R. v. Carey

R. v. Carey Collection Decisions of the Court of Appeal Date 2006-09-26 Docket numbers C43623 Judges Goudge, Stephen Thomas; Juriansz, Russell G.; Rouleau, Paul S. Subject Criminal Decision Content DATE: 20060926 DOCKET: C43623 COURT OF APPEAL FOR ONTARIO GOUDGE, JURIANSZ and ROULEAU JJ.A. B E T W E E N : HER MAJESTY THE QUEEN Applicant/Appellant Philip Perlmutter for the appellant - and - BRADLEY CAREY Respondent Richard Prendiville for the respondent Heard: September 7, 2006 On appeal from the order of Justice C. Stephen Glithero of the Superior Court of Justice dated May 3, 2005. JURIANSZ J.A.: Introduction [1] The Attorney General of Ontario seeks to appeal the order of Glithero J. dated May 3, 2005, that allowed the respondent’s summary conviction appeal and quashed his conviction on September 9, 2004, for operating a motor vehicle with a blood alcohol concentration “over 80”. [2] Early in the morning of October 10, 2003, the respondent was involved in a motor vehicle collision when the car he was operating left the roadway and struck a light standard. The trial judge found that the accident occurred shortly before 1:38 a.m. when a witness telephoned 911 to report the accident. [3] During the 911 call, the caller did not mention that alcohol might have been involved. At 2:37 a.m. a police officer on duty in a different patrol area noticed that the call was still outstanding and volunteered to investigate. He arrived on the scene at 2:40 a.m. He arrested the respondent for impaired driving at 2:47 a.m. and took him to the detachment, arriving there at 2:58 a.m. At 3:10 a.m. a qualified technician took breath samples with readings of 180 and 190 mg of alcohol in100 ml of blood, respectively. [4] As noted, the trial judge convicted the respondent on the “over 80” charge. The summary conviction appeal judge set aside this conviction and entered an acquittal. Trial Decision [5] At trial the respondent submitted that the prosecution had failed to prove that the breath samples were taken as soon as practicable after the accident as required by s. 258(1)(c)(ii), and therefore, the Crown could not rely on the breathalyzer results. The trial judge found that the explanation for the delay of approximately one hour and forty to fifty minutes between the accident and the taking of the first sample was explained by the fact that the police did not arrive and commence their investigation until approximately one hour and ten minutes after the accident. He said: It is my opinion that the Crown should not be required to go behind the facts indicating when the investigation began, in order to provide a history of the activity at the precinct or the police station which might cover the period of time in question. [6] The trial judge also rejected evidence proffered by the respondent to rebut the presumption of accuracy of the breathalyzer results and found him guilty of driving “over 80”. He dismissed the impaired driving charge. Decision of the Summary Conviction Appeal Judge [7] The appeal judge held that the trial judge erred in law by considering only whether the prosecution had shown that the breath samples were taken as soon as practicable after the police arrived on the scene, rather than as soon as practicable after the time of the offence as required by s. 258(1)(c)(2). [8] The appeal judge found there was insufficient evidence to explain the delay prior to the police officer’s arrival at the scene of the accident. In doing so, he relied on this court’s decision in R. v. Letford (2000), 150 C.C.C. (3d) 225 for the proposition, which he paraphrased as follows: “in appropriate circumstances the [Court] must demonstrate, ‘The way the police are organized and why’, as part of the explanation for any passage of time within which arguably the breath tests could have been taken more promptly.” He said: If, as, [was] held by the Court of Appeal in Letford, the real reason behind the delay lies in police unavailability then the Crown has to show the way in which the police are organized and why they are organized that way as part of an obligation to explain why the delay is reasonable. [Underlining added] [9] Applying this proposition, the appeal judge said: In my respectful analysis the statement by the responding officer, that we were busy that night, is not sufficient. … In my respectful view I am not prepared, allowed or permitted in the circumstances of this case to draw a legal inference that the police had a reasonable explanation available to them for the admittedly sufficient period of time that elapsed so as to require some explanation. [10] As the Crown had not called evidence of the way the police were organized he found that the prosecution had failed to prove that the breath samples had been taken as soon as was practicable. The appeal judge found that therefore the Crown could not rely on the presumption of their accuracy, allowed the appeal, and quashed the conviction. Analysis [11] I agree with the appeal judge that the trial judge applied the incorrect legal standard by considering only the time between the officer’s arrival on the scene and the taking of the breath samples. However, with respect, I am of the view the