Court File and Parties
Ontario Court of Justice
Date: 2016-06-30
Court File No.: Lindsay 14-0728
Between:
Her Majesty the Queen
— and —
Denis Lefebvre
Before: Justice S. W. Konyer
Heard on: June 17, 2016
Reasons for Judgment released on: June 30, 2016
Counsel
Mr. W. Barnes — counsel for the Crown
Mr. C. Kostopoulos — counsel for the defendant Denis Lefebvre
KONYER J.:
[1] Introduction
[1] Mr. Lefebvre was tried on a charge of operating a motor vehicle on June 13, 2014 with more than 80 milligrams of alcohol per 100 millilitres of his blood, contrary to section 253(1)(b) of the Criminal Code. There are two issues that I must decide: first, whether I am satisfied that I can rely on the Certificate of a Qualified Technician for the truth of its contents despite a discrepancy between the date on the Certificate and the Intoxilyzer Test Record Card; and second, whether the results of the analysis of Mr. Lefebvre's breath ought to be excluded as a result of a breach of his right to be secure from unreasonable search and seizure as guaranteed by section 8 of the Canadian Charter of Rights and Freedoms.
[2] The essence of the Charter argument made by the defence is the following. The analysis of Mr. Lefebvre's breath samples by an approved instrument constitutes a warrantless search and seizure. Accordingly, the onus is on the Crown to satisfy me that the arresting officer had reasonable grounds to believe that Mr. Lefebvre's blood alcohol concentration exceeded the legal limit. The officer's grounds for his belief were based on a fail result obtained following a roadside analysis of Mr. Lefebvre's breath by an approved screening device (ASD). In order for those grounds to be sufficient, the officer was required to have a subjective belief that he had reasonable grounds, and that belief must be objectively reasonable. Because of a number of deficiencies in the steps taken by the officer to ensure that the ASD was in proper working order, it is argued that his belief was not objectively reasonable. In order to resolve these issues, it is necessary to summarize the relevant facts.
Summary of the Relevant Facts
[3] This was a short, one witness trial. On June 13, 2014, at 11:25 p.m., PC Kowalyk of the City of Kawartha Lakes OPP was driving to an unrelated call when he encountered Mr. Lefebvre's vehicle on Highway 7 just outside the town of Lindsay. His attention was drawn to the vehicle initially because it was driving slowly, approximately 20 km/hr below the posted speed limit of 80 km/hr. As he followed the vehicle for a short distance, PC Kowalyk also noted that it drifted within its lane repeatedly, between the centre line and the fog line. At 11:30, he initiated a traffic stop to conduct a sobriety check of the driver based on these observations. No issue was taken with the officer's grounds for stopping the vehicle and detaining Mr. Lefebvre to check his sobriety.
[4] Upon speaking with Mr. Lefebvre, the driver and sole occupant of the vehicle, PC Kowalyk detected an odour of an alcoholic beverage coming from his breath. He asked Mr. Lefebvre if he had consumed any alcohol, and was told "two beers, two hours ago". Based on the odour and admission of consumption, PC Kowalyk formed a suspicion that Mr. Lefebvre had alcohol in his body while operating a motor vehicle, and made a demand that Mr. Lefebvre provide a sample of his breath for analysis by an approved screening device. No issue was taken with the officer's grounds for making the ASD demand.
[5] PC Kowalyk was in possession of a Drager Alcotest 6810, which is an approved screening device. He has been trained on the operation of this device, though when asked in cross-examination he was unable to provide the name of his training officer. He also said that at least some of his training occurred online.
[6] PC Kowalyk testified that he understands that the Drager Alcotest 6810 measures the alcohol, if any, in a subject's blood or breath. He formed a belief that the particular ASD in his possession was in proper working order, based upon three pieces of information. First, he learned that the ASD had last been calibrated on April 8, 2014, some 66 days before. Second, he learned that an accuracy check had been performed on this ASD sometime earlier that same day – June 13, 2014. Third, when he performed a self-test at the roadside before taking a sample of Mr. Lefebvre's breath, the ASD accurately determined that his own blood-alcohol concentration was zero.
[7] PC Kowalyk learned of the dates of the calibration and accuracy check through records stored within the device's memory. He explained that after turning on the ASD, but prior to any testing, he accessed these records from the device's menu.
