Court File and Parties
Date: December 8, 2015
Court File No.: 14-15225
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Muniram Prashad
Before: Justice Paul F. Monahan
Heard on: November 19, 2015
Judgment Released on: December 8, 2015
Counsel:
Ms. L. Rasmussen for the Crown
Mr. E. Chan for the defendant Muniram Prashad
MONAHAN J.:
Introduction
[1] Mr. Muniram Prashad is charged that on or about November 28, 2014 that he did operate a motor vehicle having consumed alcohol in such a quantity that the concentration in his blood exceeded 80 mg of alcohol in 100 ml of blood contrary to s. 253(1)(b) of the Criminal Code (the "Code").
[2] At trial, Mr. Prashad brought a Charter application. The principal Charter issue raised was an alleged s. 8 violation of the Charter in respect of the taking of the breath samples and a related alleged s. 9 arbitrary detention.
[3] The Charter application and the trial were held, on consent, on a blended basis. The Crown called two witnesses: Constable Mark Mohan, the arresting officer, and Constable Philip Yake, the breath technician. The defence called no evidence on the Charter application or on the trial proper.
Issue
[4] In this case, an approved instrument demand made by Constable Mohan under s. 254(3) of the Code was entirely reliant upon the Approved Screening Device (the "ASD") fail result. The question is whether he could reasonably rely upon the ASD fail result in this case. In particular, the only issue in this case is whether the Crown has established that Constable Mohan held an honest belief that an offence under s. 253 had been committed and whether, objectively, there were reasonable and probable grounds for this belief such that an approved instrument demand could properly be made.
[5] The Crown submits that Constable Mohan held the requisite honest subjective belief based on reasonable and probable grounds to make the approved instrument demand under s. 254(3) of the Code. The defence's submission is essentially the opposite. The defence submits, among other things, that Constable Mohan did not properly understand the calibration and accuracy test requirements of the ASD and that as a result he did not have the required honest subjective belief based on reasonable and probable grounds to make the approved instrument demand.
Facts
[6] Constable Mohan was on duty on November 28, 2014. He saw the defendant, Mr. Prashad, driving a white Honda. He observed the vehicle roll a stop sign meaning not come to a complete stop. He decided to check the driver for sobriety. The defendant was the driver of the vehicle. Constable Mohan detected the odour of alcohol coming from the breath of the defendant. This led him to make an ASD demand under s. 254(2) of the Code. The defendant complied with the demand and the sample provided registered a fail.
[7] An approved instrument demand was made thereafter on the defendant. The defendant was taken to the police station where he was given an opportunity to consult with counsel and he did so. Thereafter, he was handed over to the custody of Constable Yake and he provided two suitable samples which registered 130 and 110 mg of alcohol in 100 mL of blood respectively. The samples were taken within the requirements of s. 258(1)(c) such that the presumption of identity applies.
[8] As indicated above, the only issue in the case is whether Constable Mohan could reasonably rely upon the ASD fail result in order to make the approved instrument demand. I will review Constable Mohan's evidence on this issue in some detail as well as the evidence of Constable Yake concerning the proper use of the ASD.
[9] Constable Mohan testified that the ASD he was using was a Draeger Alcotest 6810 (a "6810"). This is to be distinguished from an ASD model known as the Alcotest 7410 (a "7410"), which appears to have been largely replaced by the 6810 and which functions significantly differently as will be explained below.
[10] Constable Mohan testified that when he started his shift at 6 PM on November 28, he did a self-test on the 6810 ASD at 6:09 PM which he said he passed. He testified that he did another self-test on the device immediately before he required the defendant to give the sample and again the ASD functioned properly as concerns the self-test. I understood from this testimony that he had no alcohol in his system and that the 6810 device confirmed it. He also testified that when he first turned the 6810 on, the device itself gave a digital message that it had last been calibrated on October 19, 2014.
[11] Constable Mohan prepared his notes of the investigation using a standard form document used by Peel Regional Police officers in connection with drinking and driving investigations known as the "yellow notes". I have not reviewed the yellow notes form but based on the testimony I understand that the yellow notes are a preprinted form which the officer then fills in depending upon the facts as they occur in the investigation. The preprinted form he was using was for a 7410 and the reference to the 7410 apparently appears in the preprinted portion of the form in one or more places on the form. That form asks for a calibration date to be inserted in a box and indicates above the box that it is required to be calibrated within 14 days of use. As will become apparent from the testimony of Constable Yake, this 14 day requirement applies to the 7410 but it does not apply to 6810.
[12] Relying on his yellow notes form, Constable Mohan initially testified that the 6810 he was using on November 28 was supposed to be calibrated within 14 days of use. He gave his testimony when referring to the preprinted box on the yellow notes (for the 7410) referring to the 14 day calibration requirement. Upon further questioning by the Crown on this issue as to how he could be using an ASD on November 28, 2014 which had not been calibrated within 14 days (because the device he was using said that it had been calibrated on October 19, 2014), he indicated that there must be an error on his part as concerns the calibration date and he said he wanted to check some other records mid-testimony which he did not have in his possession. He testified that he was not aware of any defect with respect to the ASD he was using and he thought it was working properly on November 28, 2014.
