Court Information

Court File No.: Toronto

Date: 2012-10-02

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Henry Brian Romero

Before: Justice Sheila Ray

Heard on: February 21, May 17, and August 8, 2012

Reasons for Judgment released on: October 2, 2012

Location: Old City Hall, Toronto

Counsel:

• M. Mackett, for the Crown
• J. Mass, for the accused Henry Brian Romero

Reasons for Judgment

Ray J.:

Introduction

[1] Henry Brian Romero is accused of driving while the quantity of alcohol in his blood exceeded the legal limit on March 31, 2011. He says that his rights protected by sections 8, 9, 10(a), and 10(b) of the Charter have been violated, and that evidence of breath test results should be excluded pursuant to s. 24(2). The Defence contends that the arresting officer did not read the roadside screening demand to Mr. Romero immediately upon forming a reasonable suspicion that there was alcohol in his body as required by s. 254(2)(b) of the Criminal Code. He did not advise the Defendant that he was being investigated for a drinking and driving offence, and that a roadside screening device was on the way. He failed to turn his mind at the roadside to the possibility of residual mouth alcohol, the issue of calibration, and any reasonable opportunity to consult counsel. As a result, the roadside screening demand was unlawful, and the "fail" result on the roadside screening test did not provide the requisite reasonable and probable grounds to make the subsequent breath demand pursuant to s. 254(3)(a)(i).

[2] The Crown denies that the rights of the Defendant were infringed. The Crown submits that the police had ample grounds to believe that the Defendant was the driver, that he had been consuming alcohol prior to operating the vehicle, and that he had alcohol in his body at the time of driving. The police are not required to make a demand the instant that a suspicion is formed. If there were technical violations of Mr. Romero's rights, he has not met the burden of showing that, having regard to all the circumstances, they justify exclusion of the breath test results.

"Forthwith" Requirement

[3] Section 254(2) of the Criminal Code provides that:

Where a peace officer has reasonable grounds to suspect that a person has alcohol…in their body and that the person has, within the preceding three hours, operated a motor vehicle…the peace officer may, by demand, require the person…to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

[4] As Laforme J.A. points out at paragraph 25 of R. v. Quansah, 2012 ONCA 123, "Section 254(2) does not explicitly require that the police officer's demand be made 'forthwith,' rather; it only specifically requires that the motorist provide a breath sample 'forthwith.'" Citing Arbour J.A. in R. v. Dewald (1994), 19 O.R. (3d) 704 (C.A.), he notes the case held that, "it is implicit that the demand must be made by the police officer as soon as he or she forms the reasonable suspicion that the driver has alcohol in his or her body." At para. 44 in R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205, Fish J. explains that the "forthwith" requirement connotes "a prompt demand by a peace officer and an immediate response by the person to whom that demand is addressed." The recent amendments to the section do not in my opinion affect these particular observations.

[5] The precise meaning of the word "forthwith" has been the subject of considerable legal debate, one of the first significant cases being R. v. Grant, [1991] 2 S.C.R. 139. The Crown submits, quite rightly in my opinion, that "forthwith" does not mean instant. The roadside screening demand does not have to be made at the very instant that the officer reasonably suspects alcohol to be present in a driver's body. The Oxford Dictionary defines "forthwith" as "immediate and without delay." The immediacy requirement of the word as used in section 254(2) has been recognized by jurists, but this is subject to the context in which the word is used. The section also mandates that "a proper analysis" be made, and therefore, there is an accuracy requirement that tempers the interpretation of the immediacy requirement. Quansah, para. 28. Dewald, para. 21. Laforme J.A. lends helpful perspective to the debate over the meaning of "forthwith" at para. 52 of Quansah, where he observes:

In my respectful opinion, articulation of the precise linguistic equivalent for "forthwith" is less important than a careful consideration of all the circumstances of the particular case. The legal context for this consideration is the objective that "forthwith" sets out, namely a prompt demand and an immediate response, ultimately taking no more than the time reasonably necessary for the prompt performance of the steps contemplated by s. 254(2).

[6] With reference to the "principled approach" of the Supreme Court of Canada in Woods, Laforme J.A. concludes at para. 45 and following that the immediacy requirement in s. 254(2) necessitates consideration of five things:

First, the analysis of the forthwith or immediacy requirement in s. 254(2) must always be done contextually. Courts must bear in mind Parliament's intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.

Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body. The immediacy requirement, therefore, commences at the stage of reasonable suspicion.

Third, "forthwith" connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible interpretation may be given. In the end, the time from the formation of reasonable suspicion to the making of the demand to the detainee's response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2).

Fourth, the immediacy requirement must take into account all the circumstances. These may include a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay in needed to ensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns. These are examples of delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty. Any delay not so justified exceeds the immediacy requirement.

Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee's s. 10(b) rights before requiring the sample. If so, the "forthwith" criterion is not met.

Application to this case

[7] No defence evidence was called in this case. The Crown's evidence was relied upon by the Defence to support its Charter application, and it is unimpeached and uncontradicted.

[8] At 03:27 on March 31, 2011, the arresting officer, Gerald Uchman, was performing routine enforcement on the Gardiner Expressway (emphasis mine), Toronto, when he observed a Honda Civic straddling two lanes and the shoulder of the expressway. He saw a man getting out of his vehicle and spitting on the ground. Uchman used the words "spitting" and "vomiting" interchangeably and sometimes together throughout his testimony. He radioed in a hazard. He took three minutes to turn his vehicle around and drive to the location of the Honda Civic, so he could speak to the man he had initially observed. As he was speaking to him, he observed the front passenger vomiting on the pavement. She was inside the car and he could see the pool of vomit right by the front passenger door. He also walked to the front of the vehicle where he initially observed a man vomiting, and satisfied himself that there was vomit on the ground. While inspecting this vomit, he observed a rear passenger exiting the car. She appeared to him to be going to the bathroom on the railway tracks and then running back to the car, entering through the rear passenger side door. The motor vehicle had three occupants. He saw a male standing at the side of the vehicle, a female passenger, who vomited and then passed out in the front passenger seat, and the female passenger from the back seat, who had gone to the bathroom on the railroad tracks and returned.

[9] After the male stated that he was the driver, admitted that he had been drinking, and Uchman detected the odour of an alcoholic beverage on his breath, plus observed that he was uneasy on his feet, he made a roadside screening demand. The demand was made at 03:43. At 03:46 a sample of breath was provided. He registered a fail, was placed under arrest for driving while the quantity of alcohol in his breath was over the legal limit, was read his rights to counsel, and cautioned. At 03:50 the Defendant advised that he was in the best condition of the three and elected to drive the vehicle belonging to the front seat passenger. A voir dire was conducted into the voluntariness of this statement, and I am satisfied that the Crown has shown beyond a reasonable doubt that the statement was voluntary. The voluntariness of this statement following arrest was not rigorously contested.

[10] On cross examination, Uchman agreed that he formed his suspicion by 03:31. He also agreed that he did not note when he called for a roadside screening device to be brought to the scene, but it was probably right away. It was suggested to Uchman that he had no idea when the machine would arrive. He qualified his agreement to that suggestion by explaining that because this is a time sensitive matter, he would have expected to receive a message back if any delay was expected. He did not get any such message, and the device showed up just before 03:44, which is when the demand was made. So the unit arrived within 15 minutes from the time he arrived on scene, which was 03:30. Uchman agreed that the Defendant was detained from 03:31, when he formed the suspicion, until the demand was made at 03:43, some 12 minutes. He was not free to leave. He was not told why he was detained. He was not read the demand. He was not given his rights to counsel. Uchman did not turn his mind to whether there was a reasonable opportunity to consult counsel, while waiting for the machine.

[11] In answer to pointed questions regarding what he was doing for the 12 minutes between 03:31 and 03:43, Uchman explained that he had a number of responsibilities during that time period. There were safety concerns, a parked vehicle straddling a lane, a person on live railway tracks subsequently running back to the car, a passenger in a semi-conscious state in the front passenger seat, and he also needed to verify his observations including where the two pools of vomit were. He was trying to get as much information as possible including who the driver was, who he was with, why he chose to drive, who the registered owner of the vehicle was, and how much the driver had consumed. He wasn't only investigating a drinking and driving matter, he was attending to safety issues. There was also the conversation with the driver, which also took time. In cross examination Uchman clarified that he had a suspicion by 03:31, but he was still clarifying his observations. He didn't really have a reasonable suspicion until 03:33. Uchman agreed on cross examination that he normally makes the roadside screening demand immediately upon forming a suspicion, and that he did not do that this time.

