R. v. Ling Heid, 2019 ONCJ 352

R. v. Ling Heid

Ontario Court of Justice

Date: May 2, 2019

Court File No.: Guelph 4610-17

Parties

Between:

Her Majesty the Queen

— And —

Ling Heid

Before the Court

Justice: G. F. Hearn

Heard: March 19, 2019

Reasons for Judgment Released: May 2, 2019

Counsel

For the Crown: T. Meehan

For the Defendant: B. Starkman

HEARN J.:

BACKGROUND

1On March 19, 2019 Ling Heid entered pleas of not guilty to counts of operating a motor vehicle while her ability to do so was impaired by alcohol, and operating a motor vehicle having consumed alcohol in such a quantity that the concentration thereof in her blood exceeded 80 milligrams of alcohol in 100 millilitres of blood. Prior to trial the accused had served and filed a Notice of Application alleging breaches under ss. 8 and 9 of the Charter of Rights and Freedoms and seeking relief under ss. 24(1) and 24(2) of the Charter. The Crown has filed a response to that application stating no such breaches occurred and, if they did, they were minor in nature and upon a proper analysis under ss. 24(1) and 24(2) no relief should be afforded to the accused.

2The charges arise out of an incident which occurred on December 8, 2017 in the Township of Centre Wellington. The Crown has called three witnesses on the trial of these matters. The defence elected to call no evidence either on the application or at trial. The evidence and submissions were completed on March 19, 2019 and the matter was then adjourned to today's date for judgment.

3The matter proceeded as a blended hearing both with respect to the Charter application and trial issues and also with respect to a voir dire that was conducted with regard to the admissibility of the Certificate of Qualified Technician sought to be introduced by the Crown as part of its case.

EVIDENCE OF THE CROWN

1. Evidence of Jeffrey Ward

4Mr. Ward resides on the Erin East Garafraxa Townline in the County of Wellington. On December 8, 2017 close to midnight he had gone out of his residence to obtain some firewood when he noticed headlights coming from a ditch down the road. He noticed a vehicle and also noticed that the "four-ways" were on.

5As he was concerned for the safety of anybody in the vehicle as well as his cattle which were situated in a fenced-in area close to the car, he attended to the vehicle.

6Upon approaching the vehicle he noticed the accused sitting in her vehicle. The accused asked if he could help her and he said that was what he was there for. He asked her if she was o.k., noted no property damage, and the accused indicated she was "fine".

7Mr. Ward asked her if she wished to have a tow truck called. She replied no and asked if he would pull her out, to which he said no. Ms. Heid is then said to have asked Mr. Ward if he would not call the police because "she's been drinking".

8At that point Mr. Ward stepped back from the vehicle and phoned 911.

9Mr. Ward stated that the accused was adamant she did not wish a tow truck as she had been "drinking". Mr. Ward told her that that was not a good thing as he lived with his family some 200 metres down the road.

10Mr. Ward had no further interaction with Ms. Heid at the roadside and he waited for the police to arrive. He estimates it took some 15 to 20 minutes for the police to arrive. It was his belief that a tow truck showed up first. He described Ms. Heid as being very polite and causing him no difficulty when he had indicated he would be phoning the police.

11Mr. Ward described the area where the vehicle was situated. He observed the vehicle to be in a ditch which he noted was "very steep" with approximately an eight-foot drop and a very "sharp slant to it". When asked where the vehicle was positioned with respect to that ditch, he stated that the vehicle was "almost flipping over. It was down in the ditch on an angle very close to rolling over".

12Mr. Ward also described the roadway which is the townline on which the vehicle had been originally travelling. His description was that the vehicle was situated possibly three feet off the roadway as there is a shoulder with a "bit of gravel" on it and then the ditch starts. According to Mr. Ward, the vehicle was "just hanging off the edge".

13The witness indicated he had noticed the vehicle at 11:58 p.m. as he had just checked the time before going outside to get the wood. He also noted he had been outside approximately an hour earlier and had not seen any lights in the area where Ms. Heid's vehicle was.

14When he approached the vehicle he stated he got to within four to five feet of Ms. Heid. He could not recall if the vehicle was running but he believed that it was, although he was not "a hundred percent sure".

15In cross-examination he provided further details of the roadway which he described as not very wide but wide enough for two cars to go down "both ways". He also noted a very narrow gravelled side, perhaps two to three feet of gravel between the ditch and the roadway. He testified the roads had a "bit of snow on them, normal winter roads" and although visibility was fine and it was not "very snowy", he indicated that the roads were a "bit slick". He acknowledged that the road is narrower than a "normal highway paved road" but is wide enough for tractors and transport trucks to travel down.

2. Evidence of Constable Michael Wraight

16Constable Wraight has been a member of the Ontario Provincial Police for approximately nine years. Notwithstanding the length of that service, when asked how many "impaired arrests" he had made in his career, he testified "maybe ten".

17On December 8, 2017 while on duty he received a dispatch at approximately 11:57 p.m. regarding a single motor vehicle in a ditch in the area described by Mr. Ward. He travelled to that area in his cruiser and arrived at the scene at 12:13 a.m.

18Upon arrival he observed the subject motor vehicle, approached it and as he did Ms. Heid, who was occupying the driver's seat, put her window down and spontaneously uttered, "Sorry, I've been drinking".

19The officer testified at that moment he "formed my suspicion she had alcohol contained within her body" and he "arrested her for impaired operation of a motor vehicle".

20The officer asked Ms. Heid to exit her vehicle, which she did, without difficulty. As they started to walk away and as he was advising her she was under arrest, she attempted to hug one of the witnesses which the officer felt was "unusual behaviour". The officer also testified that it was "rather windy" with some "snow in the air" and as Ms. Heid was wearing a light coat, he wanted to get her out of the wind and asked her to sit in the cruiser.

21He noted Ms. Heid's vehicle was "slightly" off the roadway. As he put it, about three feet of the vehicle was off so it "still could have been operational but it was the amount of snow in the ditch that didn't allow her to continue on". He noted no damage to the vehicle and stated it appeared the driver of the vehicle had pulled over "slightly" and "the snow might have pulled the vehicle slightly into the ditch not allowing her to continue to drive". The officer had no recollection if the vehicle was running or not.

22He could not recall if Ms. Heid had any difficulty exiting the vehicle but if she did he would have attributed that to the "slight angle" the vehicle was on.

23He noted throughout that Ms. Heid was "extremely polite" and was a "very nice woman to talk to". He believed she got out of the vehicle and walked to the cruiser without issue. When asked by the Crown about the "hug", he stated he believed the attempted hug was towards Mr. Ward but Ms. Heid never made it to that point and he offered that she was "just trying to say thank you for the help".

24Once in the cruiser, due to the "weather" the officer shut the door. At 12:17 a.m. Ms. Heid was advised she was under arrest and at 12:20 a.m. the officer read rights to counsel to Ms. Heid. When asked by the Crown what she was arrested for "exactly", the officer responded, "impaired operation of a motor vehicle". When asked the basis for that arrest, the officer stated, "due to the location of the vehicle being in the ditch and not operational and through her non-cautioned utterance that she had been drinking".

25The officer stated that was the basis for his arrest and due to the "strong winds and the time of night", he could not make note of her eyes. His evidence is that he relied only on the utterance made by Ms. Heid and the way "the vehicle was parked".

26Again the officer noted in-chief that the weather conditions included being "quite windy, very strong winds" and that it was standard for that townline to have "blowing snow". He observed blowing snow across the roadway but when walking he did not find it slippery as he had "traction" and the road seemed fine, just wind-blown. The officer again noted he found it an unusual action on the part of Ms. Heid to attempt to hug a stranger but there was nothing in her physical presentation that he relied on.

