CITATION: R. v. Gundy, 2008 ONCA 284
DATE: 20080416
DOCKET: C47370
COURT OF APPEAL FOR ONTARIO
LASKIN, ROSENBERG and LAFORME JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
THUY GUNDY
Appellant
Richard Allman for the appellant
Colleen Hepburn for the respondent
Heard: February 1, 2008
On appeal from the decision of Justice Casimir N. Herold of the Superior Court of Justice, sitting as a summary appeal court judge, ordering a new trial dated January 25, 2007, on appeal from conviction by Justice June Maresca of the Ontario Court of Justice dated May 31, 2006
ROSENBERG J.A.:
[1] At the conclusion of oral argument in this case, the court indicated that the appeal was dismissed with reasons to follow. These are the reasons for dismissing the appeal.
[2] This appeal in a drinking and driving case involves two issues. First, should the trial judge have entertained a motion to exclude the evidence of the results of an Intoxilizer test in the absence of a timely objection to the admissibility of the evidence? Second, what must the Crown prove to show that the investigating officer made a valid Intoxilizer demand under s. 254(3) of the Criminal Code where the officer’s grounds for the demand depend upon the results of a test with an approved screening device?
HISTORY OF THE PROCEEDINGS
[3] The appellant was tried and convicted by Maresca J. on May 31, 2006 of “over 80” contrary to s. 253(b) of the Criminal Code. The appellant did not serve any notice prior to trial indicating that she intended to ask for relief under the Charter of Rights and Freedoms and did not give notice at the opening of trial of any such application.
[4] The appellant appealed her conviction to the Summary Conviction Appeal Court and on January 25, 2007, Herold J. allowed the appeal and ordered a new trial because the trial judge misapprehended evidence relating to the so-called Carter defence: see R. v. Carter (1985), 1985 168 (ON CA), 19 C.C.C. (3d) 174 (Ont. C.A.).[^1]
[5] The appellant then applied for leave to appeal to this court on the basis that the appeal judge erred in failing to enter an acquittal. The only issues on this appeal concern the submission that the appeal judge should have entered an acquittal. The Crown has not appealed from the order that there be a new trial.
THE FACTS
[6] It is only necessary to refer to the facts concerning the validity of the Intoxilizer demand. The facts relating to this issue were given by Provincial Constable Twilley. On April 1, 2005, Constable Twilley was stationed at a R.I.D.E. stop in Alton. At 9:15 p.m. she stopped a truck driven by the appellant. The appellant told the officer that she had had two glasses of wine, her eyes were bloodshot, she had difficulty finding her licence and smelled of alcohol. Accordingly, the officer made the following demand to the appellant:
I demand that you provide forthwith such a sample of your breath as I require for analysis by the approved screening device and that you accompany me for this purpose. [Emphasis added.]
[7] The officer testified that she did a “demo of the Alcotest” to show the appellant how it worked. The appellant blew into the device and registered a fail. The officer arrested the appellant for “over 80” and “read [her] a breath demand for the Intoxilizer”. At this point in the officer’s evidence an issue arose concerning the admissibility of statements that the appellant made to the officer. The trial judge stated that “even though no Charter application has been raised or made up until now, I certainly wouldn’t have a problem with one being made at that point in time”. Crown counsel then questioned the officer further about her grounds for making the Intoxilizer demand and especially in relation to the results of the approved screening device. The officer testified that as a result of the appellant registering a “fail” she formed an opinion that the appellant was impaired by alcohol. She then briefly described her training with the device, which she described as “the Alcotest”.
[8] Once back at the police detachment, the appellant spoke to a lawyer and then complied with the Intoxilizer demand. Without objection, Crown counsel filed the Certificate of a Qualified Technician showing the results of the Intoxilizer tests. It was marked as Exhibit 1 and shows the results of tests taken at 10:45 p.m. and 11:06 p.m.
[9] Defence counsel cross-examined Constable Twilley on her grounds for making the demand and the officer confirmed that her basis for the Intoxilizer demand depended on the results of the test with the “Alcotest”. The officer clarified that she had grounds for believing the appellant had committed the “over 80” offence, not impaired driving.
