R. v. Martindale, 2011 ONCJ 8

COURT FILE No.: Brampton DATE: 2011·01·13 Citation: R. v. Martindale , 2011 ONCJ 8 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — JOHN MARTINDALE Before Justice J.A. Maresca Heard on May 6 and October 4, 2010 Reasons for Judgment released on January 13, 2011 Ms. Roger .................................................................................................................. for the Crown Mr. Bernhardt ............................................................................... for the accused John Martindale MARESCA, J.: [ 1 ] Mr.

Martindale has been charged with operating a motor vehicle while having more than 80 mg of alcohol in his body per 100 ml of blood. There are essentially four issues in this case: 1. Were Mr. Martindale’s rights under s. 10(

b) of the Charter of Rights and Freedoms breached? 2. Was the demand that he produce suitable samples of his breath for analysis made as soon as practicable? 3. Were the samples taken as soon as practicable? 4. Was there bolus drinking by Mr. Martindale? 1: The Facts [ 2 ] On May 28, 2010, Mr. Martindale attended at Hogan’s bar to meet with his boss, David Andrews. He arrived before Mr. Andrews, at about 8:00 pm, and ordered a pint of draft beer. He had a second pint of beer at about 9:00 pm, as his boss had still not arrived. Mr. Andrews finally appeared at about 9:45. While Mr.

Martindale went to the washroom, Mr. Andrews ordered a two ounce mixed drink and another beer for him. Mr. Martindale finished the mixed drink at about 10:10, and continued to drink the beer. Another mixed drink was ordered for him by Mr. Andrews, and he began drinking that at about 10:15, finishing it about 10:30. The meeting finished very shortly thereafter, and Mr. Martindale drank down the second half of his beer before leaving. [ 3 ] At 10:53, Mr. Martindale was pulled over at a RIDE spot check at Queensgate and Lansbridge in the town of Bolton.

Officer Williams of the Caledon OPP spoke with the defendant, and formed a suspicion that he had been driving with alcohol in his system. He placed Mr. Martindale in a police cruiser at 10:57, and read him a demand for an ASD test. At 10:59, the ASD test was administered, and Mr. Martindale registered a “fail”. [ 4 ] At 11:02 Officer Williams handcuffed Mr. Martindale, and placed him under arrest for impaired driving. Mr. Martindale corrected the officer, saying that the charge should be driving over 80. Officer Williams thanked him for pointing out his error, and agreed that indeed Mr.

Martindale was under arrest for driving over 80. At 11:10 he read the defendant his rights to counsel, and asked if he would like to call a lawyer. Mr. Martindale said that he would. He was then cautioned, and taken to the Bolton detachment at 11:13, arriving there at 11:19. He was lodged in a cell at 11:22 pm. Officer Williams then attended to paperwork, including completing the grounds sheet. He returned to the cell at 11:39, and asked Mr. Martindale if he had his own lawyer, or whether he would like to speak with duty counsel. Mr. Martindale said at that time that he did not want to speak to either.

Officer Williams then left to complete his grounds sheet, and gave his grounds to Officer Duclos, the qualified breathalyser technician. At 11:52, Officer

Williams took Mr. Martindale out of the cell, and walked him to the breath room, where he turned him over to Officer Duclos. OfficerWilliams admitted in his testimony that he did not make a demand that the defendant accompany him for the purpose of providingsamples of his breath for analysis. [5] A video tape was made of the breathalyser test, which was entered into evidence. The video commenced at 11:53 pm,and shows Officer Williams reading the ground sheet information to Officer Duclos and then handing it to him. [6] Officer Duclos made the formal demand that the defendant provide breath samples, and asked Mr.

Martindale if he hadspoken with counsel. When the defendant answered that he had not, Officer Duclos asked why not. Mr. Martindale said that he declinedto speak with counsel. At that point, the officer read the defendant his rights to counsel, and Mr. Martindale did not indicate that hewanted to speak with anyone. He advised the officer that he had finished drinking just before he left the bar that evening, but did not ‘guzzle’ his drink. Hesaid that he had nothing to drink while he was driving, and that he was stopped at the RIDE site about 15 minutes after leaving the bar. Mr.

Martindale provided two suitable samples of his breath. His blood alcohol readings were 100 at 11:59 pm and 100 at 12:21 am. [7] Officer Duclos testified that he had turned on the Breathalyzer 5000C at 11:06, after receiving notice that OfficerWilliams was bringing the defendant in for a breath test. He indicated that it took the machine about 15 – 20 minutes to warm up. Heconducted diagnostic checks of the machine at 11:41, and determined that it was in proper working order.

