Court File and Parties

Court File No.: Brampton 2012/15600 Date: 2014-11-01 Ontario Court of Justice

Between: Her Majesty the Queen — and — Nathan Palmer

Before: Justice George S. Gage

Heard on: October 20 and 28, 2014

Reasons for Charter Ruling released: November 1, 2014

Counsel:

• R. Prihar, for the Crown
• J. Rabinovitch, for the accused

GAGE J.:

Introduction

[1] Nathan Palmer is charged that on December 2, 2012 he was operating a motor vehicle with a blood alcohol concentration in excess of the legal limit of 80 mg of alcohol in 100 ml of blood. He is not charged with impaired operation.

[2] The prosecution relies on samples of Mr. Palmer's breath taken pursuant to a demand made by the arresting officer. The officer's demand was based on the result produced by an Approved Screening Device (ASD) test. The officer admits that without the ASD result he did not have the grounds necessary to support the demand.

[3] It is submitted on Mr. Palmer's behalf that while the arresting officer had a subjective belief that the ASD was in proper working order he lacked an objective basis upon which that belief could be reasonably sustained.

[4] In the absence of an objectively discernable basis for a belief that the ASD was operating properly at the relevant time it is argued: that the officer could not have legitimately formed the reasonable grounds necessary to support the Intoxilyzer demand; that the seizure of the breath samples from Palmer was not, in those circumstances, lawfully authorized; that the seizure represents a breach of Palmer's section 8 Charter right to be free from unlawful search and seizure; and that the evidence of the analysis of the breath samples should therefore be excluded pursuant to section 24(2) of the Charter.

Evidence

[5] Police Constable Bryan Duykers was the arresting officer. On December 2, 2012 he was on uniform patrol operating a marked cruiser. He was part of a mobile RIDE program and was on the lookout for possible impaired drivers. While he has an independent generalized recollection of the events surrounding the arrest of Mr. Palmer he candidly admits that in light of the elapsed time from the date of the arrest he is entirely reliant on his notes for relevant details. The evidence from PC Duykers relevant to this ruling may be summarized as follows:

• He first observed the vehicle operated by Palmer at 4:08 am. At that time the roads were wet and it was raining;

• At that time Palmer's vehicle was westbound on Eglinton. It was Duykers' impression that the vehicle was speeding.

• Duykers got behind the Palmer vehicle. He had difficulty catching up. He estimates Palmer's speed at 115 km per hour. It is a posted 60 km per hour zone. He observed the Palmer vehicle to be straddling two of the westbound lanes. While there were other vehicles on the road he did not observe that any other vehicles were affected by the Palmer vehicle. There was no loss of control. The driving was not otherwise aberrant;

• Duykers observed Palmer signal and execute a right turn to proceed north on Winston Churchill Boulevard;

• Duykers activated his lights and executed a traffic stop. He attended at the driver side of the Palmer vehicle. He had a brief conversation with Palmer. In the course of that brief interchange he was able to detect the odour of alcohol on Palmer's breath;

• Based on the driving and the odour of alcohol Duykers formed the suspicion that Palmer was operating a motor vehicle with alcohol in his body.

• At 4:10 am he told Palmer that he was going to ask him to provide samples of his breath into a roadside device and he asked that Palmer accompany him to the cruiser to obtain the samples. Palmer was compliant;

• At 4:12 am, in the cruiser, Duykers read the formal ASD demand to Palmer. Palmer had by that time provided a valid Ontario Driver Licence;

• Duykers had with him an Alcotest 6810 device serial number ARDB0272. This device was specifically assigned to him as a member of the mobile RIDE unit. It is an Approved Screening Device. He activated the device. He explained how to use it. Palmer provided a proper sample. The device displayed a "Fail". Duykers is aware that the device will display fail when the breath sample analyzes a blood alcohol concentration in excess of 100 ml of alcohol in 100 mg of blood;

• Duykers believed that the Alcotest 6810 was operating properly at the time of Palmer's testing. He had this belief because of his knowledge of the fail-safe feature of the 6810 (which distinguishes this device from the Alcotest 7410 that it replaced) combined with his observation that when he used the 6810 with Palmer the device turned on, accepted a sample and displayed a reading. It was also his belief that his division would provide him with device that was in proper working order;

• Duykers did not perform a self-test on the device prior to passing the ASD to Palmer. He is not able to say if he performed a self-test at any time during his shift that evening. He has no recollection of using the device at any time earlier in his shift;

• The officer is aware that the 6810 is subjected to an accuracy test once every 14 days and that the device has a fail-safe feature that will not permit the device to activate or analyze a sample unless an accuracy test has been completed within the last 14 days. He is not aware of who conducted the last accuracy test. He cannot say if the device had passed the last accuracy test.

• He is not able to say when the device underwent its last calibration check or whether it passed;

• He assumes that his division would not supply him with a defective device;

• He does not know whether the operability of the device is contingent on it passing either the accuracy test or the calibration check;

• He agrees that the reliability of the machine is an important facet of his decision making process on reasonable grounds;

• Based on the ASD fail Duykers formed reasonable and probable grounds to arrest for Over 80 operation and reasonable grounds to make an Intoxilyzer demand. He arrested Palmer, gave him rights to counsel and cautions and read a proper Intoxilyzer demand. Palmer was subsequently transported to 11 Division where he supplied two suitable samples of his breath into the approved instrument. The readings for the two tests were 127 mg of alcohol in 100 ml of blood and 114 mg of alcohol in 100 ml of blood.

