COURT FILE No.: Newmarket Courthouse 11-04238

DATE: 2012·12·03

Citation: R. v. Haniff, 2012 ONCJ 697

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

SHOAIB HANIFF

Before Justice Peter N. Bourque

Heard on October 18, 2012

Ruling on Charter issue released on November 13, 2012

Ms. Kellie Hutcheson ................................................................................................ for the Crown

Mr. Jonathan Lapid............................................................................. for the accused Shoaib Haniff

Bourque J.:

[1] The defendant is charged with the operation of a motor vehicle with excess alcohol, contrary to section 253 (1) (b), on May 5, 2011.

[2] The defendant has brought a Charter challenge pursuant to s. 8 and 9 of the Charter of Rights and Freedoms and states that the officer did not have sufficient grounds to make the breath demand and thus the breath test results should not be admitted into evidence.

[3] The evidence in this case consisted of viva voce evidence of the arresting officer. The defence allowed the Crown to file the Certificate of Analysis, the print outs from the breathalyzer machine and the report from the Centre of Forensic Sciences (necessary because the breath tests may not have been taken within 2 hours). Upon their filing, the defence indicated that there acceptance into evidence was subject to the Charter challenge and any other issues of admissibility. I note these items were all filed into evidence after the arresting officer’s evidence was complete. What the officer did not say in her testimony has now become the subject of my decision in this matter.

Officer Wojciechowska

[4] Officer Wojciechowska is a York Regional Police officer and was on general patrol from 7:00 p.m. May 4, 2012 to 7:00 a.m. on May 5, 2012.

[5] She attended at the IKEA parking lot in City of Vaughan and it was just after midnight. She saw a vehicle, alone in the lot, moving slowly along each marked row and putting on its turn indicator. She thought this behaviour seemed odd so she stopped the vehicle at 12:13 a.m. She approached the car and spoke to the defendant. There were two other persons in the car. The defendant stated that he had just left a local bar and was heading home. She could smell an odour of alcohol coming from the car. The defendant stated that he had one beer. The officer asked the defendant to get out of the car and the defendant, at 0015, was read the roadside breath demand by the officer.

[6] The officer had an ASD in her car and described it as an Alcotest 7410, Serial # ARWM0559 with the York Regional Police number A413. She stated it had been calibrated on April 24, 2012. She also stated that she had tested it as of her shift and had put in her notes that it has “passed”. After several attempts, the defendant provided a suitable sample. She stated the suitable sample registered “F” (fail). At 12:20 a.m. she arrested the defendant for operating a motor vehicle with having over 80 milligrams of alcohol in 100 millilitres of blood.

[7] The officer stated that the device registered “F” and as a result she had grounds to arrest him for having more than 80 milligrams of alcohol in 100 millilitres of blood while operating a motor vehicle.

[8] She stated that she was not aware of different models of the Draeger Alcotest devices, as to which ones were approved instruments and which ones were not approved. She believed that the device provided to her by the police department was approved.

[9] She agreed with defence counsel’s suggestion that if the defendant had consumed alcohol within 15 minutes of the roadside test that it could affect the results. She was told by the defendant that he had just come from a bar. She did not turn her mind to the issue of mouth alcohol.

[10] Upon the arrest of the defendant she did not make a breath demand.

[11] The Certificate of Analysis was filed as was the report of a toxicologist. The toxicologist report indicated that the blood alcohol reading of the defendant at the time of the last driving would be between 140 and 180 milligrams of alcohol in 100 millilitres of blood. The report of the toxicologist was based on the breath reading of 140 taken at 2:04 a.m. and 150 taken at 2:25 a.m.

