R. v. Kazi, 2015 ONCJ 465

COURT FILE No.: Toronto Region Citation: R. v. Kazi , 2015 ONCJ 465 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) M. Thomaidis, ) for the Crown ) — AND — ) ) ) RISHAD KAZI ) J. Tong, ) for the accused ) ) ) ) HEARD: June 4, July 2, 2015 FELDMAN J.: [ 1 ] Rishad Kazi entered a not guilty plea to a charge of Operation Over 80. It is alleged that he was driving his motor vehicle with more than the legal limit of alcohol in his system. He says that samples of his breath were not taken as soon as practicable and should be excluded. The Evidence [ 2 ] On November 27, 2014, at 1:35 a.m., P.C.

Luigi Trovato saw the accused stop his motor vehicle very close behind the bumper of a car ahead of him at a red light on southbound Victoria Park Ave at the intersection of Shephard Ave East. What caught his attention was that despite the light nature of the traffic and an open lane beside him, the defendant chose to pull up too close to this vehicle, raising questions about his judgment. The officer stopped Mr. Kazi under the authority of the Highway Traffic Act in order to check on his level of sobriety. [ 3 ] P.C.

Trovato told the court that at 1:38 a.m. he smelled alcohol on the accused’s breath, which led to his having a reasonable suspicion that Mr. Kazi had alcohol in his system. The officer demanded that he provide a sample of his breath into a roadside screening device. The defendant complied with the demand. At 1:41 a.m., he registered a Fail. [ 4 ] Mr. Kazi was arrested at 1:43 a.m., read his rights to counsel and cautioned. He asked the officer about the process that was to follow. At 1:45 a.m., P.C. Trovato demanded that the defendant provide a suitable sample into an approved Intoxilyzer machine.

He was handcuffed and placed in the rear of the police cruiser. [ 5 ] Prior to leaving the scene, until 2:03 a.m., P.C. Trovato entered record of arrest information into the cruiser’s new Versedex computer system as part of a mandatory police policy to make this information available to the parading officer in advance and without which the receiving station would not accept the detainee. It was a policy designed to make the work of the division more efficient. In this case, it made the start of the investigation process less so. [ 6 ] The problem was that P.C. Trovato was unable to find the proper Criminal Code

section for the charge for 9 minutes, from 1:48-57 a.m. This is borne out by the in-car video. The officer agrees that his escort could have started driving towards 41 Division, but his colleague was hungry and wanted to eat something. [ 7 ] At 1:55 a.m., after eating some food, his escort asked if he should start driving. P.C. Trovato said no. He explained to the court that he felt it might be difficult, if not unsafe, to make input into the computer while the car was in motion. However, he believes he will become better over time in the use of this new system.

He says he is mindful that breath tests need be taken as soon as practicable. [ 8 ] They arrived at the station at 2:16 a.m., but had to wait outside until 2:28 a.m., although P.C. Trovato is unsure why. As well, while the officer’s notes indicate entry at 2:24 a.m., the video shows the door to the sally-port opening at the later, likely more accurate, time. The accused was paraded at 2:28 a.m. and then placed in the report room at 2:30 a.m. [ 9 ] P.C. Trovato called duty counsel because Mr. Kazi had asked him about the process. The officer did not inquire if he had his own counsel.

The defendant spoke to duty counsel in private at 2:36 a.m. [ 10 ] Mr. Kazi was turned over to the breathalyzer technician, P.C. Moffat, at 2:39 a.m. It took the officer about 5 minutes to fill out an Alcohol Influence Report. The defendant’s first breath sample was taken at 2:48 a.m., after which he was returned to the report room. He was brought back for his second sample at 3:07 a.m. That was provided at 3:13 a.m. Both tests resulted in readings of 131 milligrams. Positions of the Parties Defence Position

[11] Mr. Tong says that the newly imposed administrative responsibilities have added to the arresting officer’s duties. Hesubmits it is unclear what training was involved in use of the Veresedex computer system to ensure efficiency rather than delay. In thiscase, he says that 18 minutes to input information, at least 9 minutes of which were taken up in finding a

section of the Code isunreasonable. [12] Mr. Tong submits, as well, that there is no explanation for the delay outside the sally-port prior to the cruiser being let in tostart the parading process. He also says it was unreasonable for the breathalyzer technician to fill in the Alcohol Influence Report forabout 5 minutes prior to the taking of the first breath sample. Finally, counsel submits that the taking of the second breath sample at 3:13a.m. was 10 minutes longer than statutorily necessary. [13] Mr.