27Rights to counsel were read and there is no issue taken with the wording which was comprised of the officer reading from the "standard card". The officer testified that following the arrest and rights to counsel being read Ms. Heid seemed to understand and she replied to him, "yes, I trust you".

28The standard caution was read at 12:22 a.m. and again Ms. Heid, when asked if she understood again, said "yes, I trust you".

29At 12:24 a.m. the standard breath demand was read and when asked if she understood, Ms. Heid responded "yes".

30The two then travelled to the Rockwood detachment of the O.P.P., arriving at 12:54 a.m. They had left the scene at 12:24 a.m. The officer noted that due to the road conditions and while having someone in his custody, the drive took approximately half an hour "in those conditions".

31The officer was questioned by the Crown with respect to a "Certificate of Qualified Technician". The officer's evidence when that document was produced is as follows:

Question: All right and is that a document you recognize from before?

Answer: Yes.

Question: When did you see it before?

Answer: It's a document provided to the arresting officer by the breath technician.

Question: And did you inspect it previously, like prior to today's date?

Answer: No.

Question: So it was provided to the accused but not by you?

Answer: No. It would have been provided by me upon release.

Question: That's what I mean. So when you provided it…

Answer: But I didn't inspect the document.

32When questioned by the court about that, the officer stated, "I did not inspect the document. I read the document." It was the officer's evidence that he had looked it over "with the accused".

33With respect to the service of the document, the officer testified as follows:

Question: Okay, was it served upon the accused?

Answer: Yes.

Question: Did you serve it upon the accused?

Answer: Yes.

Question: Okay. Did you sign it after you served it on him [sic]?

Answer: No.

Question: Is there a portion for confirming service on the accused?

Answer: The release of the accused on a promise to appear is what together the arresting officer, the breath techs are who sign this document.

34The officer's evidence was that he "would have served this to her".

35When asked by the Crown as to the usual procedure for the O.P.P., the officer stated:

Answer: We go over the documents when I'm releasing what we call the package to the person we are releasing which is all the documents they're getting and how we have a true copy and they get a copy of the documents.

Question: I see. So you didn't serve it on her but you reviewed it as part of that process?

Answer: Correct.

36In cross-examination the officer confirmed he formed the "suspicion" that Ms. Heid had alcohol in her body due to the positioning of the vehicle and her acknowledgement to having been drinking. At that point the officer confirmed that he was going to "arrest her for impaired". The officer agreed that when he provided his grounds to the technician he made no mention about the attempted "hugging". He also agreed that the only thing he had actually mentioned to the breath tech was with respect to the admission that Ms. Heid had made with respect to her consumption of alcohol. The officer confirmed it was "clear to him" that Ms. Heid was simply attempting to hug Mr. Ward to thank him for his help.

37With respect to the number of previous impaired arrests, the officer testified he had been involved with about ten arrests and on each of those occasions he had made the arrests after he "formed a suspicion that they had alcohol in their body".

38In cross-examination the officer testified that the footwear he had on that evening was suitable for all weather occasions. He also stated the roads were "snow covered" and there was a "big wind blowing" which the officer also described as a "strong wind blowing". The officer candidly acknowledged he investigates more accidents in such weather conditions than on a "pretty nice day". He further testified that in normal conditions it would have only taken him 20 minutes, and not 30, to drive to the detachment from the location where the vehicle and Ms. Heid were found. In reply the officer testified that at no time had he observed Ms. Heid to slip or lose her footing.

3. Evidence of Constable Wes Ontonovich

39Constable Ontonovich is a member of the Ontario Provincial Police and has been so since January 2012. He testified that he was a "qualified breathalyzer technician" and had been so designated since April 2015.

40On December 9, 2017 he was notified at 12:12 a.m. that he was required for the purposes of administering breath tests. He arrived at the Rockwood detachment at 12:17 a.m. and at that time he "prepared the instrument for the tests which includes a diagnostic test, a self-breath test as well as a calibration check of the device which is the Intoxilyzer 8000-C".

41During his examination-in-chief the officer was shown a "number of documents" and was asked if he was "familiar with the requirements of section 320.31(1)(a) of the Criminal Code". The officer responded to the Crown's question in that regard: "No. Not offhand, no".

42The Crown then in the form of a "question" asked the officer, "Just with reference to the fact that a qualified technician is required to conduct a system blank test, the result of which is not more than ten milligrams of alcohol in 100 millilitres of blood?". Upon that "question" being asked, defence counsel objected to the Crown "spoon feeding" the witness, to which the Crown responded that all he was doing was asking if the officer was familiar with the elements of the law and then reading the law to him. The Crown referred to it as an "obscure new section in the Code that has just been proclaimed into law".

43The Crown then referred to the section as not being quite "three months old" and "it has a Byzantine arrangement of new numbers as Your Honour knows". The Crown then repeated his statement to the witness and added that the result "of which is within ten percent of the target value of an alcohol standard that is certified by an analyst". The Crown asked the witness whether he had heard of that requirement previously, to which the officer responded:

I'm aware of the, I'm not sure I'll be answering your question here but as part of the testing procedure there are assurance checks that I have to do as a qualified breath technician so prior to, or prior to the start of my shift before using the intoxilyzer I'm required to conduct a calibration check of the device, a diagnostic test and a self-breath test. During those tests the intoxilyzer conducts automatic air blanks. I conducted these prior to dealing with the accused and they all passed.

44The witness then went on to testify that the air blanks were zero, the calibration check was 100 milligrams and it fell within tolerance as the result has to be within 90 to 110 milligrams of alcohol in 100 millilitres of solution. The officer testified that the device was operating within the acceptable parameters.

45The officer stated there was a result of zero on a self-breath test and at 12:54 a.m. Cst. Wraight delivered Ms. Heid to him in the breath room at the Rockwood detachment. At that time Cst. Wraight reviewed his "caution, rights to counsel and his grounds for the arrest and the breath demand". Of note, when asked what grounds had been provided by Cst. Wraight, the officer responded that the "grounds were the admission of consumption of alcohol as well as operating formerly a motor vehicle but now a conveyance".

46Constable Ontonovich noted there was a strong odour of alcohol emanating from the accused as well as the accused having red, bloodshot, glossy eyes. He made no note of any speech issue as she did have an accent. He also indicated Ms. Heid admitted that she had consumed wine earlier.

47He testified he did not observe any flushing or colouring of Ms. Heid's face and nothing further of note was testified to concerning the consumption of alcohol. The officer stated that Ms. Heid was "very co-operative, polite and talkative".

48At 12:58 a.m. Cst. Ontonovich read a further demand as well as a secondary caution. There is no issue taken with the wording of either of those items.

49The first test was conducted at 1:07 a.m., resulting in a reading of 130 milligrams of alcohol in 100 millilitres of blood. The second sample was taken at 1:30 a.m., resulting in a reading of 122 milligrams of alcohol in 100 millilitres of blood. The officer testified both samples received were suitable and were received into the device.

50The Crown produced the Certified of Qualified Technician to the officer. He acknowledged he had inspected it that evening. He acknowledged as well that "it was served upon the accused". He was asked by the Crown if he was present for that service and the officer indicated he had served the accused but at the time of testifying he had no independent recollection of that. He did identify, however, his handwriting on the document indicating he had served her. The officer indicated, "typically once this document prints out after the final result I print it out and have the accused sign right there and then the investigating officer would likely provide it to her upon her release."

51At this point in the testimony of the officer, an objection was made with respect to the admissibility of this certificate over and above the Charter issues raised. The court entered into a voir dire and with the consent of counsel it proceeded as a blended hearing incorporating all issues. During cross-examination on the voir dire the officer was questioned with respect to the service of a "true copy" of the document produced to the officer by the Crown. The officer acknowledged he had forgotten to "initial" the actual certificate and it presents as unsigned by a "qualified technician".

