Court File and Parties

Court File No.: St. Catharines - 2111-998-10-S3427-00

Date: 2012-02-14

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Brandon Choscinski

Before: Justice D.A. Harris

Heard on: November 3, 2011 and December 15, 2011

Reasons for Judgment delivered on: February 14, 2012

Counsel:

G. Settimi, for the Crown

K. Marynick, for the accused, Brandon Choscinski

Reasons for Judgment

HARRIS J.:

[1] Brandon Choscinski has been charged with failing to comply with a demand to provide samples of his breath into an approved screening device (hereinafter referred to as "ASD").

[2] There are two issues here.

[3] The first is whether Constable Sahs had demanded that Mr. Choscinski provide a sample of his breath "forthwith" as per the wording in the Criminal Code or had he made a demand for the sample to be provided at some unspecified time in the future similar to the situation in R. v. Grant, [1991] 3 S.C.R. 139.

[4] The second is whether Constable Sahs had the necessary suspicion that Mr. Choscinski had alcohol in his body.

[5] The pertinent facts are as follows.

[6] Police Constable Sahs was the only witness called by Crown counsel. Constable Sahs testified that at 2:25 a.m., he saw a vehicle, driven by Mr. Choscinski, fail to stop for a stop sign. Constable Sahs stopped that vehicle within a minute and a half. Constable Sahs asked Mr. Choscinski to produce his licence and vehicle ownership and insurance documents. Then according to Constable Sahs:

I can detect an odour of an alcoholic beverage coming from the breath of the accused. Inquire – ask him if he has been consuming any alcoholic beverages. The answer's yes, one beer a long time ago, hours ago. With the information that I received such as his licence, I can tell that he's a G2 driver, just from his licence. G2 drivers aren't supposed to have any alcohol in their system. And at that time, I read him the breath demand from the back of my book, just demanding that he provide me a sample of his breath, which is to ascertain if he has alcohol in his system.

[7] Constable Sahs testified that his partner called for an ASD to be brought from a nearby RIDE program and Police Constable Wills brought one within minutes, arriving at 2:35 a.m.

[8] Constable Sahs then described how Mr. Choscinski purported to provide a sample of his breath into the ASD on six occasions but that on each occasion, Mr. Choscinski stopped blowing before he had provided a proper sample into the ASD.

[9] Police Constable Barry Wills was called to testify by the Defence. He corroborated Constable Sahs' testimony for the most part except for the times when the events occurred.

[10] Constable Wills said that he had been working at a RIDE checkpoint about one kilometre away from Constable Sahs and his partner when Constable Wills received a radio call requesting him to bring an ASD to them. Constable Wills took an ASD to them, arriving at their location within one or two minutes. He arrived at 2:18 a.m. The ASD was working properly. He watched as Mr. Choscinski repeatedly failed to provide an adequate sample of his breath into the ASD. He left the scene at 2:35 a.m.

[11] Both police officers agreed that a request was made for Constable Wills to deliver an ASD to Constable Sahs and his partner who were nearby. They agreed that Constable Wills did deliver an ASD and that he did so within minutes. They disagreed, however, about when these events took place. Constable Sahs said that he first saw the vehicle driven by Mr. Choscinski at 2:25 a.m. and that a few minutes elapsed before the request was made for an ASD and a few more before it arrived. Constable Wills said that he arrived at Constable Sahs' location at 2:18 a.m.

[12] Counsel for Mr. Choscinski argued quite correctly that one of the police officers had to be wrong about the time that these events happened. It could have been either one or both but at least one was wrong on this point. Counsel argued further that in light of this, I should not consider either witness, but particularly Constable Sahs, to be reliable. I should not rely on his evidence that at the time that he read the breath demand he knew that there was a RIDE program being conducted nearby and that there would be an ASD at that location.

[13] I disagree. Both police officers agreed that they were only a short distance away from each other at the time that the request was made and that the ASD was successfully delivered to Constable Sahs within minutes of the request being made. I am satisfied that one of them made a mistake as to the time when this occurred but that error does not cause me to doubt in any way the facts which were related by the one police officer and corroborated by the other.