Mouth Alcohol

[12] The defendant argues that the officer should have turned her mind to the issue of mouth alcohol and thus her failure to do so would render her reliance on the ASD to support her grounds as inherently unreliable. The case of R. v. Mastromartino 2004 CanLII 28770 (ON SC), [2004] O.J. No. 1435 sets out the factors which impact the 15 minute delay issue. Justice Durno points out that while a person leaving a bar can be a relevant circumstance in determining whether it was reasonable for the officer to delay the test, the mere possibility that a driver has consumed alcohol within 15 minutes before taking the test does not preclude the officer from relying on the accuracy of the screening device. In this case, there was nothing specific drawn to the officer’s attention about the consumption of alcohol within 15 minutes. She did not see him come out of the bar but saw him driving. I do not think, in these circumstances, that she was under any obligation to question him about the timing of his last drink. I also do not believe that her reasonable grounds to arrest after the failure of the ASD are diminished by this issue.

The Wording of the Officer’s Subjective Grounds

[13] The officer initially stated that the arrest was based on her belief that the defendant had 80 milligrams of alcohol in 100 millilitres of blood. She corrected herself and stated that she believed that he had over 80 milligrams of alcohol in 100 millilitres of blood. I accept her total answer and it is sufficient evidence of her subjective and objective grounds to arrest. The courts have been moving away from expressions of “magic words” for most of these issues (including rights to counsel) and it is for the trier of fact to decide, upon all of the evidence, whether such grounds existed objectively and subjectively. I find that such ground does exist.

The Failure to Make a Breath Demand

[14] The officer did not testify that she made a breath demand. There is no other evidence, other than the certificate itself, to indicate that a breath demand was ever made upon this defendant. It was obvious to me that the officer did not testify that she made a demand. At the close of trial, (there was no defence evidence) the defence counsel raised it in his closing argument and stated that the failure to give any evidence that a demand had been made was fatal to the admissibility of any of the evidence stemming from the breath test, viz, the breath certificate, the read outs from the breath machine, or the report from the Centre of Forensic Science.

[15] R. v. Walsh [1980] O.J. No. 809 (C. A.) and R. v. Pickles (1973) 1973 CanLII 1357 (ON CA), 11 C.C.C. (2d) 210 (C. A.) stand for the proposition that evidence that a demand was made is a pre-condition to the admissibility of the Certificate of Analysis. I note that the case refers to the “admissibility of the certificate” and not just to the presumptions contained in s. 258 of the Criminal Code. The foregoing cases were decided pre Charter.

[16] In R. v. Hergott [1999] O. J. No. 5314, the Superior Court sitting as an appeal court decided that a failure to provide evidence of a demand was fatal to a charge of refusal to take a breathalyser test. That case did not consist of a Charter challenge.

[17] The language providing for a demand is now in two different places namely in the Criminal Code, s. 258 (1) (c) and s. 254:

[18] The Crown argues firstly, that the breath demand is not a pre-condition to the admissibility of the breath results and thus for me to exclude the breath results, there must be a Charter challenge, and cites the case of R. v. Rilling and R. v. Bradshaw for that proposition. Rilling (pre Charter) and Bradshaw (post Charter) dealt with an officer’s “reasonable and probably grounds” to make a breath demand. Neither of these addressed the issue, (I have here) which is, what is the situation where there is no demand at all? Several of the items listed in s. 258 (1) (c) are clearly pre-conditions and not subject to a Charter challenge such as the necessity of an approved instrument, and the as soon as is practicable requirement.

[19] Since the demand under s. 254 (3) must be made as soon as practicable, does this also mean that the demand is a pre-condition? In R. v. Dhailiwal [2005] O.J. No. 1129, Durno J. sitting as a summary conviction appeal court stated at paragraph 25:

“Second, I am not persuaded Manson had to know and testify about the name of the officer who gave the breath demand, provided there was a valid demand. The Crown proceeded by way of certificate of analysis to establish the appellant's blood alcohol content at the time of driving. The certificate could not be admitted without extrinsic evidence that a breath sample was taken, and that it was taken pursuant to a valid demand: R. v. Pickles (1973), 1973 CanLII 1357 (ON CA), 11 C.C.C. (2d) 210 (Ont. C.A.) Here, there was the direct evidence of Manson that he took the breath samples, and O'Donoghue's or Manson's valid demand”.

