Court of Appeal for Ontario

Date: March 19, 2018

Docket: C63177

Judges: Watt, Hourigan and Miller JJ.A.

Between

Her Majesty the Queen Appellant

and

Steven Jennings Respondent

Counsel:

David Friesen, for the appellant
Noah Schachter, for the respondent

Heard: November 23, 2017

On appeal from: The decision of the Summary Convictions Appeal Court dated December 12, 2016 by Justice J. Christopher Corkery of the Superior Court of Justice, dismissing the appeal from the acquittal entered on June 16, 2015 by Justice Robert W. Beninger of the Ontario Court of Justice.

B.W. Miller J.A.:

Overview and Background

[1] An OPP constable observed a vehicle driven by the respondent straying significantly out of its lane. After following it for a time, he pulled the vehicle over. Detecting alcohol on the respondent's breath, he asked the respondent if he had been consuming alcohol, and received a positive reply. The constable concluded that he had a reasonable suspicion that the respondent had alcohol in his body, and issued a demand that the respondent provide a breath sample into an approved screening device ("ASD"). The respondent registered a "fail" on the ASD and was arrested and taken to an O.P.P. detachment where he provided two breath samples into a breathalyzer administered by a qualified breath technician. Both samples tested significantly in excess of 80 mg of alcohol in 100 ml of blood.

[2] The only issues at trial were whether the breath sample demand constituted an unreasonable search or seizure under s.8 of the Charter of Rights and Freedoms, and if so, whether the breath samples should be excluded as evidence under s. 24(2). The trial judge concluded that the constable did not have reasonable and probable grounds to believe the respondent had committed the offence of driving "over 80" from the results of the roadside test with the ASD, and that the taking of the subsequent breath sample at the police station accordingly violated s.8. Although the parties agreed that the constable honestly believed the respondent had committed the offence, satisfying the subjective component of the test, the trial judge accepted the defence argument that the constable's belief was not objectively reasonable because he had not followed three procedures set out in the O.P.P. manual for using the specific ASD, the Drager Alcotest 6810. The failure to follow these procedures, the trial judge concluded, meant that the constable could not have reasonably believed that the ASD was in proper working order, and therefore could not have used the results of the roadside test as a reason to believe the respondent had a blood alcohol level over .80.

[3] The trial judge excluded the breath samples under s. 24(2). Following the three part structured analysis set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the trial judge concluded that (i) the breach of the respondent's Charter rights was serious, as was (ii) the impact of the breach on the respondent. Although the trial judge found (iii) the societal interests in the adjudication on the merits to be strong, he concluded that the impact of the breach on the respondent weighed heavily in favour of the exclusion of the evidence, and he excluded the breath samples.

[4] In considering the second Grant factor, assessing the impact of the breach, the trial judge followed a line of cases from R. v. Au-Yeung, 2010 ONSC 2292, 75 C.R. (6th) 78, holding that the seriousness of the impact of a s. 8 breach in a breath sample case should not focus only on the immediate impact of providing a breath sample, but on the overall impact on the accused of the breach, including such matters as detention in the back of a police cruiser, transportation to the police station for breath-testing, and subsequent detention at the police station. He rejected a contrary line of authority that restricts the analysis to the breath sample procedure, which in itself is minimally intrusive.

[5] On appeal by the Crown, the summary conviction appeal court held that the trial judge did not err in finding that the constable's subjective belief that the "fail" result was reasonable was not supported by the objective facts. The summary conviction appeal judge ("SCAJ") also upheld the trial judge's decision to exclude the evidence under s. 24(2). The appeal was dismissed.

[6] Leave to appeal to this court was granted.

[7] For the reasons set out below, I would allow the appeal, enter a conviction, and remit the matter to the trial judge for sentencing.

Analysis

[8] There are two issues on this appeal: did the SCAJ err in upholding the trial judge's finding: (1) of a s. 8 violation in the taking of the respondent's breath sample at the police station; and (2) that the breath samples obtained at the police station should be excluded as evidence under s. 24(2).