[8] PC Kowalyk made notes during the course of his investigation of Mr. Lefebvre on what he described as a dash pad located on the dashboard of his cruiser. He used this pad to record observations made while driving, and to make rough notes of events as they occurred. He used these rough notes to later make more detailed notes in his police issued notebook. On the dash pad, he made notes which simply read "last cal" and "last acc" with no dates noted. He explained that he made these notes to confirm that he checked the last calibration and accuracy check dates before administering the ASD to Mr. Lefebvre. He did not record the dates of the last calibration and accuracy check on the dash pad because the ASD will automatically shut down if it unused for a period of time, and he did not want to be delayed by having to restart the device. After testing Mr. Lefebvre, he took the time to record the actual dates of the calibration and accuracy check in his standard police-issued notebook. PC Kowalyk denied the suggestion that he failed to check the dates of the calibration or accuracy check until after testing Mr. Lefebvre.
[9] PC Kowalyk's belief, based on his training, was that an accuracy check needs to be performed every two weeks, and that the ASD will not accept a sample if an accuracy check has not been done within the preceding 14 days. His belief, based on experience, was that accuracy checks were done every second Friday by a Qualified Technician from the City of Kawartha Lakes OPP. Mr. Lefebvre's vehicle was stopped late on a Friday night. He could not say for certain which Qualified Technician performed the last calibration or accuracy check on the ASD he used in this case.
[10] At 11:36 p.m., after checking the dates of the calibration and accuracy check and performing the self-test, PC Kowalyk administered the ASD to Mr. Lefebvre. A suitable sample was obtained, and the result of the analysis was a fail. PC Kowalyk believed that the ASD was calibrated to give a fail reading if the result of the analysis exceeded 100 milligrams of alcohol in 100 millilitres of blood. Accordingly, the fail result obtained from Mr. Lefebvre provided him with grounds to believe that Mr. Lefebvre had committed the offence of operating a motor vehicle with more than 80 milligrams of alcohol per 100 millilitres of his blood. PC Kowalyk then arrested Mr. Lefebvre for this offence, searched him incident to arrest, informed him of his rights to counsel, cautioned him and made a demand that he provide suitable samples of his breath for analysis by an approved instrument. Other than the sufficiency of the grounds to make the demand, no issue was taken as to the manner in which PC Kowalyk carried out these duties.
[11] Mr. Lefebvre was then transported to the City of Kawartha Lakes OPP detachment, lodged, and given an opportunity to exercise his rights to counsel. He was then turned over to a Qualified Technician, Sgt. Barber. PC Kowalyk later served Mr. Lefebvre with a Certificate of a Qualified Technician, which has been made Exhibit 1 on this trial. Sgt. Barber was not called as a witness. The Certificate states that analyses of two samples of Mr. Lefebvre's breath were conducted at 12:39 and 1:01 a.m., with results of 178 and 176 milligrams of alcohol per 100 millilitres of blood, respectively.
[12] In cross-examination, PC Kowalyk agreed that he also served Mr. Lefebvre with a copy of the Intoxilyzer Test Record Card from the testing procedure conducted by the Qualified Technician, and a copy of this document was filed as Exhibit 2. This single page document has date and time entries in three different locations. At the top of the document, along with model and serial number, a date of "2014/06/14" and a time of "00:31:31" are printed, which is consistent with the time that Mr. Lefebvre was turned over to Sgt. Barber. The next section of the document contains the particulars of the investigation including Mr. Lefebvre's name and personal information. In this section is printed "Occurrence: 2013/06/13" and a time of "23:30". This is consistent with the day, month and time that PC Kowalyk pulled over Mr. Lefebvre's vehicle, but the year is off by one digit. At the bottom of the document, information about the Alcohol Standard solution used to check the calibration of this Intoxilyzer is provided. This information states that the solution was last changed on "2014/06/13" at "09:15:44".
[13] PC Kowalyk was also cross-examined extensively on his belief that the ASD used in this case was in proper working order. This portion of his cross-examination included reference to the following three documents:
"Theory and Calibration of Approved Screening Devices: Alcotest 7410 GLG, Drager Alcotest 6810, Alco-Sensor FST. Training Aid for Qualified Technicians", authored by the Toxicology Section of the Centre of Forensic Sciences and published in 2012 – the "CFS recommendations"
"Canadian Society of Forensic Sciences Alcohol Test Committee Recommended Operational Procedures", authored by the Alcohol Test Committee, which came into effect on May 4, 2014 – the "ATC recommendations"
"Drager Alcotest 6810: Approved Screening Device Guidelines", published by the Toronto Police Service, revised September 25, 2012 – the "TPS recommendations"
[14] No objection was taken to the cross-examination of PC Kowalyk on these documents, though he was not familiar with any of them prior to testifying. Although counsel did not seek to file these documents as exhibits, I am attaching them as Appendices to these reasons for judgment, given the importance of the contents of these materials to the Charter issues raised on this trial.
