Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20220321 DOCKET: M53112

Thorburn J.A. (Motions Judge)

BETWEEN

Her Majesty the Queen Respondent

and

Vijay Chandrasegaran Applicant

Counsel: Kenneth W. Golish, for the applicant Mark Luimes, for the respondent

Heard: in writing

Endorsement

Overview

[1] The Applicant, Vijay Chandrasegaran, seeks leave to appeal the decision of the Summary Conviction Appeal (“SCA”) judge to uphold his conviction for operating a motor vehicle while exceeding 80 mg of alcohol in 100 mL of blood, contrary to s. 320.14(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46. He also seeks to stay his driving prohibition pending appeal.

[2] The trial judge determined that the arresting officer lacked reasonable and probable grounds to arrest and make a breath demand, and that the Applicant’s ss. 8, 9 and 10(a) Charter rights had been violated.

[3] However, she decided that the results of the breath samples given by the Applicant should not be excluded from evidence, pursuant to s. 24(2) of the Charter. She therefore convicted the Applicant and sentenced him to a fine of $2,000 and a one-year driving prohibition.

[4] On appeal, the SCA judge upheld the Applicant’s conviction.

[5] The Applicant now seeks leave to appeal the appeal decision rendered by the SCA judge.

[6] Leave to appeal under s. 839(1) of the Criminal Code is granted sparingly, and only on questions of law. Two factors must exist in order to grant leave to appeal: (1) the legal issues must be significant to the general administration of justice; and (2) there must be merit to the appeal: Criminal Code, s. 839(1); R. v. R. (R.), 2008 ONCA 497, 59 C.R. (6th) 258, at paras. 24, 31-34.

[7] For the reasons that follow, I find the SCA judge made no legal error, nor is there a legal issue of broader legal significance to the administration of justice, and leave to appeal is therefore denied.

The Facts

[8] The underlying facts are as follows: on March 17, 2019, at 2:43 a.m., Windsor Police Service Constable MacKinnon saw the Applicant’s vehicle make an overly wide turn, go into the part of the road designated for parking, and come back into the main portion of the road. The Applicant turned without signaling and failed to stop at a stop sign. Officer MacKinnon and his partner stopped the vehicle.

[9] When Officer MacKinnon approached the Applicant’s vehicle, he observed a red plastic cup with brown liquid. The cup was located behind the front passenger seat. Beside the cup, the floor was wet. On the floor by the front passenger seat, he observed a half empty bottle of whisky. Three bottles of Pepsi, one opened, were located on the front passenger seat.

[10] Officer MacKinnon advised the Applicant that he had been stopped for failing to stop at a stop sign.

[11] At 2:44 a.m., Officer MacKinnon formed the opinion that the Applicant was impaired, based on the Applicant’s driving behaviour, the fact that there was an open bottle of alcohol in the vehicle, and the strong odour of alcohol on the Applicant’s breath. As he was giving Officer MacKinnon his documents, the Applicant told Constable MacKinnon that he had recently left a bar. As the Applicant got out of his vehicle, Officer MacKinnon noted that the Applicant was unsteady on his feet and using his vehicle to balance himself.

[12] As such, also at 2:44 a.m., the Applicant was arrested and charged with impaired driving.

[13] One minute later, at 2:45 a.m., Constable MacKinnon read the Applicant his right to counsel and cautioned him.

[14] At 2:46 a.m., Officer MacKinnon made a breath demand. A roadside alcohol screening test was not administered. Constable MacKinnon was unable to recall whether there was a roadside alcohol screening device in his cruiser.

[15] At 2:50 a.m., the Applicant was taken to the police station where he was administered tests by a qualified breath technician. The readings, once rounded down to the nearest 10 mg, were 190 and 180 mg of alcohol in 100 mL of blood. Both the certificate and a print-out were introduced during the voir dire, which evidence was merged into the evidence at trial. The Certificate contains an empty space where the time of the first test was supposed to be recorded. The time of the second test is stated to be “17”.

The Trial Judge’s Determination

[16] The trial judge found that Officer MacKinnon’s observations were objective enough to enable him to form a suspicion that the Appellant had alcohol in his body, but not enough to constitute reasonable and probable grounds to believe the Applicant had committed the offence of driving while impaired.

[17] Accordingly, she found that Officer MacKinnon breached the Applicant’s s. 8 Charter right to be free from unreasonable search and seizure and his s. 9 right not to be arbitrarily detained.

[18] She also concluded that Officer MacKinnon breached the Applicant’s s. 10(a) Charter right to know the reason for detention or arrest by failing to immediately inform him that he was being investigated for a criminal offence. She held that Officer MacKinnon was obliged to advise the Applicant of the criminal investigation as soon as the detention occurred, having formed the opinion that the Applicant was operating a motor vehicle while impaired before speaking to him.

[19] She held, however, that the breaches were not serious, as,

[T]he officer … could have resorted to use of the roadside approved screening device based on a suspicion of alcohol in the Applicant’s body, and then could’ve relied upon the results from the [Approved Screening Device] to arrest the Applicant. I find in the circumstances that this was not a serious breach of the Applicant’s right.