[14] That leaves the second issue. Did Constable Sahs have a reasonable suspicion that Mr. Choscinski had alcohol in his body? The wording of s. 254 specifies that he may make an approved screening device demand where he reasonably suspects that "there is alcohol in the body". Constable Sahs never said that he had a reasonable suspicion that Mr. Choscinski had alcohol in his body. So was there a proper demand in this case?

[15] I am aware that it may not be necessary for him to say that he had a reasonable suspicion that Mr. Choscinski had alcohol in his body in those precise words.

[16] Justice Manton of the Superior Court of Justice hearing the summary conviction appeal in R. v. Martin, [2005] O.J. No. 670, said at para. 15 that it is an error to require an officer to articulate the words of s. 254(2) 'alcohol in the body', or to find that anything less than an expression of these words fails to meet the standard of proof. Rather "the proper determination of whether [the officer's] subjective state of mind met the standard should have been based on the totality of the evidence presented and not solely on whether he articulated the precise words of Section 254(2). To find otherwise would result in an inappropriate and unjustified reliance on the 'magic words'."

[17] Similar findings were made in the Superior Court of Justice in R. v. Neziol, [2001] O.J. No. 4372, per Justice Durno, R. v. Pitawanikwat, [1999] O.J. No. 4582, per Justice Whalen, R. v. Daynes, [2000] O.J. No. 1782, per Justice Thomas, R. v. Long, [1999] O.J. No. 364, per Justice Whealy, and R. v. Correia, [2000] O.J. No. 3100, per Justice Donnelly.

[18] My task in this case then is to make a proper determination of whether Constable Sahs' subjective state of mind met the standard based on the totality of the evidence presented and not solely on whether he articulated the precise words of s. 254(2).

[19] In approaching this task, I am mindful that reasonable suspicion is an extremely low threshold to satisfy. It only allows an investigator to demand an approved screening device sample. A 'fail' on the approved screening device does not constitute an offence. It cannot be used as evidence of an offence. The 'fail' simply provides reasonable and probable grounds to believe that an excess alcohol offence may have occurred and therefore justifies the making of a demand for breath samples that can be used as evidence. Reasonable and probable grounds can be viewed as a rather low threshold itself but it is a higher standard than the reasonable suspicion called for here.

[20] Even keeping all of this in mind, I am not satisfied that Constable Sahs had a reasonable suspicion that Mr. Choscinski had alcohol in his body.

[21] He smelled alcohol on Mr. Choscinski's breath. Mr. Choscinski admitted drinking "one beer a long time ago, hours ago." Had Constable Sahs made his demand on that basis only, I might well have been satisfied that there was sufficient proof that he had the necessary reasonable suspicion[1]. He went on in his evidence however discussing the fact that Mr. Choscinski held a G2 driver's licence which only allowed him to drive a motor vehicle when there is no alcohol in his system. That suggested that Constable Sahs made the demand here to determine if Mr. Choscinski had any alcohol in his body, thereby contravening the conditions of his G2 licence. I was left with no doubt however when Constable Sahs said that "I read him the breath demand from the back of my book, just demanding that he provide me with a sample of his breath, which is to ascertain if he has alcohol in his system" [emphasis added].

[22] Clearly then Constable Sahs wanted Mr. Choscinski to provide a sample of his breath to determine if he had alcohol in his body. Section 254(2) of the Criminal Code only allowed him to make the demand if he already had a reasonable suspicion that Mr. Choscinski had alcohol in his body. Constable Sahs' subjective state of mind did not meet that standard. Accordingly, there was not a proper demand here and I find Mr. Choscinski not guilty.

Footnote

[1] As I was satisfied in R. v. Boyd, [2006] O.J. No. 5685 (O.C.J.) and R. v. Gushulak, [2008] O.J. No. 3992 (O.C.J.).

Released: February 14, 2012

Signed: Justice D.A. Harris