[10] Following Constable Twilley’s evidence, Crown counsel called the Intoxilizer operator. Constable Cormier testified without objection that Constable Twilley told her that she had conducted “a roadside test with the approved screening device which the accused registered a reading of fail on that approved screening device”. Constable Cormier also identified Exhibit 1. Defence counsel again raised no objection to the admissibility of the certificate or the officer’s references to the results of the test. As well, Crown counsel tendered through Constable Cormier two Subject Test Reports that are produced by the Intoxilizer and show the results of the tests. Defence counsel did not object to the admissibility of these reports, which were marked as Exhibits 2C and 2D.
[11] Crown counsel then sought to file an affidavit from a forensic toxicologist to the effect that based on the Intoxilizer results of 217 and 207 milligrams of alcohol in 100 millilitres of blood, the appellant’s ability to operate a motor vehicle would have been impaired by alcohol. There was a brief argument about the admissibility of this affidavit that turned on the technical requirements of s. 657.3 of the Criminal Code. The trial judge ruled that the affidavit was admissible. Crown counsel then closed her case. The defence offered no objection to the admissibility of the results of the Intoxilizer test.
[12] The defence called the appellant, her partner and an expert toxicologist. In the course of the expert’s evidence, defence counsel referred him to the results of the Intoxilizer test. At the conclusion of the defence case, the trial judge and counsel discussed an adjournment for argument. At that time, the only issue appeared to be the Carter defence.
SUBMISSIONS AT TRIAL
[13] The case resumed approximately one month later at which point, for the first time, the appellant’s counsel indicated that he was possibly raising a Charter argument concerning the admissibility of the Intoxilizer results. Crown counsel stated that she had received no notice of any Charter issue and that during the trial the only Charter issue that seemed to be raised concerned the admissibility of the appellant’s statements because of a possible violation of the appellant’s right to counsel. The trial judge ruled as follows:
[O]nce the evidence comes out if there is no Charter issue that arose, as far as defence was concerned, based upon the disclosure but once evidence was given at the trial that raises a Charter issue, I think it is only appropriate that the defence be allowed to argue that. Certainly counsel, having heard all of the evidence, counsel for the Crown having heard all of the evidence as it has come out in the same way the defence has, it is not prejudiced in any way by that argument being raised, so if there are Charter issues I will hear them. [Emphasis added.]
[14] Defence counsel then made submissions. First, he argued that the certificate was invalid because while the result of the first test was identified by the full date including the year, the second test did not include the year. Second, he argued that the Crown had failed to prove that the appellant was given a true copy of the certificate. He continued with various other technical arguments.
[15] Defence counsel then turned to the issue of “reasonable and probable grounds”. His argument here was that the officer did not have grounds to make the Intoxilizer demand because the Crown had not proved that the device used was an approved screening device. Counsel pointed out that Constable Twilley referred to the device as an “Alcotest”. Finally, counsel turned to the Carter defence issue.
THE TRIAL JUDGE’S REASONS
[16] The trial judge gave lengthy reasons addressing all of the issues raised. Her reasons on the issue of reasonable and probable grounds were as follows:
The fourth argument of the defence is that there were no reasonable and probable grounds for making a demand for a sample of Ms. Gundy’s breath, as there was no evidence that the roadside screen was conducted properly. The submission is that the evidence did not establish that an approved device was used to administer the screen. The case of R. v. Brown, [1998] O.J. 1431 (Ont. Gen. Div.) was cited in support of the proposition that absent reference to an approved screening device, or evidence naming a device which has been approved for use, the evidence of reasonable and probable grounds is not admissible.
In the Brown decision, the officer administering the screen testified that it was a “Dragar PA3”, which was not an approved device. In the case at bar, Officer Twilley referred to the device she used by name, an Alcotest. She also, in her evidence, indicated that she said to Ms. Gundy, “I demand that you provide forthwith such sample of your breath as I require for analysis by the approved screening device and that you accompany me for this purpose”, and that Ms. Gundy then did so. In addition, Officer Cormier testified that she received the grounds for the demand from Officer Twilley based upon Officer Twilley administering a screen with “an approved screening device”. Based upon that evidence, I am satisfied that an approved screening device was indeed used, and that there were proper grounds to make the demand for a sample of Ms. Gundy’s breath.
THE APPEAL JUDGE’S REASONS
[17] As I have indicated, the appellant appealed to the Summary Conviction Appeal Court. The appeal judge pointed out that Crown counsel had not had notice of the Charter issue and he said this:
The trial judge quite properly and fairly agreed to have counsel argue it and she dealt with it, but it does contextualize somewhat the type of evidence that may have been given in a more casual manner than might have been anticipated if the Charter issue was known to be a live issue.
