Court File and Parties
Court File No.: Cayuga - 1111-998-12-212-00
Date: 2014-01-08
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Jesse Harrison
Before: Justice D.A. Harris
Heard: November 4, 2012; January 23, 2013; April 10, 2013; September 25, 2013
Released: January 8, 2014
Counsel:
G. Smith, counsel for the Crown
C. Raftery, counsel for the Accused, Jesse Harrison
Reasons for Judgment
HARRIS J.:
Overview
[1] Jesse Harrison is charged with operating a motor vehicle when the concentration of alcohol in his body exceeded 80 milligrams of alcohol per 100 millilitres of blood.
[2] The evidence was clear that he was operating a motor vehicle on the day and at the place specified in the Information.
[3] He ultimately provided two samples of his breath into an approved instrument. The results were readings of 137 and 131 milligrams of alcohol per 100 millilitres of blood, respectively.
[4] There are two issues before me.
Counsel for Mr. Harrison brought an application to exclude the results of the breath tests pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms, on the basis that Constable Lariviere did not have the necessary reasonable and probable grounds to demand that Mr. Harrison provide breath samples and the results of those tests were therefore obtained as a result of a violation of his right to be secure from unreasonable search and seizure as guaranteed by section 8 of the Charter;
Counsel also argued that there was not sufficient evidence that Constable Piergentili was a qualified breath technician.
Validity of the Breath Demands
[5] This case involved either sloppy police work or sloppy evidence. I suspect that the latter is true but the evidence was so bad that I cannot be certain that it was not, in fact, a case of sloppy police work.
[6] Constable Lariviere testified that he stopped the motor vehicle driven by Mr. Harrison because of excessive noise.
[7] He detected the odour of alcohol coming from Mr. Harrison's breath and asked how much alcohol he had consumed. Mr. Harrison replied "None".
[8] Constable Lariviere then issued a breath demand for an approved screening device.
[9] At different times he identified this device as either an "Alcotest No. 5" or an "A.S.D. Drager" or "just the regular approved screening device, Drager. We have them numbered at our office. That particular model was No. 5".
[10] None of these descriptions match the description of any approved screening device set out in the Approved Screening Devices Order made pursuant to the Criminal Code.
[11] The relevant provisions of section 254(2) provide that:
(2) If a peace officer has reasonable grounds to suspect that a person has alcohol … in their body and that the person has, within the preceding three hours, operated a motor vehicle … the peace officer may, by demand, require the person:
(b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.
[12] Constable Lariviere never said that he had reasonable grounds to suspect that Mr. Harrison had alcohol in his body. In fact, Constable Lariviere never provided any explanation or legal basis for making the demand that he did.
[13] As a result of previous cases decided by me, I am aware of the fact that a proper determination of whether a police officer's subjective state of mind met the standard should be based on the totality of the evidence presented and not solely on whether he articulated the precise words of section 254(2).
[14] Rather than review the law yet again in that regard, I will simply adopt the reasoning articulated by me in those cases.
[15] In this case, I am not satisfied that, at the time that he made the approved screening device demand Constable Lariviere did subjectively suspect that Mr. Harrison had alcohol in his body although I recognize that there could have been an objective basis for him to have done so.
[16] In reaching that conclusion, I note that Constable Lariviere testified that Mr. Harrison blew into the device and "it registered an 'F', which is a fail".
[17] He never did explain further however the significance of a "fail".
[18] He then said that "I had reasonable suspicion that the accused operated a motor vehicle with alcohol in his body".
[19] This of course is the level of belief that would usually precede rather than follow the taking of a test with an approved screening device. According to his evidence however, Constable Lariviere first had the suspicion after Mr. Harrison had failed the approved screening device test.
[20] Constable Lariviere then informed Mr. Harrison that he would be charged with an "over 80" offence and made a demand pursuant to section 254(3) of the Criminal Code.
[21] That section states:
(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person
(a) to provide, as soon as practicable,
(i) samples of breath that, in a qualified technician's opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person's blood, …
[22] Constable Lariviere never said that he believed any of this.
[23] Again, for the reasons set out above, a proper determination of whether Constable Lariviere's subjective state of mind met the required standard should be based on the totality of the evidence presented and not solely on whether he articulated the precise words of section 254(3).
[24] However, I find that again, there is no basis upon which I might infer that Constable Lariviere had the necessary subjective belief. Further, there is no evidence that any such belief would have been objectively reasonable.
[25] Constable Lariviere made an approved screening device demand without any stated basis in law.
[26] The device he described is not listed in the Approved Screening Devices Order contained in the regulations.
[27] He did not say that the "fail" registered on that device caused him to believe that Mr. Harrison had a blood alcohol concentration in excess of 80 milligrams of alcohol in 100 millilitres of blood.
[28] He did not explain why a "fail" might cause him to believe that.
[29] Instead he said that "I had reasonable suspicion that the accused operated a motor vehicle with alcohol in his body", the level of belief which would have permitted him to make an ASD demand and not an approved instrument demand.
