Ontario Court of Justice
Central West Region Brampton, Ontario
Between:
HER MAJESTY THE QUEEN
-and-
NASIR AHMED
Reasons for Judgment
Duncan J.
Facts and Charge
[1] The defendant is charged with exceed 80, offence date December 23, 2012.
[2] The defendant's car, full of passengers and emitting loud music, drew the attention of police constable Lee who followed it into the parking lot of a diner frequented by the after-closing crowd. The defendant had an odour of alcohol on his breath, was subjected to ASD testing and failed. Ultimately breath samples were taken and analyzed betraying results of 141 and 139.
Defence Arguments
[3] Mr Little, with his customary vigour, has raised two points in defence.
First Argument: Approved Screening Device Designation
[4] First it is argued that the instrument used for the screening test was not established to be an approved screening device. The officer referred to it as an "Alcotest 6810" whereas the regulatory Order refers to a "Drager Alcotest 6810". It is argued that this is insufficient and that case law has established that such incomplete or mis-descriptions are curable - but only where the device is otherwise referred to somewhere in the evidence as an "approved screening device". In this case those words were not used. Instead, the device and the procedures followed were described throughout in common shorthand parlance with the acronym "ASD".
[5] I would not give effect to this argument. At its core, it is a question of fact. The Crown bears the burden of proof, but only on a balance of probabilities. There can be no fixed rules as to what evidence must be lead to satisfy that burden. In addition to its description as an Alcotest 6810 there was evidence that the officer had been trained in the use of this device. As observed in Gundy, 2008 OJ No 1410 at para 46 – the chances are slim that a police department would send its officers out on the road with un-approved devices. More so, in my opinion, that officers would receive training using unapproved devices. Without more I am satisfied to and beyond the required standard that the device used was an approved screening device.
[6] I would go further and say that, with due respect to those who hold a contrary opinion,[1] I cannot accept the argument that common acronyms such as ASD should be disregarded or be in need of some further proof or explanation. It seems to me that the sentiment of Chief Justice Dickson – that the punctilio of former days is behind us – though spoken in a different context,[2] is nevertheless apt here. Language is constantly developing and changing. New words arrive and old ones fade. An acronym is just a word or, if one prefers, a piece of language. Many are so well known that the original is rarely heard, unknown or long forgotten – AIDS, DNA, NFL, RCMP, NASA, LASER, SCUBA.[3] Over time, through usage, acronyms can become part of the common lexicon used either universally or within the context of a more limited field of activity or a profession. At that point, in my opinion, they speak for themselves and require no further explanation. If ECG and I.V. are self-explanatory enough in the potentially life and death hospital setting, then ASD is good enough in a Canadian court-room hearing a drink/drive trial.
[7] I know what ASD means. I infer that everyone else involved in the trial knew it as well. No one seemed bewildered or asked for an explanation or elaboration. It was a piece of the understood language used or accepted by the participants. While defence counsel himself did not utter it, he did interject when the officer was about to read the ASD demand that was given:
A: … I read directly from my yellow notes the ASD demand
Defence Counsel: There is not an issue with the wording of the demand[4]
Crown: Q: What time did you read the ASD demand?
A: I read the ASD demand at 2:48 am.
[8] Again, it is ultimately a question of fact and whether I am satisfied that an approved screening device was used. I am.
Second Argument: Mouth Alcohol
[9] The second argument raised is that the ASD result did not provide a suitable basis for a conclusion that the defendant was over 80, arrest and demand, because there was no evidence that the officer ensured that mouth alcohol did not affect the result. The officer had no note of inquiring as to the time of last drink despite the opportunity to make such a note in two places on the pre-printed note form that he used. He did, however, testify that it is his practice to ask "the 15 minute question" every time and that he would not have proceeded with the test had it been a concern.
[10] I accept the officer's evidence as to his invariable practice. He impressed me as being bright, diligent and knowledgeable in this area. In any event, there is no duty to make any inquiry absent circumstances that give rise to the issue: R v Aulakh 2006 ONCJ 487 41 M.V.R. (5th) 125.
Judgment
[11] The evidence is all admissible. It proves the case. The defendant is found guilty as charged.
January 29, 2014
B Duncan J.
A Little for the defendant
P Maund for the Crown
Footnotes
[1] Counsel relies on two Alberta Provincial Court decisions, R v Gillis 2006 ABPC 323, [2006] AJ No 1445 which was followed in R v McFarlane [2012] AJ No 526. I note however that Gillis at para 28 wrongly viewed the matter as requiring proof beyond a reasonable doubt whereas the proper burden on a Charter based issue is not so onerous. In any event, I disagree with those decisions.
[2] R v City of Sault Ste Marie, [1978] 2 S.C.R. 1299 at 1307-8
[3] The term acronym is widely used to refer to any abbreviation formed from initial letters. Some dictionaries define acronym to mean "a word" in its original sense (like "sonar"), while some others include additional senses, attributing to acronym the same meaning as that of initialism, meaning a string of letters separately pronounced (like USA): http://en.wikipedia.org/wiki/Acronym. The distinction does not matter for present purposes.
[4] Had this concession not been made and had the standard demand been read into evidence it would have contained the words "into an approved screening device"