Tong says that these periods of delay in combination in the context of the statutory two hour period for the taking ofsamples raise a reasonable doubt that the tests were taken as soon as practicable as required in Code s. 258(1)©(ii). Crown Position [14] Mr. Thomaidis submits that the police acted reasonably and within a reasonably prompt time in the circumstances to obtainsuitable breath samples from the defendant. He says that the time involved should not be broken down by the minute.

Rather, the timetaken should be seen in the context of the two hours set out in s. 258(1)©(ii), in this case, one hour and 13 minutes to the receipt of thefirst breath sample. The Authorities [15] In R. v. Vanderbruggen, (ON CA), [2006] O.J. No. 1138 (Ont. C.A.), Rosenberg J discussed themeaning of ‘as soon as practicable’. He said it means nothing more than that the tests were taken, not as soon as possible, but ratherwithin a reasonably prompt time under the circumstances.

In determining this issue, the court must consider whether the police actedreasonably. [16] In this latter regard, the court “should look at the whole chain of events bearing in mind that the Criminal Code permits anoutside limit of two hours from the time of the offence to the taking of the first test”.

As Justice Rosenberg points out, there is norequirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody. [17] He concludes by providing a common sense perspective that these provisions should be interpreted reasonably in a manner“consistent with Parliament’s purpose in facilitating the use of this reliable evidence”. It is understood that early testing within the twohour time frame enhances the integrity of the results. [18] The application of the Vanderbruggen principles in other authorities is of assistance. In R. v. Davidson, [2005] O.J.

No.3474 (Ont. S.C.). Justice F. Dawson points out, at para. 20, that there need be some flexibility in the analysis, but was of the view that adelay will not be reasonable where there is no legitimate basis to support the delay. [19] As well, where the delay is of more than a minor nature and there is a complete absence of any detail as to what the officerwas doing and why he was doing it, the delay will be unreasonable: see R. v. McDonald, [2014] O.J. No. 83 (Ont. S.C.), at para. 8.

Application to this Case [20] There are some delays here that require scrutiny and in combination raise questions about whether the police actedreasonably and if the breath tests were taken as soon as practicable. The 9 minutes P.C. Trovato spent searching for the correct sectionof the Code tended to diminish the efficiency intended by the new police policy of prior input of information. As well, the officer’sreasons for not using the computer while the cruiser was in motion are weak. Nonetheless, given the recency of the new computersystem and policy, some initial leeway is reasonable as adjustments are made.

Standing alone, this delay in the on-scene investigation isexplained and is not unreasonable. [21] There was a delay of 8, but more likely 12 minutes before the cruiser was let into the sally-port and the parading processcommenced. The officer could not remember the reason. This is unhelpful. At the same time, it is unrealistic to expect immediate entryeach time given the volume of criminal investigations in this jurisdiction. However, to assume there was another detainee being paradedat the time would be speculative.

I would attribute at least 8 minutes of unexplained delay to a consideration of the timeliness of thetests. [22] The Alcohol Influence Report is an important part of the investigation and of the breathalyzer technician’s responsibilities. It took about 5 minutes to complete. In the context of the statutory time frame, it was brief. I have no difficulty with when it was doneand would not attribute any meaningful delay to its undertaking. [23] Finally, the second breath test was taken 25 minutes after the first. The Code requires a minimum of 15 minutes betweentests.

It is well known that reliance on the minimum time would raise a doubt that there had been statutory compliance. As a result, it iscommon for the technician to wait 17-20 minutes between tests. There is nothing improper here about the extra 5 minutes, in the senseof diminishing the integrity of the results, but also no explanation for it. [24] Looking at the chronology of events, in the context of the two-hour statutory time frame, and mindful that the approach isnot one of calculating minutes, I would consider the 9 minutes of delay to be explained and 13 minutes unexplained.

It is a collectivedelay that on the issue of ‘as soon as practicable’ renders this a borderline case. It is of significance, however, in relation to this ‘reliableevidence’ that the first sample was taken one hour and 13 minutes after the time of the offence. [25] In the circumstances, I am not left in reasonable doubt that the breath tests were taken as soon as practicable. The testresults will not be excluded.

[ 26 ] In the result, the essential elements of the offence have been proven beyond a reasonable doubt. There will be a finding of guilt. Released: August 24, 2015 Signed: “Justice L. Feldman”