Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Siu-Man Leung

Before: Justice P. Downes

Heard on: April 30 and August 8, 2013

Reasons for Judgment released: November 13, 2013

Counsel:

• Mr. J. Smith, for the Crown
• Mr. P. Lindsay, for the accused Siu-Man Leung

DOWNES J.:

1.0 INTRODUCTION

[1] Siu-Man Leung is charged with Over 80.

[2] I have heard evidence from two police officers and received an agreed statement of facts with respect to the evidence of a third. The Crown relied on the certificate of analysis with respect to Mr. Leung's blood alcohol content (BAC) readings.

[3] The Crown also sought to call reply evidence relating to the date on which the approved screening device (ASD) was calibrated.

[4] The outcome of this trial turns principally on my assessment of Charter applications brought by the defence, and requires the answer to the following four questions:

1. Should I admit evidence tendered by the Crown after the close of the defence case relating to the date the ASD was calibrated?

2. Were Mr. Leung's section 10(b) rights violated in the course of his arrest or detention?

3. Were Mr. Leung's section 8 rights violated because the police officer did not have objectively reasonable grounds to believe that he was over 80 on the basis of the fail registered on the ASD?

4. If the answer to questions two or three is yes, should the evidence be admitted pursuant to section 24(2) of the Charter?

2.0 THE EVIDENCE

[5] The evidence is not complicated and much of it is not in dispute. I also have had the benefit of viewing the in-car DVD which shows what occurred after Mr. Leung was pulled over.

[6] P.C. Chris Cassidy stopped Mr. Leung at 3:12 a.m. on January 2, 2012 after he believed he saw him driving while using his cell phone. P.C. Cassidy approached Mr. Leung and asked for the usual documents. At that time he detected no odour of alcohol or any other indicia of alcohol consumption. P.C. Cassidy went back to his cruiser to conduct the usual checks. As he was doing so Mr. Leung's car rolled slowly backwards eventually colliding with the front bumper of P.C. Cassidy's cruiser. All of this is captured on the in-car DVD.

[7] P.C. Cassidy testified that in accordance with the normal Toronto Police Service practice he had to contact his sergeant to advise him of the incident. A separate traffic investigator would attend to investigate the collision. At 3:14 a.m. he contacted Sgt. Byers with his cell phone, turning off the in-car audio while he did so because, as he testified, "I didn't want it to be brought forward for possible disclosure."

[8] At about 3:30 a.m. the sergeant and a second cruiser arrived on scene and proceeded to investigate the accident.

[9] P.C. Paul Jackson was the officer who arrived to investigate the accident. He testified that as he was looking at the parking brake in Mr. Leung's vehicle he could smell a strong odour of alcohol coming from his breath. Mr. Leung admitted to consumption so P.C. Jackson proceeded to make the alcohol screening device (ASD) demand and administer the test using a Drager GLC 7410C. P.C. Jackson gave the following evidence about the ASD:

The screening device I had with me that day in the car that I had tested, before I began my shift that night I tested it, before I went on the road that night. I had tested it at 2:30 a.m. I'll just confirm that; sorry. I'm sorry, let me just retract that statement. So at my scout car I had with me a Drager G.L.C. 7410C approved screening device. The model number is ARZM 0063. The lot number is 22BH. That was certified on the 23rd of January 2011. That was when it was last calibrated by Badge Number 3912. I had tested it prior to me getting this call, at two thirty in the morning, so approximately an hour prior to this investigation, and I found it to be in proper working order at that time.

[10] P.C. Jackson explained that he conducted the self-test by providing a sample of his own breath into the device and obtaining a reading of 0.0. He testified that he had used this particular device a few times and was familiar with its operation.

[11] After several aborted attempts Mr. Leung eventually blew a fail and at 3:40 a.m. P.C. Jackson arrested him for Over 80.[1]

[12] P.C. Jackson handcuffed Mr. Leung to the rear, conducted a pat-down search and placed him in the scout car. He advised the on-scene sergeant of the arrest and they discussed having to have another officer attend to complete the collision report. Under cross-examination P.C. Cassidy agreed that after he arrested Mr. Leung and placed him in the scout car he had a discussion with P.C. Cassidy about the parking brake and the fact that Mr. Leung stank of alcohol. He then got into the scout car and mentioned to his partner how cold it was, before reading Mr. Leung his rights to counsel and the approved instrument demand from the script at the back of his memo book at 3:43 a.m.