[18] The appeal judge then went on to deal with the Alcotest issue and reasonable and probable grounds. He concluded that the evidence showed that an approved screening device was used and that there were proper grounds to make the Intoxilizer demand. He then dealt with the other ground of appeal and held that because the trial judge had misapprehended some of the defence evidence going to the Carter defence, there must be a new trial.
ANALYSIS
(1) Objections to the Admissibility of Evidence
[19] Defence counsel took no objection to the admissibility of the results of the Intoxilizer tests either when the certificate was tendered during the evidence of Constable Twilley or during the testimony of the Intoxilizer operator, Constable Cormier. He also did not object to Constable Cormier’s testimony about the results of the tests or the admissibility of the Subject Test Reports that also showed the results of the Intoxilizer tests. Further, no objection was taken to the admissibility of any of this evidence at the close of the Crown’s case. Finally, the defence expert referred to this evidence during his testimony. The first inkling that there was any concern about the admissibility of this part of the Crown’s case came a month later during submissions. In my view, the objections came too late.
[20] Over fifteen years ago, this court explained in clear terms that objection to the admissibility of evidence should be taken at the time the evidence is tendered. Finlayson J.A. said this in R. v. Kutynec (1992), 1992 12755 (ON CA), 70 C.C.C. (3d) 289 at 294-95:
Prior to the proclamation of the Charter, no one conversant with the rules controlling the conduct of criminal trials would have suggested that an objection to the admissibility of evidence tendered by the Crown could routinely be initiated after the case for the Crown was closed. It is self-evident that objections to admissibility of evidence must be made before or when the evidence is proffered. This common sense proposition is equally applicable to Charter applications to exclude evidence: R. v. Myers (1984), 1984 3004 (PE SCAD), 14 C.C.C. (3d) 82 at p. 91, 28 M.V.R. 144 (P.E.I.S.C. App. Div.); Tse, “Charter Remedies: Procedural Issues” (1989), 69 C.R. (3d) 129 at pp. 136-40.
Litigants, including the Crown, are entitled to know when they tender evidence whether the other side takes objection to the reception of that evidence. The orderly and fair operation of the criminal trial process requires that the Crown know before it completes its case whether the evidence it has tendered will be received and considered in determining the guilt of an accused. The ex post facto exclusion of evidence, during the trial, would render the trial process unwieldy at a minimum. In jury trials it could render the process inoperative. [Emphasis added.]
[21] More recently, also in the context of a drinking and driving case, the Saskatchewan Court of Appeal held that an objection to the admissibility of breath sample evidence must be taken when the evidence is tendered. Sherstobitoff J.A. said this in R. v. Enden (2007), 2007 SKCA 100, 52 M.V.R. (5th) 92 at para. 20:
It is trite law that an objection to the admissibility of evidence must be made when the evidence is tendered. See R. v. Pelletier (1995), 1995 3923 (SK CA), 97 C.C.C. (3d) 139, 128 Sask. R. 214 (Sask. C.A.) and R. v. Kutynec (1992), 1992 12755 (ON CA), 70 C.C.C. (3d) 289, 7 O.R. (3d) 277 (Ont. C.A.). To allow the delay [in the taking of breath samples] argument at the final argument stage of the trial would deprive the Crown of the opportunity to lead evidence relevant to the issue. It is further noted in this respect that the respondent did not cross-examine the Crown witnesses respecting delay, and did not take up the Crown on its offer to put the officer who accompanied the arresting officer on the stand for cross-examination. [Emphasis added.]
[22] In Kutynec at pp. 296-97, Finlayson J.A. went on to explain that a judge has a discretion to allow counsel to challenge evidence already received and “will do so where the interests of justice so warrant”. An example where the judge would exercise that discretion is if other evidence subsequently given puts into doubt the admissibility of evidence to which no objection was previously taken. However, that was not this case. Nothing happened after Constable Twilley identified the technician’s certificate and it became an exhibit to cast doubt on the admissibility of the Intoxilizer results. To the contrary, the case for admissibility of the evidence grew stronger during Constable Cormier’s evidence when she referred to the grounds upon which Constable Twilley made the demand and then Exhibits 2C and 2D were admitted without objection.