[12] Ali Rasheed, the officer who delivered the machine to the scene testified that he arrived at 03:40, but he said he received the call requesting the device at 03:27. This is not consistent with Uchman's testimony that he called for the device after 03:31. Uchman's evidence that the device arrived before 03:43, which is when he made the demand, is not inconsistent with Rasheed's evidence that the device arrived at 03:40. Uchman and Rasheed are only minutes apart in their evidence as to the timing of calls and arrival of the machine. It is a hallmark of truth that their evidence does not dovetail exactly on the times. It also shows that they have not colluded. A reasonable explanation for the minutes of difference in their testimony as to timing is that it is not unusual for watches to be a few minutes apart. If I rely on Rasheed's recollection of times, it was 13 minutes from receipt of call to delivery of device. If I rely on Uchman, it was 13 minutes from arrival on scene to breath demand. By both accounts it would have taken more than 10 and less than 15 minutes for the device to be brought to the scene. Uchman assumed the device would get to the scene without delay. Rasheed testified that he accepted the request, and brought the device to the scene as soon as he completed another matter he was investigating.

[13] The facts in this case are unusual. The investigating officer was not only investigating a drinking and driving matter. He had other responsibilities. At the same time as investigating the drinking and driving matter, he had to deal with health and safety issues. A car was parked on the Gardiner Expressway (emphasis mine) in a manner that straddled two lanes. It was a hazard, and Uchman reported it as such. People were throwing up. This could be a sign of impairment, or they could be ill. Someone was urinating on live railway lines. In addition to investigating a potential drinking and driving case, Uchman had responsibilities to ensure the safety of users of the road and the railway. He had responsibilities to verify whether the driver and passengers needed medical help, especially the one who was semi-conscious. He had to find out more than the usual amount of information than arresting officers would need in a more run of the mill case, where the facts are unremarkable. There were options that had to be considered. It was not obvious from the minute Uchman arrived that this was a drinking and driving matter. There were other options to be considered. There were safety issues. Uchman proceeded with caution, and this was entirely appropriate.

[14] Uchman's best recollection of when he formed his reasonable suspicion that there was alcohol in the Defendant's body was 03:33. He remembers making the demand at 03:43. This amounts to ten minutes. (If I rely on Rasheed's evidence, it was 13 minutes from the time the call was received until the device arrived. The three minutes difference does not significantly affect my analysis of the time lines in this case.) If the law required that the demand be made instantly, it should have been made at 03:33. In a normal over 80 case with unremarkable facts, I would expect either an immediate demand to have been made by 03:34 or 03:35, or for the driver to have been informed in some general way of the reason for his detention. But as Laforme J.A. points out above, the "forthwith" requirement of immediacy must be viewed contextually. The context here is that Uchman had to ensure the safety of the driving public, who were using the Gardiner Expressway (emphasis mine), while a car creating a hazard was parked on it. An occupant of the vehicle was urinating on a live railway, potentially at risk for serious injury or even death, and creating a hazard to potential oncoming trains. Uchman had to investigate why two of the three vehicle occupants were vomiting, and one of them was in a semi-conscious state. He had to assess whether they required medical attention.

[15] Any balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights must take into account simultaneous police responsibilities that form part of the context in a given situation. The requirement here to ensure that the occupants of the vehicle were not struck by passing cars or a train, that passing vehicles did not strike the parked car creating a hazard, and that a train's passengers or employees were not endangered tempers the immediacy of the "forthwith" requirement in this unusual case. The ten minute delay was necessary in order for the officer to properly perform his multiple tasks. He would not have properly performed his tasks had he not addressed a potentially life threatening situation on the highway in his haste to read the breath demand. Furthermore, in order to properly perform his task pursuant to s. 254(2), he would have to take the time to make the necessary additional inquiries of the driver not required in typical over 80 cases. It is commendable that he took the time to be cautious rather than jump to instant conclusions.

