Court File and Parties

Court File No.: Brampton 12-5667

Date: July 3, 2014

Ontario Court of Justice

Central West Region

Between:

Her Majesty the Queen

— and —

Gary Felsbourg

Before: Justice Richard H.K. Schwarzl

Heard on: May 8, 2013; January 17 and June 19, 2014

Reasons released on: July 3, 2014

Counsel:

Ms. Carrie Vandenbroek — for the Crown

Mr. Douglas Lent — for the Accused

SCHWARZL, J.:

1.0: INTRODUCTION

[1] The Accused, Gary Felsbourg, stands charged with a single count of Driving with Excess Blood Alcohol, contrary to section 253(1)(b) of the Criminal Code. He pled not guilty and a trial was conducted over parts of three days.

[2] Three issues emerged: (1) whether the Accused's section 8 Charter right was breached; (2) whether the Accused's section 10(b) Charter right was violated; and (3) whether the Certificate of Qualified Technician is fatally flawed.

2.0: RELEVANT EVIDENCE

[3] At 11:55 p.m. on May 3, 2012 P.C. Dane Pallett was on routine patrol when he spotted the Accused getting into a car in a tavern parking lot and drive it onto the roadway in the company of several passengers. P.C. Pallett stopped the car at 11:56 p.m. to check the driver's sobriety. He spoke with the Accused whose breath smelled of alcohol and whose eyes were watery and bloodshot. When asked if he had been drinking alcohol, the Accused said that he had not. After the Accused got out of the car, his breath continued to smell strongly of alcohol and his cheeks appeared flushed. Upon being asked a second time if he had consumed any alcohol the Accused denied drinking again. P.C. Pallett disbelieved both denials.

[4] In cross-examination, P.C. Pallett stated that his evidence in chief regarding discussions with the Accused were as set out above and comprised the totality of their conversation prior to administering the screening test. In re-examination, P.C. Pallett testified that sometime prior to administering the screening test the Accused had in fact told him that his last drink was around 8:00 p.m. This evidence is documented in the officer's notes made at the time of the investigation.

[5] At 11:57 p.m. P.C. Pallett made a screening demand on the basis that the Accused had been driving a motor vehicle with alcohol in his body. The Accused was then escorted to the police car where a properly functioning approved screening device was produced by the officer. At 11:59 p.m. the Accused provided a suitable sample of his breath into the device and registered a "Fail." At the time of the test, P.C. Pallett was aware that the presence of mouth alcohol may render a screening test result unreliable.

[6] After failing the screening test the Accused was arrested for driving with excess blood alcohol. He was given rights to counsel which he wished to exercise. The Accused was also given a section 254(3) Criminal Code breath demand and a primary police caution. At 12:10 a.m. the Accused was driven to a police station for breath testing, arriving there at 12:18 a.m.

[7] At 12:22 a.m. the police called duty counsel, who called back at 12:36 a.m. Between 12:36 and 12:46 a.m. the Accused spoke to a lawyer in a dedicated telephone room within the police station. The room and call were video recorded and the Accused was watched by police staff via monitor. There was no capacity to audio record and no ability to listen. The Accused was not told that he would be observed and there were no signs or other warnings posted or given. The Accused was not aware of being watched or filmed. On viewing the video in court, one can see that the Accused was relaxed in appearance and focussed on speaking on the telephone, never looking up or at the camera.

[8] At 12:46 a.m. the Accused was turned over to the Qualified Technician, P.C. Donna Foreman. P.C. Foreman adopted the contents of the Certificate of a Qualified Technician, which was filed as Exhibit #1. The Certificate states that two suitable samples of the Accused's breath were received directly into an approved instrument at 12:55 a.m. and 1:18 a.m. The Certificate further states that the test result of each breath sample was 130 milligrams of alcohol per one hundred millilitres of blood. The Certificate declared that an alcohol standard solution suitable for use with the approved instrument was used and that the manufacturer of the alcohol standard solution was "LAB ATLAS INC." with a lot number of 91DG.

