Her Majesty the Queen, and
M. Mackett, Ms.: Counsel for the Crown.
T.K. Pain, Mr.: Counsel for Ted Gets.
1 P.A.J. HARRIS J. (orally):— This is my ruling on all of the charges facing Mr. Ted Gets, charged 29th of June, 2010, impaired operation, over 80 milligrams, class G2 licence with blood/alcohol greater than zero milligrams per cent, fail to surrender licence, driving with liquor readily available, driving with unsealed container of liquor.
2 I am going to take things a little out of order and I am going to deal with the impaired operation first. The leading case of course is R. v. Stellato,  2 S.C.R. 478, and there is much common theory in the literature as to what that represents, but any type of indicia of impairment, even slight, can constitute impairment beyond a reasonable doubt, impaired operation beyond a reasonable doubt for the purposes of the charge of impaired operation. There are a number of cases that have considered this. Ms. Mackett has kindly provided me with five or six decisions. All of these decisions basically turn on their facts. I have to, of course, look at all of the evidence that is available on a case from beginning to end and not simply concentrate on whether one or two indicia establishes a case beyond a reasonable doubt, or proof beyond a reasonable doubt on the impaired operation.
3 P.C. Aleksandrowicz observed that Mr. Gets was travelling in an area of Queen Street in Toronto and turned the wrong way on a one-way street, stopped him. His observations were that Mr. Gets’s eyes were watery and he was very nervous. He said he had one beer to drink. I do not take into account his admissions there because they are only available for the purposes of grounds to make a demand. But he was nervous but polite, and there was essentially no erratic driving. He believed Mr. Gets was trying to fool him by not blowing hard enough or long enough or, in fact, inserting his tongue in the mouthpiece and pretending to blow, but he did agree that he could not see, in fact, that his tongue was inserted and he agreed that it might be that he was not blowing hard enough for long enough, but those were the observations of P.C. Aleksandrowicz.
4 Constable Petrakis noted that Mr. Gets stumbled slightly leaving his vehicle. That is not something that was seen or recorded by P.C. Aleksandrowicz apparently, but that is an observation he made.
5 Sergeant Garbutt was the — or P.C. Deborah Garbutt was the breath tech. at 32 Division and she has been on the force for about 25 years or so at this time and a very experienced officer and had been a breath tech. for many years. She described the smell of alcohol on his breath, eyes bloodshot, watery, slurred speech, quiet spoken, tearful at times, polite and cooperative, “and mentally, in my opinion, he was fine.” Under cross-examination she agreed she noted “had been drinking” but did not check off “ability impaired”. According to her, he was cooperative, polite. There is an officer with many years of experience and has seen many people come in to provide a breath sample. With her observations and what I could see on the video recording, I conclude that there was no evidence, aside from some slight slurring of speech that I could hear on the video recording, no evidence that would suggest that there was anything unusual about his balance, coordination, awareness of his environment or ability to communicate and understand, his cognitive ability. It may well be that the combination of his driving the wrong way on a one-way street as well as P.C. Aleksandrowicz’s evidence might lean or cause me to lean in terms of finding that there is slight impairment; but looking at all of the evidence, particularly an experienced officer at the station who has concluded that his ability was not impaired essentially and he was fine mentally, in all of the circumstances when one looks at all the indicia, in my view the evidence is more consistent with non-impairment than with impairment. In my view it would be dangerous to convict on this evidence. I have a reasonable doubt based on all of the evidence that I have heard in this case, and the impaired driving, the impaired operation case will be dismissed.
6 On the over 80 milligram issue, this is basically an issue of whether the presumption of identity is available to the Crown. Presumption of identity is the statutory condition under the Criminal Code under 258(1)(c) — that is (1)(c) — in order to rely on the presumption that the blood/alcohol at the time of the samples was the same as the blood/alcohol at the time of the driving. The Crown has to prove the samples were obtained pursuant to a 254(3) demand, samples were obtained as soon as practicable, and samples were obtained within two hours of the offence.
