R. v. Quiambao, 2011 ONCJ 132

ONTARIO COURT OF JUSTICE Old City Hall - Toronto BETWEEN: ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) HER MAJESTY THE QUEEN J. Bruno For the Crown Ñ AND Ñ I. Hwang and D. Burke OWEN QUIAMBAO For the Defendant Heard: February, 18, 2011 Citation: R. v. Quiambao , 2011 ONCJ 132 REASONS for JUDGEMENT GREEN, J.: A. INTRODUCTION [ 1 ] Close to 2am on February 12, 2010, Owen Quiambao, the defendant, was pulled over by the police while driving in central Toronto. He ÒfailedÓ a roadside breath device and was then subject to a breathalyzer demand.

The defendantÕs blood alcohol concentration (BAC) was later found to be over the legal limit of 80 milligrams of alcohol in 100 millilitres of blood. Accordingly, the defendant is charged with operating a motor vehicle with an excessive BAC. [ 2 ] The defendantÕs first breathalyzer sample was provided less than an hour and half after the defendantÕs initial interaction with the police and within 20 minutes of the completion of his parade at the police station. The problem, says the defence, is that the parade did not begin until close to an hour after the observed driving.

As a result, the defence continues, the first sample was not taken Òas soon as practicableÓ and the Crown is therefore precluded from relying on the Òpresumption of identityÓ in the Criminal Code . In the absence of any expert evidence Òreading backÓ the Breathalyzer results to the defendantÕs BAC at the time of the alleged offence, the prosecution, concludes the defence, fails for want of proof. [ 3 ] The defendant is not charged with impaired driving. No issue is taken with the basis for or the making of the roadside and breathalyzer demands. The two arresting officers were called by the Crown.

They were the only witnesses at the defendantÕs trial. B. EVIDENCE [ 4 ] PCs Richard Hopton and Jude Sulejamani first noticed the defendant driving north on Bathurst near College at about 1:45am on February 12, 2010. The defendantÕs driving conduct led them to activate their emergency equipment, and within a minute, the defendant had been pulled over. Sulejamani made an approved screening device demand at about 1:54am. Following the set-up and a demonstration, the defendant registered a roadside ÒfailÓ at 1:59am. The police and the defendant left the scene for the Traffic Services division at 2:11am.

In the preceding 12 minutes, the defendant was arrested, cautioned, and read his rights to counsel. He indicated that he wished to speak with duty counsel. While still at roadside, the police also contacted the dispatcher for information as to the closest station with a qualified breath technician and then received a call-back with this advice. It appears that a tow was also arranged for the defendantÕs car in this interlude, although Hopton has no confident recall as to whether he executed this detail or it was handed off to a third officer. [ 5 ] The police vehicle reached Traffic Services by 2:18am.

They waited outside the sallyport for the doors to open. They did not alert the officers inside the station of their presence. If there was an intercom, they did not use it. Hopton, who was the senior officer, testified that he assumed the officers inside the station would realize they were there because a monitor at the front desk displayed a video feed of their location and because he expected the dispatcher to have contacted the station so that a qualified breath technician would be prepared for their imminent arrival.

After waiting for 15 or so minutes, Hopton used his cell phone to call the front desk and advise the station of his presence. This quarter-hour was longer than any other wait-time either officer had experienced at Traffic Services, before or since. By then the defendant, who was cuffed from behind in the rear of the scout, was complaining that the cuffs were uncomfortable. Finally, at about 2:40am Ð some 22 or 23 minutes after they had first parked outside the sallyport Ð the doors opened. A minute later, the defendant was being paraded. By 2:58am the defendant was in a brief conversation with duty counsel.

He provided his first breath sample at 3:11am. [ 6 ] Both officers testified that they were aware of the urgency in implementing the defendantÕs request to exercise his right to consult counsel and, of course, his completion of his first breath test. The defendant, they testified, was co-operative throughout their dealings with him.

C. ANALYSIS (

a) Introduction [7] The defendantÕs criminal liability, if any, depends on the Crown proving to the requisite standard that his BAC was in excessof the legal limit at the time he was operating his motor vehicle. As earlier noted, the defence position is that the delay in completing thebreath tests was such as to preclude the Crown from relying on an evidentiary shortcut, known as the presumption of identity, which isintended to obviate the need for toxicological expertise to relate the defendantÕs breathalyzer results to the time of his driving. Notoxicological evidence was led at this trial. (

b) The Law Governing ÒAs Soon As PracticableÓ [8] In R. v. Ventura, 2011 ONCJ 31, I recently addressed, if in

summary form, the legal principles governing the presumption ofidentity afforded the Crown in Òover 80Ó prosecutions such as the one now before me, and, in particular, the meaning and application ofthe phrase Òas soon as practicableÓ.

As my understanding of this law has not since changed, I intend to simply repeat here what I saidat paras. 16 and 18 of that decision: One challenge to the successful prosecution of Òover 80Ó cases is persuading a court that a driverÕs BAC at the time of thealleged offence is the same as it was at the time (usually at least an hour later) it was analyzed and documented on an approvedinstrument such as a Breathalyzer.

