Court File and Parties

Date: June 19, 2012

Court File No.: Toronto, 4817-998-11-70018663

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Kevin Cullingworth

Before: Justice Mara B. Greene

Counsel:

• N. Bailey, for the Crown
• M. Peck, for Mr. Cullingworth

Reasons for Judgment

Introduction

[1] On April 6, 2011, Mr. Cullingworth was stopped by a RIDE program and ultimately charged with driving while having over 80 mg of alcohol in 100 ml of blood. The main issue at trial was the admissibility of the breath samples taken at the police station. Counsel for Mr. Cullingworth argued that the samples were taken in violation of Mr. Cullingworth's rights as guaranteed by section 8 of the Charter and that as a result, the breathalyser readings should be excluded. Counsel for Mr. Cullingworth further argued that even if the Charter argument failed, the Crown has failed to establish that the officer met the statutory requirements under the Criminal Code and therefore this Court cannot rely on the results from the breathalyser test.

[2] The Crown argued that Mr. Cullingworth failed to establish that his Charter rights have been violated. She further argued that the Crown had successfully proven that s. 253 of the Criminal Code was complied with and therefore the breathalyser readings were admissible at trial. The Crown skilfully argued that the officer acted properly and lawfully and as a result the breath results should be admitted at trial.

Facts

[3] On April 6, 2011, P.C. Oh was working at a R.I.D.E. program at Yonge and Chatsworth Drive in Toronto. His role on that day was to stop every vehicle travelling northbound and speak to the drivers to determine if they had any alcohol in their system.

[4] At approximately 12:52 a.m., P.C. Oh stopped Mr. Cullingworth's vehicle as part of this RIDE program. The officer candidly admitted that there was nothing wrong with Mr. Cullingworth's driving.

[5] Upon stopping the vehicle, Mr. Cullingworth identified himself as the driver and the officer detected an odour of alcohol emanating from the vehicle. As a result, he asked Mr. Cullingworth if he had anything to drink that night. Mr. Cullingworth replied that he had two beers a couple of hours earlier. At that point, P.C. Oh asked Mr. Cullingworth to pull over and provide a breath sample into an approved screening device. P.C. Oh read the proper demand for an ASD from the back of his memo book.

[6] P.C. Oh testified that he had an approved screening device with him at the time. It was an Alcotest 7410, type 8311990. He also provided the Court with the serial number of the machine. He further testified the ASD that he had with him was designed to determine whether the person blowing into the machine had over 100 mg of alcohol in 100 ml of blood.

[7] According to the officer, Mr. Cullingworth blew into the machine and the machine registered an "F". An "F" is only registered if the person providing the breath sample has over 100 mg of alcohol in 100 ml of blood. P.C. Oh testified that this led him to have reasonable grounds to believe that Mr. Cullingworth had more than "80 ml of alcohol in 100 ml of blood". As a result of the ASD test, at 12:56 a.m., P.C. Oh arrested Mr. Cullingworth for driving while having over 80 mg of alcohol in 100 ml of blood. At 12:59 a.m., Mr. Cullingworth was read his rights to counsel and given the breathalyser demand. To carry out this test, Mr. Cullingworth was taken to 32 Division.

[8] Upon arrival at 32 Division, Mr. Cullingworth was paraded and then given an opportunity to consult with duty counsel. He spoke to duty counsel at 1:51 a.m.

[9] At 2:01 a.m., Mr. Cullingworth was taken into the breath technician's room for the first breath test.

[10] At approximately 2:13 a.m., the first sample was provided. According to the Certificate of Analysis, Mr. Cullingworth had 120 mg of alcohol in 100 ml of blood. The second sample was provided at 2:38 a.m. The Certificate of Analysis reveals that at 2:38 a.m. Mr. Cullingworth had 100 mg of alcohol in 100 ml of blood.

[11] After providing both breath samples, Mr. Cullingworth was released on a Form 10 and the officers drove him home.

Issues Raised at Trial

[12] Counsel for Mr. Cullingworth did not dispute the fact that Mr. Cullingworth blew over 80 mg of alcohol in 100 ml of blood. The only issue at trial was whether the results of the breath tests were admissible at trial.

