Court File and Parties

Ontario Court of Justice

Date: 2014-05-08

Court File No.: Brampton Information 13-12584

Between:

Her Majesty the Queen

— and —

Mittal Desai

Before: Justice P.F. Band

Heard: April 9, 2014

Reasons for Judgment Released: May 8, 2014

Counsel:

• Ms. J. Vlacic, counsel for the Crown
• Mr. P. Dotsikas, counsel for the defendant Mr. Mittal Desai

BAND J.:

1: INTRODUCTION

[1] Shortly after midnight on September 18, 2013, Peel Regional Police Constable Jason Hall observed Mr. Desai to be driving erratically and in excess of the posted speed limit. PC Hall stopped Mr. Desai and investigated him. During the investigation, he formed a reasonable suspicion that Mr. Desai was operating a motor vehicle with alcohol in his body and made a demand that he provide a sample of his breath into an approved screening device ("ASD"). The ASD displayed a "fail" and PC Hall arrested Mr. Desai for the offence of driving with excess alcohol in his blood ("Over 80"), and demanded that he provide a sample of his breath into an approved instrument ("AI").

[2] On behalf of Mr. Desai, Mr. Dotsikas made a number of very responsible concessions that greatly assisted in narrowing the issues to those surrounding PC Hall's investigation and arrest of Mr. Desai. These concessions in no way prejudiced Mr. Desai's defence. To the contrary, they enabled the Court to focus on the matters of real controversy in order to see that justice was done.

[3] On consent, the Crown also filed the Certificate of a Qualified Breath Technician which demonstrated that Mr. Desai's blood alcohol content ("BAC") at the time of driving was well in excess of 80 mg of alcohol per 100 ml of blood.

[4] Once PC Hall's testimony was complete, defence counsel sought leave of the court to bring a motion on behalf of Mr. Desai claiming that his s. 8 and 9 Charter rights had been violated such that the evidence of the breath samples collected from him ought to be excluded pursuant to s. 24(2) of the Charter.

[5] In a nutshell, Mr. Dotsikas claimed that the evidence gave rise to a "Bernshaw issue" – that is, that because of potential residual mouth alcohol, PC Hall could not have reasonably relied on the ASD result and therefore lacked the reasonable and probable grounds to arrest and charge Mr. Desai with "Over 80".[1]

[6] I permitted Mr. Dotsikas to do so with the consent of Ms. Vlacic who quite fairly acknowledged that the issue had arisen unforeseeably. Similarly, and very professionally, Ms. Vlacic took no issue as to the content of the informal notice, as she has had experience litigating this issue in previous cases.

[7] Following PC Hall's testimony, the matter was adjourned to allow the parties to gather case-law and marshal their arguments.

[8] After hearing arguments from both counsel, correspondence was exchanged in which it was acknowledged that the only live issue in the trial was the Bernshaw issue and that absent exclusion of the BAC evidence, the Crown had proven its case beyond a reasonable doubt. That correspondence is attached to the Information and forms part of the official court record.

2: THE RELEVANT EVIDENCE

[9] In general, PC Hall's testimony in chief concerning his observations of Mr. Desai's driving, the traffic stop and the investigative steps he took was clear and straightforward based on his independent recollections as refreshed by his notes and the Peel Regional Police Service's yellow impaired driving form. His evidence in-chief was credible and largely unchallenged.

[10] The only real challenge to PC Hall's evidence related to the issue of an utterance he attributed to Mr. Desai concerning the timing of his last drink during cross-examination. PC Hall acknowledged that Mr. Desai told him that he had consumed his last alcoholic drink "two hours ago."

[11] To understand the import of this point, it is necessary to put it in the following context. PC Hall first noticed and stopped Mr. Desai's car at 12:04 a.m. Upon discussion with Mr. Desai, PC Hall immediately smelled the odour of alcohol on his breath and formed the suspicion that Mr. Desai had alcohol in his body. PC Hall therefore made the ASD demand at 12:06 a.m. At 12:09 a.m., a "fail" was registered on the ASD and PC Hall placed Mr. Desai under arrest. At 12:12 a.m., PC Hall read Mr. Desai his rights, cautioned him at 12:14 a.m. and made the AI demand.

