R. v. Key, 2011 ONCJ 780

COURT FILE No.: Toronto 324780 DATE: 2011·12·16 Citation: R. v. Key , 2011 ONCJ 780 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — EDWARD KEY Before Justice P. Robertson Heard on June 10, 24, July 13, 18, August 25 and November 25, 2011 Reasons for Judgment released on December 16, 2011 J. Hanna .................................................................................................................... for the Crown H.

Spence .............................................................................................. for the accused Edward Key ROBERTSON, J.: [ 1 ] Initially, two issues were raised in this case: 1) Were the breath samples taken “as soon as practicable”? and 2) Was the accused arbitrarily detained when he was held in police cells to sober up after he provided his breath samples? [ 2 ] I was not prepared to hear evidence on the alleged s. 9 Charter breach dealing with post offence police conduct until a judicial determination was made as to whether the Crown could prove, beyond a reasonable doubt, the guilt of the accused.

In my view, it is not a wise use of court time in most cases, to hear what are sometimes days of evidence, respecting post offence conduct in the absence of first a determination that the crown can prove the offence.

Without proof, such time and resources are wasted. [ 3 ] Having determined that the crown had proven that the accused’s breath samples had been taken as soon as practicable, I indicated to counsel on July 13 that I was prepared to make a finding of guilt and would therefore hear argument on the alleged s. 9 Charter breach. [ 4 ] I heard argument on this issue and was prepared to render judgement on the s. 9 issue along with giving formally my reasons for judgement on the trial proper on August 25.

On August 24, defence counsel notified the crown and the Court that she wished to argue “an issue with respect to the validity of the information.” As a result, I did not render judgement on August 25 and given the lateness of raising the jurisdictional issue, the matter was adjourned for crown counsel to be given the opportunity to respond. I heard argument on the jurisdictional issue on November 25 th , whereupon the matter was adjourned to today for judgement on all issues including providing my formal reasons for judgment on the trial proper, if necessary.

VALIDITY OF THE INFORMATION - JURISDICTION [ 5 ] The defence has brought a motion to quash the information on the basis that the issuing justice of the peace failed to conduct the mandatory inquiry required by s. 508 of the Code. [ 6 ] S. 508(1) of the Code states:

SECTION 508. Justice to hear informant and witnesses 508.

(1) A justice who receives an information laid before him under

section 505 shall

(

a) hear and consider, ex parte, (

i) the allegations of the informant, and (ii) the evidence of witnesses, where he considers it desirable or necessary to do so; (

b) where he considers that a case for so doing is made out, whether the information relates to the offence alleged in theappearance notice, promise to appear or recognizance or to an included or other offence, (

i) confirm the appearance notice, promise to appear or recognizance, as the case may be, and endorse the informationaccordingly, or (ii) cancel the appearance notice, promise to appear or recognizance, as the case may be, and issue, in accordance withsection 507, either a summons or a warrant for the arrest of the accused to compel the accused to attend before him or some other justicefor the same territorial division to answer to a charge of an offence and endorse on the summons or warrant that the appearance notice,promise to appear or recognizance, as the case may be, has been cancelled; and (

c) where he considers that a case is not made out for the purposes of paragraph (b), cancel the appearance notice, promiseto appear or recognizance, as the case may be, and cause the accused to be notified forthwith of the cancellation. R.S.C. 1985, c. C-46, s. 508; R.S.C. 1985, c. 27 (1st Supp.), s. 79. [7] The requirements of

Section 508 are mandatory. S. 508 is made up of three parts. Subsection (

a) requires the justicehaving received an information laid before him under

section 505, to conduct a hearing. The hearing requires that he consider theallegations of the informant and where he considers it desirable or necessary, to hear evidence of witnesses. [8] Having heard the allegations of the informant and in those cases where evidence has also been heard from witnesses,the justice must then assess as to whether a prima facie case has been made out against the accused. Where the justice concludes thatsuch a case has been made out, ss. 508(1) (b)(

i) requires that the Justice confirm the appearance notice, promise to appear orrecognizance by endorsing the information. Where the Justice concludes that a case has not been made out, ss. 508 (1)(

c) requires thatthe Justice must cancel the appearance notice, promise to appear or recognizance and cause the accused to be notified of the cancellation. [9] The defence submits that failure to comply with these mandatory requirements of s. 508, results in the trial court losingjurisdiction to proceed. The defence submits in Ontario, this has been the accepted law since R. v. Gougeon (ONCA), [1980] O.J. 1342; at para. 25. [10] Defence counsel had referred me to a number of cases.