[13] Defence counsel argued that I cannot rely on the breath samples for the following reasons:

A) The breath samples were taken in violation of Mr. Cullingworth's section 8 Charter rights and should therefore be excluded under s. 24(2) of the Charter. She argued that the officer was not permitted to rely on the results of the ASD demand and therefore had no basis to make the breathalyser demand. According to defence counsel the ASD results are inadmissible at trial because:

i) There is no evidence that the device used at the roadside was an approved screening device;

ii) The officer did not know what the ASD actually measured as he at one point testified that the ASD was set to fail when someone had over 100 ml of alcohol in 100 ml of blood; and,

iii) There was no evidence that the ASD was calibrated and in working order;

B) The officer failed to comply with the statutory framework of s. 253 of the Criminal Code, as he did not have reasonable grounds to make the breath demand. As a result of the noncompliance with s. 253, the Crown is not permitted to rely on the results of the breath test to prove its case.

C) That the officer failed to comply with the statutory framework of s. 253 by not administering the breath test as soon as practicable.

[14] Crown counsel argued that the officer had reasonable and probable grounds to arrest Mr. Cullingworth for driving while having over 80 mg of alcohol in 100 ml of blood. Moreover, the officer also had the proper grounds to make the demand for a breath sample to determine the concentration of alcohol in Mr. Cullingworth's blood. Crown counsel further argued that the statutory framework of s. 253 of the Criminal Code was complied with and therefore the breath results can be relied upon by the trial judge. Finally, the Crown argued that the breath tests were administered swiftly and properly.

Analysis

A. Section 8 of the Charter

[15] In the case at bar, the section 8 argument rises and falls on whether P.C. Oh had reasonable and probable grounds to arrest Mr. Cullingworth for driving while having over 80 mg of alcohol in 100 ml of blood and whether he had reasonable grounds to make the breath demand. Both parties agree that in this case, P.C. Oh's grounds to make the breathalyser demand and the arrest were based solely on the results of the roadside screening test. If Mr. Cullingworth's fail from the roadside test cannot be relied on, then P.C. Oh had no basis to make a further breath demand.

[16] It is well established that taking breath samples is a seizure for the purpose of section 8 of the Charter. (See R. v. Haas, [2005] O.J. No. 3160 (C.A.)). While the burden always lies with the Applicant to establish the Charter breach on a balance of probabilities, where the seizure is a warrantless one, the burden shifts to the Crown who must show that the police officer making the breath demand had the necessary reasonable and probable grounds to do so (see R. v. Haas, supra and R. v. Persaud [2011] O.J. No. 1559 (S.C.J.)). In the case at bar, the seizure of samples of Mr. Cullingworth's breath were taken without a warrant and as such, the burden shifts to the Crown to show that the police officer making the breath demand had the necessary reasonable and probable grounds to do so.

i) Was there evidence that the roadside screening device used by the officer was an approved screening device?

[17] In the case at bar, the officer testified that he used an approved screening device when he tested Mr. Cullingworth's breath at the roadside. However, when asked to describe the approved screening device that he used, P.C. Oh merely stated that it was an Alcotest 7410. He failed to identify the specific model. Defence counsel argued that without the specific model number, there is no evidence that the screening device used by P.C. Oh was in fact an approved screening device.

[18] In R. v. Kosa [1992] O.J. No. 2594 (C.A.), the Court of Appeal held that the Crown need not prove that the ASD used is an approved screening device in order to support a finding that the officer had reasonable and probable grounds to make a breath demand under s. 254(3) of the Criminal Code. It is sufficient for the Crown to show that the officer relied on a set of facts which provided him with reasonable and probable grounds to believe the accused has committed an offence under s. 253 within the time period set forth in s. 254(3).