As noted above, Mr.Martindale was not brought in to the breathalyser room until 11:53, and the first sample was not taken until 11:59. [8] I note that all of the witnesses gave their evidence in a forthright and honest manner, and I do not take issue with thecredibility of any of the witnesses. 2: Analysis [9] Of the five issues raised by the defence, there is, in my view, one that has merit. Section 258(1)(

c) of the CriminalCode states: 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), … (

c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if (i) [Not in force] (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, (iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by aqualified technician, and (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 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 whenthe offence was alleged to have been committed; The time requirements set out in the

section require that the breath samples be taken as soon as practicable after the time the offence isalleged to have been committed. The onus is on the Crown to establish beyond a reasonable doubt that there has been compliance withthe section. In determining whether this requirement has been met, the Court must consider the evidence adduced in light of all of thecircumstances. The Crown does not have to lead evidence which accounts for the actions of the police every minute from the time of thedemand to the administration of the first breathalyser test. R. v. Vanderbruggen (2006), (ON CA), 208 O.A.C. 379(Ont.

C.A.) The test, as set out in R. v. Vanderbruggen, supra and R. v. Van Der Veen (1988), 1988 ABCA 277 , 44 C.C.C.(3d) 38 (Ont.C.A.), is whether the tests were taken within a reasonably prompt time, in all the circumstances. Justice Durno articulatedthe test in this way: “The focus instead is whether the police acted reasonably and expeditiously in all the circumstances.” R. v.Schouten [2002] O.J. No. 4777 (Ont. S.C.J.) He went on to say: “..each case must be examined on its own facts.” Justice Durnoarticulated the same principle in R. v. Price [1]2010 ONSC 1898 , [2010] O.J. No. 1587, 212 C.R.R. (2d) 249 (Ont.

S.C.J.): “Each case has to be determined on its own facts applying the binding authorities.” The time period in one case may be reasonable,while the same period might be unreasonable in another. [10] In the case at bar, Mr. Martindale arrived at the station at 11:19 pm, and was lodged in a cell at 11:22. He had advisedthe arresting officer at the scene that he wished to speak with counsel. He sat in his cell until 11:39, some 17 minutes, before he was

asked by Officer Williams if he wished to speak with his own counsel or with duty counsel. Mr. Martindale testified that he was tired of waiting, and declined counsel. He was not taken to the breath room until 11:52, thirty minutes after he was lodged in his cell. Officer Williams testified that he was completing paperwork during this time period. [ 11 ] Officer Duclos, the breathalyser technician, testified that he took custody of Mr. Martindale at 11:54. He made a demand that the defendant provide suitable samples of his breath, and again went over his rights to counsel.

He did not administer the first test until 11:59. Officer Duclos gave evidence that he turned the Intoxilyzer 5000C on at 11:06, and that it needed 15 – 20 minutes to warm up. He did not, however, run the diagnostic tests to determine that the machine was operating properly, until 11:41 pm. According to his evidence, he did not receive custody of Mr. Martindale until 11:54, some 13 minutes later, and did not, as mentioned above, conduct the first test until 11:59 pm. [ 12 ] In examining the circumstances as they were set out in the evidence, I find that there was no reasonable explanation for making Mr.

Martindale wait 33 minutes after arriving at the station before he was taken for a breath test. Even allowing for the outside time frame of 20 minutes for the machine to warm up, Officer Duclos was in a position to run diagnostic tests on the machine, which on his evidence took no more than a minute, at 11:26, and could have administered the first test at 11:28. There was no time “lost” due to Mr.

Martindale speaking with counsel; there was no evidence that there were other, more pressing duties to attend to which would make the length of time between arrival at the station and the first test reasonable. [ 13 ] In R. v. Price , supra , the defendant was stopped at a R.I.D.E. program, as was Mr. Martindale. After registering a “Fail” on the ASD, he was arrested at 11:39 pm. Mr. Price declined his right to speak with counsel at the time of arrest. He was taken to the police station, arriving at 12:15 am. The time from arrest to the first breathalyser test was 1 hour and 7 minutes.

The court found that in the circumstances of the case, this was a reasonable time period. Of note in this case is that the defendant was turned over to the breathalyser technician at 12:29; that is, within 14 minutes of his arrival at the station. [ 14 ] In R. v. Monahan [2006] O.J. No. 3397, 70 W.C.B. (2d) 652 (Ont.

S.C.J.) , the Court found that a delay of 23 minutes from the time the defendant was placed in his cell following a conversation with duty counsel to the time when he was turned over to the breath technician was not a reasonable time period. [ 15 ] In the case at bar, the time from arrest to the taking of the first sample was 57 minutes. In examining whether that was a reasonable time period, I note that the time from Mr. Martindale’s arrival at the station to the time he was taken to the breathalyser technician, keeping in mind that he declined to speak with counsel, was 33 minutes.

As noted above, there was no reasonable explanation given as to why it took so long. In my view, in all the circumstances, the Crown has not proven beyond a reasonable doubt that the requirements of s. 258(1) (

c) have been met. [ 16 ] Given that, I do not need to rule on the other issues raised by the defence. [ 17 ] An acquittal on the charge of over 80 will be entered. Released: January 13, 2011 __________________________ Justice J.A. Maresca [1] R. v. Price was appealed by the defendant. On July 30, 2010, the Court of Appeal dismissed the appeal. The court did not address this issue.