[9] The defence proffered to the Court a document purportedly from an Ontario qualified technician training manual. The relevant portion states: "The alcohol standard solution used in the simulator is manufactured commercially by several companies including Laboratoire Atlas Inc., CALWave Inc., Alcohol Countermeasures Systems."

3.0: ISSUES

3.1: Was the Accused's s.8 Charter right violated?

3.1.1: Positions of the Parties

[10] The defence submits that prior to administering the screening test P.C. Pallett failed to take into consideration the "mouth alcohol effect" which he knows may give rise to a reasonable possibility of a false-positive result. The defence submits that P.C. Pallett's testimony in re-examination that he specifically asked the Accused when he last consumed alcohol contradicts his earlier evidence and is thus unreliable. If the Accused's section 8 Charter right was breached the Accused submits the breath test results ought to be excluded. The Crown says there was no Charter breach.

3.1.2: Applicable Legal Principles

[11] A police officer who is aware that a detainee has recently consumed alcohol is entitled to wait up to 15 minutes to negate the potential of a false-positive screening test result: R. v. Bernshaw, [1994] S.C.J. No. 87 (S.C.C.) at ¶ 51. Where there is no evidence of recent consumption to warrant a delay, the screening test may be properly administered forthwith. The mere possibility of that a driver has consumed alcohol within the past 15 minutes does not preclude the officer from relying on the screening test: R. v. Einarson, [2004] O.J. No. 852 (C.A.).

[12] An officer who observes a detainee to leave a bar is not required to wait 15 minutes where the officer has no information as to the time of the detainee's last drink. The central inquiry is whether there was any reason for the officer to question when the Accused had his last drink. Absent such reason, there is no obligation on the officer to determine when the last drink was: R. v. Bernshaw, supra; R. v. Szybunka, 2005 ABCA 422, [2005] A.J. No. 1682 (C.A.); R. v. Bridgeman, [2005] O.J. No. 5334 (S.C.J.); R. v. Aulakh, [2006] O.J. No. 5034 (O.C.J.); R. v. Brown, [2014] O.J. No. 1021 (S.C.J.).

[13] In R. v. Mastromartino, [2004] O.J. No. 1435 (S.C.J.) and, Durno J summarized the essential points regarding the "mouth alcohol" issue:

1. 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.

2. 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.

3. 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.

4. Officers are not required to wait before administering the test in every case where a driver may have been in a bar shortly before being stopped. 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.

5. 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.

6. The fact the driver is observed leaving a bar is a relevant circumstance in determining whether it was reasonable for the officer to delay the taking of the test in order to obtain an accurate sample. However, officers are not required to ask drivers when they last consumed alcohol.

7. If the officer decides to delay taking the sample and that delay is challenged at trial, the court must decide whether the officer honestly and reasonably felt that an appropriately short delay was necessary to obtain a reliable reading.

8. 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.

3.1.3: Analysis

[14] Within five minutes of being seen leaving a bar, getting into a car, and driving it, the Accused failed a screening test. P.C. Pallett was aware of the "mouth alcohol effect." His testimony that he asked the Accused when he last drank and was told "Eight o'clock" was recorded at the time in his investigative notes. This evidence contradicts his other testimony wherein he agreed his conversation with the Accused was limited to the question of whether or not the Accused drank alcohol. Given that his notebook entry is entirely reliable, I conclude that the officer was simply mistaken when he omitted the last drink query in his earlier evidence. I accept the officer's evidence that he directly addressed the mouth alcohol issue with the Accused prior to administering the screening test. Therefore, there was no section 8 Charter breach.