[16] This is a case where the breath tests could not immediately be performed because an ASD was not immediately available, and had to be brought to the scene. Uchman did not know how long it would take for the device to arrive, but he was not expecting a delay. The device arrived within the time he expected. Uchman did not turn his mind to whether or not there was a reasonable opportunity to consult counsel, but the ten to thirteen minutes involved would not have been enough for him to have realistically fulfilled his obligation to implement a detainee's s. 10(b) rights given the safety context in this case. The drinking and driving investigation was not the only thing on his mind, and quite rightly so. He had to address his attention to the safety issues and the health concerns. This is not a case where the police were ignorant of the "forthwith" requirement or deliberately ignored it. Uchman testified that he normally does not wait before he reads the roadside screening demand. He usually does it right away. This case had an unusual context.

[17] I am satisfied that in the unusual context of this case, the "forthwith" requirement was complied with.

Residual Mouth Alcohol

[18] The issue of residual mouth alcohol emanates from the "forthwith" requirement in s. 254(2). As mentioned above, the immediacy requirement is tempered by an accuracy requirement. This was explained by Arbour J.A. in Dewald, p. 169:

In my view, a police officer cannot delay the taking of a breath sample, when acting pursuant to s. 254(2) of the Criminal Code unless he or she is of the opinion that a breath sample provided immediately will not allow for a proper analysis of the breath to be made by an approved screening device. The officer is not required to take a sample that she or he believes is not suitable for a proper analysis. The expression "proper analysis" incorporates an element of accuracy…If there are facts which cause the officer to form the opinion that a short delay is required in order to obtain an accurate result; I think that the officer is acting within the scope of the section in delaying the taking of the breath sample.

[19] The approach in Dewald with respect to residual mouth alcohol was further explained by Sopinka J. in R. v. Bernshaw, [1995] 1 S.C.R. 254. The result of Dewald and Bernshaw is that where it is known that a suspect has consumed alcohol within the past 15 minutes, and that a subsequent screening test would be unreliable due to the presence of mouth alcohol, it may be reasonable for an officer to decide that the sample would not provide for a "proper analysis" of breath, and depending on all of the circumstances, it may be appropriate to delay the sample. In these circumstances, unless the sample is delayed, it may not be possible to have subjective and objective reasonable and probable grounds on which to base an arrest as propounded in R. v. Storrey, [1990] 1 S.C.R. 241.

[20] In Bernshaw it was not know when the suspect had his last drink. It was therefore only "speculative" that the test result could be unreliable. In the case of R. v. Einarson (2004), 70 O.R. (3d) 286 (Ont. C.A.), there was evidence that the suspect had just left a bar. The court said that this evidence was relevant, but the mere possibility that a driver has consumed alcohol within 15 minutes before taking the test does not preclude an officer from relying on the accuracy of the statutorily approved screening device. Different officers may assess the situation differently without either having acted improperly:

If the officer decides to delay taking the test and that delay is challenged at trial, the court must decide whether the officer honestly and reasonably believed that an appropriately short delay was necessary to obtain a reliable reading. If the officer decides not to delay the administration of the test and that decision is challenged at trial, the court must decide whether the officer honestly and reasonably believed that he could rely on the test result if the test was administered without any delay. (para. 34)

[21] The case by case analysis that I must conduct of any claim that the demanding officer should have waited or should not have waited before administering the test must focus on "the officer's belief as to the accuracy of the test results if the test were to be administered without any delay and the reasonableness of that belief." Einarson, and R. v. Mastromartino et al, 4 M.V.R. (5th) 198, para. 21.

Application to this case

[22] At 03:27 Uchman, the investigating officer, saw Romero, the Defendant, vomit after he stopping his vehicle and exited from it. He had to drive around and come back to the spot, where the defendant was standing. Romero could have been burping or vomiting during this time. He could not see him, while he was turning his vehicle around. By 03:30 he began his investigation. He did not vomit after 03:30. Uchman neither agreed nor disagreed with the suggestion that it was possible that Romero could have burped after 03:30. Uchman testified that Romero admitted having consumed four alcoholic beverages. There is no evidence as to when Romero had his last drink other than a roadside statement noted by Uchman that, "male advised he was consuming beverages earlier that night, City Night Club." Uchman made the breath demand at 03:43. At 03:44 he demonstrated the breath demand. At 03:49 he read the approved instrument demand. At 03:46 the sample was provided, sixteen minutes after the investigation began. Uchman did not see any "signs of alcoholic beverages at the scene of the stop," such as bottles.