[12] Initially, PC Hall denied that he had any conversation with Mr. Desai about alcohol consumption before he formed the suspicion and made the ASD demand. He also denied any further conversation on the topic between the time of the ASD demand and Mr. Desai's compliance with the demand. Instead, PC Hall testified that he was certain that Mr. Desai had made that utterance after 12:13 a.m., once he had been told of his rights.

[13] At that point, Mr. Dotsikas drew PC Hall's attention to his notes, where he had made that entry just below his list of indicia of impairment that he observed upon his initial contact with Mr. Desai. In other words, prior to the moment when he formed his suspicion. In response, PC Hall indicated that he had been mistaken in his earlier testimony, as he had thought that counsel was asking him whether he had asked any questions of Mr. Desai.

[14] Ultimately, PC Hall testified based on his independent recollection that Mr. Desai had "blurted out" that he had taken his last drink "two hours ago" spontaneously, and that he had done so some time after PC Hall had made his ASD demand. PC Hall acknowledged that his independent recollection had been mistaken earlier, but maintained that he was not mistaken at this point.

[15] At no time did PC Hall ask Mr. Desai when he had consumed his last alcoholic drink.

[16] PC Hall also testified that he understood the potential impact that residual mouth alcohol can have on the validity of ASD results. Had Mr. Desai told him he had consumed alcohol within the "15 minute range," PC Hall would have "taken more cautious steps." He also testified that recent alcohol consumption "plays a factor" and that if it was within 15 minutes, it could "possibly provide a false reading." In response to the suggestion that "the issue of recent consumption is not something you would have considered regardless," PC Hall testified that the "15 minute factor was not a factor in this matter….because of the utterance."

[17] PC Hall later testified that he believed the Approved Screening Device was "in good working order" because it registered "000" when he tested it himself earlier in the shift using a new mouthpiece. It also had a sticker confirming that it had been calibrated according to the required norms and functioned properly when he demonstrated its use for Mr. Desai.

3: BERNSHAW AND SUBSEQUENT AUTHORITIES

[18] The whole scheme of s. 254 of the Criminal Code contemplates a very brief detention at the roadside precisely because a suspect's constitutional right to counsel is suspended during that time: R. v. Bernshaw, [1995] 1 S.C.R. 254; R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205. Officers are under a statutory duty to administer the test "forthwith."

[19] However, in Bernshaw, the Supreme Court enunciated a "flexible approach" to roadside investigations to allow for delays when they are necessary to obtain a proper sample. They nonetheless remain exceptional.

[20] At para. 23 of R. v. Mastromartino, [2004] O.J. No. 1435 (S.C.J.), Durno J. provided a helpful eight point summary of the jurisprudence in this area. Of relevance to this case are the following principles:

a) Officers making ASD demands must address their minds to whether or not they would be obtaining a reliable reading by administering the test without a brief delay.

b) If officers do not, or reasonably could not, rely on the accuracy of the test results, the results cannot assist in determining whether there are reasonable and probable grounds to arrest.

c) Officers making ASD demands may briefly delay administering the test if, in their opinion, there is credible evidence which causes them to doubt the accuracy of the test result unless the test was briefly delayed.

d) The mere possibility that a driver has consumed alcohol within 15 minutes before taking the test does not preclude an officer from relying on the accuracy of the screening device.

e) Whether or not officers are required to wait before administering the screening test is determined on a case-by-case analysis, focusing on the officer's belief as to the accuracy of the test results if the tests were administered without delay, and the reasonableness of that belief.

f) Officers are not required to ask drivers when they last consumed alcohol.

g) If the officer decides not to delay taking the sample and that decision is challenged at trial, the court must decide whether the officer honestly and reasonably believed that he could rely on the test result if the sample was taken without delay. [emphasis added]

[21] The possibility of residual mouth alcohol is a factor that can permit an officer to delay a test where that officer reasonably believes that a delay is required to ensure a proper sample. But this factor does not necessarily require that the test be delayed.

[22] It is inherent to the flexible approach "that different officers may assess similar circumstances differently in deciding whether some brief delay in the administration of the s. 254(2) test is necessary": R. v. Einarson, [2004] O.J. No. 852 (C.A.) at para. 34.