[13] By this point P.C. Jackson was not involved any further with the collision investigation.

[14] At 3:49 he left the scene en route to 41 Division.

[15] At the station Mr. Leung was again given his rights to counsel and declined to call a lawyer or the 1-800 duty counsel number. He provided samples of his breath registering 154 and 148.

[16] At the close of the Crown's case defence counsel sought an adjournment before deciding whether to call a defence. As a result, the trial was adjourned for about three months in order for Mr. Lindsay to obtain and review a transcript of the evidence. On the return date the defence called a single witness, Mr. Ismael Moftah.

[17] Mr. Moftah was qualified on consent as an expert in the theory, proper operation and maintenance of ASDs including the Alcotest 7410 GLC. He testified that according to his understanding as well as the Centre for Forensic Sciences (CFS) guidelines and TPS policy, the ASD should be recalibrated every 14 days.

[18] When provided with a hypothetical scenario matching the evidence relating to Mr. Leung's ASD sample, he testified that an officer could not reasonably rely on the accuracy of the fail reading on the ASD if it had not been calibrated for some eleven months.

[19] The Crown sought to tender reply evidence – a document purporting to be from the Toronto Police Service (TPS) showing the calibration history of the particular ASD used by P.C. Jackson. Mr. Moftah was shown the document but since it was not of his creation the Crown did not seek to tender it for the truth of its contents through him.[2] Mr. Moftah recognized it as a TPS maintenance and calibration record which on its face showed that the ASD had in fact been calibrated on December 23, 2011 (ten days before it was used in this case), not January 23 as indicated by P.C. Jackson. Mr. Moftah said he was familiar with this as a typical document provided in disclosure in these kinds of cases. Although it had been provided as part of Crown disclosure in this case, Mr. Moftah said he not seen it prior to testifying.

3.0 ANALYSIS

3.1 The Reply Evidence

[20] Although I have characterized the Crown's proposed evidence as being tendered in reply, the defence submits that it is not properly reply evidence but rather is an attempt by the Crown to reopen its case. The difference is significant: the Crown concedes that if it is indeed the latter then the Crown would be prohibited from leading it because it would not fall within the test permitting reopening outlined in R. v. M.B.P., [1994] S.C.J. No. 27.

[21] There are two circumstances under which the Crown may be permitted to call evidence in reply after completion of the defence case: first, where the defence has raised some new matter or defence with which the Crown had no opportunity to deal and that the Crown could not reasonably have anticipated; and second, where some matter that emerged during the Crown's case has taken on added significance as a result of evidence adduced in the defence case: R. v. K.T., 2013 ONCA 257, [2013] O.J. No. 1876 (C.A.) at para. 43.

[22] As I have indicated, the defence says that the stricter test applicable to applications to reopen applies in this case. It is not immediately clear to me how one differentiates between reply and reopening. While reply evidence is aimed at addressing an issue, the significance of which emerges only as a result of an issue raised by the defence, a reopening is properly characterized by evidence either from a witness who has already testified and whose evidence is proposed not as a response to some deficiency exposed by the defence evidence but as a result either of an inadvertent oversight, or as evidence aimed at addressing an issue which only came into existence after the close of the Crown's case: R. v. Sylvester, [1997] O.J. No. 651 (C.A.).

[23] The general rule is against allowing the Crown to reopen its case after the defence has started to answer the case against it. The keystone principle in determining whether the Crown should be allowed to reopen its case has always been whether the accused will suffer prejudice in the legal sense – that is, will be prejudiced in his or her defence. There is also, however, an exception where "the Crown's omission or mistake was over a non-controversial issue to do with purely formal procedural or technical matters, having nothing to do with the substance or merits of a case": R. v. M.B.P., supra, at 301.

[24] The Crown should not be allowed, except in the narrowest or most exceptional of circumstances, to reopen its case once the defence has started to answer the case against it: R. v. M.B.P., supra, at para. 45.

[25] In this case, P.C. Jackson testified in-chief that the ASD had been calibrated about eleven months earlier. That was the sole reference to the issue of calibration until Mr. Moftah testified. The Crown did not seek to clarify or expand on the evidence of the calibration date and Mr. Lindsay, perhaps understandably, did not cross-examine on the issue. Instead, the Crown sought to tender the TPS document showing that the particular ASD in this case had in fact been calibrated about 10 days prior to Mr. Leung's arrest.