[30] In all of the circumstances, I find that the demand made here was not a proper demand.
[31] I note that Constable Piergentili also made a demand but he did that based on information provided to him by Constable Lariviere. In the circumstances, I find that the demand made by him was also not proper.
Exclusion or Inclusion Pursuant to Section 24(2)
[32] In order to determine whether I should exclude the evidence pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms, I must apply the test set out in R. v. Grant where the Supreme Court of Canada stated that:
... under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to:
(1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct),
(2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and
(3) society's interest in the adjudication of the case on its merits.
The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.
[33] In R. v. Beattie, Duncan J. summarized in point form what he considered to be the important points set out by the Supreme Court of Canada as follows:
• The new approach is more flexible than the Collins/Stillman approach. There are no presumptions of admission or exclusion.
• The purpose is to maintain the good repute of the administration of justice by both maintaining the rule of law and upholding Charter rights.
• The focus is both long term and prospective, not on the immediate reaction to admission or exclusion in a particular case.
• The focus is also societal and systemic. It is not to punish the police or compensate the accused in any particular case but to further the long term interests of society and the justice system.
• The court must consider all of the circumstances which involves an assessment and balancing of 1) the seriousness of the Charter-infringing state conduct, 2) the impact of the breach on the Charter-protected interests of the accused, and 3) the societal interest in adjudication on the merits.
• The seriousness of Charter-infringing conduct can be graded on a spectrum from trivial to blatant and flagrant.
• The impact of the police conduct on the appellant's Charter-protected interests is examined from the perspective of the accused. The degree of intrusiveness of the unconstitutional action of government agents ranges from impact which might be described as fleeting, transient or technical to profoundly intrusive.
• Society's interest in adjudication on the merits will almost always favour admission of the evidence. However the gravity of the charge should not be permitted to overwhelm the other factors.
[34] I have adopted this summary of the law before and I do so again here.
[35] So I must consider all of the circumstances and assess and balance each of the three factors enumerated in Grant.
[36] With respect to the first factor, the Charter breach here was a serious one. Constable Lariviere failed to state any subjective basis for making the ASD demand. His stated basis for making the ensuing approved instrument demand did not entitle him to make that demand. In addition he failed to provide any evidence which might have made the demand objectively reasonable.
[37] In short, there was no basis in law for him to make either demand.
[38] The seriousness of this Charter-infringing conduct favours exclusion of the evidence.
[39] Moving on to the second factor, I must consider the extent to which the breaches actually undermined the interests protected by the infringed rights.
[40] Based on the evidence that I heard, the detention and the ensuing breath tests were both minimally intrusive both in terms of what took place and the evidence obtained.
[41] In reaching that conclusion, I have taken note of the obiter comments in Grant that:
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.
[42] Previously, it often seemed that any infringement of the rights of those accused of drinking and driving would result in the automatic exclusion of the breath results. This passage would appear to indicate that this will not always be the case now.
[43] As for the third factor, the offence is recognized to be a serious one. The societal interest in having a trial on the merits would usually favour admission here.
[44] I must also consider the fact that the evidence which Mr. Harrison seeks to have excluded, is reliable. "Subject to other evidence in any given case, breath samples and their testing by ASDs and intoxilyzers are generally considered reliable evidence."
[45] I find then that the truth seeking function would be better served by the admission of the evidence than by its exclusion.
[46] As is often the case in any section 24(2) analysis, the final decision is a difficult one. A good argument can certainly be made for inclusion of the evidence.
[47] I note however the comments of Duncan J. at para. 34 in Beattie, supra where he stated:
Yet the focus must be long term, on the big picture. Viewed in that way, the balance shifts towards favouring exclusion in order to restore the intended public interest/individual liberties balance and underscore the limits of statutory powers that are permitted to encroach upon Charter rights. I conclude, after much anguished consideration, that the long term interests of the administration of justice are better served by exclusion in this case.
[48] In R. v. Mehta, Lipson J. wrote:
Yet it is also true that the overriding purpose of section 24(2) is to maintain the good repute of the administration of justice by both upholding the rule of law and Charter rights. The focus is both on the long-term and the prospective, not on the immediate reaction to admission or exclusion in a particular case. The purpose of section 24(2) is to further the long term interests of society and the justice system.
[49] I recognize that this is the overriding purpose of section 24(2). It is not to punish the police or compensate the accused.
[50] I conclude, however, that the long term interests of the administration of justice are better served by exclusion in this case.
[51] The results of the breath tests will be excluded from evidence.
[52] In the absence of the results of the breath tests there is no evidence to support a conviction here and it is therefore unnecessary to determine whether Constable Piergentili was a qualified breath technician or not. Despite this, I will address that issue.
Qualified Breath Technician
[53] This issue seldom arises at trial anymore since the status of the qualified technician is usually proven by means of a Certificate of Qualified Technician pursuant to section 258(1)(g) of the Criminal Code.
