Court File and Parties

Court File No.: 13-02498 Newmarket Ontario Court of Justice

Between: Her Majesty the Queen — and — Jason Carl Ramsaroop

Heard: May 5, 2014 Reasons: May 5, 2014

Counsel:

• Mr. Jeff Costain for the Crown
• Mr. Jason Rabinovitch for the accused

KENKEL J.:

Introduction

[1] Mr. Ramsaroop is charged with driving with a blood alcohol level above the legal limit.

[2] At the conclusion of the evidence one issue remained – has the Crown proven that the officer's reliance upon the approved screening device "fail" was objectively reasonable in circumstances where the defence submits he should have waited 15 minutes before conducting that test?

Evidence at Trial

[3] Constable Cook received a radio call at 11:40 p.m. regarding a citizen report of a possible impaired driver. He was advised that there were "youths seen drinking in front of the complainants house". Those youths were "getting into a white vehicle….".

[4] Constable Cook found a vehicle matching that description in the area not far from the location of the complaint. He spoke with the driver and the accused told him he had not been drinking any alcohol that day. When the officer pointed out that he could smell the odour of alcohol coming from the accused's mouth Mr. Ramsaroop said that he'd been drinking heavily the previous evening into the morning hours but had not been drinking since.

[5] At 11:55 p.m. Constable Cook formed a suspicion that the driver had been operating a motor vehicle with alcohol in his body. He read the approved screening device (ASD) demand and demonstrated the device with a self-test. At 11:59 the accused provided a suitable sample and registered a fail. The ASD fail was the sole basis for the arrest that followed and subsequent breath tests which resulted in readings above the legal limit.

Possible Mouth Alcohol

[6] The defence notes that it's an agreed fact that PC Cutrara was dispatched to the scene at 11:45 p.m. If he was dispatched at the same time as PC Cook, and assuming that the civilian report was contemporaneous to events described, then there could have been drinking within 15 minutes of the breath test. PC Cook agreed in cross-examination that drinking within 15 minutes of the breath test could affect the ASD result so the defence submits that he should have waited to ensure there was no mouth alcohol. The failure to wait 15 minutes in these circumstances is not objectively reasonable and breaches the accused's s. 8 Charter rights.

[7] The complaint to police contained no detail as to the amount or timing of drinks other than a report that youths who all had been drinking were getting into a car. I agree with the defence that given PC Cook's evidence as to the 911 call process and the location of the suspect vehicle within a relatively short time it's reasonable to infer that the caller was describing contemporaneous events in the sense that persons who had been drinking were getting into a car which concerned the citizen and led to the call. There's nothing in the complaint about the timing of the drinking other than it was prior to the group getting into the car.

[8] Constable Cook specifically turned his mind to the timing of drinking as an issue. The accused's answers to his questions indicated no basis for a concern for mouth alcohol since he said he had not been drinking since early morning.

[9] The defence submits that the officer should have suspected that his client wasn't telling the truth and should have waited 15 minutes given the stopping of the vehicle so close to the time of the complaint and the possibility that the accused had been drinking within 15 minutes.

Analysis

[10] A mere possibility that the accused may have mouth alcohol does not preclude an officer from relying upon ASD test results. See: R. v. Einarson. Here the officer specifically turned his mind to that issue and the accused's responses provided no basis for delaying the test. The initial complaint was vague and provided no basis for test delay. I find that the Crown has proved the officer's demand was both subjectively and objectively reasonable.

[11] If that finding is an error and there was a breach of s. 8, then I would not grant the s. 24(2) remedy requested. The breach would be minor and technical as the officer turned his mind to the s. 254(2) requirements and relied upon the defendant's own statement in proceeding. There's no evidence of a systemic concern as the officer showed very diligent attention throughout for the numerous Charter and Criminal Code requirements in a drinking and driving investigation. Constable Cook's conduct was exemplary in that regard.

[12] There would be little impact on the accused's Charter protected interests where the actual test was conducted 15 minutes from the time of PC Cook's dispatch in any event and there is no evidence that the accused consumed alcohol within that time. Finally, as the defence concedes the public interest in a trial on the merits would favour inclusion of the breath test evidence.

Conclusion

[13] I find that the Crown has proved that the officer had the required reasonable suspicion for the s. 254(2) ASD test and reasonable grounds for the s. 254(3) approved instrument tests. The defence has failed to prove the s. 8 breach alleged.

[14] The breath tests show that the accused's blood alcohol level was over 80 milligrams at the time of driving. I can find no evidence which leaves a reasonable doubt in that regard. There will be a finding of guilt.

Released: May 5, 2014

Signed: Justice Joseph F. Kenkel