[26] The Crown says that in tendering the document it is merely reacting to an issue that became material only after Mr. Moftah testified. In other words, the Crown submits that, standing alone, P.C. Jackson's evidence about the calibration date meant nothing. It was not until Mr. Moftah testified that reliance on it would be unreasonable that the issue of the calibration date became relevant. In that sense, the Crown says, it is merely tendering evidence in response to an issue raised for the first time in the course of the defence evidence.

[27] The defence submits that this is a disguised attempt by the Crown to reopen its case because it amounts to nothing more than an attempt to change P.C. Jackson's evidence with respect to the calibration date. The defence called evidence relying on what P.C. Jackson has testified to about the calibration date and, Mr. Lindsay submits, it would be unfair and prejudicial to his client to allow the Crown to shore up the problems with P.C. Jackson's evidence by tendering further evidence on exactly the same issue touched on in P.C. Jackson's evidence in-chief.

[28] While I am inclined to the view that the evidence the Crown seeks to tender is more in the nature of reply than a reopening, I need not decide the issue since in my view it is inadmissible on either basis.

[29] As an attempt to reopen, it is subject to the strictest of tests since the defence has already closed its case. That test is not met here. While it is not a question of self-incrimination, the evidence is of considerable substantive importance to the Crown and cannot be characterized as noncontroversial or dealing with overly technical matters in the legal sense. The defence was entitled to proceed to call its case on the basis of the evidence the Crown tendered and in my view it would be unfair and prejudicial to permit the Crown to reopen its case at this stage. In my view the Crown in tendering this evidence is attempting to do exactly what the Court in R. v. M.B.P. at para. 41 described because, "based on what it has heard from the defence once it is compelled to 'meet the case' against it, [the Crown] seeks to fill in gaps or correct mistakes in the case which it had on closing and to which the defence has started to respond" [emphasis added].

[30] Equally, although certainly less clearly, in my view this is not evidence directed at an issue raised for the first time by the defence in its case. Nor is it a matter with which the Crown had no opportunity to deal and that the Crown could not reasonably have anticipated.

[31] The Crown submits that the evidence falls within the reply evidence rubric because the issue of the calibration date testified to by P.C. Jackson took on added significance as a result of Mr. Moftah's evidence.

[32] There is force to this argument, but in my view there must also be an element of fairness in an assessment of the reply evidence. The Crown was, at the very least, on notice that calibration was an issue once P.C. Jackson testified about the date. Mr. Smith conceded as much. It is true that without the evidence of Mr. Moftah the full evidentiary impact of P.C. Jackson's evidence in a pure legal sense was not before the court. But it cannot seriously be argued that where a police officer testifies that the ASD had been calibrated almost a year earlier, and where it would have been simple for the Crown to address that issue either by further questions put to P.C. Jackson or by calling evidence during its case in-chief, that the Crown was somehow taken by surprise that the defence made this an issue.

[33] In that respect, at least, this case differs from R. v. C.O.L., [2012] O.J. No. 5213 at para. 15, where the Court of Appeal held that the admission of the reply evidence did not cause the appellant any trial unfairness:

Had the Crown known of the issue relating to the timing of ordering the pizza before the trial, it could have obtained and introduced the receipt as part of its case. As it turned out, the appellant raised the issue for the first time during his examination-in-chief when he testified that the pizza had been ordered at 4:00 p.m. and that he had gone downstairs to bed alone before 10:00 p.m. That evidence was sufficiently connected to his testimony that the complainant never went to the basement and his denial of a sexual assault to open the door to rebuttal by the Crown [emphasis added].

[34] Here the Crown did know of the issue relating to the timing of the ASD calibration before it closed its case. Rather than take the perhaps precautionary measure of tendering evidence on the issue in-chief, the Crown waited to see if the defence capitalized on P.C. Jackson's testimony. Whether that was strategic or the result of an oversight, in my view it would occasion an unfairness to the accused to permit the Crown to "clean up" the issue in reply.

[35] The Crown will not be permitted to tender the documentary evidence or call any further witnesses.

3.2 Section 10(b)

[36] Mr. Lindsay submits that Mr. Leung's Charter right to counsel was breached when the police failed to afford him that right while he was waiting for officers to arrive to investigate the accident. He also says there was an unacceptable delay between Mr. Leung's arrest and the reading of his rights. Mr. Lindsay submits that this was an 18-minute period in which the accused was detained and not free to leave and not afforded the informational component of section 10(b). The accused also had his cell phone on him with sufficient time to contact counsel during that time.