[23] In my view, the trial judge erred in permitting the defence to challenge the admissibility of the certificate and the results of the Intoxilizer test at the completion of the trial. Allowing the argument at that stage did not serve the interests of justice. I do not agree that the Crown was not prejudiced by the manner in which the challenge to the evidence unfolded. Had timely objection been taken, Crown counsel would have had the option of calling additional evidence. A month later, the case was closed and presumably the witnesses were gone. As it turned out, the trial judge dismissed the objection, but the Crown could have been unfairly prejudiced because of the defence’s failure to make a timely objection. These observations do not relate solely to the Charter issue but apply to all of the other objections to the admissibility of the Intoxilizer results that were taken by counsel for the first time at the end of the case.
[24] There is another problem with the procedure in this case. Rule 30 of the Rules of the Ontario Court of Justice in Criminal Proceedings, S.I./97-133, requires an accused to give notice of an application to exclude evidence under s. 24(2) of the Charter. That was not done in this case. The courts must be flexible in their application of Rule 30 and a trial judge will consider all the circumstances where an accused seeks to bring a Charter application in the middle of the trial: see the reasons of Hill J. in R. v. Tash, 2008 1541 (ON SC), [2008] O.J. No. 200 (S.C.J.) for an excellent review of the factors to be considered; see also R. v. Loveman (1992), 1992 2830 (ON CA), 71 C.C.C. (3d) 123 (Ont. C.A.). Further, there will be different considerations where the accused is unrepresented (see R. v. Tran (2001), 2001 5555 (ON CA), 156 C.C.C. (3d) 1 (Ont. C.A.)) or unforeseen events occur during the trial. However, the complete disregard of Rule 30 does not serve the interests of justice.
(2) The Reasonable and Probable Grounds Issue
(a) The Statutory Scheme
[25] This appellant was charged with the “over 80” offence. She was not charged with refusing to comply with either the approved screening device demand (s. 254(2)) or the Intoxilizer demand (s. 254(3)), and no objection was taken to the grounds for making the approved screening device demand under s. 254(2).
[26] The issue is whether the Crown was required to prove as part of its case on the “over 80” charge that Constable Twilley had reasonable and probable grounds to make the Intoxilizer demand. That issue turns on whether reasonable and probable grounds are a pre-requisite to admission of the Intoxilizer results, either by certificate (s. 258(1)(g)) or through viva voce evidence, or to the Crown being able to rely on the presumption that evidence of the results of the analysis is proof of the concentration of alcohol in the blood of the accused (s. 258(1)(c)).
[27] The argument that admissibility of the certificate requires proof of reasonable and probable grounds turns on the opening words of s. 258(1)(g): “where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3)”. The argument is that “demand” must mean a valid demand and a valid demand is one made where, in the words of s. 254(3), the peace officer “believes on reasonable and probable grounds that a person is committing, or at any time within the preceding three hours has committed, as a result of the consumption of alcohol, an offence under section 253” of impaired operation or “over 80”.
[28] However, the pre-Charter case of R. v. Rilling (1975), 1975 159 (SCC), 24 C.C.C. (2d) 81 (S.C.C.), stands for the proposition that absence of reasonable and probable grounds does not affect the admissibility of the certificate. Judson J. speaking for the majority of the court held as follows at p. 83:
It is my opinion that this Court should… hold that while absence of reasonable and probable grounds for belief of impairment may afford a defence to a charge of refusal to submit to a breathalyzer test laid under s. 235(2) [now s. 254(5)] of the Criminal Code, it does not render inadmissible certificate evidence in the case of a charge under s. 236 [now s. 253(b)] of the Criminal Code. The motive which actuates a peace officer in making a demand under s. 235(1) [now s. 254(3)] is not a relevant consideration when the demand has been acceded to.
[29] The argument relating to the s. 258(1)(c) presumption runs along similar lines since the opening words are virtually identical: “where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3)”. It would seem to me that Rilling is a complete answer to that argument as well: see R. v. Anderson, [2005] O.J. No. 1900 (C.A.). In fact, in his dissent in Rilling, Spence J. drew no distinction between the admissibility of the certificate or the operation of the presumption, writing that proof of reasonable and probable grounds was a condition precedent with respect to both. He said this at p. 91:
I am of the opinion that the requirement in both s. 237(1)(c) [now s. 258(1)(c)] and (f) [now s. 258(1)(g)] that the test should have been made pursuant to the demand under s. 235(1) was inserted by Parliament with the intention of limiting those cases where the analysis could be proved by a certificate of a qualified technician and then that such analysis would provide prima facie proof of the proportion of alcohol in the blood of the accused only to those cases where the peace officer had, on reasonable and probable grounds, believed that the accused was or had been driving while impaired. This was only a proper requirement when the test was one which the citizen was required to submit to on penalty of committing an offence if he refused.