[20] In the Dhaliwal case there had been a delayed demand, and a further demand by the breath technician, who was in error as to which officer made the initial demand. It was not a situation where there had been a demand at all, but only whether there was a “valid demand”.

[21] In R. v Hall [2003] A.J. No. 921, the court reviewed summary cases with respect to proof that samples were taken pursuant to a lawful demand. In that case, the matter proceeded by way of a voir dire and there was no Charter challenge. The court found that there was not sufficient evidence of a demand, and therefore, the Certificate of Analysis was not admissible in evidence.

[22] There is no specific case that I can find that overrules Walsh or Pickles with regard to the necessity of showing that there was a demand made under s. 254 (3). In my opinion, Rilling and Bradshaw are cases dealing with an officer’s reasonable and probable grounds to make the demand. I believe therefore that it is good law that the failure to lead any evidence as to the existence of a demand (by anyone at any time in the process) is fatal to the leading of any evidence of breath test results. I do not think that the opinion of the toxicologist can stand on its own, as it relies upon the breath test results as the foundation of the opinion as to the amount of alcohol in the blood of the defendant at the time of last driving.

[23] The Crown has stated that it would not seek to reopen its case to give evidence upon this issue. I agree, as I believe, that the re-opening of the Crown’s case after the defendant has elected not to call evidence can only be made on the narrowest of circumstances (“Conduct of a Trial”, Edgar, A.). The Crown must show that a matter arose which could not have been foreseen, the conduct of the defence contributed to the Crown’s failure to adduce certain evidence, or the matter of evidence in a non-controversial issue.

[24] The Crown however has stated that if I determined that the issue referred to above was a Charter issue, then she would seek to re-open to call further evidence so that it could be relevant to a s. 24 (2) analysis. In case I was incorrect in finding the “demand” issue a pre-condition to the admissibility of breath test results, I will deal with the issue as to whether I would have allowed the Crown to re-open its case if it was a Charter issue.

[25] The Crown argues that while there is a Charter application under s. 8, 9 and 24 (2) of the Charter because it does not particularize this breach, then the Crown was unaware of this issue and should be given leave to assert evidence. With all due respect to the Crown, this issue became known to all when the arresting officer did not testify that she had made a demand for a breath sample. The Crown’s case was still open when the officer left the stand. The Crown could have called the breath technician (who was in attendance at court) and the other officer at the scene to give evidence as to the existence of a demand for a breath sample. While I would be the first to state that the error was a very human one, (and not at all uncommon) the fact is that it is part of the narrative of every drink and drive case to be alive to the existence of evidence of the demand for the breath sample. When the defendant allowed the documents to be filed, without further proof, he explicitly excepted Charter challenges and other conditions for admissibility. The specific issue of the demand was not discussed and the Crown sought no waiver of the requirement.

[26] In the context of the necessity of the defence to provide notice of any Charter challenges, there has always been an exception to the matters which arise in the evidence as the trial progresses. That this evidence disclosed a defect in the pre-condition for the search was a factor obvious to the court, if not to the Crown. I would therefore not allow the Crown to re-open its case.

[27] Assessing the evidence before me, I would have to agree with the defence that taking a breath test without a demand (and therefore not following the statutory requirements of the drink and drive legislation) would lead inexorably to the finding that this is an unreasonable search and seizure. Using the three part test enumerated in R. v. Grant, should this evidence be admitted, notwithstanding the breach? Assessing the state conduct, I have no explanation for why the breath demand was not made. It is impossible to know if it was an oversight, or some lack of training. The effect on the Charter protected rights of the defendant was considerable. The arrest, being taking to the station for several hours and housed in a cell all provide evidence against him. Society has a strong interest in adjudicating drinking and driving cases. Ultimately, there is a weighing of these factors in arriving at a final decision.

[28] I would find that to admit this evidence would bring the administration of justice into disrepute.

[29] Based on all of the above, I exclude all the evidence of the breath readings and any analysis done upon them. I find the defendant not guilty of the charge.