52The officer testified to his usual procedure with respect to the printing out of the document and again indicated he did not have an independent recollection of the procedure followed with respect to Ms. Heid. He acknowledged he was not clear who had provided a copy of the document to Ms. Heid but stated that it would have been either "myself or Constable Wraight". He did not have any recollection of who "made the copy". Again, he testified his usual practice is to have the accused sign the original document. He would then make copies of that document, submit the originals to the officer in charge and provide copies to the accused and for disclosure.

53Of note, the officer was questioned in that regard as follows:

Question: So where you have the person sign and it says 'I acknowledge receipt of a true copy of this certificate', at the time the person signs it that's not true. That's not a true statement is it because at the time you have the person sign it there's no copy in existence at that time, do you agree?

Answer: Yes.

54On further questioning by the Crown, the defence acknowledged there was no issue with respect to the officer's qualifications to operate the Intoxilyzer 8000-C. He stated he had received refresher training and had conducted over 50 breath tests. He was asked specifically what type of solution he used to prepare the instrument and testified as follows:

The solution is ethyl alcohol solution, the standard manufacturer brand is Calwave and the alcohol standard lot number is 20799.

He also testified that the solution was "suitable for use in the instrument in question".

55Upon completion of the tests Cst. Ontonovich was of the view that Ms. Heid's ability would have been impaired to operate a motor vehicle and that impairment would be caused by alcohol.

56Upon completion of the second test he advised Ms. Heid of the results of the tests and returned her to the custody of Cst. Wraight. He prepared "the documents" and provided those "documents" to Cst. Wraight "to be provided to the accused".

57In cross-examination the officer was questioned on his notes and particularly the entry made at 1:30 a.m. with regard to Ms. Heid's admission of consumption and the observations the officer had made of Ms. Heid's "red, glassy and bloodshot eyes". The officer testified his observations had been made throughout and the admission of consumption apparently had taken place before the second test was conducted, notwithstanding that his notes had indicated those observations were made at 1:30 a.m. The officer was unable to say when he first made observation of the appearance of Ms. Heid's eyes.

58In cross-examination the officer again confirmed the grounds provided by Cst. Wraight were that Ms. Heid had admitted consuming alcohol and had also admitted to operating a motor vehicle.

59At this point the questioning by defence counsel took place as follows:

Question: You cannot possibly believe that this would be sufficient grounds to arrest somebody for impaired driving, could you? [Note: This was after the officer had testified that the grounds were simply the admission of consumption of alcohol.]

Answer: Additionally to the admitting of operating a motor vehicle.

Question: You cannot possibly believe that admitting operation of a motor vehicle and admitting consumption of alcohol could possibly admit to grounds to arrest somebody for impaired, could you?

Answer: Well it's my job as well to confirm grounds. Again my job is to observe the accused's behaviour throughout my interaction.

60The officer testified that the only thing he had observed beyond what Cst. Wraight had told him was the appearance of Ms. Heid's eyes and the smell of alcohol. The officer had not made a note, nor did he have any recollection that Cst. Wraight had ever used the word "impaired" but did acknowledge that he himself had an obligation to ensure there were grounds to continue an arrest.

61Constable Ontonovich stated that he had those grounds as a result of his own interaction with Ms. Heid. He did testify, however, he had no recollection of when the observations were made and acknowledged there was nothing in his notes to indicate that he had formed his own basis for the grounds for the arrest. That was put to him and the officer responded,

Well I can only speculate on the fact that if I had any concerns or issues with the reason why the accused was before me I may not have conducted the tests. I went forward with the tests and was satisfied with the evidence presented to me at the time.

62Constable Ontonovich specifically stated he was satisfied based on the information provided by Cst. Wraight that Cst. Wraight had sufficient grounds to arrest Ms. Heid.

63The officer also recalled Ms. Heid crying in his presence and acknowledged that could certainly account for the appearance of her eyes and that the odour of alcohol would simply be an indication that alcohol had been consumed. The officer was quite candid in acknowledging as well that his opinion as to the impairment by alcohol was formed based on his own observations absent any driving evidence and included a consideration of the test results. The officer further agreed that without using the material he had before him, which he was entitled to do to refresh his memory, he had no ability to tell the court what the test results were on this particular occasion.

ISSUES TO BE DETERMINED

64There are a number of issues to be determined in this matter involving both Charter and non-Charter matters.

(1) Did Cst. Wraight have the necessary reasonable and probable grounds to arrest Ms. Heid as he did and, if not, and s. 8 and/or s. 9 of the Charter were breached what relief, if any, should be afforded the accused pursuant to a proper analysis under s. 24(2) of the Charter?

(2) Is the Certificate of Qualified Technician admissible given issues about the service of a true copy of that document on the accused and the fact that the certificate appears to be unsigned? Further, with respect to this particular issue, is the certificate admissible in any event given the recent amendments to the Criminal Code and, specifically, the retrospectivity of amendments relating to evidentiary issues and what application, if any, those have to the case at bar?

(3) If the Crown is not in a position to rely on certificate evidence, is the evidence of the qualified technician sufficient to prove the results of any breath tests performed?

(4) Has the Crown proven to the degree required that the ability of Ms. Heid to operate a motor vehicle on the night in question was impaired by alcohol?

POSITION OF THE PARTIES

A. Position of the Defence

65Defence argues Cst. Wraight lacked reasonable and probable grounds to arrest Ms. Heid when viewed both subjectively and objectively. Defence submits that the officer's evidence at its highest goes no further than affording him the necessary suspicion as stated in his own evidence to demand the accused provide a sample of her breath into an approved screening device. Defence submits there has been a clear violation of s. 8 and/or s. 9 of the Charter and that upon a proper analysis under s. 24(2) the results of the breath tests on the Intoxilyzer 8000-C should be excluded.

66Should the Charter issue fail or, if successful, not result in the exclusion of the breath test results the Certificate of Qualified Technician, the defence argues, is in any event inadmissible as it is unsigned and the Crown has not established to the degree required that the accused was served with a true copy of the certificate tendered.

67Further, defence submits the Crown cannot rely on the evidence of the qualified technician to establish the test results as the Crown failed to lead the evidence necessary to establish all elements set out in s. 320.31(1) of the Criminal Code and specifically, failed to lead evidence that the alcohol standard used had been certified by an analyst. Further, defence argues Cst. Ontonovich had no independent recollection of the results of the testing with respect to Ms. Heid and as a result he was not entitled to rely on the certificate as past recollection recorded since the Crown did not seek leave of the court to permit him to do so.

68With respect to the impaired operation count, defence submits the evidence of impairment is "very thin" and falls far short of establishing beyond a reasonable doubt that the ability of Ms. Heid to operate a motor vehicle on the night in question was impaired by alcohol.

B. Position of the Crown

69With respect to the Charter issue, the Crown submits Cst. Wraight in fact did have the necessary reasonable and probable grounds to arrest Ms. Heid on the evening in question based on the position of her motor vehicle off the roadway (the Crown acknowledges he would not necessarily call that an "accident") and her admission as to consumption of alcohol. The Crown argues those factors alone would give the officer a basis for concluding Ms. Heid's ability to operate the vehicle was impaired by alcohol to a degree from slight to great and that the officer simply misspoke or there was a "Freudian slip on his part" when he referred in his evidence to "suspicion".

70The Crown, however, does acknowledge the evidence is "skeletal" on the reasonable and probable grounds test but submits it does not rise to the level of a Charter breach. The Crown also candidly acknowledges that if the officer meant only suspicion and "maybe didn't even know the tests for an arrest for an impaired driving and over 80 and instead applied the tests for the roadside screening device demand", then "the Crown's case just fails".