(1) The s. 8 Breach

[9] The investigation of "over 80" offences follows a two-stage process. Initially, an officer with a reasonable suspicion that a driver has alcohol in his or her body is authorized by s. 254(2) of the Criminal Code to demand the driver provide a breath sample into an ASD. This is a preliminary screen only, and registering a fail on the ASD cannot be used as evidence that the driver was impaired or that his or her blood/alcohol level was over the legal limit. But an ASD failure – either alone or in combination with an officer's other observations – may provide the officer with reasonable and probable grounds to conclude that an impaired driving offence has been committed. If the officer forms reasonable and probable grounds for an arrest, the officer is authorized to arrest the driver and demand breath samples on an approved instrument pursuant to s. 254(3): R. v. Einarson (2004), 70 O.R. (3d) 286 (C.A.), at paras. 10-11.

[10] The determination of whether there are reasonable and probable grounds to demand a breath sample under s. 254(3) of the Criminal Code has a subjective and an objective component: (i) the officer must have an honest belief that the suspect committed an offence, and (ii) there must be reasonable grounds for that belief: R. v. Wang: 2010 ONCA 435, 263 O.A.C. 194, at para. 14.

[11] Here, there is no dispute that the constable had the requisite subjective belief that the respondent had been driving with a blood/alcohol level over .80. No issue is taken with the officer's ASD demand under s. 254(2). However, the trial judge found there was no evidence of objective grounds to support the constable's subjective belief.

[12] The determination of whether the constable's belief was objectively reasonable largely turns on whether it was reasonable for him to believe that the ASD was functioning properly. In Bernshaw, [1995] 1 S.C.R. 254, at para. 80, Sopinka J. observed that an officer is "entitled to rely on [the accuracy of an ASD] unless there is credible evidence to the contrary". However, if an officer cannot rely on the accuracy of the ASD test results, those results cannot assist the officer in determining whether there were reasonable and probable grounds to arrest a driver and demand a subsequent breath test: Einarson, at para. 14.

[13] The trial judge found the constable's belief that the ASD was functioning properly was not reasonable, because of his failure to follow three of the steps set out in the O.P.P. policy manual. The trial judge found that contrary to the procedures set out in the ASD manual, the constable did not:

perform a self-test of the ASD at the beginning of his shift;
record the particulars of the ASD calibration check in his notebook; or
perform a second self-test after the respondent provided his breath sample.

[14] In support of the reasonableness of his belief that the ASD was properly functioning, the constable testified at trial that if the ASD was not properly calibrated, it would shut down and could not be operated. The trial judge, however, rejected this evidence, finding that there was no evidence that the constable was aware of this feature at the time of the search. He found that there were no objective grounds to support either the constable's belief that the ASD was properly functioning, or the constable's belief that the respondent had been driving with a blood\alcohol level over .80. The trial judge reached this conclusion because of his view that the constable's failure to follow the three procedures in the O.P.P. manual provided "credible evidence to the contrary", such that the ASD results could not be relied upon to form reasonable and probable grounds for the search: R. v. Gundy, 2008 ONCA 284, 235 O.A.C. 236, at para. 50.

[15] The SCAJ held that the trial judge made no error in so concluding.

[16] I disagree, for the reasons set out below, and would hold that the trial judge erred in finding that there were no objective grounds to support the constable's subjective belief in both the proper functioning of the ASD, and in the presence of reasonable and probable grounds to believe the respondent had been driving over .80.

[17] Failure to follow policy or practice manual directions does not automatically render reliance on test results unreasonable. What matters is whether the officer had a reasonable belief that the device was calibrated properly and in good working order, and whether the test was properly administered: Bernshaw, at paras. 59-60, 83; R. v. Topaltsis (2006), 34 M.V.R. (5th) 27 (Ont. C.A.) at paras. 7, 9. A failure to follow a practice manual direction can serve as some evidence undermining the reasonableness of an officer's belief. But the fact that an officer failed to follow a practice manual direction is not itself dispositive. Not every failure to follow a direction is necessarily fatal to reasonableness of belief. Not all practice manual directions will bear equally, or perhaps at all, on the reasonableness of an officer's belief that the ASD is properly functioning. It is necessary to take the further step and determine how or whether each of the specific failures identified undermine the reasonableness of the officer's belief that the ASD was functioning properly.