[15] According to the Foreword in the CFS recommendations, this document was "produced solely for the purpose of training qualified technicians to calibrate the approved screening devices currently used in the province of Ontario". PC Kowalyk is not a Qualified Technician and was unfamiliar with this document. Nevertheless, both Crown and defence counsel agreed that this document is authoritative, and have invited me to rely upon it in determining whether PC Kowalyk had objectively reasonable grounds to believe that the ASD he used to test Mr. Lefebvre was in proper working order.
[16] PC Kowalyk was cross-examined on some of the contents of this document, including "Recommendations for Calibration" set out in section 2. In part, this provides that the "Centre of Forensic Sciences recommends that the calibration of an ASD is checked, or that the device is recalibrated, at least every two weeks" and that the "calibration check/re-calibration must be performed by a Qualified Technician trained in the calibration procedure specific to the ASD in use." The training aid goes on to state that the Drager 6810 has "an accuracy check feature that allows a Qualified Technician to check the calibration of the device without initiating a re-calibration procedure." The accuracy check feature "allows the Qualified Technician to assess whether the calibration of the device has been retained." This will be so if the accuracy check falls within plus or minus 5% of the target. Recalibration is required if the result of the accuracy check falls outside this range.
[17] Section 4.5 of the CFS recommendations deals with the specific calibration procedure for the Drager Alcotest 6810. This section provides that an accuracy check should be performed every 2 weeks to ensure that the device is calibrated within the acceptable range. Recalibration of the Drager Alcotest 6810 is only required every 6 months in accordance with the manufacturer's recommendation, or if an accuracy check shows the device is outside the accepted range.
[18] PC Kowalyk was unable to name the Qualified Technician who performed the accuracy check on the ASD used to test Mr. Lefebvre, and did not know the results of the accuracy check. He assumed that the results of the accuracy check were within the acceptable range since no recalibration was done. He testified that it was his belief that an ASD which had failed an accuracy test would not be left in circulation in that condition.
[19] The ATC recommendations for ASD's include that "[t]he calibration of the Approved Screening Device shall be checked by a Screening Device Calibration Technician with an alcohol standard at least every 31 days" and that the device must be recalibrated if the check shows that it is outside of the acceptable range of plus or minus 5% of the target alcohol standard. In addition, this document states that ASD's "shall be operated according to the manufacturer's recommendations."
[20] PC Kowalyk was also cross-examined on the TPS recommendations. Although he used to work in Toronto as an OPP officer, PC Kowalyk has never been a member of the TPS, and was not familiar with this document. It is worth noting that the document begins by stating that "[t]he following are general guidelines" and that "[t]hese guidelines are not exhaustive or mandatory".
[21] With respect to calibration, the TPS recommendations state: "The Drager Alcotest 6810 is initially calibrated by Drager who recommends to check the calibration every six months. However, the Alcohol Test Committee recommends that the calibration of any approved screening device should be checked every 31 days. All of the devices in use by the Toronto Police Service are set up to NOT accept breath samples if the calibration has not been checked in the previous 31 days." Later in the document, however, it states that "[t]he device will not allow subject tests to be performed if 31 days have passed since the last calibration" [emphasis added].
[22] PC Kowalyk was also cross-examined on his failure to comply with some procedures recommended by the TPS as a means of ensuring that officers using an ASD believe the device to be in proper working order. For example, he agreed that he failed to note whether he checked the ASD for visible signs of damage. PC Kowalyk also agreed that he failed to note the number of days before the next calibration check is due (though he did note that a check was done that very day, and that these checks are done every 14 days). He agreed that he did not note the manufacturer of the alcohol standard used to check the calibration, the lot number of the alcohol standard, or the badge number of the officer who performed the calibration.
[23] Further, PC Kowalyk agreed that he did not adhere to some recommendations of the TPS for "Conditions for Subject Breath Testing". These include a suggestion that "all breath tests using an ASD be performed inside the officer's scout car" for safety and "to ensure the device is used within the environmental limits as set out by Drager." According to the document, this means an ambient temperature of between -5 and 50 degrees Celcius and a relative humidity between 10 and 100%.