71With respect to the issue of grounds as well, the Crown argues it is open to the court to find that Cst. Wraight's evidence was just "artless language" when he referred to suspicion and that in any event his evidence is rehabilitated by the evidence of the breath tech who formed his own grounds for making the necessary demand which the Crown argues would minimize any breach on the part of Cst. Wraight if there was one. That and the minimal intrusion with respect to breath tests and the importance of those test results to the Crown's case ultimately, in the Crown's view if there is a breach found, would not lead to the exclusion of those test results upon a proper analysis under s. 24(2) of the Charter.

72The Crown further submits the requirements under s. 320.31(1)(a) of the Criminal Code with respect to breath tests have been met. Specifically with respect to the alleged absence of evidence with respect to the alcohol standard being certified by an analyst, the Crown submits it should not be required to call expert evidence or someone from the Centre of Forensic Sciences on each case and that it is not an element of the offence the Crown has to prove beyond a reasonable doubt. The Crown states it has not been historically and there should be deference to the qualifications and the training of the breath technician that the instrument was being operated properly and in accordance with his training. The Crown submits the court should not "import a new requirement" that you have to hear from somebody from the Centre of Forensic Sciences.

73With respect to the issue of the breath technician lacking an independent recollection of the readings, the Crown acknowledges that is "a very clever argument" but submits that all the officer was doing was refreshing his memory from his notes and the reports and that the defence is effectively "conflating it or bringing it up to the level of past recollection recorded". The Crown argues that it was not attempting to rely on the principle of past recollection recorded and submits the court can simply rely on the viva voce evidence of the officer.

74With respect to service of the certificate, the Crown states it has complied with proof of service and the testimony of the breath technician in conjunction with the Certificate of Qualified Technician clearly indicate the breath technician put his name acknowledging he had served a true copy of the document filed and then simply by oversight had not signed the certificate otherwise.

75With respect to proof of impairment beyond a reasonable doubt, the Crown relies on the evidence of Cst. Wraight as well as Cst. Ontonovich as to the latter's observations of Ms. Heid while in the presence of himself. The Crown argues, given the case law and the evidence before the court, the Crown has established to the degree required that Ms. Heid's ability to operate a motor vehicle was impaired to a "degree". However, the Crown submits if the court is inclined to find there is insufficient evidence to warrant the admission of the breath test results either through the certificate or through the breath technician, or a combination of both, then the Crown would not be in a position to establish beyond a reasonable doubt the impairment of Ms. Heid. Specifically, the Crown states, "that if the impaired absent evidence of the BAC were to be excluded in both forms it would not meet the standard of proof beyond a reasonable doubt".

In fairness to the Crown, I take that to mean that if the breath tests are not before the court, there would be insufficient evidence otherwise to establish beyond a reasonable doubt the ability to operate a motor vehicle being impaired by alcohol.

With respect to this particular submission by the Crown, there is no expert evidence before the court to establish the impact on one's ability to operate a motor vehicle with alcohol present to the degree shown by the test results but still it does not, in my view, necessarily follow that, if the test results are not in, one can still not be found guilty of impaired operation by other evidence.

ANALYSIS AND RULINGS

1. The Section 8 Issue

76Defence argues here that Cst. Wraight did not have the reasonable and probable grounds necessary to effect the arrest of Ms. Heid on the night in question. At its highest, defence argues there was simply a suspicion on the part of the officer and that suspicion fell well short of reasonable and probable grounds to arrest.

77Grounds to arrest must be honestly and subjectively held by the officer and his honest belief must be objectively justified. (See R. v. Bush, 2010 ONCA 554; R. v. Storrey, 1990 ONCA 304; R. v. Canary, 2018 ONCA 304; R. v. Saciragie, 2018 ONCA 91; and R. v. Bernshaw (1995), 95 C.C.C. (3d) 193).

78The objective inquiry asks whether a reasonable person standing in the shoes of the police officer would have believed reasonable grounds existed to make the arrest. When considering whether an officer's subjective belief is objectively reasonable, the court must look at the objectively discernible facts through the eyes of a reasonable person with the same knowledge, training and experience as the officer. (See R. v. Chehil, 2013 SCC 49, at paras. 45-47). Determining whether sufficient grounds exist to justify an exercise of police officers is not a "scientific or metaphysical exercise" but one that calls for the application of common sense, flexibility and practical everyday experience. (See R. v. MacKenzie, 2013 SCC 50, 2013 3 S.C.R. 250, at para. 73).

79In R. v. Bush, supra, the court held that in the context of a breath demand the reasonable and probable grounds standard is not an onerous test.

80The test is whether objectively there were reasonable and probable grounds for Cst. Wraight to believe Ms. Heid's ability to drive was even slightly impaired by the consumption of alcohol. Whether such grounds existed is a fact-based exercise depending on all of the circumstances of the case. The case law clearly establishes that in assessing whether reasonable and probable grounds exist trial judges are often and improperly asked to engage in a dissection of the officer's grounds looking at each in isolation, opinions that were developed at the scene without the luxury of judicial reflection.

81The cases are clear that it is neither necessary nor desirable to conduct an impaired driving trial as a threshold exercise in determining whether the officer's belief was reasonable. There is no mathematical formula with a certain number of indicia being required before reasonable and probable grounds exist. Further, the absence of some indicia that are often found in impaired drivers does not necessarily undermine a finding of reasonable and probable grounds based on the observed indicia and the available information. (See R. v. Costello, 2002 22 M.V.R. (4th) 165 ON CA).

82Constable Wraight was entitled to consider the totality of the circumstances and was entitled to draw inferences and make deductions drawing on his experience. Again in R. v. Bush, the court stated that determination is not made looking at each individual indicator in isolation and implying the most favourable and possible interpretation to the accused, although "innocent explanation" for the indicia must be considered. (See also R. v. Jennings, 2018 ONCA 260, [2018] O.J. No. 1460 ON CA and R. v. Notaro, 2018 ONCA 449, again a decision of the Ontario Court of Appeal).

83Finally, in addition to looking at the totality of the circumstances and considering those circumstances, I also keep in mind that the onus of proving that reasonable and probable grounds existed for the arrest and the ensuing demand for breath samples rests with the Crown.

84After considering the principles to be applied and the totality of the circumstances presented to Cst. Wraight I find ultimately that Cst. Wraight acted prematurely in the arrest of Ms. Heid and he lacked the subjective criteria necessary to form the grounds for that arrest. I am further satisfied that the objective criteria on which to base reasonable and probable grounds was also absent. I have come to that conclusion for a number of reasons.

85Dealing initially with Cst. Wraight's subjective belief that he had sufficient grounds to arrest Ms. Heid. Constable Wraight did not have a long list of criteria leading him to arrest Ms. Heid on December 9, 2017. On his own evidence he relied solely on the admission of Ms. Heid that she had "been drinking" and the positioning of the vehicle.

86There is nothing in the evidence of Cst. Wraight other than those two factors that led to his forming the "suspicion that Ms. Heid had alcohol in her body" and then immediately placing her under arrest. Appreciating that officers have to make a call in a short period of time at the roadside, the timing here is really unknown but it was a very quick assessment by Cst. Wraight of the condition of Ms. Heid resulting in her being arrested, detained, placed in a cruiser and then taken to the detachment.

87There is nothing in the evidence of Cst. Wraight to determine:

(a) What information, if any, he had received from Mr. Ward upon arriving at the scene as to the timing of Mr. Ward's discovery of the vehicle, how long it might have been in the ditch or whether there were any utterances made to Mr. Ward that the officer should consider. There are no other observations made to even confirm the utterance to him. There is no odour of alcohol, no evidence of bloodshot eyes or any indication of issues with speech or mobility. The officer mentioned an attempted hug but that seems to have taken place following her arrest and even the officer indicated it could very well be, and he perceived it to be, simply an attempt on the part of Ms. Heid to thank Mr. Ward for assisting her.

