DATE: 20060804

DOCKET: C44298

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Appellant) – and ANTONIOS TOPALTSIS (Respondent)

BEFORE: SIMMONS, ARMSTRONG AND ROULEAU JJ.A.

COUNSEL:

James V. Palangio for the appellant

Antonios Topaltsis (In person) for the respondent

HEARD & RELEASED ORALLY: July 26, 2006

On appeal from the order of Justice Paul U. Rivard of the Superior Court of Justice (Summary Conviction Appeal Court) dated September 14, 2005 upholding the acquittal entered at trial.

E N D O R S E M E N T

[1] The Crown seeks leave to appeal the decision of a Summary Conviction Appeal Court judge upholding the respondent’s acquittal on a charge of operating a motor vehicle with a blood alcohol concentration exceeding the legal limit. The respondent represented himself at trial. However, at the request of the trial judge, a defence counsel present in the courtroom assisted him in making a s. 8 Charter application at the conclusion of the evidence.

[2] In his ruling on the s. 8 Charter application, the trial judge concluded that the Crown had not established that the police officer had reasonable and probable grounds for making a breath demand. The trial judge’s conclusion was premised on a finding that it had not been established on an objective basis that the police officer had reasonable and probable grounds.

[3] During the course of oral argument at trial, the trial Crown acknowledged that, in the absence of the respondent’s fail reading on an approved screening device, the police officer would not have had reasonable and probable grounds for making a breath demand. The facts relating to the administration of the approved screening device test are therefore important.

[4] The police officer administered the approved screening device test to the respondent on July 31, 2001. The police officer testified that before doing so, he noticed that the device had last been calibrated on July 5, 2001 and that was outside his police department’s current practice of calibrating approved screening devices every two weeks. However, the police officer also stated that his department’s practice concerning frequency of calibration was far in excess of the manufacturer’s standard. In that respect, he stated during cross-examination that he had spoken to a representative of the manufacturer at a trade show and was told the devices only require calibration once every six months.

[5] The police officer also testified that, before administering the test to the respondent, he self-tested the approved screening device and that it properly registered no alcohol.

[6] In assessing the police officer’s evidence concerning his conversation with the manufacturer’s representative, the trial judge commented that it was hearsay and that it was not even clear whether the individual in question was a technician, a salesman or “the guy cleaning up the booth”. Further, the trial judge found that the evidence that the approved screening device had not been calibrated within departmental guidelines was some evidence that the machine was not in proper working order. In the result, the trial judge concluded that it had not been established on an objective basis that the police officer had reasonable and probable grounds.

[7] On appeal, the Summary Conviction Appeal Court judge stated that the trial judge’s finding “that the evidence established that the basis for the reasonable and probable grounds ‘just wasn’t there’” was a finding of fact. Further, the Summary Conviction Appeal Court judge concluded that because the police officer knew the approved screening device had not been calibrated in accordance with police department guidelines, it was open to the trial judge to find that “the results of the roadside test were not sufficient to provide reasonable and probable grounds as required.”

[8] On appeal to this court, the Crown contends that the trial judge erred by applying the wrong test in determining whether the officer had reasonable and probable grounds to demand a breath sample. In particular, the Crown submits that the trial judge required the Crown to prove that the approved screening device that was used in this case (and which registered a fail) was in good working order when the police officer administered the test to the respondent. Further, the Crown contends that the Summary Conviction Appeal Court judge erred by failing to recognize that the trial judge applied the wrong test.

[9] We accept the appellant’s submissions. We are satisfied that rather than simply assessing whether, on an objective basis, the officer had reasonable grounds for believing that the approved screening device was in good working order, the trial judge embarked on a consideration of whether the evidence established that the device was in good working order. We therefore agree that, in effect, the trial judge required the Crown to prove the device was in good working order. Further, because the trial judge applied the wrong test, his finding that the officer did not have reasonable and probable grounds is tainted and cannot stand.

[10] Moreover, we agree that the Summary Conviction Appeal Court judge erred in law by failing to recognize that the trial judge applied the wrong test. Further, the Summary Conviction Appeal Court judge erred in law in holding that the trial judge’s conclusion that the police officer did not have reasonable and probable grounds on an objective basis was, in the circumstances of this case, a finding of fact. See R. v. M.A.L., [2003] O.J. No. 1050 (C.A.).

[11] During oral argument on the appeal, the Crown fairly acknowledged that, if the appeal was allowed the proper remedy would be a new trial. Accordingly, leave to appeal is granted, the judgment of the Summary Conviction Appeal Court and the acquittal entered at trial are set aside and a new trial is ordered.

“Janet Simmons J.A.”

“Robert P. Armstrong J.A.”

“Paul Rouleau J.A.”