[19] In R. v. Latulippe [2005] O.J. No. 4521 (S.C.J.), similar to the facts in the case at bar, the officer during his testimony referred to the ASD that he used to test Mr. Latulippe's breath at the roadside was an Alcotest 7410. Like in the case at bar, he failed to specify if it was a GLC or PA3 as listed in the regulation. The Summary Conviction Appeal Court held that the Crown did not have to prove that the screening device used was an approved screening device. The Crown need only establish that the officer relied on a set of facts which provided the officer with the reasonable and probable grounds to believe the accused had committed an offence under s. 253 of the Criminal Code. The only burden on the Crown under s. 254(2) in relation to the ASD is to establish that the police officer making the screening device demand subjectively and objectively believed he was using an approved screening device. The Court further held that the officer's assertion that the device he used was an approved screening device, coupled with his evidence that the device was an Alcotest 7410, and the absence of cross-examination on this point, was enough to establish that the officer in fact reasonably believed that he was using an approved screening device.

[20] I see no basis to distinguish the case at bar from that of Latulippe. The officer testified that he thought the device used was an ASD. Moreover, the portion of the name of the ASD that he provided the Court is the main portion of the name of a well-known ASD. I therefore have a basis to conclude that the officer's belief that he was using an ASD was reasonable. I therefore find that the officer's evidence that he used an approved screening device, coupled with his description that the machine used was an Alcotest 7410 is sufficient evidence that the officer had objective and subjective grounds to believe that he was in fact using an approved screening device, thereby allowing him to rely on the results of that test.

ii) The officer did not have the proper grounds to make the breath demand because he did not understand what the ASD was actually measuring.

[21] Counsel, on behalf of Mr. Cullingworth, further argued that P.C. Oh did not form the proper grounds to make the breath demand because he was unfamiliar with what the ASD actually measured. In support of this argument, counsel pointed to a portion of the officer's evidence where he stated that when Mr. Cullingworth blew into the ASD and it registered a fail, it meant that Mr. Cullingworth had over "100 ml of alcohol in 100 ml of blood". Of course, the proper response should have been "100 mg of alcohol in 100 ml of blood". When I assess this portion of P.C. Oh's evidence with all his other evidence, I am satisfied that this was just a slip of the tongue. During other portions of his evidence, the officer used the right terminology and correctly stated that the ASD was set to register a fail when the breath sample had 100 mg or more of alcohol in 100 ml of blood. Moreover, P.C. Oh testified that he had been trained in how to use this device and he was not contradicted or cross-examined on this point. I am therefore satisfied that P.C. Oh did understand how the ASD worked insofar as he was able to conclude that since Mr. Cullingworth registered a fail, that he had more than 80 mg of alcohol in 100 ml of blood.

iii) Did P.C. Oh have both the subjective and objective belief that the ASD was in good working order?

[22] In the case at bar, both parties agreed that the officer's grounds to arrest Mr. Cullingworth and make a breathalyser demand arise from the fail on the ASD. Moreover, both parties also agreed that it matters not whether the ASD was actually in good working order at the time of the testing. What is relevant is whether the officer reasonably believed that the ASD was in good working order. This has been established repeatedly in the case law. For example, in R. v. Mastromartino et al., [2004] O.J. No. 1435, Durno J., stated,

An officer using an ASD need only have a reasonable belief that the device is properly calibrated and in working order [emphasis added] before relying on a "fail" result to confirm his or her suspicions that a driver may be impaired or over the legal limit. There is no requirement the officer knew the calibration setting of the device, when it was last calibrated, or whether the device was in fact working properly: R. v. MacPherson, unreported, released, March 11, 2004 (S.C.J.); R. v. Coutts (1995), 45 O.R. (3d) 288 (Ont. C.A.); R. v. Hill, [2001] O.J. No. 4505 (S.C.J.) (QL).

[23] In the case at bar, there also appears to be no issue that P.C. Oh subjectively believed that the ASD was in good working order. He testified that he was satisfied that the ASD was in good working order and he was not cross-examined on this point.

[24] What is in issue in the case at bar is whether P.C. Oh's belief that the ASD was in good working order was reasonable.

