R. v. Williams

Ontario Court of Justice

Her Majesty the Queen v. Lindsay Williams

Court Information

Before: The Honourable Justice W.B. Horkins

Date: September 23, 2014

Location: Toronto, Ontario, Courtroom 502

Recording Number: 4817_502_20140923_095334

Appearances

For the Crown: C. Langdon

For Lindsay Williams: D. Gomes

Reasons for Judgment

HORKINS, J. (Orally)

This is the matter of Lindsay Williams, who was tried before me a few days ago. I reserved on delivering Reasons for Judgment until today's date. I am delivering this Judgment orally but from notes which could be fairly quickly turned into a written Judgment but for the limited resources we have in doing that on a short timeline. What I intend to do is to order the transcript of the Reasons to preserve the Reasons for Judgment. But I will have no difficulty in outlining the basis of my conclusions, both for the benefit of the parties and to produce a reviewable record.

The Charge

Ms. Williams is charged that on the 13th of September 2013 with driving, to use the vernacular, over 80. The only real issue in the case arises from the fact that the arresting Officer read the wrong breath demand to the accused. It is submitted, therefore, that the subsequent breath testing was not done pursuant to the applicable statutory conditions precedent to the admissibility of the Certificate of Analysis. If that is true, then obviously there would be no admissible evidence in this case of the accused's blood-alcohol level at the material time.

The Problem with Wrong Demands

It is actually surprising to me how many of these drinking and driving cases end up coming to grief for the prosecution by the failure of the investigating officer to read the correct breath demand. However, the factual context of this particular case adds a bit of a new twist to the usual scenario of simply having read the wrong pre-printed demand from the back of the Officer's notebook.

Facts

Ms. Williams was stopped in a RIDE spot check. In response to questions asked she admitted that she had recently come from a licensed restaurant in the neighbourhood where she had indeed been drinking. The Officer detected a faint smell of alcohol. He formed a reasonable suspicion that Ms. Williams was driving with some alcohol in her blood. He therefore had the lawful basis for making a roadside screening demand and he did that. Ms. Williams complied with the demand and provided a roadside screening test, which she failed.

The Officer then made a second demand, and this is where things started to go sideways. The second demand was again the approved screening demand. The Officer did not have his notebook with him at the trial, but indicated that he would have read the demand from the pre-printed form in the back of his notebook. It became apparent that he did not know that he read the wrong demand until sometime shortly before trial, when he viewed the on-board video from his police car and realized at that point that instead of having made the approved instrument demand, he had repeated the approved screening demand.

Up to this point the facts in this case are not very different from so many of the reported cases, cases that I have seen myself, where the wrong demand has been read. The somewhat unique twist in the facts before me is that Ms. Williams apparently was alert to the fact that this second demand was the same demand that she had already complied with, and she pointed this out to the Officer.

Ironically, it is only because the accused expressed her confusion that the Officer then sought to explain why he was making the second demand. It is only in this further explanation that the Crown can hope to find sufficient content to comply with the requirements of a valid approved instrument demand.

The Officer explained that this second demand involved going to the station to provide a sample that would give a numerical result of her blood-alcohol content. The Crown argues that this further explanation elevates the situation to a point where I can conclude that the functional equivalent of the proper demand was in fact made.

Legal Principles

As I indicated earlier, these "wrong demand" cases are surprisingly common, and as a result the principles of dealing with this situation are relatively clear.

First of all, a condition precedent to the admissibility of the Certificate of Analysis for the truth of its contents is proof that the technician acted pursuant to a lawful demand. I cite Regina v. Nasir, [1998] O.J. No. 2166 (ON SC), Hill J.

Secondly, no particular words are necessary to make a valid breath demand. In fact, in certain circumstances it may even be that the evidence of the Officer simply stating that he has given a demand for a breathalyzer test is some evidence of a valid demand. I reference Regina v. Humphrey, [1977] O.J. No. 1148 and Regina v. Khawaja, [2006] O.J. No. 4021 (OCJ), Pringle, J.

As to whether a valid breath demand has been made, the Court should consider the entirety of the circumstances, and take a "flexible yet functional approach" to the issue. And I reference Justice Hill's decision in Regina v. Ghebretastiyoss, [2000] O.J. No. 4982 (ON SC), Hill J.

The Distinction Between Demands

Next, the situation becomes more complex when the issue is not simply whether a breath demand was made, but rather which of the two different statutory breath demands was made. Even recognizing the need to take a "flexible yet functional approach", an ASD demand will rarely, if ever, be an adequate substitute for an approved instrument demand. And I cite Justice Lipson's case in Regina v. Kagayalingam, 2006 ONCJ 196, [2006] O.J. No. 2201 and Justice Blouin's judgment in Regina v. Cheng, 2008 ONCJ 368, [2008] O.J. No. 3215.