[54] No such certificate was introduced into evidence in this case and it was therefore necessary for the qualified technician to give viva voce evidence on this point.
[55] Constable Joseph Piergentili testified "I was designated by the Honourable Monte Kwinter of Community Safety and Correctional Services on June 19, 2009 on the Intoxilyzer 8000C. Prior to that, I was designated on the 5000C."
[56] Volume 142-27 of the Ontario Gazette was filed at the very end of the Crown's case, after Constable Piergentili had finished giving evidence. It states, inter alia, that "the Honourable Rick Bartolucci, Minister of Community Safety and Correctional Services of Ontario, on the 16th day of June, 2009, designated ….. Joseph Piergentili, Ontario Provincial Police" as a qualified technician.
[57] Counsel for Mr. Harrison argued that:
It was not sufficient for Constable Piergentili to simply state that he was a qualified technician;
The Criminal Code does not permit a Minister of Community Safety and Correctional Services to designate someone as a qualified technician; and
The entry in the Ontario Gazette does not prove that Constable Pibergentili is a qualified technician in the absence of some evidence indicating that he is the Joseph Piergentili referred to in the Ontario Gazette.
[58] I will deal with these points in the order set out above.
[59] It is settled law that where a breath technician testifies that he is a qualified breath technician, that is sufficient, in the absence of any evidence to the contrary. That does not mean however that "the onus upon the Crown to prove a proper designation is thereby diminished or removed".
[60] With respect to who can designate someone as being qualified to operate an approved instrument, section 254(a) of the Criminal Code provides that:
"qualified technician" means,
(a) in respect of breath samples, a person designated by the Attorney General as being qualified to operate an approved instrument, …
[61] The relevant parts of section 2 of the Code provide that "Attorney General":
with respect to proceedings to which this Act applies, means the Attorney General or Solicitor General of the province in which those proceedings are taken and includes his or her lawful deputy, …
[62] In R. v. Spanos, the Ontario Court of Appeal stated:
7 Parliament delegated to provincial Attorneys General and Solicitors General the power to designate qualified technicians under s. 254(1) of the Criminal Code. The Code does not specify which official holds the office of Solicitor General; instead, that person is properly identified by reference to provincial legislation. Under the Ministry of the Solicitor General Act, the Solicitor General presides over and has charge of the Ministry and is responsible for the administration of the Act.
8 Pursuant to the Executive Council Act, R.S.O. 1990, c. E-25, the Lieutenant Governor of Ontario may appoint Ministers and prescribe their powers and duties. Those powers and duties may be assigned or transferred by Order in Council. The Order in Council assigning and transferring the powers of the Solicitor General to the Minister of Public Safety and Security did nothing more than change the title of the official responsible for carrying out the duties of the Solicitor General. In substance, the successor Ministers were and are the Solicitor General for the purposes of s. 254(1) of the Criminal Code.
9 This interpretation accords not only with the provisions of the federal and provincial Interpretation Acts but also with general principles of statutory interpretation, and common sense. The interpretation contended for by the appellant leads to the absurd result that the person charged with performing the duties of the Solicitor General would be disqualified from so doing simply by virtue of a change in title.
[63] So the Minister of Community Safety and Correctional Services of Ontario can designate a person as being qualified to operate an approved instrument.
[64] The entry in the Ontario Gazette is proper evidence before me by virtue of the relevant part of section 22(1) of the Canada Evidence Act which sets out that:
- (1) Evidence of any proclamation, order, regulation or appointment made or issued by a lieutenant governor or lieutenant governor in council of any province, or by or under the authority of any member of the executive council, being the head of any department of the government of the province, may be given in all or any of the following ways:
(a) by the production of a copy of the official gazette for the province purporting to contain a copy of the proclamation, order, regulation or appointment, or a notice thereof; …
[65] I am not satisfied beyond a reasonable doubt however that the Constable Piergentili who testified in front of me that he "was designated by the Honourable Monte Kwinter of Community Safety and Correctional Services on June 19, 2009" is the Joseph Piergentili designated by "the Honourable Rick Bartolucci, Minister of Community Safety and Correctional Services of Ontario, on the 16th day of June, 2009". I have a real problem with the conflicting evidence of one person designating Constable Piergentili on one day and someone else doing so three days earlier.
[66] In the result, had I not excluded the results of the breath tests, I would not have been satisfied beyond a reasonable doubt that an analysis of each sample of breath had been made by means of an approved instrument operated by a qualified technician.
[67] As a result, I would not have invoked the presumption set out in section 258(1)(c) of the Criminal Code. I would not have related the results of those breath tests back to the time of driving.
[68] There would therefore have been no evidence as to the concentration of alcohol in Mr. Harrison's blood at the time that he was driving his motor vehicle and the Crown would have failed to prove that essential element of the offence charged.
Conclusion
[69] The charge against Mr. Harrison is dismissed.
Released: January 8, 2014
Signed: "Justice D.A. Harris"
Justice D.A. Harris