[25] In the case at bar, there is absolutely no evidence as to how P.C. Oh formed the opinion that the ASD was in good working order. P.C. Oh admitted that he did not test the machine himself but went on to say that he was satisfied the machine was working and that he knew of no defects with the machine. The Crown chose not to question him further about the basis for his opinion and defence counsel similarly asked no questions. P.C. Oh was not questioned about when the ASD was last calibrated, if anyone tested the machine or if it was working properly. There is a complete absence of evidence before me establishing how P.C. Oh formed his opinion about the ASD. In light of this absence of evidence, which party has the burden of proof becomes very important.

[26] In R. v. Persaud, supra, at paragraph 36, when highlighting the issues at trial, Justice Goodman seems to suggest that both the Crown and defence agreed that the burden lies with the Crown. She stated,

"…Again, the respondent agrees that the Crown only need establish that the arresting officer's belief that the ASD was functioning properly was, in all the circumstances, a reasonable belief".

[27] Moreover, in R. v. Binelli 2010 ONSC 539, [2010] O.J. No. 241 (S.C.J.), Forrestal J., sitting as a Summary Conviction Appeal Court judge held:

With respect to the test that was applied, the trial judge appears to say in her reasons that the Crown must prove that the roadside screening device was in working order. The Crown need only show that the officer had reasonable grounds to believe that it was in working order. While the test that was articulated was not strictly correct, on the facts of this case, there is no practical difference since the officer took no steps to ascertain whether the device was in working order and did not testify that he had any reasonable grounds to believe that the device was in working order.

[28] In light of these cases, and the comments of the appellate court referred to above in R. v. Haas, supra, I am satisfied that in resisting a section 8 Charter application in a case like the one before me, the onus lies with the Crown to establish that P.C. Oh's belief that the ASD was working properly was reasonable (see also R. v. Topaltsis, [2006] O.J. No. 3181 (C.A.)).

[29] The Crown argued that the officer's assertion that the ASD was working properly, in light of the fact that his subjective belief was not challenged at all by the defence, is sufficient evidence to support the inference that his belief was reasonable. The officer was just one member of a larger RIDE program specifically set up to randomly test all motorists passing by. It is logical to infer that the ASD was set up properly and that this was conveyed to P.C. Oh. In many ways, this argument is attractive. The officer was part of a larger program and one would hope the officers engaged in the necessary steps to ensure the ASD was in proper working order before subjecting numerous, random drivers to the test. Moreover, as the officer was never cross-examined on the underlying basis for his belief that the ASD was in good working order, he was never given the opportunity to advise the Court what steps, if any, he took to satisfy himself that the ASD was in good working order. In R. v. Latulippe, supra, Ratushny J. held that the officer's assertion that he had used an ASD, which went unchallenged in cross-examination, was sufficient to establish it was an ASD. Finally, in almost all the cases I reviewed, the officer was examined at length about the reasonableness of his belief that the machine was in working order. In fact, this was the only case I found where the topic was ignored completely. The officer was not even asked about the calibration date on the ASD.

[30] With this in mind, I agree with the Crown that this case differs dramatically from that of Binelli, a case referred to by Ms. Peck. In R. v. Binelli, there was clear evidence that the officer did nothing to satisfy himself that the ASD was working properly. In the case at bar, I don't have this evidence. I have no reason to conclude that the officer's belief that the machine was in good working order was reasonable but I also have no evidence that his belief was not reasonable. I have no evidence either way. Having said that, having found that the burden lies with the Crown to establish that the officer's belief that the ASD was working properly was reasonable, I agree with defence counsel that the Crown must present some basis for the officer's belief and in the absence of this evidence, the Crown has not met its burden.

[31] I find that while the Crown has established that P.C. Oh subjectively believed that the ASD was in good working order, she failed to establish in any way that his belief was reasonable. As there is no evidence that the officer reasonably believed the ASD was in good working order, he cannot rely on the results of the ASD for grounds to make a breathalyser demand and arrest for driving while having over 80 mg of alcohol in 100 ml of blood. As this was the sole basis for making the demand and the arrest, the officer had no basis to make the demand and I find that Mr. Cullingworth's rights as guaranteed by section 8 of the Charter were violated.