[24] It was also suggested to the officer that he breached TPS protocol by using the ASD in close proximity to a radio. The TPS recommendation, however, actually states that the device should not be used within close proximity to "transmitting radio equipment" [emphasis added]. Further, the TPS recommendations call for the device to used inside police vehicles, and goes on to say that "radio systems in the scout car will only affect the device when the scout car's radio is actually being transmitted" [emphasis added].
Analysis
i) The Reliability of the Certificate of a Qualified Technician
[25] Mr. Lefebvre is charged with committing this offence on June 13, 2014. The uncontradicted evidence of PC Kowalyk is that he stopped Mr. Lefebvre's vehicle at approximately 11:30 p.m. on this date, and that he turned Mr. Lefebvre over to Sgt. Barber, a Qualified Technician, at 12:31 a.m. on June 14, 2014. The Certificate of a Qualified Technician states that Sgt. Barber took samples of Mr. Lefebvre's breath for analysis at 12:39 and 1:01 a.m. on June 14, 2014. The results of the analysis of each sample was found to be 170 milligrams of alcohol in 100 millilitres of blood. The Certificate of a Qualified Technician was served on Mr. Lefebvre by PC Kowalyk on June 14, 2014 at 2:45 a.m.
[26] At the same time, PC Kowalyk also served Mr. Lefebvre with a copy of the Intoxilyzer Test Record Card. This document contains a time stamp of 12:31 a.m on June 14, 2014, which corresponds to the date and time that PC Kowalyk turned custody of Mr. Lefebvre over to Sgt. Barber. The document also contains the usual results of calibration and accuracy checks, and shows that two samples were received from the subject at 12:39 and 1:01 a.m. The subject test results correspond with the truncated test results noted on the Certificate. The Test Record also contains information about the Alcohol Standard Solution used to test the instrument's accuracy. It states that the Solution was last changed on June 13, 2014 at 9:15 a.m.
[27] The Test Record also contains a block of information which is specific to the subject in question, including the operator's name and badge number, the subject's name, date of birth and driver's licence number, and the arresting officer's name and badge number. Finally, this portion of the Test Record has a field marked "Occurrence" which in this case contains the following entry: "2013/06/13 23:30".
[28] Mr. Lefebvre was stopped by PC Kowalyk on June 14, 2014 at 11:30 p.m., and the Crown argues that the "2013" portion of this entry was clearly a typographical error. The Crown argues that the date on the top of the Test Record and the date shown for the changing of the Alcohol Standard Solution clearly prove that this document relates to Mr. Lefebvre's arrest by PC Kowalyk on June 13, 2014 and the testing conducted by Sgt. Barber early on June 14, 2014. The defence argues that the discrepancy between the Test Record, which is produced by a highly reliable approved instrument, and the Certificate, means that there must be a real doubt as to the accuracy of the evidentiary statements contained in the Certificate.
[29] I agree with the position taken by the Crown on this issue. Both the entries made in this portion of the Test Record and the entries made on the Certificate are manual entries. The discrepancy in the year is clearly the product of human error, unless Mr. Lefebvre was also arrested by the same officer at the same minute of the same day precisely one year earlier, and then provided samples to the same technician at the same times also. There is no real doubt, based on all of the evidence, that the Test Record in this case relates to the same testing procedure summarized in the Certificate. Accordingly, I have no doubt as to the accuracy of the statements contained in the Certificate, and rely upon it for proof of the truth of its contents.
ii) Did PC Kowalyk Have Objectively Reasonable Grounds to Believe That the ASD Was in Proper Working Order?
[30] The seizure of samples of Mr. Lefebvre's breath by the police for the purpose of analysis by an approved instrument constituted a warrantless search and seizure. Warrantless searches are presumptively unreasonable, and the onus is therefore on the Crown to establish that the police had reasonable grounds to conduct this search. In this case, the grounds to conduct this search were generated by the fail result obtained by PC Kowalyk on the ASD. In order to be reasonable, these grounds must be based on a subjective belief by PC Kowalyk that the ASD he used was in proper working order. Further, that belief must be objectively reasonable.