[37] I do not agree. At no time did P.C. Cassidy have the accused detained for the purpose of a criminal investigation. He did not concede, even when pressed under cross-examination, that he was engaged in anything more than a routine traffic stop and a potential Highway Traffic Act investigation. There was no obligation on P.C. Cassidy to provide 10(b) rights to Mr. Leung during the brief period of the initial investigation or, in the unusual circumstances of this case, while they awaited the arrival of other officers to investigate the collision: R. v. Harris, 2007 ONCA 574, [2007] O.J. No. 3185 (C.A.) at paras. 45-49.

[38] Nor did P.C. Jackson breach Mr. Leung's 10(b) rights. At most, he delayed administering the 10(b) wording for a period of three minutes between the time he placed Mr. Leung under arrest and the time he actually read him his rights from his memo book. During that time he cuffed and searched Mr. Leung and placed him in the cruiser. He then had a brief conversation with a fellow officer before getting into the scout car himself, speaking briefly to his partner, and reading the 10(b) script.

[39] On this record, I am not persuaded that the three minute delay constituted a breach.

[40] It is worth noting as an aside that upon arrival at the police station and being again informed of his right to counsel, Mr. Leung declined, preferring instead to get on with the breath testing.

3.3 Section 8

[41] This issue is really the heart of this case.

[42] Section 254(3) of the Criminal Code authorizes peace officers to demand breath samples provided the officer has effected a lawful arrest based on subjectively and objectively reasonable and probable grounds to believe that a person is committing or at any time within the preceding three hours has committed the offence of impaired operation or driving over 80.

[43] Reasonable and probable grounds does not amount to proof beyond a reasonable doubt or to a prima face case: R. v. Censoni, [2001] O.J. No. 5189 (S.C.J.) at para. 3; R. v. Shepherd, 2009 SCC 35, [2009] S.C.J. No. 35 at para. 23.

[44] The subjective component requires the officer to have an honest belief the suspect committed the offence. The officer's belief must be supported by objective facts.

[45] The objective component is satisfied when a reasonable person placed in the position of the officer would be able to conclude that there were indeed reasonable and probable grounds for the arrest: R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453 (C.A.) at paras. 37-38. The time frame for such a belief is at the time of the demand, based on facts known or available to the officer at the time he formed the belief: R. v. Mastromartino, [2004] O.J. No. 1435 (SCJ) at para. 31.

[46] What is important about the officer's belief is not its accuracy, but its reasonableness. An officer's mistaken understanding about the calibration of a device will not undermine the validity of his grounds to make an arrest and an approved instrument demand, if the belief was honest and reasonably based on the facts as he understood them: R. v. Weese, [2005] O.J. No. 749 (C.A.); R. v. Topaltsis, [2006] O.J. No. 3181 (C.A.); R. v. Deacutis, [2006] O.J. No. 3249 (C.J.).

[47] The parties spent some time on an issue which has arisen in cases of this nature as to how the onus is to be approached in this area. In some of the cases there is a focus on language which appears to come from R. v. Bernshaw, [1994] S.C.J. No. 87, which concerned the possible effects of recent consumption of alcohol. There, Sopinka J. held at para. 59:

If the scientific evidence establishes a high degree of unreliability with respect to the screening device when certain conditions prevail, and if a police officer knows, for example based on his or her training, that the resultant screening device will provide inaccurate results where a suspect has consumed alcohol within the 15 minutes prior to administering the test, how can the police officer testify that he or she has an honest belief of impairment, absent [any] other indicia? Surely the knowledge that the screening test is unreliable would vitiate any subjective belief that an officer may have regarding reasonable and probable grounds of the commission of an offence under s. 253 of the Code. A police officer will have difficulty in concluding that such a flawed test upgrades one's mere suspicion into reasonable and probable grounds. If the police officer is to give an honest answer as to his belief, I cannot see how, as a matter of law, we can tell the officer that the answer is wrong.

[48] In R. v. Paradisi, [1998] O.J. No. 2336 (C.A.), a case concerning the appropriate frequency of testing for screening devices, the Court of Appeal referred to Bernshaw and observed that there was an "onus" on the accused "to lead evidence" that there was a "high degree of unreliability" with respect to the screening device. In Paradisi the Court of Appeal found that the expert evidence tendered in that case went no further than speculation while there was concrete evidence that the subject machine when calibrated three days later was found to be accurate.