[13] Before completing his in chief evidence, the Crown and the defence counsel spoke together to Constable Mohan outside of the courtroom. Immediately thereafter he continued his examination in chief and he gave further testimony in chief to the effect that his training by breath technicians with the Peel Regional Police was that the ASD would not operate if it had not been properly calibrated or accuracy checked. If it had not been properly calibrated or accuracy checked, it simply would not function and would not permit the obtaining of a sample.
[14] In cross-examination, Constable Mohan pointed out that the 7410 did need to be calibrated every 14 days and that there was a sticker on the side of it which indicated when it had last been calibrated. He entirely moved off his initial testimony that the 6810 had to be calibrated every 14 days and said he could not give a date as to how often the 6810 should be calibrated. He said that he believed the 6810 he was operating was operating properly and he repeated that he self-tested it twice that night.
[15] Constable Yake testified. He is a registered breath technician. Throughout his testimony in-chief and cross-examination, he indicated that he is familiar with the manufacturer's requirements for the proper operation of the 6810 and the 7410. He explained how a 6810 operates. He distinguished between accuracy and calibration dates associated with a 6810. He said that for a 6810, accuracy checks are done every two weeks (14 days) and he said a 6810 had to be calibrated every six months (182 days). If the accuracy check is not done every two weeks or the machine is not calibrated every six months, the 6810 becomes inoperable. He said it would power on but a red indicator light would come on, it will make a "horrible noise" and it would not permit the receipt of a sample.
[16] Constable Yake said that as a matter of practice, Peel Regional Police Officers hand in their 6810s to a group of breath technicians within the Peel Regional Police force every 14 days, normally on Sundays. If they don't do it and they leave it until the following Monday (the 15th day), the device will not work as indicated above. The breath technicians then accuracy check the 6810s handed in every 14 days. This involves testing the device in its accuracy setting mode using a simulator with an alcohol solution aimed at producing a fail when there is 100 mg of alcohol in 100 mL of blood. I understood his testimony to be that if it registers a fail at plus or minus 5 from 100 then it is operating properly from an accuracy check perspective and it is also said to have held its proper calibration requirements. That is to say if it registers a fail at 95 to 105, it is operating properly from an accuracy and calibration perspective. If it falls outside that range, then the breath technician needs to calibrate the device which is done by doing the same simulation test as above while the device is in its calibration setting mode. If it works properly in that mode, then they accuracy test it again to see if it will register a fail at 100, plus or minus 5. These tests are done a number of times and if the device still does not operate within the 95 to 105 range, then it is sent back to the manufacturer.
[17] Constable Yake also made it clear that the 6810 needs to be recalibrated every 182 days. Once again, if it is not recalibrated within 182 days, the device will not be operable. Constable Yake testified that as a practical matter the 6810s would get recalibrated about every two months (which just involves doing the above test successfully while the device is in calibration mode) because when they do the accuracy tests, generally speaking, the 6810 would fall outside of the 95 to 105 range at least every two months and need to be recalibrated as described above and it would be.
[18] To summarize, as a matter of the objective facts, there can be no doubt that if the 6810 used by Constable Mohan on November 28, 2014 powered up and could receive a sample and give a fail reading, then it was operating within the accuracy and calibration parameters of the manufacturer's requirements for the device. I note in particular that the device used by Constable Mohan on November 28, 2014 had a calibration date of October 19, 2014, which as of November 28, 2014 was well within the 182 days required.
[19] Based on Constable Yake's experience, it was his view that most officers did not understand the detail about the 6810 requirements of the accuracy check every 14 days and the recalibration every 182 days. What he thought they did know, as a matter of their training, was that the 6810 would not be operable and would not receive a sample if it was not properly calibrated or accuracy checked.
Law and Analysis
[20] Generally speaking, the accused bears the burden on a balance of probabilities of persuading the Court that a Charter breach or infringement has occurred. However, where there is a warrantless search or seizure, the Crown has the burden of establishing, on a balance of probabilities, that the search or seizure was a reasonable one: R. v. Collins, [1987] 1 S.C.R. 265 at paras. 21-23. That is the situation in the case at bar.
[21] In order to establish that a search or seizure was reasonable, the Crown must show that the police had reasonable and probable grounds to conduct the search or seizure. In the case of alleged drinking and driving, this will relate to, among other things, the demands made and subsequent obtaining of the breath samples.
[22] The law is clear that even where there is no evidence as to when the ASD was last calibrated, as long as the officer reasonably believes the device to be in good working order, it can be used to confirm or reject the officer's suspicion that the motorist has alcohol in their system. See for example R. v. Coutts, [1999] O.J. No. 2013 (C.A.) (per Moldaver J.A. for the Court) at para. 20; R. v. Mastromartino, 70 O.R. (3d) 540 (S.C.J.) at para. 79 and R. v. Topaltsis, 214 O.A.C. 115 at paras. 8-9.