[15] If I am wrong in relying on P.C. Pallett's testimony that he asked the Accused when he last drank, I still would not find any section 8 Charter violation given all of the other evidence. Beyond the mere possibility that Mr. Felsbourg had last consumed alcohol within 15 minutes of the screening test there was no information demanding an inquiry by P.C. Pallett. While such inquiries have become routine by police, they are not mandatory and are not necessary unless the circumstances dictate otherwise. In this case, the Accused twice denied drinking prior to the screening test. Given these denials there would be no need for the officer to make any inquiries as to when that Accused last drank alcohol.

[16] P.C. Pallett correctly believed that the screening device would yield a reliable result. The failure of the screening test gave rise to a lawful section 254(3) Criminal Code breath demand. Mr. Felsbourg has failed to establish that his section 8 Charter right was breached in this case.

3.2: Was the Accused's section 10(b) Charter right violated?

3.2.1: Positions of the Parties

[17] The defence submits that the Accused's right to counsel was infringed when the police visually monitored and video recorded his call with his lawyer. If the Accused's section 10(b) Charter right was breached, the defence submits that the subsequent breath test results ought to be excluded. The Crown argued that Mr. Felsbourg's right to counsel was not violated in the circumstances of this case.

3.2.2: Applicable Legal Principles

[18] A camera inside a police station phone room that monitors and visually records the detainee's general activities but which has no audio capabilities does not violate the detainee's right to consult with legal counsel in private: R. v. Sirelpuu, [2011] O.J. No. 3268 (O.C.J.); R. v. Hume, 2013 ONCJ 380, [2013] O.J. No. 3243 (O.C.J.); R. v. Bhullar, [2013] O.J. No. 2820 (O.C.J.); R. v. Miller, [2014] O.J. No. 2214 (O.C.J.).

[19] In the context of the constitutional right to counsel, privacy serves to protect the privilege that attaches to lawyer-client communications and serves to encourage an uninhibited consultation, which in turn may be vital to the advice to be given: R. v. Bhullar, supra at ¶ 14.

[20] An actual breach of privacy, even where it goes unperceived at the time by the detainee, may violate one or more of his Charter rights: R. v. Deveau, [2013] O.J. No. 5424 (O.C.J.) at ¶ 36.

3.2.3: Analysis

[21] Mr. Felsbourg was unaware that his call to legal counsel was being watched and video recorded. Therefore there was no perceived breach of privacy by the Accused.

[22] Despite the monitoring and videotaping, no sound could be heard or recorded by the police. There was no ability of the State in this case to infringe client-solicitor confidentiality and no possibility of inhibiting the consultation. There was nothing in the evidence to establish any real or potential erosion of the Accused's privacy interests or dignity.

[23] I find that there was no violation of privacy in this case, whether perceived or actual. Mr. Felsbourg has failed to prove that his section 10(b) Charter right was breached.

3.3: Is the Certificate of Qualified Technician fatally flawed?

3.3.1: Positions of the Parties

[24] The defence submits that there is a fatal flaw in the Certificate of Qualified Technician, being a defect in the identification of the alcohol standard solution. The defence submits that the Certificate cannot therefore be relied upon. The Crown submits that there is no defect in the Certificate.

3.3.2: Applicable Legal Principles

[25] Section 258(1)(g) of the Criminal Code permits the prosecution to rely upon a Certificate of Qualified Technician as an evidentiary shortcut so long as it contains mandatory information including that the qualified technician utilized an alcohol standard solution suitable for use with the approved breath testing instrument. Since this section of the Code restricts the normal rights of the accused including cross-examination, Certificates of Qualified Technicians are to be strictly construed and, where ambiguous, interpreted in favour of the Accused: R. v. Noble, [1977] S.C.J. No. 68 (S.C.C.).

[26] Since Noble, the weight of authorities has favored a pragmatic approach to Certificates that contain omissions or typographical errors provided the accused has not been prejudiced and the error is manifest having regard to all the evidence: R. v. Carrie, [1997] O.J. No. 4053 (O.C.J.); R. v. Rebelo, [2003] O.J. No. 4634 (S.C.J.) at ¶ 38; R. v. Furlano, [2007] O.J. No. 3730 at ¶ 6; R. v. Nairn, [2014] O.J. No. 1892 (O.C.J.) at ¶ 44 to 45.