[49] This language presents difficulties because typically, of course, the onus is on the Crown where the seizure, as here, is a warrantless one.

[50] In resolving this issue I can do no more or better than to adopt the comments of my colleague Blacklock J. on this issue in R. v. Grennan, [2013] O.J. No. 3733 (C.J.) at paras. 20 to 25:

20 My own view is that in order to read these cases with other cases relating to the onus under s. 8 of the Charter neither of them should be taken as standing for the proposition that there is truly a formal legal onus on the defence to lead, as a matter of law, evidence involving a high degree of unreliability in the ASD device or test in question. The reference to a high degree of reliability in paragraph 59 of Bernshaw can simply be seen as the court providing an example of a factual situation in which as a matter of fact a failure on an ASD would not provide reasonable grounds for a breath demand or arrest.

21 The comments of the Court of Appeal in Paradisi can be seen simply as reflecting the notion that in certain circumstances there is a tactical necessity, and in that sense an onus, on the defence to lead evidence if on the record before the court the defence is to succeed in the argument it is advancing.

22 There are equally many binding authorities that establish the notion that under s. 8 of the Charter once the defence establishes that the search is warrantless the legal onus shifts to the Crown to establish that the search was reasonable on the balance of probabilities. This means that the Crown must establish on that standard that the search was lawful and conducted in a reasonable fashion.

23 In this case, the search is the process of taking and analyzing breath samples. In order for the breath demand to be lawful in this case the onus is on the Crown to establish that it was made with the requisite grounds...

24 There is no doubt, however, that ordinarily, once the Crown leads evidence that establishes a failure on an instrument approved by Parliament, which has been calibrated to fail only when its analysis indicates a blood alcohol concentration of 100 milligrams in 100 millilitres of blood, without more, the Crown is likely to be found to have discharged its legal onus. Such a set of facts, without more, ordinarily will lead a court to conclude that the officer believes reasonably that the subject of the test is likely in excess of the legal limit of 80 milligrams of alcohol in 100 millilitres of blood. In such circumstances a tactical onus arises on the defence to adduce, or point to evidence, that is capable of undercutting the normal inference so as to show that this is not more likely than not true.

25 One way they can do so is to lead evidence which is capable of supporting the conclusion that it is, indeed, probably not true that the officer believes that the fail on the ASD is indicative that the accused is over the legal limit or alternatively that that belief is not reasonable for him to hold. It would also practically seem that this evidence should establish a degree of unreliability which is meaningful given the nature of the issue under consideration and the fact that we are dealing with an onus which turns not on doubts but turns on probabilities. I would suggest that this is all that the appellate courts have indicated in using the phrase of a "high degree" of unreliability.

[51] Turning then to the application of the test in this case, I have no difficulty accepting that P.C. Jackson in fact believed that the failure on the ASD was reliable. I do not understand Mr. Lindsay to take issue with P.C. Jackson's subjective belief. The officer was not cross-examined on it. The sole issue is whether his subjective belief was objectively reasonable in the circumstances.

[52] I accept P.C. Jackson's unchallenged evidence that he had tested the device just prior to using it on Mr. Leung and found it to be in proper working order. There is no evidence, and it was not put to P.C. Jackson, that there was any reason for him not to conclude that the ASD was in proper working order. The fail on the ASD was also supported by P.C. Jackson's observations of impairment, minimal as they may have been.

[53] The real question in this case is whether I am satisfied, on the basis of the record before me, given what was known or what reasonably should have been known to P.C. Jackson, that his belief that the accused was probably over the legal limit was more likely than not reasonable.

[54] Mr. Moftah testified that the policies of the manufacturer, the TPS and the CFS all recommended that the screening device be calibrated every 15 days. It was his opinion that it would be unreasonable for an officer to rely on results "generated by a device that had not been calibrated in a timely fashion, especially if it was last calibrated months before those results were generated." That evidence, the defence submits, renders P.C. Jackson's belief that the ASD fail provided grounds to arrest Mr. Leung objectively unreasonable.

[55] The defence pointed to several cases where a stale calibration date proved fatal to the reasonableness of the arresting officer's grounds.