(b) The Impact of the Charter
[30] Logically, the advent of the Charter of Rights and Freedoms should have an impact on Rilling. Again, the argument is straightforward. The taking of breath samples is a warrantless seizure. A minimum constitutional requirement for a valid seizure within the meaning of s. 8 of the Charter is that the seizure was authorized by law: R. v. Collins (1987), 1987 84 (SCC), 33 C.C.C. (3d) 1 (S.C.C.) at 14. A lawful seizure of breath samples requires that the officer had reasonable and probable grounds to believe that the motorist committed an offence under s. 253. Accordingly, if a police officer took breath samples from a motorist in circumstances where the officer did not have reasonable and probable grounds, the seizure would be unlawful and violate s. 8 of the Charter and the evidence obtained would potentially be inadmissible under s. 24(2). This was the holding of Cory J. in R. v. Bernshaw (1995), 1995 150 (SCC), 95 C.C.C. (3d) 193 (S.C.C.).
[31] The principal issue in Bernshaw turned on the validity of the approved screening device demand and whether the police officer should have waited fifteen minutes before taking the sample to ensure the motorist did not have any alcohol in his mouth. Three sets of reasons for judgment were delivered but only Cory J., speaking for himself, Lamer C.J.C. and Iacobucci J. dealt with the Rilling issue. He held that Rilling is still good law and that absent a Charter challenge to the admissibility of the results, the prosecution need not establish that the officer had reasonable and probable grounds. He wrote as follows at paras. 40-41:
The British Columbia Court of Appeal, in this case, held that Rilling was no longer good law since it was decided prior to the Charter.
In my view, the Court of Appeal erred in taking this position. Certainly, the Charter is relevant. An accused may be able to establish on the balance of probabilities that the taking of breath samples infringed his Charter rights. For example, it might be contended that the requisite reasonable and probable grounds for making the breathalyzer demand were absent, and that, in the circumstances, the admission of those breathalyzer results would bring the administration of justice into disrepute. In those circumstances, the breathalyzer evidence might well not be accepted. Yet, where an accused complies with the breathalyzer demand, the Crown need not prove as part of its case that it had reasonable and probable grounds to make that demand. Rather, I think, the onus rests upon the accused to establish on the balance of probabilities that there has been a Charter breach and that, under s. 24(2), the evidence should be excluded. There should not be an automatic exclusion of the breathalyzer test results.
[32] Thus, Cory J. concluded that the results could be inadmissible if the accused can establish that the taking of breath samples violated his Charter right and their admission would bring the administration of justice into disrepute under s. 24(2).
[33] Neither Sopinka J. speaking for four judges nor L’Heureux-Dubé J. speaking for two judges considered the Rilling issue. However, Sopinka J. held at para. 51: “The requirement in s. 254(3) that reasonable and probable grounds exist is not only a statutory but a constitutional requirement as a precondition to a lawful search and seizure under s. 8 of the Canadian Charter of Rights and Freedoms.” L’Heureux-Dubé J. said much the same thing, although she took a slightly different approach to the meaning of reasonable and probable grounds in the breathalyzer context.
[34] The next case from the Supreme Court of Canada bearing on this issue is R. v. Woods (2005), 2005 SCC 42, 197 C.C.C. (3d) 353. Like Bernshaw, Woods was a case engaging the validity of the approved screening device demand as the basis for reasonable and probable grounds to make the breathalyzer demand. The court held that a refusal to comply with the approved screening device demand could not be the basis for reasonable and probable grounds to make a breath demand. The court also held that a fail in response to a demand made over an hour later at the police station could not be the basis for reasonable and probable grounds because such a demand is illegal, not being a demand to provide samples “forthwith” as required by s. 254(2). Unfortunately, the court made no reference to the basis for excluding the breathalyzer results, nor did the court discuss Rilling or Bernshaw in relation to the reasonable and probable grounds issue. Fish J. speaking for the court said this at para. 47:
It is common ground that the results of the ASD test and of the subsequent breathalyzer test were inadmissible against the respondent if the initial breath sample provided by him was neither voluntary nor obtained under the statutory authority of s. 254(2) of the Criminal Code.