[6] Peel Regional Police Constable Michael Bryant is the qualified breath technician who administered the Intoxilyzer testing. He described the testing protocol that included a series of diagnostic and calibration checks performed prior to the samples being taken from Palmer. On cross examination he confirmed that the purpose of the diagnostic and calibration protocols is to ensure that the instrument is operating properly.

The Law

[7] I have been referred by the parties to the following jurisprudence: R v Mastromartino; R v Paradisi; and R v Topaltsis. In addition to these authorities I have also reviewed Justice Hill's decision in R v MacDonnell, Justice Feldman's decision in R v Johnston and the decision of Justice Blouin in R v Lyubarsky.

[8] From my review of the foregoing decisions the following general principles emerge:

• The prosecution bears the burden of establishing that a warrantless search or seizure complies with section 8 of the Charter;

• An officer may administer a screening device notwithstanding that he or she is unfamiliar with the intricacies of the device. There need not be proof at trial that the ASD operator knew the calibration setting, when it was last calibrated, or whether the device was, in fact, in proper working order;

• The appropriate test or assessment concerning the working state of the ASD is whether, on an objective basis, the officer using the device has reasonable grounds for believing that the ASD was in good working order. Put another way – what is important about the belief is not its accuracy, but its reasonableness;

• The belief may be drawn from hearsay, incomplete sources or contain assumptions. The reasonableness of the belief is based on the facts understood by the officer when the belief was formed.

Analysis

[9] The investigation underlying the charge before the court involves the use of the Draeger Alcotest 6810. This is the approved screening device that by the date of this offence had, in Peel, replaced the Alcotest 7410.

[10] The Alcotest 7410 was required to be recalibrated every 14 days. The device had a sticker that identified the date upon which the device had been last calibrated and by whom. A good deal of litigation was directed to the questions of whether the calibration had been performed in a timely manner, and whether the officer operating the device had checked the calibration sticker before using the device.

[11] The 6810 model has no sticker. According to the understanding of PC Duykers the model has a feature that is programmed by Peel Regional Police that prevents the device from activating and accepting a sample unless it has undergone an accuracy test within the previous 14 days. Duykers' knowledge of that feature coupled with his observation that the device activated and accepted a sample of Palmer's breath together with his assumption that his unit or division would not provide him with a defective device constitutes the underpinning for Duykers' belief that the device was in proper working order.

[12] Is that enough to objectively support his belief that the device was operating properly when he secured the sample from Palmer?

[13] Put another way: Could the proverbial "reasonable man" standing in the shoes of Duykers and being privy to the facts in his possession when he was dealing with Palmer sustain a belief that the device was delivering a reliable sample?

[14] Many officers conduct a self-test on the device immediately prior to securing a sample from the subject of their investigation. This has the combined advantage of demonstrating the operation of the device and verifying, immediately prior to obtaining the sample from the citizen, the accuracy of the analysis. Duykers did not do this.

[15] Other officers conduct a self-test at the beginning of their shift in order to verify the proper operation and accuracy of the device they are assigned that shift. Duykers is not able to say that he performed such a test as he candidly admits that he made no note of doing so.

[16] Another circumstance that sometimes exists is the taking of other samples by the same device earlier in the shift that are subsequently validated by Intoxilyzer testing occurring prior to the taking of the sample in issue. That circumstance was not present in this instance.

[17] In these circumstances Duykers had no independent contemporaneous confirmation to support his belief that the device was operating reliably and accurately at the time of the Palmer testing.

[18] The applicant argues that the lack of independent contemporaneous verification fatally undermines the reasonableness of Duykers' belief that the device was reliably accurate at the time of Palmer's testing.

[19] I am not persuaded that it does.

[20] The device that Duykers was using is an "approved screening device" meaning that it is a device that Parliament has approved for the purpose of conducting roadside screening. It is a device that was assigned to him by his unit for the important purpose of getting impaired drivers off the street. His assumption that in those circumstances he would be assigned a properly operating device is a reasonable assumption. The observations of Justice Fairgrieve in R v. Toledo – quoted with approval by Justice Hill in MacDonnell – are germane in this regard:

There was evidence that the police force possessed these devices, that they were calibrated weekly and, when requested by an officer who had stopped a suspected drinking driver, that one was delivered to the scene to further the investigation into whether an offence under s. 253 had been committed. The only sensible inference, in my view, unless it is reasonable to think that so much police time and energy and equipment were expended on a pointless exercise, is that the instruments were calibrated so that they would provide useful information to the officer conducting that investigation.

[21] Duykers was aware when using the device that it had a fail-safe feature that would not permit the device to activate or accept a sample unless an accuracy test had been conducted within the last 14 days. While he did not have knowledge of the result of the last test on this device it is not, in my view, without significance, relative to the reasonableness of his belief, that the testing protocol of which he was aware is referred to as an "accuracy test".

[22] When Duykers requested the ASD sample from Palmer the device activated without difficulty and in the manner anticipated. The device accepted a sample from Palmer and provided one of the three anticipated types of readout. No error messages were displayed and there was no difficulty encountered in securing a proper sample from Palmer.

[23] In the circumstances I am satisfied that there is an objectively discernable and reasonable foundation for Duykers' belief that the ASD device he was using was in proper working order. This reasonable belief in combination with the "fail" analysis was a sufficient foundation for relying on the result of the ASD to support Duykers' reasonable grounds to make the Intoxilyzer demand.

[24] In the circumstances the Crown has satisfied the burden of showing that the seizure of Mr. Palmer's blood was lawful. The Charter application is dismissed.

Released: November 1, 2014

Signed: "Justice George S. Gage"