(b) Most importantly, the officer never once in his evidence spoke of reasonable and probable grounds to arrest. He refers only to "suspicion" throughout his evidence both in-chief and in cross. Appreciating fully that the basis for making an arrest on reasonable and probable grounds has a low threshold, there still in fact is a threshold.

88The Crown invites the court to find that the officer simply misspoke when he talked about "suspicion", that it was "artless language" and asks the court to find that what the officer really meant is that he had reasonable and probable grounds. There is no basis to find that in this case. The officer was quite clear on more than one occasion in his evidence that he acted on "suspicion". He stated so both in cross-examination, and most importantly, in-chief. Indeed, it appears that this officer, although a member of the force for a considerable period of time, has only made some ten arrests in an impaired operation situation and on each of those occasions also has relied on "suspicion".

89As noted by the defence, suspicion may very well have led the officer to make a demand for a sample of Ms. Heid's breath to be provided into an approved screening device at the roadside but that does not seem to even have occurred to the officer. The officer seems to have placed little to no distinction between "suspicion" and "reasonable and probable grounds", not only in this particular case but on previous arrests he has made for impaired operation.

90Further, with respect to the Crown's argument that Cst. Wraight's evidence was somewhat "rehabilitated" by the evidence of Cst. Ontonovich, I find quite the contrary. Constable Ontonovich seems to have gone along with the grounds Cst. Wraight provided to him as a basis for an arrest and a breath demand. Indeed, it appears Cst. Ontonovich's evidence is that the grounds provided by Cst. Wraight indicated Ms. Heid advised she had been consuming alcohol and she was found to be "operating a motor vehicle". There is nothing about an "accident" and nothing about any other indicia of impairment, yet Cst. Ontonovich proceeds to administer the breath tests and a further breath demand. There is nothing in his evidence to supplement the grounds, save and except some observations he made at some point in time (it would appear after the breath tests initiated) of Ms. Heid's red and bloodshot eyes, which he acknowledged ultimately could also be attributed to the fact that she had been crying. Both officers describe Ms. Heid as polite, co-operative and causing no issues. There is nothing in the evidence of either officer to form the basis for reasonable and probable grounds for an arrest.

91It is of note that there was "no accident" in this matter. The Crown accepts that and is reluctant to call the positioning of Ms. Heid's vehicle "the result of an accident". Although Mr. Ward places Ms. Heid's motor vehicle in a precarious state at the edge of a ditch, Cst. Wraight's description of the location of the car is quite different.

92Constable Wraight (as did Mr. Ward) noted no signs of damage to the vehicle and the officer testified it appeared Ms. Heid's vehicle had "pulled over slightly" and that "the snow might have pulled the vehicle slightly in the ditch not allowing her to continue to drive".

93I appreciate, as noted in Bush, supra, that consumption plus an unexplained accident may generate reasonable and probable grounds but Bush also states as well "that may not always be the case".

94Here, Cst. Wraight formulated his grounds quickly. He was entitled to consider the location of the vehicle and the utterance of Ms. Heid, but it appears he relied on nothing else notwithstanding his evidence as to the weather and road conditions. Mr. Ward acknowledges the roads were "slick". It appears it is a country road, perhaps narrower than others, with shoulders of soft gravel. Constable Wraight refers to the "strong winds blowing" and the snow, causing him to travel at a slower speed to the detachment than he might normally because of those conditions. Constable Wraight should have considered, in my view, subjectively that the road conditions may have had some impact on the vehicle leaving the roadway and being at the location it was. In fact, on the totality of the circumstances here that would have been a very reasonable consideration for the officer to have made based on his own evidence as to the weather and road conditions.

95Constable Ontonovich ultimately came to the view that Ms. Heid's ability to operate a motor vehicle was impaired by alcohol, but he candidly acknowledged that that opinion (and he was not proffered as an expert) was based partially on the readings and results from the breath tests.

96Constable Wraight proceeded to arrest Ms. Heid on a suspicion only. The totality of the circumstances known to him, or those that should have been known to him at the time of the arrest and considered, leads the court to find that he clearly could not have subjectively and honestly believed there were grounds for the arrest in the first place.

97Further and for a number of the same reasons, the grounds to arrest cannot in this case be justified when viewed objectively. A reasonable person standing in the shoes of the officer could not have believed that reasonable grounds existed to make the arrest. The officer basically had an admission of consumption and a vehicle off the road in weather conditions that at the very least would have required further inquiry or investigation before jumping to a conclusion within a very few minutes after arrival at the scene. A reasonable person would have applied some flexibility and common sense and sought additional evidence to support an arrest and form the necessary reasonable and probable grounds to do so given all the circumstances present.

98I should note that all of this is said without meaning to be overcritical of Cst. Wraight. I found Cst. Wraight to be an experienced police officer who certainly gave his evidence in a fair and candid manner. He did not attempt to embellish his evidence. In fact, he spoke of his interaction with Ms. Heid in a complimentary manner. In my view, however, unfortunately in this particular case, and apparently in the ten or so previous arrests that the officer has made for similar charges, the officer acted based on his understanding that suspicion alone was a solid basis for making an arrest of an individual. In law there is a difference between "suspicion" and "reasonable and probable grounds" and that difference instructs police officers as to how they are to proceed.

99In summary then, when I look at the totality of the evidence I am satisfied the accused has established a s. 8 breach. I do not find the arrest was arbitrary and even if the court was more than generous in finding that Cst. Wraight had the subjective belief necessary to form his grounds for arrest, ultimately that belief was objectively unreasonable.

100Having found a breach of s. 8, the court must now consider whether the results of the breath tests should be excluded pursuant to s. 24(2) of the Charter.

101In dealing with the issue of exclusion I am guided by the principles set out in R. v. Grant, 2009 SCC 32, as well as the decision of the Ontario Court of Appeal in R. v. Jennings, 2018 ONCA 260.

102In Grant the Supreme Court set out the analytical framework to be utilized when dealing with the exclusion of evidence under s. 24(2) of the Charter. This effectively involves the balancing of assessments under three lines of inquiry and determining in all of the circumstances whether the admission of evidence would bring the administration of justice into disrepute.

103At the first stage the court must consider the nature of the police conduct that infringed the Charter and led to the discovery of the evidence. The more severe or deliberate the state conduct that led to the violation of the Charter, the greater the need for the court to dissociate itself from that conduct by excluding evidence linked to that conduct in order to preserve the public confidence in and ensure state adherence to the rule of law.

104The second stage of the inquiry calls for an evaluation of the extent to which the breach actually undermined the interests protected by the infringed right. The more serious the inclusion of those interests, the greater risk that the admission of the evidence would bring the administration of justice into disrepute.

105At the third stage the court asks whether the truth-seeking function of the criminal trial process would be better served by the admission of the evidence or by its exclusion. Factors such as the reliability of the evidence and its importance to the Crown's case should be considered at this stage. The weighing process and the balancing of these concerns is a matter for the courts in each case.

106As noted in Grant, the purpose of s. 24(2), as is clear from its wording, is to maintain the good repute of the administration of justice. This embraces the maintaining of the rule of law and upholding Charter rights and upholding Charter rights in the justice system as a whole. The term "bring the administration of justice into disrepute" as set out in s. 24(2) means an understanding in the long term sense of maintaining the integrity of and public confidence in the justice system. While exclusion of evidence resulting in an acquittal may provoke immediate criticism, s. 24(2) does not focus on an immediate reaction to the individual case, but rather it looks at whether the whole overall repute of the justice system viewed in the long term will be adversely affected by the admission of evidence. The inquiry is an objective one and it asks whether a reasonable person informed of all relevant circumstances and the values underlying the Charter would conclude that the admission of the evidence would bring the administration of justice into disrepute. The s. 24(2) focus then is not only long term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice and s. 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns.