[35] I find it difficult to believe that the Supreme Court of Canada intended to overrule Rilling without referring to it. In my view, although it is troubling that there is no reference to the Charter in the reasons for judgment, the more reasonable explanation is that the court found that the accused’s Charter rights were infringed and excluded the evidence on that basis albeit without going through the full Charter analysis. Also see R. v. Bilokvely, [2007] O.J. No. 5131 (C.J.) at para. 24. I find some support for this view from the reasons of the Manitoba Court of Appeal in Woods reported at (2004), 2004 MBCA 46, 185 C.C.C. (3d) 70. Speaking for the court, Philp J.A. held at para. 31 that the actions of the police in taking breath samples for the approved screening device test at the police station without consent or statutory authority and the subsequent admission of evidence of the breathalyzer samples “resulted in an unfair trial” and a denial of “fundamental justice”. It seems to me that this is Charter language and other portions of the reasons show that the case was fought on the basis of a Charter challenge to the admissibility of the breathalyzer results.
[36] This court and other appellate courts have considered the s. 8 issue in relation to drinking and driving cases. In R. v. Haas (2005), 2005 26440 (ON CA), 200 C.C.C. (3d) 81 (Ont. C.A.), Goudge J.A. considered Bernshaw and Woods and held that where the accused challenges the admissibility of breath samples on the basis of a violation of s. 8 because of the lack of reasonable and probable grounds, the burden is on the Crown to establish reasonable and probable grounds. Goudge J.A. reached this conclusion on the basis that a breathalyzer demand results in a warrantless seizure. In accordance with R. v. Collins and R. v. Wills (1992), 1992 2780 (ON CA), 70 C.C.C. (3d) 529 (Ont. C.A.), the burden shifts to the Crown to show that a warrantless seizure is reasonable. I point out that in Haas, the accused had clearly brought an application under the Charter and it was in that context that the court held the Crown must establish reasonable and probable grounds for the demand. As Goudge J.A. said at para. 36:
If the Crown is faced with a s. 8 Charter challenge, it is reasonable to require the Crown to call as evidence to resist that challenge the very evidence it would call at trial, particularly if that evidence can be called only once in a proceeding blending the trial and s. 8 voir dire. [Emphasis added.]
[37] The New Brunswick Court of Appeal has reached a similar conclusion in R. v. Arsenault (2005), 2005 NBCA 110, 204 C.C.C. (3d) 75[^2] and R. v. Saulnier (2006), 2006 NBCA 4, 205 C.C.C. (3d) 245. For example, in the former at para. 33:
Considering that the presence of reasonable and probable grounds is both a statutory and constitutional pre-condition for a lawful breathalyzer demand, my view is that when an accused properly challenges the admissibility of breathalyzer results by reason of the absence of an honest belief to make the breathalyzer demand, Rilling loses its significance and, if a violation of a Charter right is found, the matter must be disposed of on the basis of a s. 24(2) analysis. [Emphasis added.]
[38] In R. v. Dwernychuk (1992), 1992 ABCA 316, 77 C.C.C. (3d) 385 (Alta. C.A.) the court held that Rilling was still the law even in the face of a Charter challenge to the admissibility of the breathalyzer results on the basis of a lack of reasonable and probable grounds. Dwernychuk was decided before Bernshaw and, in my view, likely cannot stand in the face of the reasons of all members of the Supreme Court of Canada that reasonable and probable grounds is a constitutional requirement and not just a statutory requirement for a breath demand under s. 245(3). This seems to be the view taken by trial courts in Alberta: see e.g. R. v. Billing (1995), 1995 18042 (AB QB), 177 A.R. 8 (Q.B.); R. v. Rhyason (2005), 2005 ABQB 988, 27 M.V.R. (5th) 262 (Alta. Q.B.); R. v. Nelson, [2006] A.J. No. 467 (Q.B.). In this last case Watson J. disagreed with Haas and held at para. 20 that the burden was on the accused to establish the absence of reasonable and probable grounds.
[39] Finally, there is the decision of the New Brunswick Court of Appeal in R. v. Searle (2006), 2006 NBCA 118, 215 C.C.C. (3d) 374. In Searle, the accused did not seek to exclude the breath test results and made no Charter argument. Rather, he argued that the Crown could not rely on the presumption in s. 258(1)(c). The accused argued that because the officer did not have reasonable and probable grounds to make the demand, the demand was improper and therefore the presumption was not triggered. Larlee J.A. speaking for the court at para. 25 agreed:
Since the demand was not made in strict compliance with s. 254(3) of the Code, it is unlawful. The Crown cannot rely on the presumption found in s. 258(1)(c) unless the officer had reasonable and probable grounds to make the breathalyzer demand in the first place.