[23] When cross examined, Uchman was asked if he turned his mind to residual mouth alcohol. He agreed that he did not, even though he saw Romero vomiting. He understood that residual mouth alcohol can actually affect approved screening device results. He testified that after this case he understood more. He understood that the presence of residual mouth alcohol could result in a false fail. He understood that if someone burped; he may have to wait 15 minutes in order to allow the residual mouth alcohol to dissipate.

[24] Uchman testified quite candidly that he did not turn his mind to residual mouth alcohol, even though he saw Romero vomiting. He seems to have heard of it at the time of the arrest, but most of his knowledge of its potential impact on roadside screening test results was acquired after the case. Uchman did not think about or consider whether there was residual mouth alcohol present and whether or not it could affect the breath test result. He subjectively believed that the roadside screening instrument was functioning properly and would deliver an accurate result, but this belief was reached without taking into account whether or not the presence of mouth alcohol would affect the test result. It is argued that an honest subjective belief that an accurate result would be achieved cannot possibly be reasonable if it does not take into account whether or not residual mouth alcohol would have affected the result. But the evidence also discloses that if Uchman had turned his mind to the issue, he would have been able to take into account that sixteen minutes had passed before the roadside screening test was administered. It would have been entirely reasonable for him to believe that the presence of mouth alcohol would not affect the accuracy of the roadside screening test.

[25] I am satisfied that Uchman honestly believed that the roadside screening device would deliver an accurate result, although he did not turn his mind to the very relevant issue of residual mouth alcohol. If he considered this very relevant issue, he could have reasonably concluded that he could rely on the result of a test administered without delay. In fact, it would have been unreasonable for him to delay the test any further, since sixteen minutes had already passed. The logic and elegant simplicity of the defence argument that if an honest belief does not take into account a crucial relevant factor, it cannot be reasonable, is appealing in the abstract. This is especially so after reading Ducharme J.'s insightful analysis of the facts and relevant law in R. v. Au-Yeung, 2010 ONSC 2292, [2010] O.J. No. 1579, relied upon in defence submissions, where the arresting officer did not turn his mind to so many relevant factors, and the conclusion was quite rightly reached that the arresting officer did not have reasonable grounds to make a breath demand. But the facts and context are entirely different in the case before me. The officer's lack of knowledge and consideration in Au-Yeung of almost every relevant factor that would affect reasonable and probable grounds was remarkable, and without the saving grace that had he known and considered them, his conclusion would have been reasonable. The facts in the Au-Yeung case are completely different and the context is not mouth alcohol.

[26] I am satisfied that the arresting officer honestly believed that the test result would be accurate if it were taken without further delay, and that had he turned his mind to the issue of residual mouth alcohol, that it would have been reasonable not to delay the test. I am persuaded on the facts of this case that any failure to turn his mind to the issue was not deliberate. Given the potentially life-threatening health and safety issues he had to deal with at the same time as conducting this drinking and driving investigation, I believe it was an inadvertent oversight. No Charter violation arises as a result of the failure of the arresting officer to turn his mind to the impact of residual mouth alcohol in this case.

Calibration

[27] When asked directly on cross examination whether or not he had addressed his mind to whether or not the roadside screening device had been calibrated, the arresting officer replied that he does not usually worry about that, because the units are routinely maintained. It was his understanding that they are not maintained one at a time, but that batches of them are done all at once. He testified that he does usually write down the actual date of calibration in his notes, but this time he did not, because he forgot. It does appear from elsewhere in his evidence that he did look at the calibration information on the machine. He testified that, "The calibration on the side of the unit was Laboratoire Atlas Inc., lot 22H, 22VH, apologize, failure greater than or equal to 100 milligrams percent. Badge number 1011." (transcript p. 14, starting at line 25). He also recognized and noted that it was a dragger alcotest 7410 GLC, and he noted the serial number. In addition, he did a self-test, and then re-set the machine in order for the Defendant to provide a breath sample. He also explained that when he signs a machine out, he looks at the side of it, and this time the machine was brought to him.