Many of these cases stand for the proposition that if no notationhas been made on the information confirming process, it is presumed that there has been no judicial determination and the information isdeemed invalid, a nullity and the trial court has no jurisdiction to proceed. Such was the case in R. v. Young [2010] O.J. 1991, R. v.Abramova, unreported decision of Dobney, J. February 5, 2010, R. v. Matykubov [2010] O.J. 2674, R. v. Bautista, unreported decisionof Forsyth, J. June 21, 2010, R. v. Doucette [2000] O.J. 5592, R. v. Pena Areche [2008] O.J. 1011, R. v.

Ladouceur 2010 ONCJ 587, [2010] O.J. 5281 and R. v. Haight [2011] 1404. Similar conclusions have been reached by the Superior Court in the cases ofR. v. Smith [2008] O.J. 381 and R. v. Pilieci [2010] O.J. 2760. [11] Similarly, if on the information the justice of the peace has recorded his refusal to confirm process, which is evidencethat the information has not been confirmed, then there is again no valid information on which to conduct a trial. As stated by Sharpe, J.in R. v. Harris [1978] O.J. 3723 (Prov.

Ct. (Criminal Division)) at para. 25, “…the form of release is confirmed or cancelled by theJustice of the Peace as evidence to the Court that due process is issued and the Justice of the Peace had done his judicial duty. If it is notconfirmed, then the Justice of the Peace has not performed this function and there is in my opinion, no live information before the Courtupon whom the Court can proceed, and as Professor Mewett says, the matter may go no further.” [12] That was precisely the situation in the cases of R. v. Hendry and Jarrell [2009] O.J. 5360 (S.C.J.).

In those cases, theJustice of the Peace had noted on the information “not confirmed.” Neither defendant was made aware of the Justice of the Peace’sdecision and therefore had appeared in court in answer to the charge. The

summary conviction appeal court in both cases upheld thefinding of the provincial court judge that the informations were a nullity. [13] The issue as to whether failure by the justice of the peace to confirm process results in an invalid information and the lossof jurisdiction by the court, is one in which the courts however, are far from any judicial consensus. Other courts have expressed doubtabout the conclusion that the information is a nullity when the justice of the peace fails to confirm process, concluding instead the failure

does not invalidate an information that has been properly sworn (my emphasis). Although arguably in regard to related sections of theCode, general authority for this proposition can be found in R. v. Markovic (2005) (ON CA), 200 C.C.C. (3d) 449(Ont. C. A.) and R. v. Oliveira (2009) 2009 ONCA 219 , 243 C.C.C. (3d) 217 (Ont. C.A.). [14] For the purposes of the specific and narrow issue before me, I need not weigh in on the resolution of this issue.

I shouldnote however that Trotter, J. of the Superior Court has but days ago delivered a well reasoned judgment on this very issue, concludingthat the failure of a justice of the peace confirming process on a properly sworn information does not result in a subsequent trial courtlosing jurisdiction in the prosecution of the matter; see R. v. Duran, ONSC 7346, delivered December 9, 2011. [15] All of these cases however are distinguishable from the present case. In each of these cases, the alleged “defect ofjurisdiction” appears on the face of the information.

That, is not this case. [16] The defence in this case attacks the validity of the information on the basis that the hearing before the Justice of thePeace was not proper, and was defective in that the justice did not hear allegations from the informant. In support of that submission thedefence submitted the tape of the exchange between the informant and the justice of the peace at the time the information was sworn. As it is very short, I will set it out in full: Informant: This one is caught….form 10. The Court: Do you swear this Information for Edward Henry Key is true, so help you God?