[40] The Searle issue does not arise in this case. The appellant did not contend here or at trial or at the Summary Conviction Appeal Court that if there were no reasonable and probable grounds the Crown could not rely on the presumption. I should therefore not be taken as having decided that issue. I point out, however, that when the matter is before the court for decision, the effect of Rilling will have to be considered.
(3) Reasonable and Probable Grounds and the Approved Screening Device
[41] The leading judgment on the question of reasonable and probable grounds to make an Intoxilizer demand where the officer relies upon the results from an approved screening device is that of Sopinka J. in Bernshaw. In that case, Sopinka J. pointed out that while the issue is the officer’s belief, that belief has a subjective and objective component. As he said at para. 48: “s. 254(3) of the Code requires that the police officer subjectively have an honest belief that the suspect has committed the offence and, objectively, there must exist reasonable grounds for this belief”. Sopinka J. held that where the officer is aware that the results of the approved screening device are unreliable because of the circumstances in which the test was administered, then the officer cannot have the requisite subjective belief. However, he also held at para. 80: “Where the particular screening device used has been approved under the statutory scheme, the officer is entitled to rely on its accuracy unless there is credible evidence to the contrary.”
[42] The focus of Sopinka J.’s reasons is almost entirely on the subjective component of reasonable and probable grounds. The earlier decision in R. v. Storrey (1990), 1990 125 (SCC), 53 C.C.C. (3d) 316 (S.C.C.) dealing with the arrest power assists in understanding the objective component of reasonable and probable grounds. There at p. 324, Cory J. held as follows:
It is not sufficient for the police officer to personally believe that he or she has reasonable and probable grounds to make an arrest. Rather, it must be objectively established that those reasonable and probable grounds did in fact exist. That is to say a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest [citations omitted]. [Emphasis added.]
[43] Note that it is the reasonable and probable grounds that must be shown to exist. It may turn out that, in fact, the motorist’s ability to drive was not impaired or that the motorist’s blood alcohol level did not exceed the legal limit. The question is whether a reasonable person with the same information as the officer would have concluded that there were reasonable and probable grounds to believe an offence had been committed. Thus, if the device used by the officer was not in fact an approved screening device, the objective component may or may not be made out; it depends upon whether the officer could reasonably believe that the device he or she was using was an approved device. I turn then to the issue of what kind of evidence is required to show that an approved screening device was used.
(4) Identification of the Approved Screening Device
[44] In determining whether the particular device was approved, the court must consider all the evidence, including any circumstantial evidence. The court is entitled to draw reasonable inferences from the evidence. Thus, in my view, if the officer in his or her testimony refers to the device as an “approved screening device”, the trial judge is entitled to infer that the device was indeed an approved device. As such, the officer is entitled to rely upon the “fail” recorded by the device to find that there were reasonable and probable grounds to make the breath demand.
[45] The officer is not required to refer to the device by its particular brand and number such as “Alcotest 7410 GLC”. Further, references to a part only of the identification such as “Alcotest” or “Alcotest GLC” do not rebut the reasonable inference from the officer’s reference to the device as approved that it is indeed an approved screening device. The addition of the manufacturer’s name, for example “Drager Alcotest 7410 GLC”, is likewise not fatal: see R. v. Neziol (2001), 22 M.V.R. (4th) 299 (Ont. S.C.J.). Further, in my view, the context in which the officer refers to the device as approved is of no particular moment. Thus, if the officer testifies that he or she used an approved screening device, or agrees with the suggestion that it is an approved screening device, such testimony is direct evidence upon which the trial judge can rely: see e.g. R. v. Latulippe (2005), 26 M.V.R. (5th) 97 (Ont. S.C.J.).
[46] Where, as here, the officer states that she made a demand that the motorist provide a sample for analysis by the approved screening device, surely the trier of fact can reasonably infer that the officer used an approved device. That was the holding of the trial judge in this case and I agree with that decision. As Langdon J. said in R. v. James, [1995] O.J. No. 190 (Gen. Div.) at para. 5, “what is the likelihood that the O.P.P. would supply its constables with an unapproved device with which to enforce the R.I.D.E. programme?”