[28] The calibration issue in this case is whether or not the arresting officer's subjective belief that the machine was in proper working order was reasonable. As in relation to the other Charter issues raised above, it is suggested that if he did not even turn his mind to calibration, his subjective belief that the machine was functioning properly could not be reasonable. The test that I must apply is well known. There is no statutory presumption that a roadside screening device works properly. There has to be some objective evidence supporting an officer's subjective belief that a screening device is in proper working order. Otherwise, an officer cannot have reasonable and probable ground to arrest a test subject for failing the test. It is not sufficient for the officer to be satisfied solely on the basis on a self-test: R. v. Dempster, [2000] O.J. No. 4437 (S.C.J.). If an officer knows that calibration was a date later than it was supposed to be, his belief cannot be reasonable. As such the arrest cannot be valid, and any subsequent seizure of breath samples contravenes a Defendant's right to be secure against unreasonable search and seizure contrary to s. 8 of the Charter: R. v. Ramsden, [2002] O.J. No. 5868 (O.C.J.). When an officer does not check a calibration sticker, and fails to consider the timeliness of the calibration of a device, it has been held that his subjective belief that a device was working correctly is not objectively reasonable: R. v. Johnston, [2007] O.J. No. 500 (O.C.J.). When an arresting officer testified that he thought that the ASD was calibrated to fail at 80, this belief was held not to be reasonable: R. v. Valdez, [2010] O.J. No. 4767. When neither of two investigating officers had checked when a device was last calibrated, and the device had not been calibrated for three months, and there was evidence that the police guidelines required the device to be calibrated every 14 days, it was found that any subjective belief that this screening device was in proper working order was objectively unreasonable: R. v. Persaud, [2011] O.J. No. 1559 (O.S.C.).

[29] The Au-Yeung case was heavily relied upon by the Defence in submissions in support of its argument that when an officer does not even turn his mind to relevant issues, his subjective grounds for believing that an instrument was functioning properly, cannot possibly be reasonable. In that case the arresting officer testified that he was trained on the use of the approved screening device in 1984, had not been retrained in 22 years, and admitted he had forgotten a lot of the training. The officer did not do a self test on the ASD before testing the appellant with it, did not check when the ASD was last calibrated, and conceded that he wasn't sure if he had used the device properly. The officer could not recall whether any error message came up on the device and did not know what error messages could appear. He was even unclear what a "fail" looked like on the device. The court found that in these circumstances, the arresting officer did not have reasonable and probable grounds to arrest Mr. Au-Yeung. The court remarked that police officers, who stop and detain motorists in order to perform ASD tests, were required to execute their duties efficiently, competently, and accurately.

[30] The case before me is not one in which the officer relied solely upon the results of his self test in order to form the belief that the roadside instrument was working properly. Unlike the officers in the Valdez, Persaud, and Au-Yeung cases, the arresting officer, Gerald Uchman, understood the relevance of calibration, looked at the calibration information on the instrument, and noted some of it. He forgot to write down when the instrument was last calibrated. He testified that he usually writes it down. I infer from his evidence that if he believes he is supposed to write it down, he must realize that it is relevant. He did not testify that he did not look at the sticker. In fact, unlike the Johnson and Au-Yeung cases, there is evidence that he did look at the sticker. Otherwise, he would not have been able to note that the solution was Laboratoire Atlas. Unlike in Valdez, he also knew that the machine was calibrated to fail at 100. He also testified that he believed the machines were routinely maintained, and seemed to know something about how they were maintained. All this was factored into his belief that the machine was operating properly. Furthermore, Uchman's reasonable and probable ground was not based solely on the results of the roadside screening device. He also factored in statements made by the Defendant, Romero, at the scene plus his detailed observations at the scene. Overall, Uchman did an unhurried and careful investigation, but it was not so unhurried that it was inefficient. Unlike the officer in the Au-Yeung case, Uchman executed all of his duties, including his responsibilities to the two passengers, the driving public, and potential trains using the tracks proximate to the scene, efficiently, competently, and accurately.

[31] Analysis of the facts in relation to an arresting officer's knowledge and understanding of calibration, and how it formed part of his belief that a roadside screening device was in proper working order, must take into account nuances and context. There is a difference between an officer who does not look at a calibration sticker at all, and one who simply does not write down all the information. There is a difference between an officer who lacks the necessary knowledge and one who understands the relevance of calibration. If the officer in this case only relied on routine maintenance as the basis for his belief that the instrument was working properly, then I would say this was insufficient, because there is no statutory presumption that the machine is operating properly. And if the officer only relied on his self test for concluding the instrument was functioning correctly, I would also agree that this was insufficient. But after looking at the evidence cumulatively and in context, I am persuaded that there is objective evidence to support Uchman's subjective belief that the roadside screening device was working properly. In an ideal world, he should have written down when the device was calibrated. He should also have done more than simply observe the calibration information on the device. He should be sure of the relevant period, turn his mind to whether or not the device had been calibrated within the relevant period, and not simply rely upon routine maintenance. He did not do all that would have been ideal, but his performance of his duties did not fall below acceptable standards.