7 Now, I note that one of the criteria required under section 258(1)(c) is that samples were taken as soon as practicable, an additional proof that the Crown has to make over and above samples being obtained within two hours of the offence. So it is not enough to say well all of the samples were obtained within two hours, so what is the problem with some short delay in the course of taking the samples. It is not for me to inquire into what the purposes of “as soon as practicable” really are in terms of social and criminal justice policy. That is an additional criteria that has to be established; and any unexplained period that is substantial in terms of the case law — and there are a number of cases that talk about 10, 15 minutes as being insubstantial in terms of not requiring the Crown to explain every minute of the time that it takes to take a breath sample; but here we have got an unexplained period of about 25 minutes, and I say “unexplained” because I have looked at the transcript carefully, and I will come to that in a minute, but the period of time that is in question here is the period between 1:41 when Mr. Gets was taken out of the booking area where he was paraded before the staff sergeant in charge of the station and he was available for breath-testing because he had clearly indicated he did not want to speak to a lawyer. P.C. Garbutt did not meet him until 2:06 when he was taken into the breath technician’s office, so that is a period from 1:41 to 2:06, 25 minutes. And the following is the explanation for that.
8 First of all, on page six, around line 17, P.C. Garbutt says “At approximately 2:06 a.m. was my first introduction to the accused. He was brought before me by the arresting officer, P.C. Aleksandrowicz of 11 Division.”
9 She went on to say, top of page seven:
- When I was first introduced to the accused, I had completed a breath test on another subject and I had completed that breath test at 9:18 p.m., also on the 28th of June 2010. … I received the accused. He was brought before me at 2:06 a.m. on the 29th of June, 2010.
… how did you signify to the officer that you were ready for his test?
I asked the officer to bring the accused into the breath room. I asked the officer to read the notice which is posted up on the wall . …
10 And she goes on to say what is on that notice.
A. I … .
If I could just back up then? Before 2:06, when were you advised that there was a test to be done with Mr. Gets?
All I, all I can recall, that it would have been prior to that time. I don’t have an actual note when the sergeant or the staff sergeant would have advised me to attend to the breath room to conduct the test.
Okay. Okay. And the — and where were you then? I’m sorry. I’m just trying to understand the process. You’re at the station and . …
- A. I’m working at the front desk for station duty.
At the front desk. And so are you there in the place where the booking is being done?
I’m actually at the front desk. Our booking hall is in another area of the station.
Okay. Okay. And, sorry, you’re advised that this test needs to be done at what time?
- A. I don’t have that time noted.
Okay. Okay. And you — and then you asked the officer to bring him in. What — when were you advised that he was ready to be brought in? Like what is the initial impetus for him being brought in?
To speak with duty counsel if they wish, and I have in my notes that the accused refused to speak to duty counsel on that evening.
To just put it into plain language, who told you, who told you and when that a test needed to be done?
I don’t know if the sergeant or the staff sergeant would have told me that a test needed to be done. What happens is the radio room will call Traffic Services and advise that a particular unit, and in this case 11 Division, was going to be attending at the station for a breath test; and once I’m informed or the front desk area is informed that another unit is going to be bringing a body in, the booker will attend to the booker hall to set up for the booking of that accused; and because the service policy is that there has to be an armed officer in the front area, I wait for the booker to return from booking. When he has come back, I then go to the breath room.
Okay. So the first time then that you’re available, just for the safety reasons, an armed officer at the front, the first time that you’re available to go do the test is at what time?
- A. And, again, I don’t have that noted.
Okay. Did you — were there any delays? Did you do anything else before going for that breath test?