[23] The important point that comes out of these cases is that the ASD does not have to, in fact, be in proper working order. The officer must simply have a subjective honest belief, which is objectively reasonable in the circumstances, that the device is in proper working order. This limited perspective on the operation of the ASD is permitted by the courts because the evidence derived from the ASD does not prove that the accused person was over 80. It is only used for the purpose of confirming or rejecting a police officer's suspicion that a motorist may be impaired (Coutts at para 21). Where there is a fail on the ASD test, it permits the officer to make an approved instrument demand under s. 254(3).
[24] Accordingly, the law permits an arresting officer to use an ASD that may not in fact be in proper working order as long as they honestly and reasonably believe it to be in properly working order. The accused can undermine reliance on such a device if the accused can show that there was "a high degree of unreliability with respect to the screening device" at the time it was administered to the accused: see R. v. Paradisi, [1998] O.J. 2336 (C.A.) at para 1.
[25] The defence relies on R. v. Persaud, [2011] O.J. No. 1559 (S.C.J.) at para 40-41. In that case, it was suggested that the Court of Appeal authorities in this area all involved cases where the arresting officer had in some way averted to the calibration date of the ASD as a basis for the belief that it was operating properly. In other words, it was suggested in Persaud that the arresting officer must at least know or consider the calibration date.
[26] In my view and with respect to the Court in Persaud, the Court of Appeal has laid down no such requirement that an officer consider the calibration date per se. My observation in this regard is particularly relevant to the use of the 6810 (but applies as well to the 7410). I note that the decision in Persaud involved a 7410 not a 6810. I note as well the decision of Justice Durno in Mastromartino at para 79 which expressly states the point made above that an officer need know nothing about the calibration date.
[27] The defence also relies on R. v. Au-Yeung, 2010 ONSC 2292, 209 C.R.R. (2d) 140 (Ont. S.C.J.) where, among other things, the officer had forgotten his training on the ASD and was not sure if he had used the device properly in that case. While it is not expressly stated in that decision, it is apparent that the device in that case was not a 6810. In any event, the facts of that case are distinguishable from the case at bar.
[28] Even if it were the case that an officer needed to avert to the calibration date as suggested in Persaud, and I do not accept that that is the law, such a requirement would have no application to a 6810. To repeat the point made above, it was possible to use a 7410 to obtain a sample after the recommended 14 day calibration date. I am satisfied, based in the evidence of Constables Yake and Mohan, that it is not possible to use a 6810 to obtain a sample outside of the recommended calibration and accuracy date dates for the device. The 6810 device will turn on but a red indicator light will come on, the device will make a "horrible noise" and will not function so as to permit the taking of the sample. I am satisfied that there is no room for error in this regard.
[29] Therefore, as concerns the 6810, the law remains the same as for the 7410 namely that an officer need only have an honest and reasonable belief that the device is in working properly. In my view, that reasonable belief will be even more easily arrived at with a 6810 than with a 7410 because all an officer needs to know vis-à-vis the 6810 is how to properly operate the machine (including what will be a fail or an alert or a pass) and he or she must know that it will not operate if it is not in proper working order from an accuracy and calibration date perspective. He or she does not need to know the date of calibration or accuracy check. The dates are irrelevant. The machine will not operate if the officer attempts to use it outside the calibration or accuracy check dates recommended by the manufacturer.
[30] Turning to the case at bar, Constable Mohan's evidence in chief was at times inconsistent. In my view, this occurred because he did not properly prepare in advance for his testimony by reviewing his notes and reflecting on his training. As a result, he came to court and began to simply recite information from his yellow notes including preprinted portions of the notes which applied to the 7410 and not to the 6810 and which was plainly incorrect. He indicated that the device he was using needed to be calibrated every 14 days. Halfway through his testimony in chief he realized that what he was saying was wrong and contrary to his training. He then corrected his testimony to reflect his training which was that the 6810 he was operating would not and could not operate outside of the calibration date and accuracy date requirements of the device even though he did not know the specifics of those requirements.
[31] Notwithstanding the somewhat inconsistent testimony of Constable Mohan in this case, I am satisfied that Constable Mohan held an honest and reasonable belief that the 6810 ASD device he was using on November 28, 2014 was in proper working order. The honest belief he held was based on his training that the device would not permit the taking of the sample if it had not been properly functioning from an accuracy date and calibration date perspective. He knew that the calibration date was October 19, 2014 but he didn't understand the implications of this date beyond knowing that the device would not operate outside of its proper calibration requirements. His honest subjective belief that the device was in working order was objectively reasonable. All of the objective evidence in this case confirms that the 6810 he was operating would have been inoperable had it been outside of the accuracy date and calibration date requirements of the device.
Conclusion
[32] In the case, Constable Mohan used the 6810 to obtain a sample from the accused which was a fail. This result, in turn, permitted him to make the approved screening device demand. This led to the Intoxilyzer 8000 C readings of 130 and 110 mg of alcohol in 100 mL of blood. The Crown has established that the search or seizure leading to the breath samples was a reasonable one. There was no breach of sections 8 or 9 of the Charter.
[33] The presumption of identity applies. In the circumstances, there will be a finding of guilt on the over 80 charge contrary to section 253(1)(b) of the Code.
Released: December 8, 2015
Justice Paul F. Monahan