A loose explanation which fails to make it clear what is being asked as more than a mere invitation or request will not be sufficient. In a case where the Officer did not read a breath demand at all to the accused at the side of the road, and could not remember exactly what he did say to the accused at the road, but felt that he said words to the effect that they were going to the police station "to blow" into a "breathalyzer-type machine" which will measure "how much alcohol you have in you", the Court held that such wording fell short of being a valid demand. And I cite Regina v. Palanacki, [2001] O.J. No. 6254 and Regina v. Killen, [2006] O.J. No. 4592.

To my mind, the fact situation in the case before me is very close to the fact situation in Palanacki. An inadvertently confusing repetition of the ASD demand was followed by a somewhat loose explanation of a plan to go the station for another more precise test. My conclusion is that this was not a valid approved instrument demand.

The Ovchinikov Precedent

Perhaps the most useful of the cases considering this issue is the decision of Justice Taylor in Regina v. Ovchinikov, [2008] O.J. No. 5959, Taylor J. (OCJ), where, in Justice Taylor's words, an inexperienced officer "provided fodder for a number of defence arguments directed towards the exclusion of the results" of the breathalyzer tests. The issue arose out of the fact that the Officer, as here, made the wrong demand, he made an ASD demand pursuant to section 254(2) instead of an approved instrument demand.

As Justice Taylor highlights, these are distinctly different demands in the Criminal Code scheme. Not the least of the distinctions between these demands is that the result of the failure on an approved screening device has no evidentiary significance, and in fact is inadmissible except as grounds to continue to the next level of investigation, being a proper approved instrument demand.

The results of an intoxilyzer test are, other things being equal, admissible in evidence, and indeed provide the Crown with an extraordinary evidentiary presumption relating the tests and the results of the test fictionally back to an earlier point in time, the time of driving, which is the only relevant time. And this scheme provides for certificate proof of that ultimate fact.

This presumption triggered by a proper approved instrument test is truly extraordinary in the context of a criminal prosecution. In recognition of this, the Supreme Court of Canada has made it clear that there must be strict compliance with the condition precedent to triggering such a presumption, and I cite the Nobel case, [1997] 1 S.C.R. 874.

Analysis of the Officer's Evidence

In the case before me, the accused quite incidentally triggered the arresting Officer to give a further explanation. I have taken advantage of the digital recording system in place in this courthouse to listen to the Officer's evidence on this particular point. It is very clear from the record that his initial evidence was that he in fact gave an "instrument demand". Crown Counsel quite fairly drew out from the Officer the fact that this "instrument demand" was in fact the wrong demand, which was in fact a "screening demand".

The Officer continued in his evidence, then, to explain that after he gave the second demand, the accused indicated she had already done that and did not understand why she was being asked to do it again. It was at that point that he explained what would happen next. As I have indicated previously, his explanation was that they were going to go to the police station for another sample, the purpose of which was to get a numerical reading of her blood-alcohol level.

The pivotal question becomes: does this further commentary elevate the total circumstances to the level of a valid approved instrument demand? My conclusion is very clearly that it does not.

The explanation offered does not make it sufficiently clear that this is a significantly different demand with a dramatically different level of interference with the accused's liberty, and a dramatically different triggering of rights and obligations coming into play.

There is no communication of the fact that this testing process is actually mandatory, or that there will be two samples taken, or that they will be taken by a qualified technician. I am influenced by the fact as pointed out in Justice Taylor's decision that the consequences of these tests are dramatically different in terms of self-incrimination.

So to respond to the submissions made by the Crown that I could draw something from the apparent cooperation and compliance of the accused, one can also imagine that there might have been, going through her mind, that she was simply going to the station to do another screening test, which literally on the face of it, is what she was being asked to do.

Strict Compliance Approach

So should the courts be apologetic for taking a strict compliance approach to these issues?

I do not think so. These are the statutory condition precedent to a truly extraordinary short cut from the usual rules of evidence. Compliance is not difficult. In this case, the police had set up a RIDE spot check program. They knew exactly what they would be engaged in. Trying to skate past this sort of obvious error is an approach that I decline to engage in in the context of this case.

Disposition

There being no sufficient proper demand, the Certificate is inadmissible and the Crown's case fails, and the charge is dismissed.

Certificate of Transcript

Evidence Act, subsection 5(2)

I, Judith Smith, certify that this document is a true and accurate transcript of the recording of R. v. Williams in the Ontario Court of Justice, held at 444 Yonge Street, Toronto taken from Recording No. 4817_502_20140923_095334, which is certified in Form 1.

Photostat copies of this transcript are not certified and have not been paid for unless they bear the original signature of J. Smith, and accordingly are in direct violation of Ontario Regulations 587/01, of the Courts of Justice Act, January 1, 1990.