[56] In R. v. Semerdji, [2013] O.J. No. 1287 (C.J.) for example, the ASD had been calibrated 51 days earlier. The trial judge found that the arresting officer lacked the requisite belief because she testified that she believed at the time that the device should be calibrated every 14 days to be reliable but nevertheless, "went ahead and used it on the Applicant regardless. With this doubt on her mind as to the reliability of the roadside screening device [the officer] clearly lacked the requisite belief, both subjectively and objectively, to make her s. 254(3) (a)(i) demand which was accordingly unlawful." Here, however, there is no evidence before me of P.C. Jackson's knowledge of how the apparent calibration date affected its reliability.

[57] Similarly in R. v. Ramsden, [2002] O.J. No. 5868 (C.J.) the trial judge inferred that calibration within fourteen days was one of the reasons that the arresting officer was able to rely on the ASD fail to give reasonable grounds to believe the accused was over 80. She herself testified that the machine had been calibrated by another officer and her own reliance on the reading relied in part on her belief at the time that the machine had been calibrated within the recommended time and was not yet due for calibration.

[58] The defence also relies on the decision of Green J., in R. v. Pruski, 2006 ONCJ 506, [2006] O.J. 5256 (C.J.) where the arresting officer relied on an ASD which had been calibrated a month earlier. But again, and unlike here, the officer in that case testified that he, "understood that an ASD might not work accurately if it was not properly calibrated and, for that reason, a machine should not be used if its most recent calibration was not within the calibration protocol issued by the Centre for Forensic Science." The arresting officer testified that he had since learned, "that the CFS protocol prescribed a calibration interim of 14 days rather than one month" and that if he had known this at the time he would not have used the ASD in question.

[59] In R. v. Hanson, [2006] O.J. No. 5347 (C.J.) the arresting officer's reliance on the ASD was found to be unreasonable but not because he relied on an ASD that had been calibrated beyond the recommended guidelines. Rather, the trial judge noted that there was no evidence before him that the arresting officer, prior to administering the ASD "took any steps, for example by self-testing the device to ascertain whether it was functioned [ sic ] properly." P.C. Jackson, in contrast, testified about the steps he took and the tests he performed to satisfy himself of the ASD's reliability. His evidence was not challenged on that point.

[60] Finally in R. v. Johnston, [2007] O.J. No. 500 (C.J.) Feldman J. found that the Crown had not discharged its burden to establish the objective reliability of the ASD because the arresting officer never checked the calibration date and indeed there was no evidence on the issue at all.

[61] It is notable that in all of the cases relied on by the defence the arresting officer was cross-examined on the issue of the calibration date. There is no evidence before me as to P.C. Jackson's knowledge or belief, actual or inferred, about the impact of any particular calibration date on the ASD's reliability.

[62] Although Mr. Moftah testified that it would be unreasonable for an officer to rely on the results of an ASD calibrated outside the recommended time period, he acknowledged that he could not say what the impact of an 11 month calibration would have on the particular instrument in this case because he did not operate, maintain or service this instrument. P.C. Jackson, on the other hand, had performed a satisfactory self-test immediately before using it on Mr. Leung. Further, the machine itself gave every indication that it was functioning properly because it responded in what appeared to be an appropriate manner when Mr. Leung failed to provide a suitable sample on his first three attempts. Again, P.C. Jackson was not cross-examined on this issue. I find that the evidence of Mr. Moftah does not establish that there was a high degree of unreliability with respect to the ASD in this particular case such that it would undermine the objective reasonableness of P.C. Jackson's belief.

[63] In any event, the position of the defence is premised on my accepting Mr. Moftah's expert opinion. His expertise was unchallenged, but I found him to be a singularly unimpressive witness. Indeed, regrettably, I was left with the overwhelming impression that he was a witness who, rather than displaying the objectivity neutrality that should be the hallmark of reliable expert evidence, was evasive and visibly reluctant to provide a direct answer to some of the Crown's most pertinent questions: The Report of the Inquiry into Pediatric Forensic Pathology in Ontario (Toronto: Queen's Printer for Ontario, 2008) Vol. 3, p. 503-04.

[64] For example, when presented with a fairly straightforward hypothetical that would have had Mr. Leung's BAC at over 100 at the time he was stopped, Mr. Moftah would not provide a forthright answer until the Crown had posed the question some seven times and after I had to inquire as to whether Mr. Moftah even understood the question he was being asked, a question which someone of his claimed expertise should have had no trouble in answering the first time. This line of questioning alone left me with little alternative but to conclude that Mr. Moftah knew his response would be unhelpful to the defence and made every effort to avoid a direct answer.

