Court File and Parties
Court File No.: Toronto Region Ontario Court of Justice
Between:
Her Majesty the Queen
L. Eplett, for the Crown
— And —
Nathan Peters
A. Lobel, M. Izadi, for the accused
Heard: June 24, 2014, March 30, September 10, 2015
FELDMAN J.:
Introduction
1Nathan Peters entered not guilty pleas to charges of Operation Impaired and Over 80. It is alleged he drove his motor vehicle with more than the legal limit of alcohol in his system. As part of the police investigation at the scene, Mr. Peters was asked to provide a sample of his breath into a roadside screening device [ASD]. He registered a 'fail' and was arrested.
2Ms. Izadi, for the accused, submits that where there is no evidence of the calibration of the device or its date, the Crown will not have met its onus of proving that the instrument was in proper working order. She submits that in these circumstances, having failed to turn his mind to the machine's calibration, the arresting officer lacked an objectively reasonable belief that the machine was in working order.
3Ms. Izadi says that in the result the Crown cannot rely on the 'fail', which undermines the basis for reasonable grounds for the arrest and subsequent breath demand rendering both unlawful and leading to the exclusion of the breath readings.
4Counsel submits, in the alternative, that the lack of reasonable and probable grounds makes the seizure of the defendant's breath unlawful and is a violation of his ss. 8 and 9 Charter rights. She says that in the circumstances, following a Grant analysis, the breath results should be excluded under s. 24(2).
The Evidence
5On June 8, 2013, P.C. Douglas Watkinson finished his tour of duty at a Ride program in Scarborough at 2:41 a.m. At 2:45 a.m., he was in his cruiser westbound on Kingston Rd when he stopped for a red light at Warden Rd.
6When the light turned green the officer observed Mr. Peters, who was proceeding eastbound and not facing an advanced green light, turn left and block westbound traffic from "freely flowing". He decided to follow the defendant northbound on Warden Rd as he intended to investigate him for 'stunt driving', that is"cutting off traffic when it is available to go". He notably failed to mention this fact to the dispatcher, nor did make mention of it in his notes. I consider his use of this term in his testimony to be questionable, if self-serving.
7As he followed the accused, P.C. Watkinson delayed stopping him until they passed through a narrow construction zone during the course of which the officer observed Mr. Peters change lanes twice without signalling. At 2:48 a.m., they came to a stop at a red light on northbound Warden Ave just past Danforth Ave. The officer activated his emergency equipment and effected a stop.
8P.C. Watkinson investigated the defendant for sobriety. He said that at 2:49 a.m. he smelled alcohol on the accused's breath. In the circumstances, having a reasonable suspicion that Mr. Peters had alcohol in his system, the officer demanded he provide a suitable sample of his breath into an ASD. Mr. Peters complied. He registered a fail at 2:53 a.m. and was arrested. He was provided his rights to counsel and was made subject to a breath demand.
9Initially in his testimony, in relation to the screening device, P.C. Watkinson told the court that he performed a self-test at the scene to ensure the instrument was in proper working order. Under cross-examination, he conceded he was wrong and that the self-test was performed some four hours earlier. There was nothing to this effect in his notes. This reflected an error that diminished the reliability of his evidence on this material fact in issue and bore directly on the objective element of his reasonable belief in this regard, particularly in circumstances where he did not advert to the integrity of the instrument's calibration.
10P.C. Watkinson transported the defendant to 41 Division, arriving at 3:14 a.m. Delays in the sallyport and booking hall as the police dealt with other detainees held up Mr. Peter's breath testing until 4 a.m. His readings were 130 and 124 mgs, respectively.
Calibration – The Authorities
11The role of the screening device in the investigative process is as a preliminary and convenient investigative tool "for confirming or rejecting a suspicion regarding the commission of an alcohol-related driving offence": R. v. Bernshaw at p. 205.
12For the test results to be viable, the arresting officer need have an objectively reasonable belief that the instrument was in proper working order and its results reliable. It is what he or she reasonably believes at the time of the arrest, not what is known at the time of trial: R. v. Weese.
13In this regard, in R. v. Mastromartino et al, Durno J. said: "An officer using an ASD need only have a reasonable belief that the device is properly calibrated and in working order before relying on a 'fail' result to confirm or deny his or her suspicions that a driver may be impaired or over the legal limit. There is no requirement the officer knew the calibration setting of the device, when it was last calibrated, or whether the device was in fact working properly".
14There is in effect a low threshold for establishing an acceptable basis upon which to find the officer's belief to be objectively reasonable at the time of testing.
15By contrast, once this threshold is met, the authorities hold that there is an onus on the accused to lead case-specific evidence, beyond speculation, that there was a "high degree of unreliability" in relation to the 'fail' result upon which the officer relied in significant part to form his reasonable and probable grounds should the basis for the arrest and breath demand be challenged: R. v. Paradisi.
16In R. v. Johnston, there was no evidence when the instrument was last calibrated. The accused relied on the testimony of a pharmacologist, with expertise in breath science methodology involving the use of breath testing equipment, to permit an inference in that case that there was a high degree of unreliability with respect to the screening device and raise a reasonable doubt it was in working order. The expert testified that in terms of scientific methodology, calibration is one of the most essential steps to ensure the screening device is working properly and that the self-test has no scientific significance.
17That is not this case, where no such expert evidence was called. In the case at bar, the officer did not advert to the calibration or, of significance, its timing as he is statutorily mandated to do, but relied on a self-test to support his belief the machine was in working order. In this regard, there is no evidence that timely calibration, although important, is determinative in relation to the objective reliability of the device and the officer's belief in that regard: see Mastromartino; R. v. Deacutis.
Conclusion
18It is unsatisfactory that an officer, as here, fails to perform, or even contemplate performing, the simple task of reading the calibration sticker on the ASD prior to the self-test. However, in my view, the officer's reliance on the self-test, in the absence of evidence to the contrary, meets the low threshold indicated in the authorities to found his objectively reasonable belief that the instrument was in working order.
19In the circumstances, I view the 'fail' result to be reliable and a lawful basis for the officer's reasonable and probable grounds to arrest the accused. It follows that the Charter applications under ss. 8 and 9 fail.
20On the evidence, the Crown has proven the essential elements of the Operation Over 80 charge. There will be a finding of guilt.
Operation Impaired
21The evidence of poor driving and diminished motor skills is minimal at best and would not meet the standard set out in R. v. Stellato. That charge is dismissed.
Released: September 25, 2015
Signed: "Justice L. Feldman"