A. No, I did not.
11 So from all of this, I gather that the officer cannot say who told her to do the test and all she knows is that she met the accused at 2:06 a.m. I do not have any evidence from Constable Garbutt exactly when she was asked to go to the breath room, and I do not have any evidence from the booking officer that completed the booking of Mr. Gets at 1:41 a.m. as to what transpired with arranging to have P.C. Garbutt into the breath tech. office to take the test. I do not know whether the officer was unable to get somebody to substitute for P.C. Garbutt for 25 minutes or whether, in fact, he mentioned to P.C. Garbutt to go into the breath tech. office and she did not do it for some reason. I basically have no evidence as to what happened during that time, except that P.C. Garbutt was at the front desk and not in the breath room. I am not sure I know that. I just know that the first time the officer met Mr. Gets was 2:06 a.m., so essentially with the officer saying, being asked — “Did you do anything else before going for that breath test?”/Answer: “No, I did not” — I really have no evidence of what transpired during the 25 minutes in this case.
12 I am not aware of much commentary in the case law about the fact that — well, in any event some cases say, well, in any event it still is within two hours so what essentially is the problem? Well, the problem is, of course, that the statute requires “as soon as practicable.” And I have looked at the case law very carefully, including the cases submitted by counsel. For example, in Vanderbruggen, a 2006 decision of the Court of Appeal, the Court says at the top of page six:
- There is no requirement the tests be taken as soon as possible. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably.
13 Paragraph 13, the Court says:
- In deciding whether tests were taken as soon as practicable, the trial judge should look at a whole chain of events, bearing in mind the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the test. The “as soon as practicable requirement must be applied with reason, particularly while the Crown is obligated to demonstrate that in all of the circumstances the breath samples were taken within a reasonably prompt time. There is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody.
14 That is a very clear and eloquent articulation of the legal principles that I have to apply. It would be clear and cogent evidence if the record reflected that the officer was attentive to her duties at the front desk for the 25 minutes, being that they needed somebody at the front desk who was armed in order to protect the station for officers’ security and safety reasons. The fact is here that I do not know from P.C. Garbutt’s evidence that she was available to — she was occupied with other duties during that 26-minute period; I simply know that she first saw Mr. Gets at 2:06 and, as she says, when asked “Did you do anything else before going for that breath test?” “No, I did not.” I appreciate some of the night she spent at the front desk, but it is not evident whether she was required for any part of the 26 or 25 minutes that amounts to what we described as a period of delay from the completion of booking to the time Mr. Gets was taken to the breath room.
15 While it is permissible to say that there is some explanation for the time and all things that were done were done within the two-hour limit from the time of the offence to the taking of the first test, section 258(1)(c) specifically requires that the tests be taken “as soon as practicable.” And there are a number of cases I have been shown. I will not go through every one of them, but an unexplained period of 25 minutes, an unaccounted for period of 25 minutes, will not generally comply with the statute from my reading of the case law and, as a result, I am not satisfied beyond a reasonable doubt that the presumption of identity should apply. In other words, I am not satisfied beyond a reasonable doubt that the samples were taken as soon as practicable in accordance with section 258(1)(c) of the Criminal Code and consequently I, therefore, have no reading as to Mr. Gets’s blood/alcohol level at the time of driving. On the basis of that turn of events, I am required to find that the Crown has not proven the offence of over 80 milligrams beyond a reasonable doubt.
16 As to the other offences that are before the Court, I am satisfied on the facts that Mr. Gets did fail to surrender his licence. I am satisfied on the facts that he was driving a motor vehicle with liquor readily available and with an unsealed container of liquor according to P.C. Petrakis, that being found in the console of the car that he was driving. As to the offence of driving with more than a zero alcohol level, I am satisfied on all the circumstantial evidence that he was a Class G licence holder with a blood/alcohol level above zero between the alcohol found in the car and the smell of alcohol on his breath throughout the evening until in fact he was released by — or at least he left the breath room and left the presence of P.C. Garbutt. It was at all times a smell of alcohol on his breath, and in my view that is sufficient circumstantial evidence within the meaning of meaning of Arcuri and the Queen. It is an inference that can be drawn based on all of the evidence as logical and reasonable in all the circumstances, and I find Mr. Gets guilty of the four offences: Class G licence, blood/alcohol greater than zero milligrams per cent, fail to surrender licence, drive with liquor readily available and drive with an unsealed container of liquor. And the two charges, impaired operation and over 80 milligrams, are both noted dismissed.