One method by which the Crown can endeavour to establish this critical fact (that is, the defendantÕsBAC at the time he was operating or in care or control of the vehicle) is to call a qualified expert, usually a toxicologist, to express anexpert opinion on the matter. A much simpler method is afforded the Crown through what is known as the Òpresumption of identityÓas set out in s. 258(1)(c).

Subject to a narrowly circumscribed basis for rebuttal, as long as the statutory pre-conditions are met the BACresults of a Breathalyzer analysis Òis conclusive proofÓ that the defendantÕs BAC at the time of the analysis and at the time when theoffence was alleged to have been committed are identical.

One of the necessary [statutory] pre-conditions to this evidentiary shortcutrequires the Crown to establish that, each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in thecase of the first sample, not later than two hours after that time É . [Emphasis added.] Satisfaction of the Òas soon as practicableÓ requirement does not admit to mechanical application, nor isthere an inflexible limitation period beyond which s. 258(1)(

c) will not avail the Crown. The test, rather, is one of good sense andreason. As explained by the Court of Appeal in R. v. Vandergruggen (2006), (ON CA), 206 C.C.C. (3d) 489, atparas. 12, 13 and 16: Decisions of this and other courts indicate that the phrase means nothing more than that the tests were taken within areasonably prompt time under the circumstances. There is no requirement that the tests be taken as soon as possible. The touchstone fordetermining whether the tests were taken as soon as practicable is whether the police acted reasonably.

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 Òassoon as practicableÓ requirement must be applied with reason. In particular, while the Crown is obligated to demonstrate thatÑin all thecircumstancesÑthe 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.

É To conclude, these provisions, which are designed to expedite trials and aid in proof of the suspectÕs blood alcohol level, shouldnot be interpreted so as to require an exact accounting of every moment in the chronology. We are now far removed from the days whenthe breathalyser was first introduced into Canada and there may have been some suspicion and scepticism about its accuracy and valueand about the science underlying the presumption of identity.

These provisions must be interpreted reasonably in a manner that isconsistent with ParliamentÕs purpose in facilitating the use of this reliable evidence. [Citations omitted; emphasis added.] (

c) Applying the Law [9] In Ventura the defence relied on two time periods Ð totaling some 19 minutes Ð to argue that the breathalyzer tests were nottaken as soon as practicable. The first was an approximately 12-minute gap between the defendantÕs interception by the police and thecommencement of his drive to the station. The second was a seven-minute interlude while the police waited outside the sallyport. Ifound the impugned roadside interval adequately explained through the officersÕ evidence.

Left only with the brief interval at thesallyport doors, I concluded, at para. 19, that Òthe tests were taken reasonably promptly in all the circumstancesÓ. [10] I reach a different conclusion in the case at bar. First, given the defendantÕs co-operative attitude and the immediateavailability of a roadside screening device, I simply do not understand why it took 26 minutes from the time the defendant was firstobserved driving to the time the police began to transport him to Traffic Services. While some of this period may have involved securinga tow, the police evidence is both vague and incomplete in this regard.

If a third officer attended, I do not have his name, or even hisdivision, or any suggestion of when he may have arrived. If Hopton himself arranged for the towing of the defendantÕs vehicle, I havebeen provided with no information as to the name of the driver, the company that performed this function or when the hand-off occurred. [11] Much more troubling is the 22 or 23 minutes that expired while the defendant sat in an idling police car outside the sallyportdoors at Traffic Services. No explanation has been tendered for this delay other than rank speculation and some untested and clearly

inadmissible hearsay evidence. Unlike R. v. Price (2010), 2010 ONSC 1898 , 94 M.V.R. (5th) 23, esp. at para. 18, upon whichthe Crown relies, there is nothing about this period that I can reasonably infer Òhad to have occurredÓ. Despite the length of the delay,and despite it being the longest waiting period either had ever experienced, neither officer endeavoured to alert the station to theirpresence until some 15 minutes had elapsed and until, it appears, the defendant complained about the discomfort he was experiencingwhile cuffed from behind.

A further seven or eight unaccounted-for minutes passed before the sallyport doors finally opened.Vandergruggen makes clear that not every minute of a defendantÕs custody need be painfully detailed to invoke reliance on thepresumption of identity, but some explanation of or accounting of the reasons for inordinate delays must be advanced to, as said by theCourt of Appeal, Òdemonstrate thatÑin all the circumstancesÑthe breath samples were taken within a reasonably prompt timeÓ.

Itappears that that explanation, if it exists, would here have to come from an officer within the Traffic Services station, but I heard from noone but the two arresting officers at this trial. [12] To be clear, the material difference between this case and Ventura is not so much the greater passage of time (although thatitself is important) as the lack of any reasonable explanation for the failure to proceed with appropriate dispatch. In these circumstancesI cannot but conclude that the condition precedent Ð Òas soon as practicableÓ Ð for the invocation of the presumption of identity hasnot been met.

No other evidence has been tendered from which I can infer that the defendantÕs BAC at the time of his driving was thesame as that taken by way of Breathalyzer at the station. Accordingly, I am left with a reasonable doubt as the single charge thedefendant faces. D. CONCLUSION [13] In the result, I find the defendant not guilty of driving with an excessive BAC. Released on March 23, 2011 __________________________ Justice Melvyn Green