107So the role of the court under s. 24(2) is to balance the various assessments made under the analytical approach set out in Grant and determine whether in all of the circumstances admission of the evidence would bring the administration of justice into disrepute. The balancing is not a mathematical exercise as noted in Grant, it is qualitative. A trial judge must be careful not to give undue emphasis to one line of inquiry or to neglect the importance of any of the three lines of inquiry and the s. 24(2) analysis should not simply be boiled down to a contest between the degree of police misconduct and the seriousness of the offence.

108Grant sets out that a flexible multi-factored approach to the admissibility of bodily evidence is required under s. 24(2) due to the wide variation in its kinds. The first step involves the consideration of the police conduct and their reasons for it. The second line of inquiry requires the court to consider the degree to which the violation intruded upon the privacy, bodily integrity and the human dignity of the accused and the third line of inquiry generally supports admission because bodily evidence is usually reliable.

109In general where an intrusion is deliberately inflicted and the impact on the accused's privacy, bodily integrity and dignity is high, bodily evidence will be excluded notwithstanding its relevance and reliability. On the other hand, as noted in Grant, where the violation is less egregious and the intrusion on privacy, bodily integrity and dignity is less severe, bodily evidence may be admitted. In Grant it was specifically indicated that this would usually be the case with the breath sample evidence where the method of collection is relatively unintrusive.

110Recently in R. v. Jennings, supra, the Ontario Court of Appeal dealt with an appeal from a summary convictions appeal court which had upheld the trial judge following an acquittal of the accused at trial. Briefly the facts there indicate that the accused presented in such a fashion that there was a reasonable suspicion on the part of the investigating officer to enable him to make a demand for an approved screening device. The accused registered a fail and ultimately was arrested and provided samples of his breath that exceeded the legal limit. The basis for the trial judge's decision with respect to a breach of section 8 was that the investigating officer could not have objectively had the grounds to arrest the accused since he had not followed a certain procedure set out in the police manual for using the approved screening device. The trial judge had excluded the breath samples and the summary conviction appeal court upheld that decision.

111The Court of Appeal allowed the appeal, entered a conviction and remitted the matter to the trial judge for sentencing concluding that the trial judge had erred in finding that there was a section 8 breach. Even though the Court of Appeal found there was no breach they went on to consider the exclusion under s. 24(2) since the court was of the view there was a "divergence in the lower courts on how to approach a s. 24(2) analysis and breath sample cases".

112At paras. 25 through 32, inclusive, in Jennings the court stated as follows:

[25] The trial judge excluded the breath samples from evidence, a decision that was upheld by the SCAJ. The SCAJ's reasons on this issue were brief, simply stating that "the trial judge correctly considered the factors articulated by the Supreme Court of Canada in R. v. Grant." The trial judge's application of the Grant test, however, was problematic in two respects.

[26] On the first branch of the Grant test, although the trial judge concluded that the s. 8 breach was serious and favoured exclusion of the evidence, he did not explain how he arrived at this conclusion. He appears to have taken it as axiomatic that a "warrantless roadside search which formed the basis of the reasonable and probable grounds" of the arresting officer was per se a serious breach. But Grant requires more: there must be some examination of the police conduct and a determination of where it fits on a spectrum from mere technical breaches at one end to bad faith violations at the other. As the Crown argues, the circumstances of this case are notably different from those in Au-Yeung, where the officer administering the roadside test did not perform a self-test at all, did not check when the device was last calibrated, did not know how to read the device, had last received training on the use of ASDs 22 years earlier, and was unsure if he had used the device properly. The SCAJ in that case held that the officer had not acted in good faith, and that his actions "bordered on wilful blindness": Au-Yeung, at paras. 39-40, 52-56. As explained above, the actions of the constable in the present case are radically different. Although the constable did not abide by the strict letter of the policy manual, he subjectively believed that the ASD reading was accurate, took steps to ensure that it was, and acted in good faith. The trial judge fell into the error identified by Leach J. in R. v. Molakandov, [2013] O.J. No. 2482, (S.C.) at para. 59, of finding any breach of s. 254(3) of the Criminal Code sufficient reason to favour exclusion of evidence under the first Grant factor. The first Grant factor favours admission of the evidence.

[27] The second Grant factor addresses the impact of the breach on the interests of the accused. The trial judge discerned two competing lines of authority setting out the methodology for assessing the seriousness of the impact of the accused in breath sample cases. In the line followed by the trial judge, led by Au-Yeung, the trial judge is to consider not just the impact of the administration of the breath sample procedure, which is itself minimally intrusive, but the entirety of the procedure faced by the accused after arrest. In this case, it would include the initial detention, the respondent's being placed in the back of a police cruiser and transported to a police station, and detention at the police station for a substantial period of time. The trial judge, in keeping with the Au-Yeung line of authority, viewed the entirety of procedures as constituting a serious impact on the respondent, and strongly indicating exclusion of the evidence.

[28] The second line of authority rejects the Au-Yeung approach and would limit the second Grant factor to addressing the intrusiveness of the breath sample procedure itself: for example, Molakandov; R. v. Ramsammy, 2013 ONSC 7374 (CanLII); R. v. Marchi, 2016 ONCJ 757 (CanLII); R. v. Ho, 2014 ONSC 5034 (CanLII), rev'd on other grounds 2015 ONCA 559 (CanLII).

[29] Much of the debate between these two lines of cases focuses on the significance of statements in Grant, in which the Supreme Court identifies breath samples as a central or paradigmatic example of a minimally intrusive search: see paras. 106-111. Although, as the respondent argued, the proposition that breath sample procedures are minimally intrusive is simply dicta in Grant, it should be noted that the statement was no mere throwaway line. The Supreme Court chose the example of breath sample procedure as an apt and economical means of illustrating the concept of a minimally intrusive search. And the Court assuredly did so in the knowledge that most formal demands for breath samples would be accompanied by an arrest and by all of the accompanying incidents itemized by the trial judge.

[30] This reading of Grant is consistent with other judgments of this court, such as R. v. Manchulenko, 2013 ONCA 543 (CanLII), 116 O.R. (3d) 721, where Watt J.A. refers to "the general rule with respect to the admissibility of breath samples due to their non-obtrusiveness" (at para. 100) and, citing Grant at para. 111, says that "as a general rule, reliable evidence obtained by less egregious and invasive intrusions into privacy, bodily integrity and dignity, such as the taking of breath samples, may be admitted."

[31] Similarly, in R. v. Guenter, 2016 ONCA 572 (CanLII), 350 O.A.C. 318, Brown J.A. notes, at para. 98, that "[t]he collection of the breath samples amounted to no more than a minimal intrusion upon the appellant's privacy, bodily integrity and human dignity: Grant, at para. 111."

[32] To find otherwise would be to create a categorical rule that s. 8 breaches in breath sample cases automatically favour the exclusion of evidence under the second Grant factor, since drivers in these cases are almost invariably arrested and taken to the police station to provide further breath samples. This would be contrary to the approach taken by the Supreme Court in Grant and to a sound characterization of what is at stake for the individual in providing a breath sample. Accordingly, it was an error for the trial judge, and the SCAJ, to have followed Au-Yeung in this respect and not to have found the impact of the breach to have been minimal, favouring admission.

113Jennings dealt with an alleged s. 8 breach that the Court of Appeal concluded was not well-founded. In dealing with the 24(2) analysis under the first branch of the Grant inquiry the court specifically reaffirmed that analysis requires an examination of the offending conduct which the court in Jennings found to be more technical in nature. The court spoke of conduct rendering from "mere technical breaches at one end of the spectrum to bad faith violations at the other".