[23] In assessing an officer's decision to delay the test or not, trial judges must ask themselves whether a reasonable person looking at the circumstances of which the officer was aware or should have been aware would have regarded the ASD result as reliable: R. v. MacLean, [2013] O.J. No. 3054 (S.C.J.) at para. 23.

[24] Officers may, but are not obliged to, believe suspects who relate to them the timing of their last drink. This is inherent in the fact that officers must act reasonably.

[25] It follows from these principles that where there is no credible evidence to suggest that an accused may have just recently consumed alcohol, an officer would be hard-pressed to justify a delay based on the mere possibility of residual mouth alcohol.

4: ANALYSIS

[26] I find that PC Hall understood the issues that can arise in residual mouth alcohol cases both at the time he testified and at the time he conducted this investigation. His evidence was clear on this point.

[27] I also find as a fact that at some point between 12:04 and 12:13 a.m., Mr. Desai said that he had taken his last alcoholic drink "two hours ago." That is, between the time PC Hall made his first direct observations, on one hand, and just after he advised Mr. Desai of his rights, on the other.

[28] I make this finding because PC Hall recalled this utterance independently, and it also figured in his contemporaneous notes.

[29] That said, PC Hall's evidence as to when the utterance was made was both confused and confusing. I tend to believe that the utterance was made prior to the ASD demand, despite PC Hall's testimony to the contrary, as this would conform with the place in which the utterance figures in his notes. But I am unable to make this precise finding with any certainty.

[30] Mr. Dotsikas acknowledged that a finding that Mr. Desai made the utterance would "be a problem" for his argument. While PC Hall's confusion might have been fatal to the Crown's case if it related to the timing of other aspects of his investigation (such as the timing of his suspicion and subsequent ASD demand), I am of the view that it is immaterial in this case.

[31] If Mr. Desai's utterance was made prior to the ASD demand, it did not constitute credible evidence that he had just recently consumed alcohol. Therefore, it did not constitute a reason for PC Hall to doubt the accuracy of the test so as to require that it be delayed.

[32] Of course, the case might have been different had Mr. Desai told PC Hall that he had consumed alcohol within the last 15 – 25 minutes, but that is not what he said.

[33] On the other hand, if Mr. Desai's utterance was made after the ASD test was administered, then it was not among the circumstances of which PC Hall was aware prior to forming the suspicion and making the demand. Again, obviously, it would not have constituted a reason for PC Hall to doubt the accuracy of the test in the absence of other credible evidence of recent alcohol consumption. In this case, there was none.

[34] It may be that this case would be different if Mr. Desai had made his utterance after providing a sample into the Approved Screening Device and, in so doing, had referred to a period within 25 minutes instead of two hours. But again, that is not what he said.

[35] In this case, I find that a reasonable person in the shoes of PC Hall would have regarded the test as reliable and would have administered it forthwith.

[36] I further find that PC Hall was entitled to rely on the "fail" in order to form reasonable and probable grounds to arrest and charge Mr. Desai with "Over 80." In doing so, PC Hall in no way violated Mr. Desai's s. 8 or other Charter rights.

[37] Everything else having been conceded, I find that the Crown has proven Mr. Desai's guilt beyond a reasonable doubt and a conviction will be entered.

Released: May 8, 2014

Original signed by The Honourable Justice Patrice F. Band

Justice P.F. Band

Footnote

[1] PC Hall initially testified, in error, that a "fail" on the ASD means that a person's BAC is "approximately 100 mg of alcohol or more in his bloodstream." As a result, Mr. Dotsikas also alleged that this error could affect PC Hall's reasonable and probable grounds to arrest Mr. Desai. However, in cross-examination and then in re-examination, PC Hall testified using the correct units and ratios as he described the meaning of a "pass", "warn" and "fail" on the Approved Screening Device as well as the legal limit of 80 mg of alcohol per 100 ml of blood. Quite correctly, Mr. Dotsikas did not argue the point strenuously. In any event, I would reject this argument in this case based on the authorities, including R. v. McDonnell, [2004] O.J. No. 927 (S.C.J.).