that there were few cases in which afinding of non-compliance survived appeal: see J. Pearson: The “As Soon As Practicable Requirement in sections 235 and 237”(1982)12 MVR 149 at 161. Not much has changed since.

Over the whole fifty or sixty years of existence of these provisions, there have beenonly a very few reported appellate cases in Ontario decided in favour of the accused on this issue - and even those turned narrowly onerror in the lower court’s handling of the issue: R v Lightfoot [1980]OJ No 3024; R v Dzaja [2003] OJ No 2341.

In fact, remarkably,although the ASAP issue is a question of law open to determination by an appellate Court[5], the relevant authoritative legal texts andcompilations[6] digest not a single case from any Court of Appeal in Canada where the Court has actually found that a set ofcircumstances amounted to an ASAP violation! 13. So when, if ever, will a defendant succeed on an ASAP argument or, to put it more properly, when will the Crown be found to havefailed in its burden to show compliance?

In R v Carter (1981) (SK CA), 59 CCC2d 450 (Sask CA)[7] the Court heldthat the ASAP requirement will be satisfied unless there is a [significant] delay not satisfactorily explained (as in Lightfoot supra) ORthe accused has been prejudiced (para 9): The requirement that the samples be taken as soon as practicable is one which must be applied with reason. As I read the section, as longas the delay, if there is one, is explained to the satisfaction of the judge, there may be reliance on the presumption in paragraph (iv) aslong as the samples are taken within the two hour limit.

It would only be when the learned trial judge concluded there was a delay notsatisfactorily explained, or such delay prejudiced the accused that the court would deny the prosecution the right to rely on thepresumption in paragraph (iv). Application of Law to Facts: 14. Taking the holistic approach as directed in Vanderbruggan, the over-all period is concerning. The defendant was stopped (1:40)and arrested at a location 6 minutes away from the police station yet the first breath sample was not taken until (3:04), an hour and 24minutes later.

This is a time period that requires further examination and scrutiny of its individual periods and then again, the whole. 15. Dealing with the time periods chronologically; defence counsel first points to the time (11 minutes) at the scene of arrest betweenarrival of a second officer (1:53) and departure to the station (2:04). This time was said to be taken up in the “briefing” of the secondofficer. While this seems somewhat excessive, I think it is only marginally so and at worst, falls within the rubric of failure to move asquickly as possible. 16.

Counsel for the defendant focuses on the delay caused by the problem with the machine at 11 Div.[8] He argues that the burden onthe Crown on this issue includes the duty to provide some evidence to demonstrate that the problem was unknown and unforeseeable.For all we know, it is argued, the machine may have shown itself to be inoperable earlier that evening or even earlier that week yet noone took steps to “take it off the board” as being an available functioning breath testing device. 17. I can’t accept that argument on the evidence in this case.

The only evidence before me is that the malfunction was unknown beforeits discovery by the qualified technician in this case, P.C. Nicholson. I think it would be highly speculative to imagine that an earlier QTwas aware of the problem but failed to share the information. 18. Delay occasioned by malfunctioning equipment necessitating relocation has invariably been held to be delay that has beenreasonably explained: see cases cited in Kenkel; Impaired Driving Law in Canada at P 172. I note as well that in this case the delay wasnot excessive, given the circumstances.

Counsel agreed that the defendant was stopped at a spot equidistant between the two Divisions.Had he gone first directly to 12 Division he would have arrived at the same time as he arrived at 11 Division, 2:10. As matters unfolded,he actually arrived at 12 Division at 2:31, a relatively modest extra delay of 21 minutes 19. It is argued that, having incurred a delay of approximately ½ hour due to the malfunction problem, there was some obligation on thepolice to pick up the pace with the balance of their procedures.

But once at 12 Division another 33 minutes elapsed before taking the firstsample – even though the machine was ready within 10 minutes. Some points argued: • There is no explanation why the booking procedure could not have been completed in the 10 minutes that the machine wasbeing prepared.

• The call to duty counsel was unwanted and unnecessary. While usually not a bad idea, R v Litwin [1997] OJ No 4242, it mayhave been inappropriate under the circumstances given the delay that had been occasioned to that point. It is conceded however that thetime that elapsed waiting for the call back was minimal and the police proceeded with other steps in the interim. • The giving of grounds, re-reading of demand, caution and secondary caution are not legally required and are all quiteunnecessary: R v Chavez [2001] OJ 3753.

Again it is argued that while going through these steps may not be objectionable in mostcases, this was a situation where these steps could have and should have been by-passed. 20. I have considered these points individually, collectively and in the context of the over-all delay. In the final analysis it seems to methat they reveal a failure to take the samples as soon as possible, not as soon as practicable. Each step was in furtherance of a validactivity or objective in the investigation and processing of the detained person. While it all could have been done more quickly, that isnot the test.

It is not a foot race. Here, despite the problems encountered, the first sample was taken 84 minutes after the offence; bothsamples were completed within the two hours. This was a reasonably prompt time under the circumstances. 21. Turning back to the tests cited above from Carter - explanation and prejudice. The delay has been explained – and in greater detailthan the law requires. The only remaining question is that of prejudice. This comes back to the discussion above concerning the interestsat stake, being fairness and liberty. 22.

With respect to fairness, this is not a case of readings that are close to the line of legality. The defendant’s BAC as testedapproached twice the legal limit. There could be no unfairness from the operation of the presumption of identity. With respect to liberty,the defendant was not just stopped randomly but was driving a car that appeared to have been in a recent accident. He was screened withan ASD and a preliminary reading in excess of the legal limit was registered. At that point, much of the underlying rationale aboutpotential detention of the innocent fell away.

Thereafter, the length of the defendant’s detention following arrest would be largelydetermined by his blood alcohol reading, not the speed with which that reading was obtained. His liberty interest was not affected by thedelay that occurred in this case. 23. In

summary, I conclude that the defendant suffered no prejudice to the interests intended to be protected by the ASAP requirement.The samples were taken promptly and as soon as practicable. 24. The defendant is found guilty as charged.

June 13 2012 B Duncan J T Sarantis for the defendant F McCracken for the Crown [2] The identity point is taken further and given a bit of a sinister twist in R v MacMillan [2004] OJ 4523(OCJ) where the Courtsuggested that Parliament’s major concern was to prevent unscrupulous police officers from intentionally putting the accused “on ice”and waiting for his blood alcohol to rise before testing (see para 37). I think this is pretty unlikely.

It is well known that the passage oftime in most cases is accompanied by declining B.A.C. – the only exception being where bolus drinking has occurred: R v Phillips (ON CA), [1988] OJ No 415 (CA). The police would rarely be aware of the pre-arrest drinking pattern and would not knowwhether delay will help or hurt the subject – the likelihood being the former.

Putting the suspect “on ice” would rarely advance anunscrupulous police agenda. [4] Other provisions of the overall breathalyzer scheme - both as originally enacted and now- are to the same effect and demonstrate thesame concern that the process move along smartly: For example: “Forthwith” provision of roadside samples or conduct of roadsidesobriety tests: S 254(2); “As soon as practicable” demand for breathalyzer test or demand for other samples: s 254(3); (3.1), (3.3), (3.4).