114In consideration of the second branch and the intrusiveness of the breath sample procedure I do not read Jennings as stating breath tests will always be included given their apparent "minimal intrusion on an individual's privacy, bodily integrity and human dignity". I read the case as simply stating, when dealing with steps two and three of the Grant inquiry, breath evidence is reliable and necessary evidence and involves a minimally intrusive search. There is not an automatic exclusion as a result of Jennings and it seems to me that the s. 24(2) analysis in breath sample cases will be largely determined by the court's analysis under the first line of inquiry set out in Grant. That is the nature and extent of the conduct leading to the breach of a Charter right or rights of individuals. Ultimately it is still a balancing of the three factors that is important, not simply an analysis of whether the providing of a breath sample is intrusive minimally or otherwise.

a. First Line of Inquiry

115Dealing initially with the conduct of the police and, specifically, the conduct of Cst. Wraight. Although I make no findings of bad faith or malice on the part of Cst. Wraight in arresting Ms. Heid as he did, his carelessness and apparent indifference to forming a basis for such arrest is a serious matter.

116Constable Wraight seems to have been operating on the premise that he could arrest Ms. Heid as he did on a "suspicion" only. Indeed, this seems to be the way he has proceeded on all previous arrests he has conducted for a similar offence.

117The officer never once mentioned or uttered the words "reasonable and probable grounds" as a basis for his arrest. Fully appreciating such "magic words" are not necessarily required as submitted by the Crown, I find that the basis for his arrest cannot reasonably be said to be either subjectively or objectively well-founded.

118Constable Wraight, I find, acted prematurely, failed to appreciate that and did not recognize the basis for an arrest and the fact that it should be made on the totality of the circumstances that existed at the time. At its very highest, the circumstances here would have warranted nothing further than additional investigative steps to be taken. Indeed, the circumstances that Cst. Wraight found at the scene called out for such additional steps to be taken prior to arrest.

119The officer's own evidence supports that. His grounds for the arrest of Ms. Heid were simply her utterance indicating consumption of alcohol and the positioning of her vehicle. He made no independent assessment concerning her utterance (odour of alcohol, nor indeed any signs at all with respect to impairment of her physical state other than perhaps the "hug" which even he attributed to a "thank you").

120Also, although the officer found the motor vehicle in a position where it was "not able to be operated", there were weather and road conditions which he confirmed and which could very well have played a role in the positioning of the vehicle ("blowing snow", "very strong winds"). Constable Wraight certainly does not overstate the position of the vehicle and observed "it appeared the vehicle had pulled over slightly and might have been pulled in the ditch by the snow not allowing Ms. Heid to continue to operate the vehicle". It is important to note this is simply not an alternative explanation as to how the vehicle got there but it is an explanation provided by the officer and presumably was his own thought in determining how the vehicle got where it was.

121Constable Wraight did not convey much to Cst. Ontonovich with respect to his grounds save and except consumption of alcohol and operation of the vehicle. Constable Ontonovich is put forth by the Crown as a gatekeeper and the Crown suggests that his evidence rehabilitates that of Cst. Wraight. That simply is not borne out by the facts. Indeed, Cst. Ontonovich seems to have acted on lesser grounds than Cst. Wraight as it is unclear on the evidence whether that officer ever conveyed the positioning of the vehicle to the breath technician prior to the technician making a demand and proceeding with the tests. There was an additional observation made by Cst. Ontonovich during the testing procedure with respect to the eyes of Ms. Heid but that may have presented to the officer as an indication of consumption or could reasonably, as even he put it, be attributed to the fact that she had been crying during the procedure.

122In addition, when considering the first line of inquiry, I find it is not only the concerns the court has with respect to Cst. Wraight proceeding as he did, those concerns are enhanced by what seems to be also a lack of similar understanding of reasonable and probable grounds on the part of the breath technician. The breath technician acknowledges he draws his own conclusions from his observations but there is nothing really in his observations or what was provided by Cst. Wraight to enable the court to find with any confidence at all that Cst. Ontonovich understands any more so than Cst. Wraight the difference between "suspicion" and "reasonable and probable grounds".

123The breath technician offers that in his opinion (and he was not qualified as an expert) at the end of the procedure Ms. Heid's ability to operate a motor vehicle was impaired by alcohol. Interestingly, that opinion apparently, according to the breath technician's evidence, was based on a consideration of the breath tests and it would appear not much else.

124Ms. Heid was arrested quickly without the necessary grounds by an officer who proceeded on suspicion only which apparently was a practice of his in such circumstances and his evidence is not assisted or rehabilitated at all, in my view, by the breath technician's evidence who, as I have noted, seems to have proceeded on the same basis. The conduct is serious, and not trivial. Ms. Heid was entitled to be arrested upon proper grounds. She co-operated fully with the police, was polite and indicated to Cst. Wraight that she "trusted him". Implicit in that trust was the fact that she would be processed according to law and not according to a "suspicion" of the officer.

125I find that this inquiry favours the exclusion of the evidence.

b. Second Line of Inquiry

126At this stage the court must look at the impact of the breach on the protected interests of Ms. Heid. As noted, this was not a trivial breach in my view and the impact on Ms. Heid was significant. Notwithstanding that she "trusted" the officer, the officer proceeded to arrest her without proper consideration for the basis of such arrest, detention and the demand for breath tests. She was arrested at the roadside quickly, placed in a cruiser, taken to the detachment, subjected to the breath tests and then detained for a period of time. Even accepting that the breath tests are apparently a minimal intrusion, in this case they were tests that were conducted without any basis at all for the arrest or detention and pursuant to what was effectively an unlawful demand. In my view, the second line of inquiry also favours exclusion of the evidence.

c. Third Line of Inquiry

127With respect to the third line of inquiry, in this case there is no issue taken with the reliability of the tests, although there is some issue taken with respect to the proof of the testing over and above the Charter issues. The results of such testing are an important element to the Crown's case on the charge of over 80. The charge is serious and a concern both for Ms. Heid as well as the community at large. This particular line of inquiry favours the inclusion of the evidence of the breath test results.

128Considering the case law and balancing the various lines of inquiry as set out in the case law, I am of the view that the conduct of Cst. Wraight, and indeed Cst. Ontonovich, result in the s. 8 violation being a serious matter, much more than trivial and the results of the breath tests should be excluded. In my view, to do otherwise would bring the administration of justice into disrepute given the totality of the circumstances in this matter.

129The Crown is, therefore, unable to establish an essential element of the over 80 charge and that charge will be dismissed.

130In the interests of thoroughness and although I do not intend to address the remaining issues with respect to the breath tests other than summarily, I would note that if I am wrong and there is no breach, or if there is a breach and the breath tests should not be excluded, then I would be concerned with the admissibility of the breath tests otherwise. I say that for the following reasons:

(a) I am not satisfied that a true copy of the Certificate of Qualified Technician was properly served on Ms. Heid. It is unclear to me who actually served the document. The court never saw the original of the document and the copy filed was unsigned by the qualified technician. Constable Ontonovich believed that either he or Cst. Wraight served Ms. Heid, but it would appear if Cst. Ontonovich did so, he could not possibly have served a true copy of the document produced during the course of the voir dire and filed as Exhibit A, as it would appear the document was copied after Ms. Heid allegedly signed the document acknowledging service of a copy and the copy was not in fact served at all until later and perhaps by Cst. Wraight. The evidence is very confusing with respect to service and certainly not sufficient to satisfy even on the balance of probabilities that service of a true copy was received by Ms. Heid. Constable Wraight's evidence in that regard is also unsatisfactory.

(b) Further, even if the Crown can prove Ms. Heid received a true copy of the Certificate of Qualified Technician, I am not satisfied the contents of that particular certificate on its own addresses the requirements under s. 320.31(1) of the Criminal Code. I am further not satisfied and equally concerned that the evidence of Cst. Ontonovich on its own or in conjunction with the certificate satisfies all of the pre-conditions set out in that section. Compliance with that new evidentiary regime as set out in s. 320.31 is required if the presumption of accuracy (namely the accuracy of the readings at the time the samples were provided) is to be in place.