Section 24(2) of the Charter

[32] Pursuant to section 24(2) of the Charter, the Applicant has the burden of establishing on a balance of probabilities that admission of the evidence would put the administration of justice into disrepute. In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the Supreme Court of Canada outlined the test for exclusion of evidence under section 24(2). The Court stated at paragraph 71:

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to:

(1) The seriousness of the Charter-infringing state conduct (admission may send a message the justice system condones serious state misconduct)

(2) The impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and

(3) Society's interest in the adjudication of the case on its merits.

The Court's role on a section 24(2) application is to balance the assessment under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

(i) Seriousness of the Charter-infringing state conduct

[33] I have very little evidence to assist me with this prong of the Grant analysis. The evidence establishes that the officer was part of a lawful RIDE program. He appeared to be respectful to Mr. Cullingworth, advised him of his rights to counsel, and proceeded with the testing expeditiously. Moreover, once all the testing was complete, the officer arranged a ride home for Mr. Cullingworth. There is no suggestion that P.C. Oh acted maliciously or in bad faith.

[34] I am also unable to make a finding that P.C. Oh was negligent or reckless with respect to his duties or with respect to Mr. Cullingworth's rights, as I have no knowledge as to how P.C. Oh reached the conclusion that the ASD was working properly. To conclude that his opinion was based on negligence or a lack of regard to his obligation would be mere speculation. Similarly, it would be mere speculation to conclude that the violation is just a technical violation as there is no evidence at all about what P.C. Oh did to satisfy himself that the ASD was working.

[35] Given the absence of evidence, I am unable to conclude where on the spectrum from mere technical violation to bad faith this breach falls. The defence has failed to establish that the officer was acting in bad faith or negligently. Similarly, however, I am able to conclude that the actions of the officer were in good faith. In light of the absence of evidence, this prong does not call out for exclusion of the evidence nor does it call out for inclusion of the evidence. Given, however, that the burden on a 24(2) application ultimately lies with the accused, it is slightly weighted in favour of inclusion of the evidence.

(ii) Impact of the breach on the Charter-protected interests of the accused

[36] In the case at bar, there can be no doubt that the impact of the breach on the Charter-protected interest of the accused is high. Mr. Cullingworth was arrested, handcuffed, taken to the police station, detained for many hours and subjected to two breathalyser tests when the officer had no grounds to make the arrest and demand the breath samples. These are the very intrusions that section 8 of the Charter is meant to protect.

[37] In my view, this prong strongly militates in favour of exclusion of the breath samples.

(iii) Society's interests in adjudication on its merits

[38] There is a strong societal interest in trying this case on its merits. This is a serious offence that has the potential of risking the lives of many innocent persons. Moreover, the results of the breath tests are reliable and are necessary for the successful prosecution of this case. In my view, this prong militates in favour of inclusion of the evidence.

[39] In balancing all three factors, in my view this case is a very close call. Drunk drivers are a menace to society and place the safety of all persons on the road and sidewalks at risk. The offence of impaired driving is so serious and dangerous that Parliament has enacted legislation to give police special powers to investigate and detect impaired drivers. Without the highly reliable results from the breathalyser test, the Crown will be unable to successfully prosecute this case. Moreover, if the breathalyser results are admitted, Mr. Cullingworth will surely be convicted.

[40] On the flip side, the police and the Crown are statutorily given extra powers to detect impaired drivers and enforce impaired driving laws. These extra powers permit officers to delay giving accused persons their rights to counsel and require detained persons to incriminate themselves by making it an offence to refuse to comply with a demand for a breath sample. All these intrusions are necessary in order to properly protect the public but they are intrusions and as such, the police and prosecution must be held to a high level of compliance.

[41] When I balance all the relevant factors, recognizing that this is a close call, I am satisfied that the defence has established that inclusion of the breathalyser readings, given the nature of violation, would bring the administration of justice into disrepute and I will exclude the results of the breath tests.