[31] It is not disputed in this case that PC Kowalyk subjectively believed that the ASD he used was in proper working order. He testified that he held this belief based on the records obtained from the device itself as to the last calibration and accuracy checks, and the fact that the device properly produced a zero reading during the self-test. I must determine whether PC Kowalyk's belief was objectively reasonable.
[32] In doing so, "the question is whether the officer's opinion was supported by objective facts", which must have been "known by or available to the peace officer at the time he or she formed the belief": R. v. Censoni, [2001] O.J. No. 5189 (S.C.J.), at para. 35. Justice Hill in that case went on to state that "[r]easonable grounds in the context of a s.254(3) demand is not an onerous threshold": para. 43.
[33] The Crown is not required to prove that the ASD was in proper working order as a matter of fact. Rather, the issue is "whether, on an objective basis, the officer had reasonable grounds for believing that the approved screening device was in good working order": R. v. Topaltsis, [2006] O.J. No. 3181 (C.A.), at para. 9.
[34] Justice Hill summarized the issue as follows: "[a] peace officer with an ASD need only have a reasonable belief that the device is properly calibrated and in working order before relying on a Fail test result to confirm his or her suspicions that the motorist may be impaired or over the legal limit – the necessary grounds for an intoxilyzer demand": R. v. MacDonnell, [2004] O.J. No. 927 (S.C.J.), at para. 23. In that case, the arresting officer was in possession of an ASD that had been calibrated by a Qualified Technician earlier the same day. The arresting officer tested the device at the start of his shift and again before using it on the subject motorist and found it to be working properly. Those factors "reasonably permitted the officer to believe that device was set to perform the only function it has for being in a cruiser – screen out motorists or, in the case of a Fail test result, afford reasonable grounds for an intoxilyzer demand": para. 24.
[35] In Mr. Lefebvre's case, PC Kowalyk relied upon an accuracy check performed by a Qualified Technician earlier the same day. He knew that such checks were performed every second Friday, and believed that instruments which failed to pass the accuracy check would be removed from circulation. Therefore, the fact that this ASD was in circulation is an objective fact that supported his belief the device was in proper working order. His belief was bolstered by the fact that the accuracy of the device had been checked within the previous 14 days in accordance with OPP policy. I accept PC Kowalyk's evidence that he checked this date on the ASD prior to administering the test to Mr. Lefebvre, and I find his explanation for noting this fact on the dash pad without recording the date at that time to be credible. I also accept his evidence that he conducted a self-test of the device before using it on Mr. Lefebvre, and that the result of the self-test was accurate, another objective fact supporting his belief that the ASD was in proper working order.
[36] I am not troubled by the fact that PC Kowalyk did not take steps to ascertain and document details such as the name of the officer who conducted the accuracy check earlier that day, the name of the officer who conducted the last calibration check, or the manufacturer, lot number or expiry date of the alcohol standard solution. PC Kowalyk was entitled, in my view, to rely upon other officers to perform their duties properly and need not personally inform himself of the minutiae of those duties in order for his belief that they were carried out to be reasonable. He understood that other officers were trained and responsible for calibrating and checking the accuracy of the ASD's used by his detachment. He believed an accuracy check was done every 14 days. He confirmed that the ASD he used on Mr. Lefebvre was checked during the last 14 days, and confirmed its proper operation through a self-test. I can find no fault with his reliance upon this information collectively to conclude that the ASD was in proper working order.
[37] I am also not troubled by the fact that PC Kowalyk did not conduct the test inside his cruiser as recommended by TPS policy. There is no realistic suggestion that the ambient temperature was lower than -5 or higher than 50 degrees Celcius on June 13, 2014, or that the humidity was so extreme as to pose a realistic risk of interference with the proper working order of the device. There is also no realistic suggestion that the ASD was operated in proximity to a transmitting radio, a question which was never even asked of PC Kowalyk.
[38] It was argued that the fact that this ASD had not been calibrated in 66 days while the TPS policy calls for calibration every 31 days ought to undermine the reasonableness of PC Kowalyk's belief in the accuracy of this ASD. The TPS recommendations on this issue, however, are confusing. The document uses the terms "calibration" and "calibration check" interchangeably throughout. A reading of the entire document makes it clear that the TPS recommends following the manufacturer's instructions to calibrate the device every 6 months. Therefore, the only reasonable inference I can draw from reading this document in conjunction with the recommendations of the CFS and ATC is that the TPS recommends calibration checks, not recalibration, every 31 days. This is identical to what is recommended by the ATC.