[65] Mr. Moftah's testimony troubled me enough that I have considerable reluctance in accepting his opinion that the lengthy period since the last calibration undermined the reliability of the ASD fail in this case. But the Crown did not seem to take issue with the proposition that the policies of the CFS and the TPS recommend that calibration should be within the previous fourteen days.

[66] Those policies, however, only refer to the recommended period. They do not refer to the reasonableness of an officer's reliance on an ASD calibrated outside the recommended period.

[67] The objective reasonableness of P.C. Jackson's reliance on the ASD fail must be assessed based on the evidence before me as to what was known to the officer at the time: R. v. Weese, supra. There is no evidence as to whether P.C. Jackson knew or should have known the effect of that calibration date on the reliability of the ASD result. He was not cross-examined on that. That was a decision made by experienced counsel skilled in these areas and it is not for me to speculate on the reasons for that strategy, but the result is that there is nothing before me to add any meaning to the evidence of what P.C. Jackson knew at the time, as opposed to what the trial record now shows.

[68] That evidentiary gap cannot be filled by speculation, judicial notice or inference unless that inference is reasonably available on the evidence. I am not satisfied that the question of what this or any similarly situated Toronto police officer would or should have known about the effect of any particular calibration date is so generally known and accepted in the community that it is something of which I can take judicial notice. In light of how this trial unfolded, I am not prepared to fill the evidentiary gap so deliberately left open by the parties.

[69] I am therefore satisfied that the Crown has established that P.C. Jackson's reliance on the ASD fail as a basis for arresting Mr. Leung was both objectively and subjectively reasonable. There was no violation of Mr. Leung's section 8 Charter rights.

3.4 Section 24(2)

[70] In the event that I am in error I will express my views on s. 24(2) in the event that Mr. Leung's s. 10(b) or s. 8 rights were violated.

[71] R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32, commanded a flexible approach to s. 24(2) designed to promote the good repute of the administration of justice by upholding Charter rights and maintaining the rule of law. In determining whether evidence should be excluded under section 24(2), consideration is to be given to all of the circumstances while balancing three factors: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the defendant's Charter-protected interests; and (3) the societal interest in an adjudication of the case on the merits.

3.4.1 Seriousness of the Charter-Infringing State Conduct

[72] The crucial question under this line of inquiry is whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct: Grant, supra, at para. 72. The more severe or deliberate the state conduct leading to the breach, the more likely that the courts must disassociate themselves from that conduct by excluding the evidence. The spectrum of seriousness was defined as follows in Grant at para. 74:

At one end of the spectrum, admission of the evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute. The arrest was not unfounded, it was premature.

[73] Mr. Lindsay submits that the police demonstrated a pattern of conduct in this case that showed a disregard for basic Charter rights. In particular he says that P.C. Cassidy asked Mr. Leung's passenger for identification even though he had no lawful authority to do so. The police attitude towards the Charter is further displayed, he submits, by P.C. Jackson's evidence that he did not know what the legal requirement was in terms of when section 10(b) rights must be afforded (he couldn't say whether it was "forthwith" or "immediately" he just knew he had to provide them).

[74] I do not agree. I accept that in light of R. v. Harris, 2007 ONCA 574, [2007] O.J. No. 3185 that answers to police questions are capable of giving rise to a s. 8 claim where the subject of the questioning is under police detention and reasonably believes that he or she is compelled to provide the information sought in the questions. While this may have been the case here (I did not hear from the passenger) and while it may say something about P.C. Cassidy's understanding of the scope of his lawful authority generally, any violation in this area was not in relation to Mr. Leung. I am not persuaded that what amounts to a potential Charter violation against a non-accused party can play any significant role in determining the impact of any unrelated violation of the accused's Charter rights.

[75] I also do not find that P.C. Jackson's inability to articulate the precise temporal parameters of the 10(b) caution is indicative of a casual approach to the issue. He was clear that he understood the need to afford the right to counsel upon arrest and the delay in providing it, if it amounted to a breach, was surely at the lower end of seriousness spectrum.