[27] In the absence of evidence to the contrary, the statements in the Certificate of Qualified Technician are themselves proof of the truth of the content of those statements: R. v. Ware, (1975), 30 C.R.N.S. 308 (Ont. C.A.); Lightfoot v. The Queen (1981), 59 C.C.C. (2d) 414 (S.C.C.) at 417-8; R. v. Kroeger (1992), 36 M.V.R. (2d) 55 (Sask. C.A.) at 70; R. v. Squires (1994), 87 C.C.C. (3d) 430 (Nfld. C.A.) at 438; R. v. Lilek, [2005] O.J. No. 2044 (O.C.J.); R. v. Zimmerman, [2012] A.J. No. 1020 (Q.B.).

[28] The qualified technician is the judge of the suitability of the alcohol standard solution: R. v. Corbett, [2003] O.J. No. 5898 (O.C.J.), aff'd [2004] O.J. No. 3402 (S.C.J.).

[29] The test is whether the information set out in the Certificate of Qualified Technician is sufficient to identify the alcohol standard solution used so that it could be sought out for any further experimentation: R. v. McEwan, [1988] O.J. No. 70 (C.A.); R. v. Campbell, [2002] O.J. No. 158 (S.C.J.) at ¶ 12 – 20; R. v. Heywood, [2006] O.J. No. 3392 (S.C.J.) at ¶ 19 to 30.

3.3.3: Analysis

[30] Unlike screening devices and breath testing instruments, the Criminal Code does not require that the alcohol standard solution be approved, only that the solution be suitable for use with an approved instrument. In my respectful view, any case that decides this issue on the basis that the Certificate of Qualified Technician is defective because the identified alcohol standard solution used was not "approved" is in error because this approach confuses both the language and requirements in the Criminal Code drinking and driving sections.

[31] Here the Certificate stated that the alcohol standard solution was manufactured by LAB ATLAS INC. and that it was suitable for use in the approved instrument. The Certificate also documented a lot number for the solution. There is no evidence of any error on the face of the Certificate of Qualified Technician. There is no evidence to raise a reasonable doubt regarding the suitability of the solution. To the contrary, by adopting the contents of the Certificate in her evidence P.C. Foreman testified that the solution was suitable.

[32] Just because the manufacturer's name set out in the Certificate of Qualified Technician does not appear on the list provided by counsel, absent any evidence to the contrary this does not mean that the solution was unsuitable for use because the list of manufacturers tendered by the defence is not exclusive. There was no evidence that there is not a manufacturer of alcohol standard solutions known as LAB ATLAS INC.

[33] In the alternative, even on a strict reading, the word "lab" is a contraction of the English "laboratory" and the French "laboratoire." I am satisfied that by typing LAB ATLAS INC. P.C. Foreman was in fact referring to the alcohol standard solution manufacturer Laboratoire Atlas Inc., which named on the list filed. The use of a short form did not prejudice the Accused because together with the lot number, it provided sufficient identifying information: R. v. Campbell, supra; R. v. Heywood, supra.

[34] The Certificate of Qualified Technician in this case is not defective and is admissible proof of the blood alcohol concentration of the Accused, being 130 milligrams of alcohol per one hundred millilitres of blood.

4.0: CONCLUSIONS

[35] None of the Accused's Charter protected rights were violated. There is proof beyond a reasonable doubt that he operated a motor vehicle with excess blood alcohol. The Accused is therefore found guilty of an offence under section 253(1)(b) of the Criminal Code.

ORIGINAL SIGNED BY THE HONOURABLE JUSTICE R.H.K. SCHWARZL

Richard H.K. Schwarzl,

Justice of the Ontario Court of Justice