Informant: I do. [17] The Crown argues amongst other things that I do not have the jurisdiction to hear this application as it amounts to acollateral attack on the inquiry conducted by the justice of the peace. [18] They submit that an attack on an information for a defect not apparent on its face (my emphasis) has to be byapplication to the issuing justice or through an extraordinary remedy. They rely heavily on the case of R. v.

Whitmore (ON SC), [1987] O.J. 102 at page 7. [19] At page 7, Ewaschuk, J. states, “It is undoubted that a Provincial Court judge conducting a preliminary inquiry or a trialon an information has jurisdiction to do so provided that the information is valid on its face (my emphasis). In fact, a Provincial Courtjudge in the above circumstances has no jurisdiction to conduct an inquiry to determine the sufficiency of the informant'sgrounds for belief: R. v. Ingwer, supra at 365.

To inquire into the sufficiency of the informant's grounds for belief would be topermit an improper collateral attack on the pre-inquiry conducted by a Justice of the Peace: see Wilson v. The Queen, (SCC), [1983] 2 S.C.R. 594, 9 C.C.C. (3d) 97, and R. v. Komadowski (1986), (MB CA), 27 C.C.C. (3d)319 (Man. C.A.).

The only way an information laid before a justice may be later attacked for a defect not apparent on the face ofthe information is by a motion to the issuing justice or by extraordinary remedy.” [20] I find that this is precisely the situation before me. [21] The difference between determining if process has been confirmed or denied versus sitting in review of the decision ofthe issuing justice, was recognized by this Court in R. v. Lyndon [2003] O.J. 2824.

Although in regard to s. 601 of the Code, Wright, J.,held that the Court had no authority to quash an information that was valid on its face and that the Court had no power to review and re-assess the validity of the requisite grounds of the informant to swear the information. [22] In R. v.

Litchfield, (SCC), [1993] S.C.J. 127, Iacobucci, J. for the Court outlined the extent of thecollateral attack rule as follows at page 14: “This rule holds that “a court order, made by a court having jurisdiction to make it,” may not be attacked “in proceedings other thanthose whose specific object is the reversal, variation, or nullification of the order or judgment” (Wilson v.

The Queen, (SCC), [1983] 2 S.C.R. 594, per McIntyre, J., at p. 599)…..However, where a judge, sitting as a member of a court having the capacity tomake the relevant type of order, erroneously exercises that jurisdiction, the rule against collateral attack applies.” [23] On the strength of these authorities, I find I do not have the jurisdiction to review the adequacy of the hearing conductedby the justice of the peace in the swearing of the information. [24] It seems to me that regardless of whether failure to confirm process does or does not result in jurisdictional error, there isa significant difference between a court making a cursory examination of an information to determine if process has been confirmed ordenied by the issuing justice of the peace, versus a trial court embarking upon a review of the decision of the issuing justice as to theadequacy of the required hearing under

section 508. [25] The defence is asking this Court to engage in a review. The defence wants this Court to go behind the endorsement onthe information and entertain a review of the adequacy of the grounds on which the justice made her endorsement. As stated inWhitmore and Litchfield, this Court has no such power. [26] I am persuaded that Whitmore and Litchfield are correct statements of the law and govern this situation. I do not havejurisdiction to review the grounds for the issuance of process by the Justice of the Peace. AS SOON AS PRACTICABLE [27] The relevant facts are as follows: The accused was stopped at a RIDE stop on Midland Avenue at Highway 401 in the

City of Toronto. It is conceded both that: 1) the officer had reasonable suspicion that the accused had alcohol in his system to make ademand for the accused to provide a suitable breath sample into a screening device and 2) following the registering of a fail, hadreasonable and probable grounds to arrest the accused for over 80. [28] Following his arrest at 1:20 am, the officer asked his dispatcher as to the location of the breath technician and wasdirected to transport the accused to Traffic Services. Traffic Services is located in the south end of the City near the Exhibitiongrounds.