[20] In assessing whether to exclude the evidence in view of the Charter breaches, she held that,

Breath sampling procedures involve a minimally intrusive search and seizure. The 10(a) breach occurred for a matter of seconds before the arrest and rights to counsel. The breach had only a minimal impact on the Applicant’s Charter protected interests. It was the officer’s testimony that he had already come to an opinion from the driving and the alcohol observed within the vehicle, and that was confirmed by the smell from the Applicant’s breath. That means that nothing specific said by the Applicant nor observations made during the brief time when his 10(a) rights were breached, was used to incriminate him.

The Summary Conviction Appeal Court Decision

[21] In deciding whether to uphold the trial judge’s decision, the SCA judge said that in respect of the alleged breach of the Applicant’s sections 8 and 9 Charter breaches:

I agree with counsel for the Appellant that the trial judge’s analysis under the first part of the test was brief. I disagree that it was unsatisfactory.

In concluding that the seriousness of the breach fell at the lesser end of the spectrum, it is clear that the trial judge focused on the brief amount of time that the police would have infringed the Appellant’s rights and the fact that Constable MacKinnon was acting in good faith.

Although not perfectly articulated, it is apparent from the trial judge’s reasons that she felt that it was a “close call” whether the officer had the requisite reasonable and probable grounds under s. 320.28. She clearly felt that he did under s. 320.27. Her comment about the officer “stopping the vehicle to investigate based on the driving observed” indicates a finding that the manner in which the Appellant was driving warranted the traffic stop. Her conclusion that the short duration of time involved implicitly rejected the evidence of the Appellant on how long the encounter took.

On this appeal, I am asked to impugn the fact that all Windsor police cruisers are not equipped with approved screening devices, resulting in a systemic infringement of s. 8 and 9 Charter rights. This ignores the fact that the police are not required to make an ASD demand even where grounds exist to do so (see R. v. Kubacsek, 2021 ONSC 5081, 73 C.R. (7th) 390, para. 55). While it is true that had Constable MacKinnon had an approved screening device with him, he could have strengthened the reasonable grounds he felt he had under s. 320.28, the trial judge has already found that he acted in good faith even if he was in error in concluding he was justified in making the s. 320.28 demand. This is not a case like R. v. Najev, 2021 ONCJ 427 where the police officers were conducting a RIDE program and having an approved screening device on hand would ensure that motorists’ Charter rights were not unnecessarily infringed. I also note that there was no evidence at trial that the Windsor Police routinely do not have ASDs on hand that would have permitted the trial judge, or myself, to conclude that this is a systemic issue.

[22] The SCA judge therefore upheld the trial judge’s decision not to exclude Officer MacKinnon’s evidence as to the Applicant’s intoxication.

[23] Secondly, the SCA judge upheld the trial judge’s decision that the Certificate of the Applicant’s blood alcohol content should not be excluded as,

First of all, s. 320.31 does not explicitly require that the certificate contain the time at which the sample was taken. That section requires that the technician perform a “system blank test”, that the samples were taken at least 15 minutes apart and that, when rounded down to the nearest 10 mg, the two samples are within 20 mg of alcohol in 100 mL of blood of each other.

The certificate in this case specifically states that the system blank tests were conducted, although it is not clear from the certificate when. The certificate clearly notes that there was an interval of at least 15 minutes between the times when the samples were taken. The two results, 190 mg and 180 mg of alcohol in 100 mL of blood are set out and it is noted that these do not differ by more than 20 mg of alcohol in 100 mL of blood. Thus, the certificate does contain all of the elements require under s. 320.31.

The Applicant’s Grounds of Appeal

[24] The Applicant claims the SCA judge erred in upholding the trial judge’s decision (1) to admit Officer MacKinnon’s uncorroborated evidence of the Applicant’s intoxication; (2) to rely on the Certificate showing the Applicant’s blood alcohol level content, which did not include the time of his first breath reading; and (3) to allow the evidence under s. 24(2) notwithstanding her finding that there were Charter breaches.

[25] The Applicant claims the issue of whether a screening device is required to independently confirm a peace officer’s evidence of reasonable grounds is an issue of broader public interest as he claims the issue will likely arise in other cases. The Applicant further submits that a finding of reasonable and probable grounds should be supported by independent evidence such as a screening device, video evidence or other witnesses. He likens this submission to the one advanced by the appellant in R. v. Moore-McFarlane (2001), 56 OR (3d) 737 (C.A.).

[26] The Applicant claims the appeal has merit, as the s. 8 Charter breach was serious and the trial judge’s brief reasons were “patently inconsistent” with the principles in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. The Applicant claims that “admission of this evidence will result in giving police carte blanche to continue to arrest individuals and gather evidence without reasonable and probable grounds” and that “[k]ey to this case is the ready availability of a roadside screening device. Because reasonable suspicion permits the police to pursue methods of investigation otherwise unavailable to them, allowing the police to effectively transpose reasonable suspicion to reasonable grounds should normally weigh against admission of evidence.”

[27] Moreover, the Applicant claims the Certificate was clearly defective on its face and although new provisions of the Criminal Code allow for evidence from a machine print-out to be admitted, the print-out cannot support a finding of guilt.