principle stated in Letford does not apply to this case. The misapplication of Letford raises a question of law. [12] In Letford, the taking of the breath samples was delayed because, at the time of the accused’s arrest, there was no qualified breathalyzer technician on duty at the arresting officer’s OPP detachment. It was necessary to request a breathalyzer technician to attend from another detachment. The trial judge acquitted the accused on the charge of “over 80” because he considered himself bound by the decision in R. v. Langlois (1999), 40 W.C.B. (2d) 502, which he understood as requiring the Crown to have a breathalyzer available at every detachment at all times or otherwise organize themselves to have breath samples taken as soon as possible. Consequently, he found the breath samples had not been taken as soon as practicable and acquitted the accused. The summary conviction appeal judge dismissed the Crown’s appeal. [13] The Crown’s appeal in Letford to this court was allowed. Goudge J.A. observed that, to meet the soon as practicable requirement, the police did not have to organize themselves to have a breathalyzer technician available at every detachment at all times or to otherwise organize themselves to have breath samples taken as soon as possible. He stated at para. 17 that the task of the trial judge was “to assess all the circumstances of this case to determine if the breath samples were taken as soon as practicable, that is, within a reasonably prompt time, under the circumstances.” Goudge J.A. went on to comment at para. 19: “Where, as here, the way in which the police organized their staff and equipment appears relevant to the time taken until the first breathalyzer test, it and any reason offered for it are matters for the court to consider in determining” whether the samples were taken as soon as practicable. He ordered a new trial so that a proper assessment could be performed. [14] It is worth noting that the delay in Letford occurred after the driver had been detained and the breath demand had already been made. As I understand it, the way the police were organized in Letford appeared relevant because they were not prepared to receive and take breath samples promptly after becoming possessed of grounds sufficient to make a demand. The facts of this case are different from those in Letford. Here, the delay that requires explanation occurred before the police had the grounds to demand a breath sample. There is no suggestion in this case that the police were not adequately organized to receive and take breath samples promptly. [15] More importantly, the basic question for the court in this case, as it was in Letford, is whether, in all the circumstances, the Crown has demonstrated that the breath samples were taken as soon as practicable. Letford stands for the proposition that the Crown may meet the burden by calling evidence of police organization but need not do so if other evidence is sufficient. [16] In my view, the arresting officer’s testimony that it was a busy night and that other calls were waiting coupled with the fact that there had been no suggestion in the initial call that alcohol might have been involved in the accident was capable of supporting a finding that the delayed police arrival was reasonable in the circumstances. It was unnecessary for the Crown to call a senior officer from the detachment or the dispatcher on duty to explain how the police were deployed to the various patrol areas or to provide details about what other calls occupied the police that night. In my respectful view, the other possible inferences suggested by the appeal judge, for example that there might have been fourteen murders in town that night, were speculative. [17] The comments of Rosenberg J.A. that Parliament enacted ss. 254 and 258 to expedite trials should be kept in mind when applying these sections. In R. v. Vanderbruggen (2006), 206 C.C.C. (3d) 489 (Ont. C.A.) he said at para. 16: To conclude, these provisions, which are designed to expedite trials and aid in proof of the suspect’s blood alcohol level, should not be interpreted so as to require an exact accounting of every moment in the chronology. We are now far removed from the days when the breathalyzer was first introduced into Canada and there may have been some suspicion and scepticism about its accuracy and value and about the science underlying the presumption of identity. These provisions must be interpreted reasonably in a manner that is consistent with Parliament’s purpose in facilitating the use of this reliable evidence [emphasis added]. Conclusion [18] For these reasons, I would grant leave to appeal, allow the Crown’s appeal and order a new trial. [19] I note that the decisions of both courts below were rendered before the Supreme Court of Canada released its judgment in R. v. Boucher (2005), 202 C.C.C. (3d) 34. The Crown recognizes that objection could be taken to the trial judge having considered the breath test results in rejecting the evidence to the contrary proffered by the respondent. For this reason as well, I would order a new trial. “R.G. Juriansz J.A.” “I agree S.T. Goudge J.A.” “I agree Paul S. Rouleau J.A.” RELEASED: September 26, 2006