The arresting officer left the scene at 1:27 am. En route to Traffic Services, he was notified at 1:36 am, that he was beingrerouted and that he should now take the accused to 41 Division. The officer immediately turned around and drove to 41 Division. Theaccused and accompanying officers arrived at the Division at 1:58 am. [29] 41 Division is about a 5 -10 minute drive from Midland and Highway 401.

Assuming traffic conditions were such that thetrip could have been completed within the estimated time period, the rerouting caused a delay of between 21-26 minutes. [30] This is the first of two time periods that the defence submits results in the breath samples not being obtained, “as soon aspracticable.” Although this period of time is explained, the defence submits that the delay was unnecessary, resulting in the samples notbeing provided as soon as practicable. [31] The second of the two time periods relates to the period of time that the accused was ready to provide a sample, but thatthe intoxilyzer was not ready to receive a sample.

The relevant facts as regards to this period are as follows: The breath technician hadbeen notified at the same time as the arresting officer to attend 41 Division. He made his way there, arriving at 1:53 am, about fiveminutes before the accused. Upon arrival at 41 Division, he prepared his equipment but was not ready to receive a breath sample until2:26 am. When the accused arrived at the station, he was paraded before the booking sergeant. This process took until approximately2:05 am.

He was then placed in the report room until the breath technician was ready to receive the first sample of breath from theaccused.

The breath technician was not available to receive that sample for 21 minutes after the accused was prepared to provide one. [32] The Defence submits that the delay from 2:05 am to 2:27 am was also unnecessary and that the intoxilizer should have been“warmed up” and “ready”. [33] The defence submits that this delay and that associated with the re-routing, resulted in the samples not being taken as soonas practicable. [34] The appropriate starting point in deciding this issue is a review of the principles enunciated by the Court of Appeal in caseof R. v. Vanderbruggen (ON CA), [2006] O.J. 1138 (Ont. C. A.).

Rosenberg, J.A. for the Court sets out the meaningof the phrase, “as soon as practicable” at paragraphs 12 and 13: 12 That leaves the question that is at the heart of this appeal -- the meaning of as soon as practicable. Decisions of this and othercourts indicate that the phrase means nothing more than that the tests were taken within a reasonably prompt time under thecircumstances. See R. v. Phillips (1988), (ON CA), 42 C.C.C. (3d) 150 (Ont. C.A.) at 156; R. v. Ashby (1980), (ON CA), 57 C.C.C. (2d) 348 (Ont. C.A.) at 351; and R. v. Mudry, R. v. Coverly (1979), 1979 ABCA 286 , 50C.C.C. (2d) 518 (Alta.

C.A.) at 522. There is no requirement that the tests be taken as soon as possible. The touchstone for determiningwhether the tests were taken as soon as practicable is whether the police acted reasonably. See R. v. Payne (1990), (ON CA), 56 C.C.C. (3d) 548 (Ont. C.A.) at 552; R. v. Carter (1981), (SK CA), 59 C.C.C. (2d) 450 (Sask. C.A.) at453; R. v. Van Der Veen (1988), 1988 ABCA 277 , 44 C.C.C. (3d) 38 (Alta. C.A.) at 47; R. v. Clarke, [1991] O.J. No. 3065(C.A.); and R. v. Seed, (ON CA), [1998] O.J.

No. 4362 (C.A.). 13 In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing inmind 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 "as soonas practicable" requirement must be applied with reason.

In particular, while the Crown is obligated to demonstrate that -- in all thecircumstances -- the 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. See R. v. Letford (2000), (ON CA), 150 C.C.C. (3d) 225 (Ont. C.A.) at para. 20; R. v. Carter, supra; R. v. Cambrin (1982), (BC CA), 1 C.C.C.(3d) 59 (B.C.C.A.) at 61-3, and R. v. Seed at para. 7. [35] In applying these principles to the case before me, I consider the following: Mr.

Key was arrested at 1:20 am andprovided his first breath sample at 2:33 am, 1 hour and 13 minutes later, well within the two hour limit. A second sample was providedafter the required minimum 15 minute interval, at 2:56 am. [36] The admissibility of the breath samples does not turn on analyzing moments of time. The test is whether, looking at thewhole chain of events, were the samples taken within a “reasonably prompt time”? As stated in R. v.