Conclusion

[32] I am persuaded that in the unique context of this case the roadside screening demand was administered "forthwith," that there was no necessity to wait before administering the roadside screening test in order to ensure the accuracy of the results, and that the arresting officer's subjective belief that the device was functioning properly was supported by objective evidence. As such, I am persuaded that s. 8, 9, 10(a), and 10(b) were not violated, and these Charter applications are dismissed.

[33] If I am wrong, and there were violations, I must apply the Grant factors: 2009 SCC 32, [2009] S.C.J. No. 32. I am satisfied that the suspected violations in this case could only be classified as the most technical in nature. I appreciate that there are three separate violations alleged, and that a multiplicity of suspected Charter violations can sometimes support an argument that the cumulative effect of them is serious. But even though there are three suspected violations, I am persuaded that they could at best be classified as minor and technical. The officer executed all his responsibilities efficiently and competently. He was doing more than simply doing a drinking and driving investigation. At first he had to assess whether his observations supported another conclusion. It was not a simple assessment. He also had coexisting responsibilities for ensuring the health and safety of the two passengers, one of whom he had seen urinating on railway tracks, the other of which he had seen vomiting, and then passing out. He had contemporaneous responsibilities to the driving public. This occurred on the Gardiner Expressway (emphasis mine). There was the potential that cargo or passenger trains may pass by on the railway tracks. He had to be conscious of the safety of passengers and employees on the trains. He was thinking of many things at the same time. If there were Charter violations, they were not deliberate. They were not blatant as in the Au-Yeung and the Dempster cases. Uchman's knowledge of his responsibilities and the working of the roadside device was generally good. His execution of his responsibilities was not perfect, but it was competent. Given his concurrent responsibilities, he was efficient. I do not find that any purported Charter breaches were serious.

[34] As far as impact on the Defendant's Charter rights is concerned, I am persuaded that the arresting officer exercised his discretion cautiously and fairly. It is suggested that he did not turn his mind to whether the presence of mouth alcohol would affect the accuracy of the tests, whether there was a reasonable opportunity to consult counsel, and whether the roadside machine had been calibrated. As indicated above, I am satisfied that sufficient time had passed to ensure that any potential presence of mouth alcohol would not affect the test results, there would not have been a reasonable opportunity to consult counsel. The officer did look at the calibration information. He simply did not write it down. He testified that he usually writes down when the device has been calibrated. The impact of failing to consider the above factors had little impact on the Defendant's Charter protected interests.

[35] I acknowledge the Supreme Court of Canada's statement in R. v. Grant that although breath samples are from the body; they are fairly non-intrusive and reliable scientific evidence. The court concluded in Grant that s. 24(2) analysis generally favours admission of such evidence (see paras 99, 106, 109-11). I also acknowledge, as the court did in R. v. Vecchiarelli, [2011] O.J. No. 3860 (O.C.J.) that the minimally intrusive nature of breath sample seizures must take into account the whole context of these matters, which is an actual arrest. As is generally the case, Romero was handcuffed, taken to the station, where further breath samples were taken, and the whole process took hours. The fact that it takes hours to process a drinking and driving suspect, who has failed the roadside screening device, is relevant to assessing the impact of an alleged Charter reach on a suspect's Charter protected interests. Taking all these factors into account, I am persuaded that the impact of any suspected violations of the Defendant's rights was not severe.

[36] The societal interest in adjudicating drinking and driving cases on their merits has been the subject of well known and authoritative comment even prior to Grant and generally favours admission under the third Grant criterion. For all of the reasons above, had I found Charter violations, I would not have excluded the evidence.

[37] The only issued argued in this case were the Charter ones. Since I have dismissed the Charter issues, I find Mr. Romero guilty of driving while the quantity of alcohol in his blood exceeded the legal limit. I invite submissions on sentencing.

Released: October 2, 2012

Signed: "Justice Sheila Ray"