[18] The first omission by the constable was his failure to perform a self-test of the ASD at the beginning of his shift. Assuming the officer has no alcohol in his or her body, the self-test should result in a zero reading. Here, the constable performed the self-test, but it was at roadside and immediately before administering the test to the respondent. He obtained a zero reading. There was no evidence that, for the purposes of ensuring proper functioning of the ASD at the time the test is administered, there is any advantage to performing the self-test at the beginning of the shift rather than at roadside. The beginning of the shift requirement appears simply to be a matter of operational efficiency – of avoiding the inconvenience of finding oneself in the field with malfunctioning equipment. The failure to follow the directive in this particular respect could not have had any bearing on the officer's belief that the ASD was functioning when the test was administered.

[19] The second failure was in not recording the calibration particulars of the ASD. The calibration and accuracy of the device must be verified before use. The constable testified that he did check these at the time of the stop, but that he did not record the details in his notebook as required. Again, recording calibration results is an administrative matter. There may be good reason for it, presumably of an evidentiary nature, but a failure to record does not automatically negate a constable's testimony that he performed the necessary checks.

[20] Furthermore, the constable testified that the ASD had a fail-safe feature that would not allow it to be operated at all if it was not properly calibrated:

"… I know at the time that I did check the calibration and the accuracy and that, uh, the device will not operate if – if it's not calibrated and the accuracy isn't checked, um, so, at the time, if – if the calibration and the accuracy isn't proper, then the device actually won't – won't work." [Emphasis added.]

The constable's testimony, though not in every respect a model of grammatical precision, is some evidence that he knew about the fail-safe feature at the time he administered the roadside test. Precisely how or when he learned this is not important.

[21] The third failure was in not performing a second self-test immediately after the respondent provided a breath sample. Again, this is a matter of best practices, to confirm that the ASD remains in working order, and would provide some evidence that the ASD was properly functioning at the time of the test. But absent something happening to the ASD in the brief period after the first self-test, the constable would have no reason to believe that the ASD was no longer in proper working order. The failure to perform the second self-test does not negate the objective reasonableness of the constable's subjective belief that it was in working order when the test was administered.

[22] Accordingly, the SCAJ and the trial judge erred in concluding that the constable's subjective belief that the respondent had committed the offence of driving over .80 was not objectively reasonable. The uncontested evidence was: (i) the constable observed the respondent's vehicle swaying into the wrong lane; (ii) the constable detected alcohol on the respondent's breath; (iii) the respondent admitted to having consumed alcohol; (iv) the constable followed the procedures for use of the ASD, with the exception of those noted above; (v) the results of the self-test and the calibration check indicated the device was working; and (vi) the breath sample provided by the respondent registered over .80.

[23] I would hold that the SCAJ erred in law in upholding the trial judge's ruling that there was a breach of the respondent's s. 8 rights.

(2) Exclusion Under Section 24(2)

[24] The conclusion on the s. 8 issue is sufficient to dispose of the appeal. However, a divergence in the lower courts on how to approach s. 24(2) analysis in breath sample cases makes it necessary for this court to address the reasons of the trial judge and the SCAJ on this issue.

[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; R. v. Marchi, 2016 ONCJ 757; R. v. Ho, 2014 ONSC 5034, rev'd on other grounds 2015 ONCA 559.

[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, 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, 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.

[33] With respect to the third Grant factor, the societal interest in an adjudication on the merits, the trial judge made no error in finding the breath samples to be reliable evidence, favouring admission.

[34] Accordingly, all three Grant factors favour admission, and the breath samples ought not to have been excluded from evidence.