One of the conditions required is that there is an obligation on the qualified technician conducting the tests before each sample is taken to conduct a system blank test, the result of which is not more than "ten milligrams of alcohol in 100 millilitres of blood" and a system calibration check, the result of which is within ten percent of the target value of an alcohol standard that is certified by an analyst. It is to be noted that no Certificate of Analyst has been filed in this proceeding.

Here, the Certificate of Qualified Technician refers to the alcohol standard simply by stating that the analysis was made by the technician on an instrument operated by himself which he "ascertained to be in proper working order by means of an alcohol standard that was suitable for use with the said instrument and identified Calwave as the manufacturer and the alcohol standard lot number as 20799. There is nothing in the certificate to establish that alcohol standard was certified by an analyst. Or, at least in this particular case, there is nothing before the court in the form of admissible evidence to establish that that alcohol standard was so certified by way of certificate or otherwise. Further, and even if there was, there is nothing before the court subject to what otherwise might be in the standard Certificate of Analyst the court often sees to enable the court to decide whether or not the calibration check was within ten percent of the target value of the standard as it would have to be established with the alcohol concentration of the standard.

Further, Cst. Ontonovich's evidence with respect to the requirements of s. 320.31 is a concern to the court. This is a qualified technician who apparently receives updated training but does not seem very clear on what the requirements are with respect to s. 320.31 which has been in place since December 18, 2018 and applies to the matter before the court notwithstanding the charge pre-dated that matter as the trial has taken place following the amendment date.

When Cst. Ontonovich was asked specifically by the Crown if he was familiar with the provision, the officer candidly responded that he was not. The Crown then read a portion of the section to the officer and specifically the section relating to the alcohol standard and asked Cst. Ontonovich if he had ever heard of that requirement previously. Even then the officer was not very specific in answering the question, although he did in fairness to the officer, indicate that he conducted the testing procedure with the proper checks and testing and was satisfied the machine was in proper operating condition. He also testified the alcohol standard was "suitable for use in the instrument in question". However, again, the officer was not in a position to testify it was certified by an analyst as useable, nor is there any indication what the alcohol concentration of the standard was. In this regard, in view of the evidence, or perhaps more appropriately, the absence of evidence with respect to Cst. Ontonovich, I adopt the reasoning set out in R. v. Manuel Flores-Vigil, 2019 ONCJ 192, where the court determined that future Certificates of Analyst with respect to the alcohol standard should not only declare the standard to be suitable for use with a particular device but it should also set out the concentration of the standard. This evidence of course could be done by way of Certificate of Analyst or by viva voce evidence of the analyst, if required. (See, to the contrary, R. v. Porchetta, 2019 ONCJ 244, R. v. Does, 2019 ONCJ 233 and R. v. Sivalingam, 2019 ONCJ 239).

(c) Finally, even assuming service of the certificate had been properly accomplished, and also assuming the evidence of the breath technician and/or the Certificate of Qualified Technician satisfy the evidentiary onus set out in s. 320.31, I am of the view there is a concern that the new legislation and the procedures set out within the legislation have effectively failed to address the presumption of identity. That is, the presumption that the readings at the time of the breath tests relate to the alcohol concentration at the time of the event. This matter has recently been addressed in the judgment R. v. Shaikh, 2019 ONCJ 157. (See, again to the contrary, R. v. Porchetta, supra, and R. v. Sivalingam, supra).

I do not intend to address these particular issues in any further detail given my finding with respect to the breath tests otherwise. I did indicate to the trial co-ordinator that counsel should be contacted, and they were, to be requested to provide any written submissions or arrange for oral submissions with respect to these issues. The court has heard nothing further from counsel for the Crown but defence counsel did reply to the trial co-ordinator simply confirming it was open to the court to consider the issue in R. v. Shaikh. Neither counsel has requested an opportunity to provide written or oral submissions and without the benefit of such submissions I am not in a position to state other than that the reasoning in R. v. Shaikh is thorough. Basically, the Shaikh case holds that when the new amendments came into place in December 2018 the presumption of identity that had been previously set forth in s. 258 of the Criminal Code ceased to exist and although the new legislation clearly was meant to cover the presumption of accuracy, there is nothing in the legislation to deal with the presumption of identity and that will still require evidence otherwise to establish to the degree required the blood alcohol concentration of an accused at the time of the event of driving or care and control. However, as noted, given my finding that the breath tests are otherwise excluded and in the absence of fulsome submissions from counsel, I do not feel it is necessary to address that issue in any further detail.

(d) With respect to the issue of past recollection recorded, Cst. Ontonovich clearly indicated he had no independent recollection (which, by the way, is probably quite understandable) of the exact readings of the breath tests in this matter. It would have been quite simple for the Crown to ask that the officer be afforded an opportunity to look at the certificate and ask for leave of the court to have the officer refer to the certificate for the purpose of past recollection recorded. The leave was not sought but the officer did refer to the certificate in some detail with respect to the contents. In this particular case notwithstanding leave was not sought I would be satisfied that the officer, although not refreshing his memory necessarily as he had no independent recollection, certainly would have met the requirements and been granted leave to refer to the document which he referred again to in some detail and the contents of the document being accurately recorded at the time they were made.

2. The Charge of Impaired Driving

131There is no defined term nor is there any particular test for determining impairment set out in the Criminal Code. The case law, however, establishes clearly that if the evidence of impairment establishes any degree of impairment ranging from slight to great the offence has been made out. What the Crown is required to do is to establish beyond a reasonable doubt impairment from slight to great and not extreme intoxication.

132When considering whether the Crown has established this charge to the degree required, I consider the Crown's own acknowledgement during submissions that if the breath tests are out the Crown has failed to prove the impaired charge. As I noted previously, it does not necessarily follow simply because I have found that the breath tests should be excluded and not considered. However, the court still has the obligation to look at the evidence otherwise to see if the Crown has met the onus with respect to the charge of impaired operation.

133In that regard, I consider the following:

1. the acknowledgement of consumption by Ms. Heid;
2. the positioning of her vehicle off the roadway in the circumstances described by Cst. Wraight;
3. the odour of alcohol as well as the bloodshot eyes noted by Cst. Ontonovich.

134Other than that, the evidence is totally absent with respect to any signs of Ms. Heid's ability to operate a motor vehicle being impaired. There is no evidence of speech issues, flushing of face, mobility issues or ability to function or understand instructions. There is no lack of co-ordination or inability to perform physically, nor is there any indication of inappropriate behaviour.

135The closest that might come to inappropriate behaviour is the "hug", which even Cst. Wraight discounts as simply being an effort to thank Mr. Ward on the part of Ms. Heid. Further, with respect to the bloodshot eyes observed by Cst. Ontonovich, he himself acknowledged that Ms. Heid was emotionally upset and crying during the procedure at points and his observation of her eyes was made at some time that is unknown to the court during his involvement with her.

136The positioning of the vehicle was not overstated by Cst. Wraight. There was no "accident" here. The evidence of Cst. Wraight clearly indicates the vehicle was only "slightly" off the road and was non-operational because it could not proceed further because of the snow. There is no damage to the vehicle, no other cars involved and no issue of driving up to that point. The roads were windblown by snow, were slick, and as well, there were very strong winds blowing that particular night. Indeed, the officer himself took longer to return to the detachment than might otherwise be the case because of the weather conditions. The observations of Cst. Ontonovich with respect to Ms. Heid's ability are few and the observations of Cst. Wraight are even fewer.

137Looking at the totality of the evidence and considering the standard of proof, I am far from satisfied the Crown has established this charge beyond a reasonable doubt and this charge will be dismissed as well.

138In summary then, both charges against Ms. Heid are dismissed.

Released: May 2, 2019

Signed: "Justice G. F. Hearn"