B. Is the Crown permitted to rely upon the statutory framework and the presumptions that follow?

[42] Counsel for Mr. Cullingworth argued that the Crown cannot rely on the statutory framework and the presumptions that follow for a couple of reasons:

a) Because the officer did not have the requisite grounds to make the breathalyser demand;

b) Because the breathalyser test was not conducted as soon as practical.

a) Absence of grounds to make the breathalyser demand

[43] As stated above, as the officer did not have a reasonable belief that the ASD was in working order, the officer cannot rely on the results of the ASD for his grounds to make the breath demand. I therefore find that he did not have the requisite grounds to make the breath demand. However, pursuant to R. v. Riling, [1975] S.C.J. No. 72 and the numerous cases that have followed, this is not a basis to exclude the results of the breathalyser tests. As stated by the Supreme Court of Canada in R. v. Bernshaw, [1994] S.C.J. No. 87, at paragraph 42,

Where breath samples are obtained without reasonable and probable grounds for the demand, the evidence should only be excluded upon an application by the accused to exclude it pursuant to s. 24(2) of the Charter.

[44] In light of the existing case law, defence counsel's argument on this point fails.

b) Were the breathalyser tests conducted as soon as practicable?

[45] In the case at bar, counsel for Mr. Cullingworth argued that there are two points in time where there were unaccounted delays in this case, resulting in non-compliance with the statutory requirement that the breath tests be conducted as soon as practicable. The two time periods in question are:

a) Mr. Cullingworth and P.C. Oh arrived at 32 Division at 1:14 a.m. but Mr. Cullingworth was not booked until 1:23 a.m. P.C. Oh could not explain what happened during these nine minutes.

b) Mr. Cullingworth spoke to duty counsel at 1:51 a.m. It is unclear when exactly he stopped talking to duty counsel, but P.C. Oh thought it was around 1:56 a.m. Mr. Cullingworth was not taken into the breath technician's room for the breath test until 2:01 a.m., some five minutes later. P.C. failed to explain what took place during these five minutes.

[46] In R. v. Vanderbruggen, [2006] O.J. No. 1138 (CA), Justice Rosenberg wrote that the phrase "as soon as practicable" means that the test were taken within a reasonably prompt time under the circumstances. The Crown is not required to provide a detailed explanation of what occurred during every minute that the accused is in custody.

[47] In my view, the Crown has proven that the tests were taken as soon as practicable. The total delay from arrest to the first breath sample was an hour and fifteen minutes. During this timeframe, Mr. Cullingworth was advised of his rights to counsel and given the proper breath demand. The officer then called dispatch to determine the location of the nearest police station equipped with a breathalyser and drove Mr. Cullingworth to this location. Upon arrival at the police station, Mr. Cullingworth was paraded, given an opportunity to speak to counsel and taken into the breath technician's room. In total, there are 14 unexplained minutes. Nine unexplained minutes occurred after arrival at the sally port but before the completion of the parade. While it is unknown why it took nine minutes to exit the police vehicle and start the booking process, there is no evidence that the officer acted unreasonably or was not mindful of moving the process along quickly. P.C. Oh appeared to be attentive to his duties and the need to administer the breath tests as soon as practicable. Moreover a nine minute delay in arriving in the sally port, exiting the vehicle and entering the station to start the booking process, is not so long as to demand a detailed account for each of these nine minutes. Similarly the approximately five minutes between Mr. Cullingworth hanging up the phone with duty counsel and being seated in the breath room, is also hardly so long a timeframe so as to demand a minute by minute detail of what took place during those five minutes.

[48] To conclude, I am satisfied that the Crown has met their burden and proven that the breath samples were taken as soon as practicable.

Conclusion

[49] To summarize, I find that Mr. Cullingworth's rights as guaranteed by section 8 of the Charter were violated and that the breath results should be excluded pursuant to section 24(2) of the Charter. Without the readings from the breathalyser test, there is no evidence that Mr. Cullingworth was driving a motor vehicle with over 80 mg of alcohol in 100 ml of blood. As such, I find him not guilty.

Released on June 19, 2012

Justice M. B. Greene