Vanderbruggen at para. 12, “Thetouchstone….is whether the police acted reasonably.” [37] In addition to the first sample being taken well within the two hour limit, there is no evidence that by re-routing theofficers to 41 Division, the police were acting unreasonably. There is no evidence to suggest that the re-routing was the result ofanything other than the police making an operational decision in the use of their equipment and personnel.

Policing is a dynamicbusiness and changes are frequently required to be made “on the fly.” The Court is not prepared to “assume” that the re-routing was“unnecessary.” Further, there is no evidence that once re-directed to 41 Division, the officers did anything but promptly follow orders. There is no suggestion that any delay was caused by the police not carrying out their duties in the investigation of Mr. Key. [38] Further, s. 258 (1)(c)(ii) of the Criminal Code does not require that the crown prove that the samples were taken as soonas possible.

For example, there is no requirement that the police have an available breath technician at every station, available 24/7,

standing by to receive a breath sample, with a warmed up intoxilyzer; see R. Letford (ON CA), 150 C.C.C. (3d) 225(Ont. C.A.); see paras. 16 and 20. [39] In regard to the delay due to the time to prepare the equipment, Officer McKeon, the breath technician, testified that hewas directed to attend 41 Division at 1:36 am to receive breath samples, that he arrived at 1:53 am, 5 minutes before the accused.

Uponarrival, he immediately went about setting up the equipment, going through the required checks to ensure that the machine was in properworking order and speaking to the arresting officer as to the background of the arrest. At 2:26 am, he was ready to receive the accused. He has provided a complete explanation for the time period of 1:53 to 2:26 am. [40] I find that any “delays” including the extra time resulting from re-routing and the time from 2:05 – 2:26 am wereadequately explained.

When considered as part of the whole chain of events, I find that the samples were taken in a reasonably prompttime and taken as soon as practicable. ARBITRARY DETENTION [41] The defence submits that Mr. Key was arbitrary detained when his detention was continued after providing his breathsamples. The defence submits no inquiry was made of the accused as to whether there was a responsible adult available to take custodyof him and there was no other justification for his continued detention under s. 498 of the Code.

The defence submits that theappropriate remedy in these circumstances is the granting of a stay of proceedings pursuant to s. 24(1) of the Charter. [42] Section 498(1.1) of the Criminal Code states that: “The officer in charge or peace officer shall not release a person … if the officer in charge or peace officer believes, on reasonablegrounds, (

a) That it is necessary in the public interest the person be detained in custody …. having regard to all of the circumstances including theneed to (

i) Establish the identity of the person (ii) Secure or preserve evidence of or relating to the offence (iii) Prevent the continuation or repetition of the offence or the commission of another offence, or (iv) Ensure the safety and security of any victim of or witness to the offence; or (

b) That, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law. [43] Mr. Key had been identified; there was no issue in regard to the securing or preserving of evidence that would havejustified his continued detention and similarly, no issue in regard to ensuring the safety or security of any victim or witness. [44] There was no belief by any officer that Mr. Key would not attend court as required. [45] The defence submits that any evidence as to the possibility of Mr.

Key committing a further offence or continuing thepresent offence by getting into another motor vehicle and driving are pure speculation. It is submitted that he was not displaying anysignificant signs of impairment and that he should have been released once served with the required documentation. [46] The crown submits that Mr. Key’s continued detention was justified and not arbitrary given Mr. Key’s significantlyelevated BAC readings, more than 2 times the legal limit at the time of providing his second breath sample. The crown submitsdetaining Mr.

Key until his estimate BAC was at the legal limit was not contrary to s. 9 of the Charter and justified in all thecircumstances. [47] The relevant facts are as follows: Mr. Key provided two suitable breath samples at 2:33 am and 2:57 am with readingsrespectively of 182 and 170 milligrams of alcohol per 100 millilitres of blood. Following the second breath test his detention wascontinued pending the preparation of the required paperwork. Mr. Key was then served at 3:42 am with the Notice of Suspension, theCertificate of Analysis and the test results.