[47] In my view, cases holding that the officer did not have reasonable and probable grounds because, although the officer referred to the device as an approved screening device, he or she used a shorthand reference to the device or transposed some of the numbers or letters are wrongly decided. In the absence of some credible evidence to the contrary, it is not reasonable to infer that an officer who says that he or she used an approved screening device actually used an unapproved device. That was the holding of this court in R. v. Kosa (1992), 42 M.V.R. (2d) 290 at 291:
We are of the view that the manufacturer's model number given by the officer in evidence as Model JA3 rather than Model J3A as set forth in the regulations was no more than an innocent transposition of a number and letter and that the unchallenged assertion by the officer that it was an approved screening device is sufficient proof thereof. If such is the case, there is no need to look further to justify the finding of reasonable and probable grounds. [Emphasis added.]
[48] Of course the question of whether the officer had reasonable and probable grounds depends on the circumstances of each case. My only point here is that the trial judge is not confined to direct evidence and is entitled to and should draw reasonable inferences from the proven facts.
[49] Finally, even if the Crown is unable to establish that the officer had the requisite reasonable and probable grounds and thus the accused has shown a violation of his or her s. 8 rights, exclusion of the results of the Intoxilizer is not automatic. The accused must still establish that admission of the evidence would bring the administration of justice into disrepute under s. 24(2) of the Charter: R. v. Lotozky (2006), 2006 21041 (ON CA), 210 C.C.C. (3d) 509 (Ont. C.A.).
[50] To summarize, on a charge of “over 80” or impaired driving, where an issue arises as to the admissibility of the results of the Intoxilizer/Breathalyzer analysis, the trial court should proceed as follows:
Generally
If the accused does not challenge the admissibility of the results of the Intoxilizer/Breathalyzer analysis on the basis that the accused’s rights under the Charter were violated, the Crown is not required to establish that the officer had reasonable and probable grounds to make the s. 254(3) demand.
Any objection to the admissibility of the results of the analysis should ordinarily be made, at the latest, when the Crown tenders the evidence either through a certificate under s. 258(1)(g) or by way of oral testimony.
Where the accused intends to object to the admissibility of the results of the analysis on the basis of a violation of the Charter, the accused should comply with Rule 30 of the Rules of the Ontario Court of Justice in Criminal Proceedings, although a trial judge has a discretion to dispense with notice in a proper case.
Charter challenge because of lack of reasonable and probable grounds
Where the accused objects to the admissibility of the results of the analysis pursuant to ss. 8 and 24(2) of the Charter that the officer lacked reasonable and probable grounds to make the demand, the burden is on the Crown to establish the requisite grounds.
Reasonable and probable grounds involve an objective and subjective test. Where the grounds depend upon a “fail” from an approved screening device, the Crown must prove that the officer reasonably believed that he or she was using an approved device.
In the absence of credible evidence to the contrary, the officer’s testimony that he or she made a demand with an approved screening device is sufficient evidence that the officer had the requisite reasonable belief. The officer is not required to give the particular model number or otherwise identify the device. Obvious errors such as incomplete reference to the model number do not undermine the officer’s testimony that the device was an approved screening device.
Where the officer did not have the requisite reasonable and probable grounds, the warrantless seizure of breath samples for analysis in an Intoxilizer or breathalyzer is an unreasonable seizure within the meaning of s. 8 and the results may be excluded under s. 24(2) of the Charter.
(5) Application to this Case
[51] In light of the above, it will be apparent that I agree with the trial judge and the appeal judge that the Crown established that the officer used an approved screening device. The officer’s reference to an “Alcotest” did not undermine her direct evidence that she used an approved screening device. She therefore had reasonable and probable grounds to make the Intoxilizer demand and there was no violation of s. 8 of the Charter.
DISPOSITION
[52] Accordingly, while I would grant leave to appeal, I would dismiss the appeal.
Signed: “M. Rosenberg J.A.”
“I agree J. Laskin J.A.
“I agree H. S. LaForme J.A.
RELEASED:”JL” April 16, 2008
[^1]: This “defence” is an attempt to rebut the presumption of identity in s. 258(1)(c) and (d.1) of the Criminal Code that the blood alcohol level at the time of the tests was the same as at the time of the offence. The accused offers expert evidence to show that based on the amount of alcohol consumed the blood alcohol level would not have exceeded .08.
[^2]: The New Brunswick Court of Appeal went on to hold that the officer did not have reasonable and probable grounds, taking a strict view of the need to identify with some exactitude the device used.