[76] With respect to section 8, P.C. Jackson subjectively believed that he had reasonable and probable grounds to arrest Mr. Leung for over 80. His grounds, if they fell short of the standard of objective reasonableness, did so only on the basis of the calibration date, but were mitigated by his attention to the functionality of the ASD at the time. This was not a case where there was no evidence or information available at the scene to support P.C. Jackson's reliance on the ASD and his belief that Mr. Leung had committed the offence.

[77] There was no evidence that P.C. Jackson wilfully or recklessly disregarded Mr. Leung's Charter rights or that he did not operate with good faith. In these circumstances, the need for the court to disassociate itself from the police conduct is reduced: Grant, supra, at paras. 72-75 and 108.

3.4.2 Impact on the Charter-Protected Interests of the Accused

[78] As set out in Grant at paras. 76-78:

the impact of the Charter breach on the Charter-protected interests of the accused may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.

[79] Here the intrusion relates to the taking of Mr. Leung's breath, said to compromise his bodily integrity. Grant concluded that the method of collection of breath sample evidence is relatively non-intrusive: Grant, supra, at paras. 99-111. The seizure of Mr. Leung's breath in my view is at the more moderate end of intrusion into his s. 8 rights.

[80] Defence counsel submitted that, in considering the impact on Mr. Leung's Charter-protected interests, I should take into account everything that Mr. Leung underwent including being arrested, handcuffed, placed in the police cruiser, taken to a police station, photographed, fingerprinted, required to provide additional breath samples and kept in custody until almost about 6:00 a.m. before being released.

[81] I do not find that these additional factors significantly compounded the degree of intrusion on Mr. Leung's Charter rights. The DVD evidence of the police interaction with Mr. Leung shows that he was treated respectfully throughout. I am satisfied that this factor weighs against exclusion of the evidence.

[82] With respect to any 10(b) violation, the minimal delay and the fact that Mr. Leung declined to contact counsel at the station are also significant factors in assessing the impact of any breach on Mr. Leung's Charter-protected interests.

3.4.3 Society's Interest in Adjudication on the Merits

[83] Under this branch of the Grant analysis the reliability of the evidence and its importance to the prosecution's case are highly relevant to the public interest in truth-finding: Grant, supra, at paras. 80-83. Grant confirmed that breath samples are acknowledged to be generally reliable: Grant, supra, at paras. 110-111. In this case excluding the evidence of Mr. Leung's BAC would essentially gut the Crown's case. Accordingly, I find that the third line of the Grant inquiry favour admission of the evidence.

3.4.4 Effect of the Admission of the Evidence

[84] Taking into account all of the circumstances, I must balance the three lines of assessment mandated in Grant and determine whether the admission of the evidence obtained by the Charter breach would bring the administration of justice into disrepute.

[85] If there were any breaches they were minor. The impact on Mr. Leung's Charter-protected interests was relatively minimal and the admission of the evidence would serve rather than detract from the public interest in the truth-seeking function of the criminal trial process, given the reliability and importance of the evidence to the prosecution's case.

[86] Finally, I place considerable reliance on the following comments of the court in Grant at para. 111 on the ultimate effect of admitting or excluding evidence flowing from a Charter breach:

While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused's privacy, bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability. On the other hand, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused's body may be admitted. For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive.

[87] I find that this case falls into the latter category identified in Grant. The violation was not egregious. The intrusion on Mr. Leung's privacy, and bodily integrity and dignity was not severe. The breath sample evidence was reliable and essential to the prosecution case. Accordingly, the admission of the evidence would not bring the administration of justice into disrepute.

4.0 CONCLUSION

[88] The Crown is not permitted to call evidence in reply.

[89] I am not satisfied that any of Mr. Leung's Charter rights were violated in the course of his investigation and arrest.

[90] In the event that I am in error, I am not satisfied that Mr. Leung's BAC readings should be excluded under s. 24(2).

[91] The BAC readings being admissible, and the Charter arguments being the only defence advanced, I am satisfied that the Crown has proved all the elements of the charges against Mr. Leung beyond a reasonable doubt and he will be found guilty of Over 80. I will hear from counsel with respect to the accompanying Highway Traffic Act charge.

[92] I greatly appreciate the high quality of advocacy displayed by both counsel in this case.

Released: November 13, 2013

Signed: "Justice Downes"

Footnotes

[1] The transcript records P.C. Jackson saying 3:49. That is a transcription error.

[2] Although there may well be a basis to believe that it could have. It is important to keep in mind, however, that this document is not before me for its truth and I must disabuse my mind of its contents unless and until it is admitted.