Following a discussion between the arresting officer and Duty Sergeant Rodney, Mr. Keywas then lodged in a cell shortly after 4 am from which he was ultimately released by a different Duty Sergeant at 8:43 am, a detentionof less than 5 hours. [48] I heard from the arresting officer and both booking sergeants – Sergeant Rodney who detained him and Sergeant Capizzowho ultimately released the accused. I also heard from Mr. Key. [49] The evidence of Officer Upton is that following receipt of the breath readings, he informed Sgt. Rodney of those readingsand was advised that Mr.

Key would be detained due to the high readings. [50] Sergeant Rodney corroborates this evidence in that he testified that he decided to detain Mr. Key because of his highreadings, more than twice the legal limits. His memory specifically of Mr. Key was limited, but he recalled that he was told of the highreadings. As is the practice at 41 Division, Mr.

Key’s breath readings and the timing of receipt of those readings were recorded on awhite board in the booking hall so that Sergeant Rodney, his booker and any relieving sergeant would be able to see this information at aglance. [51] Sergeant Rodney in cross examination testified that he himself did not ask whether Mr. Key had a responsible person topick him up. It is his practice to rely on the arresting officer to make than inquiry. He testified that he would be concerned if such aninquiry was not made. He testified that if an accused wished to speak to him, he would have done so.

Sergeant Rodney testified that theToronto Police Service does not have a specific release policy, leaving it up to the individual releasing sergeant. Although Sergeant

Rodney was not the releasing sergeant, he indicated that it was his practice to release an individual when they were sober and that hewould be guided by whether they showed any signs of continued impairment. It was his testimony however, that release was basedmainly on the readings. [52] Sergeant Capizzo was the releasing sergeant. He was straight forward in his testimony. He has concerns with releasingdetained parties if they are over the legal limit.

In assessing if a detained person should be released, he uses the elimination rate of 15mgs. of alcohol/ per hour. [53] The Sergeant did not consider whether there was someone who might pick up the accused. He did not inquire of theaccused if he had someone. [54] Based on application of the elimination rate used by Sergeant Capizzo, the accused was released at 8:42 am. [55] Mr. Key testified that no one asked him if he had any one to pick him up after providing his breath samples and he did notknow he could ask. He testified there were a number of people who lived locally who could have assisted him.

He testified that whenadvised by an officer that he would be detained, he asked to speak to the Sergeant and was told he could not. ANALYSIS [56] Mr. Key was detained solely based on his excessive elevated blood alcohol readings being more than twice the legallimit. In the absence of a standard policy of the Toronto Police Service as to when an accused should be release, the decision is left tothe duty sergeant in charge of the station. He or she of course must act reasonably and in accordance with s. 498 of the Code. [57] I find that Sgt. Rodney’s decision not to release immediately and Sgt.

Capizzo’s decision to continue Mr. Key’s detentionuntil his blood alcohol level was approximately at the legal limit, entirely reasonable, not contrary to s. 498 and not an arbitrary detentionunder the Charter. [58] As regard to s. 498, this

section of the Code admittedly by the defence contains a “public interest” component. Theassessment to be made by the officer requires that he or she have regard to that public interest component based on “having regard to allthe circumstances” including a consideration of a number of enumerated factors. These factors however are not an exclusive list offactors. The

section is clear that a more comprehensive approach is required – including a consideration of all of the circumstances (myemphasis). [59] I cannot conclude that either Sergeant acted arbitrarily in detaining or detaining further the accused until he was sober. Sgt. Capizzo was very forthright in his evidence and it was his decision when to release the accused. Mr. Key was lodged in the cellsshortly after 4 am, following Sgt. Rodney’s decision based on the accused’ s readings. Sgt.

Capizzo, when he arrived to relieve Sgt.Rodney at 4:45 am, was made aware of the accused, his readings, the timing of his breath tests and the fact he was presently beingdetained. [60] Sgt. Capizzo’s testified as to his concerns with the release of any accused while over the legal limit.