[39] The OPP, however, appears to follow the more stringent recommendations of the CFS, which calls for an accuracy check to determine if the device has retained its calibration every 15 days. All three documents recommend calibration once every 6 months in accordance with manufacturer's recommendations, unless the device fails an accuracy or calibration check in the interim. Therefore, the fact that this ASD had not been calibrated for 66 days prior to use for Mr. Lefebvre does not undermine the reasonableness of PC Kowalyk's belief that the device was in proper working order. In fact, the OPP followed a more stringent procedure than that of the TPS with respect to checking the calibration of ASD's. PC Kowalyk followed his training to permit himself to form a belief that the device he used on Mr. Lefebvre was properly calibrated by confirming that the device had been calibrated within the last 6 months, and that the accuracy of the calibration had been confirmed within the past 14 days. He then performed a self-test to confirm that the device was in proper working order and that it properly analyzed a sample of his own breath. The conclusion he drew, that the device was in proper working order, was objectively reasonable.
[40] I have been asked to follow the decision in R. v. Kinnear, [2015] O.J. No. 2703, a decision of Justice Shamai of this Court. In that case, the arresting officer misidentified the device he used to perform the roadside screening test, and relied upon assurances from a fellow officer that the device was properly calibrated and in good working order. This fellow officer testified at a trial occurred three years after the arrest, apparently from memory having lost his notes, and claimed to recall details about the identity of the ASD and alcohol standard lot number which Justice Shamai clearly did not accept. For the reasons already given, in this case I am satisfied that PC Kowalyk used an approved instrument within the meaning of the Criminal Code, and that he took reasonable steps to ensure that the device he used to test Mr. Lefebvre was within the proper calibration range and was in proper working order. On the record before me, I find that PC Kowalyk was entitled to rely upon calibration and accuracy check records created by other police officers in the course of their duties.
[41] Further, it appears as though there was evidence before the court in Kinnear that the CFS recommended calibration of ASD's every two weeks, and that the device used by police had not been calibrated in 24 days. The officer who administered the roadside screening test in that case agreed that the CFS recommendations were authoritative. The failure of the police to adhere to the recommended scientific procedures that were led in evidence in that case was an important factor in Justice Shamai's conclusion that the arresting officer did not have objectively reasonable grounds to believe that the device he used was in proper working order.
[42] The evidentiary record before me in this case, however, is markedly different. I have been provided with recommendations from the Centre of Forensic Sciences, the Toronto Police Service and the Alcohol Test Committee concerning the maintenance of ASD's. All three bodies recommend following the manufacturer's recommendation that the Drager Alcotest 6810 be calibrated every 6 months. In Mr. Lefebvre's case, the Drager Alcotest 6810 used by PC Kowalyk was calibrated 66 days before. The CFS recommends conducting interim accuracy checks every 15 days between recalibration to ensure that the device is still calibrated within acceptable scientific limits, while both the TPS and ATC recommend doing so every 31 days. The policy of the police service employing PC Kowalyk was to conduct accuracy checks every 14 days, and in fact the very device used to test Mr. Lefebvre was tested within the previous 24 hours. In short, unlike the factual situation in Kinnear, I have an objective basis to believe that the ASD used by PC Kowalyk was properly calibrated and in proper working order at the time of Mr. Lefebvre's testing.
Conclusion
[43] The discrepancy in the date between the portions of the Intoxilyzer Test Record Card and the Certificate of a Qualified Technician is clearly the product of human error committed during data entry. A single digit was incorrectly entered, and this typographical error is inconsequential. I have no doubt based on all of the evidence that this incident occurred on June 13, 2014. The typographical error does not leave me in any doubt as to the accuracy of the contents of the Certificate of a Qualified Technician, and I rely on this document for proof of the truth of its contents.
[44] The Crown has discharged its onus by demonstrating that PC Kowalyk had objectively reasonable grounds to believe that the ASD used to administer a roadside screening test to Mr. Lefebvre was properly calibrated and in proper working order. There was no infringement of Mr. Lefebvre's section 8 Charter rights, and that application is dismissed.
[45] The Crown has otherwise proven all essential elements of the offence, and Mr. Lefebvre is found guilty of operating a motor vehicle while his blood alcohol concentration exceed 80 milligrams per 100 millilitres of blood, contrary to section 253(1)(b) of the Criminal Code.
Released: June 30, 2016
Signed: "Justice S. W. Konyer"