[28] The Crown submits that the SCA judge correctly applied the Grant factors and made no error in deciding to uphold the trial judge’s decision to admit the breath sample evidence at trial and that all the elements of the offence of Over 80 were made out on the evidence.

Analysis and Conclusion

The Admission of Officer MacKinnon’s Testimony Regarding the Applicant’s Intoxication

[29] The SCA judge rejected the Applicant’s submission that Officer MacKinnon’s failure to corroborate his reasonable suspicion with an Approved Screening Device (ASD) was sufficient to exclude his evidence and overturn the conviction.

[30] There is no rule that, when evidence comes from oral testimony of police officers, it must be corroborated by other evidence such as an ASD, police bodycam footage, or civilian testimony.

[31] The uncorroborated testimony of a witness can provide a basis to find reasonable and probable grounds for arrest. Corroboration by an ASD is not required and, in some instances, could even unnecessarily delay the breath demand if the officer already had reasonable grounds: R. v. Bernshaw, 1995 SCC 150, [1995] 1 S.C.R. 254 at paras. 37-38; R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641, at para. 60; R. v. Censoni, [2001] O.T.C. 948 (Ont. S.C.), at para. 50; R. v. Bates, [2005] O.T.C. 916 (Ont. S.C.) at paras. 7-15; R. v. Rodriguez (2001), 18 M.V.R. (4th) 207 (Ont. S.C.) at paras. 9 and 20-21; R. v. Gunn, 2012 SKCA 80, at para. 21; and R. v. Schofield, 2015 NSCA 5, 354 N.S.R. (2d) 187, at para. 35.

[32] As such, I see no error of law or issue of broader public importance. Moreover, as noted by the SCA judge, the impact of the breach on the applicant’s rights was minimal, the taking of a breath sample is minimally intrusive, and the duration of the s. 10(a) breach was a matter of seconds.

Admission of the Certificate Setting out the Blood Alcohol Level Content

[33] Section 320.31 of the Criminal Code provides that,

320.31 (1) If samples of a person’s breath have been received into an approved instrument operated by a qualified technician, the results of the analyses of the samples are conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made… the lowest of the results is conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made—if

(a) before each sample was taken, the qualified technician conducted a system blank test the result of which is not more than 10 mg of alcohol in 100 mL of blood and a system calibration check the result of which is within 10% of the target value of an alcohol standard that is certified by an analyst;

(b) there was an interval of at least 15 minutes between the times when the samples were taken; and

(c) the results of the analyses, rounded down to the nearest multiple of 10 mg, did not differ by more than 20 mg of alcohol in 100 mL of blood.

[34] As noted by the SCA judge, s. 320.31 does not explicitly require that the Certificate contain the time at which the sample was taken; it requires only that the technician perform a “system blank test”, that the samples be taken at least 15 minutes apart and that, when rounded down to the nearest 10 mg, the two samples are within 20 mg of alcohol in 100 mL of blood of each other.

[35] The Certificate shows that system blank tests were conducted at least 15 minutes apart, although it is not clear from the Certificate at precisely what times when they were performed. The two results, 190 mg and 180 mg of alcohol in 100 mL of blood, are set out and they do not differ by more than 20 mg of alcohol in 100 mL of blood. Thus, the required elements are on the Certificate.

[36] The SCA judge correctly held that, although the Certificate did not show the time that the samples were taken, the statutory requirements of s. 320.31 Criminal Code were met: system blank tests were conducted, there was an interval of at least 15 minutes between samples taken, and the two results (180 and 190 mg alcohol in 100 mL blood) did not differ by more than 20 mg alcohol.

[37] Second, at trial the Applicant’s counsel confirmed that there were no issues with the Certificate, and when the Crown sought to elicit the officer’s evidence with respect to the blood alcohol concentrations, the Applicant’s trial counsel interrupted and advised that this would not be necessary. In light of this, the SCA judge correctly held that it was not in the interests of justice to permit the Applicant to raise this issue for the first time on appeal.

[38] This was a fact-specific finding made by the trial judge after the Applicant’s counsel had confirmed there were no issues with the certificate, which finding was upheld on appeal. I see no error of law on the part of the SCA judge and it engages no issues of significance to the administration of justice.

Admission of Evidence Notwithstanding the Finding that there were Charter Breaches

[39] The trial judge admitted the evidence of the breath samples despite finding that Officer MacKinnon did not have reasonable grounds to make the demand. She did so on the basis that the officer was acting in good faith, the infringement lasted only seconds, and the question of reasonable grounds was a “close call”.

[40] The SCA judge also noted that the evidence was that Officer MacKinnon had only a few years’ experience.

[41] The SCA judge correctly noted that the trial judge’s conclusions were entitled to deference and he saw no error in the trial judge’s decision to admit the evidence on this basis. The SCA judge distinguished each of the cases relied on by the Applicant.

[42] I see no legal error on the part of the SCA judge or any issue of broader public import in his decision to uphold the trial judge’s balancing of the Grant factors.

Conclusion

[43] For these reasons, leave to appeal is denied.

“J.A. Thorburn J.A.”