He noted concernswith the accused potentially injuring himself due to being unsteady on his feet, walking into traffic while still impaired, committing afurther offence of driving, or given that release would have been in the middle of the night, whether the accused would be a target forrobbery given his intoxicated state. [61] I accept that Sgt. Capizzo had no evidence on which to conclude that any of these possibilities were more thanspeculation. That is in my view entirely irrelevant. No person can predict with any accuracy what would happen if the accused had beenreleased.

But it does not follow that detention, of an intoxicated person with readings twice the legal limit, who on cogent evidence hasalready shown themselves to make poor decisions as demonstrated by their decision to drive while severely intoxicated is arbitrary. [62] Sgt. Capizzo used a widely accepted elimination rate to calculate when he would release the accused. Based on theelimination rate of 15 mgs. of alcohol / hour of which I can take judicial notice, see R. v. Paszczenko and R. v. Lima 2010 ONCA 615, [2010] O.J. 3974 (Ont.

C.A.), and based on the last breath reading of 170 mgs received at 2:57 am, the level of blood alcoholof Mr. Key at the time of release would have been approximately 84 mgs. of alcohol per 100 mls of blood. In other words, the accusedwould have been very close to, albeit slightly over the legal limit when released. [63] Mr. Key in fact was released at the earliest time possible, when his level of intoxication was at the legal limit. [64] I do not find the defence argument has any merit. [65] The defence argument is answered by the Court of Appeal in the cases of R. v.

Sapusak [1998] O.J. 4148, affirming thedecision of the

Summary Conviction Appeal Court [1998] O.J. 3299 and R. v. Iseler (ON CA), [2004] O.J. 4332. [66] In Sapusak, the

Summary Conviction Appeal Court found that the continued detention of an accused for over 7 hoursuntil his blood alcohol level was below .05 constituted neither an arbitrary detention nor a breach of s. 498 of the Criminal Code. TheCourt found that the officer in charge’s decision not to release the accused was made in the public interest until the accused’s bloodalcohol level was safely below 50 mgs.

Although the Court held that the accused could have been released earlier, the failure of theofficer in charge to do so did not result in the detention being arbitrary. [67] On appeal, the Court of Appeal found that considering the high readings, the police were justified in detaining theaccused for his own protection. I might note that Mr. Sapusak’s readings were both 130 mgs., considerably less than those of theaccused.

Even if the Court had concluded that the detention was arbitrary, the Court held there was no justification for excluding thebreath readings as there was no temporal or causal connection between the breach and the obtaining of the evidence and that a stay ofproceedings was not appropriate as it was not one of the clearest of cases.

[ 68 ] Similarly even if I am wrong, in the present case, the facts in this case would not justify the drastic remedy of a stay under s. 24(1) of the Charter. This is not one of the clearest of cases. [ 69 ] In Iseler, the Court of Appeal revisited the issue of whether an accused was arbitrarily detained when he was held for 11 hours during which time he was almost completely ignored by the police . Armstrong J. in finding a breach, stated there is, “a considerable difference between a detention of five hours and a detention of eleven hours (Mr.

Key was detained for less than 5 hours); see para. 22. [ 70 ] In finding that the accused was arbitrarily detained, Armstrong, J., distinguished the case from a number of cases including Sapusak. He noted that in Sapusak the officer had made an assessment of the accused and decided his detention was justified until his blood/alcohol reading was below 50 mgs. He noted in Iseler, it appeared from the evidence that no such assessment was made of the accused. [ 71 ] No assessment was made of Mr. Iseler until he was released 11 hours after detention, when his estimated blood alcohol level would have been near zero.

The court also noted that during this 11 hours ordeal, the accused was virtually ignored, “for the entire period of time, except for a five-second interlude at the tenth hour.”; see para. 22. [ 72 ] In the present case, Sgt. Capizzo used the legal limit as his benchmark and used the commonly accepted elimination rate, applied it to the accused’s situation and made the individualized assessment as to when he should be released. As stated above, if anything, the accused was released at the earliest point when his BAC was either at or perhaps even slightly above the legal limit.

Further on the case before me, on his own evidence, Mr.

