He argued that the trial judge erred in law by “failing to consider the evidence as to unexplained delay on the part of the police in taking” samples of his breath. Specifically, on appeal, Cote urged Daley J, sitting as a summary conviction appeal court, to find that the trial judge erred in his consideration of the period of time between the time when the breath technician arrived at the station and the time when the technician began to change the alcohol standard solution in the Intoxilyzer. His appeal was dismissed: 2012 ONSC 5247.
Cote was stopped by police at 12:54 after he was observed running a stop sign. The officer who pulled him over formed a suspicion that Cote had consumed alcohol and asked that a roadside screening device be brought to the scene. The device arrived at 1:01 and Cote registered a fail.
At 1:06 the certified breath technician (BT) was called at home and told to attend the station to conduct the testing of Cote’s breath. The BT arrived at the station at 1:16 and began warming up the Itoxilyzer.
Cote was transported to cells and lodged at 1:19. The arresting officer, because he had a police service dog in his vehicle, did not transport Cote and arrived at the cells at 1:26.
The BT testified that prior to taking custody of Cote, he changed the standard alcohol solution in the Intoxilyzer. Although the BT did not note the reason why he changed the solution, he testified that he would only do so if it had been 14 days since the last change or if more than 50 tests had been conducted. The BT testified that he did not believe that 50 tests had been conducted.
Once the solution was changed the machine had to be reset, this took 20-25 minutes. The Intoxilyzer was ready for use at 1:58. When the BT took custody of Cote, he advised him of his rights to counsel and Cote was equivocal about contacting counsel; the BT, therefore, informed the arresting officer that duty counsel should be consulted. This took some 20 minutes. At 2:34 Cote provided his first sample and registered a reading of 196 mg of alcohol/100ml of blood.
With respect to this impugned delay, Daley J held that:
The evidence of P.C. Lein [the breath tech] was consistent and he was firm in his evidence that it would take 20 to 25 minutes for the Intoxilyzer instrument, the solution and simulator to warm up and that the diagnostic input would take in the order of three minutes following that. As such, this time period was reasonably accounted for.
The trial judge carefully considered the evidence and the submissions by counsel for the appellant and I am not persuaded that the trial judge erred in considering this aspect of the timeline while considering all of the surrounding circumstances from the time of the offence to the time of the first breath sample being taken [paras 40-41].
Daly J further concluded that:
As to the second period of delay as asserted on behalf of the appellant, although the time period between 1:58 a.m. and 2:04 a.m. was not specifically addressed in the evidence offered on behalf of the Crown nor by the trial judge, as noted, focusing on one aspect of the total time is not the appropriate way to determine if the tests were taken as soon as practicable. This was a very brief time and it is not necessary for the Crown to account for every moment while the appellant was in custody prior to the breath sample being taken [para 44].