Key was treated courteously and professionally throughout. [ 73 ] It should also be noted, despite the Court of Appeal in Isler finding that the accused had been arbitrarily detained, it declined to stay the charges citing the importance of the fact that the breach had occurred post – offence. [ 74 ] Sergeant Rodney’s decision to detain the accused due to the accused’s high readings and Sergeant Capizzo’s decision to continue that detention are in my view anything but arbitrary and unassailable given the accused’s readings were more than twice the legal limit. [ 75 ] Unlike in Iseler, Mr.

Key was released subject to an assessment based on his breath readings and a legally reasonable and scientifically defensible elimination rate. The decision to detain was explained, defensible and there was no evidence to suggest the accused was over held beyond sobering up to the legal limit. [ 76 ] The use of the legal limit as a benchmark for the release of the accused from detention is far more defensible than a policy which dictates the continued detention of the accused until his blood alcohol level is less than .05. Regardless, the Superior Court had no problem with the stricter benchmark in R. v.

Burns [2000] O.J. 1743 (S.C.J.) . [ 77 ] Similarly, I also would also note that the application of the very conservative elimination of 10 mgs. / hour was found acceptable by the Court of Appeal in the case of R. v.

Price [2010] O.J. 3258 despite that the elimination rate of 15 mgs / hour is the elimination rate most commonly used by toxicologists. [ 78 ] Sergeant Capizzio’s use of both the higher benchmark of .08 and his use of the greater elimination rate of 15 mgs. in making his assessment as to the appropriateness of releasing the accused is further indication that the detention was not arbitrary and in fact, solidly based on reason. [ 79 ] The defence submits that the assessment to release should be more individualized and based on observations of the accused such as to whether they are still showing signs of impairment.

It is also submitted that the police should be required to ascertain whether there is a reasonable person who can attend and pick up the accused. [ 80 ] Dealing first with the presence or absence of other signs of impairment, counsel points to the fact that Mr.

Key showed little or no outward signs of impairment on the video either at the time of initial booking, or when he was paraded a second time when it was decided that he would be held in custody until sober. [ 81 ] Although the presence of signs of continuing impairment may be important to include in the calculus of determining whether an accused should continue to be held, the absence of outward sign of impairment is in my view largely irrelevant.

Many individuals do not show outward signs of impairment but this does not mean they do not continue to be impaired or they do not continue to pose a risk to the public. [ 82 ] There is no better example of this than Mr. Key. He testified on this Charter Application. In cross examination Mr. Key testified that he felt just as sober at 4 am (when he was placed in the cell) than he felt at 8:43 am (when he was released). He further testified that he felt sober after providing his breath samples – the last one with a reading of 170. This speaks volumes - drunks don’t make good judgment calls. [ 83 ] I take from Mr.

Key’s evidence that as far as he was concerned, he felt sober when he had a blood alcohol reading of 170, when he choose to drive his motor vehicle with more than twice the legal limit of alcohol. Mr. Key may well have felt that he was not impaired but science is not on his side. The fact Mr. Key felt sober when his is BAC was 170, is why frankly, Mr. Key is a poster boy for why people with high readings should presumptively be held in custody pending sobering up. [ 84 ] As to the effect of the failure of Sgt.

Rodney to inquire of the accused as to whether he had a responsible person to pick him up, I do not find that failure turns a lawful detention into an arbitrary one. That is not to say that the duty sergeant should not make use of the responsible adult option routinely. Obviously in this case Sgt Rodney failed to confirm such an inquiry had been made.

Failure to do so does not however mean that a detention of someone with more than twice the legal limit of alcohol in their system and who on the information known to the officer has already demonstrated their impaired judgment by drinking and driving, amounts to an arbitrary detention.

[ 85 ] In conclusion, I dismiss the s.9 argument, find that the readings were taken as soon as practicable and find I have no jurisdiction to sit in review of Justice of the Peace’s decision to swear the information. I find the crown has proven the case of over 80 beyond a reasonable doubt and there will be a conviction. Released: December 16, 2011 Signed: “Justice Robertson”