Court File and Parties

Date: 2015-09-15

Court File No.: Brampton 13-15581

Ontario Court of Justice

Between:

Her Majesty the Queen

- and –

David Dessources

Before: Justice P.A. Schreck

Heard on: July 2, 2015

Reasons for Judgment

Counsel:

• J. Mathurin, for the Crown
• D. Sederoff, for the defendant, David Dessources

SCHRECK J.:

[1] Central Issue

The central issue in this case is whether evidence that a person failed an approved screening device ("ASD") test is sufficient to justify an arrest absent evidence as to how and when the device was calibrated.

[2] Charge and Application

David Dessources is charged with operating a motor vehicle while the concentration of alcohol in his blood exceeded the legal limit, contrary to s. 253(1)(b) of the Criminal Code. He has applied, pursuant to ss. 8, 9 and 24(2) of the Canadian Charter of Rights and Freedoms, to exclude from evidence the results of an analysis of his breath by an approved instrument. The constitutional admissibility of that evidence is the sole issue to be determined.

I. EVIDENCE

[3] Initial Traffic Stop

In the early morning hours of July 30, 2013, Constable Shawn Galbraith of the Peel Regional Police, who at the time had been a police officer for about two and a half years, observed a motor vehicle leave the parking lot of a licensed establishment. He decided to initiate a traffic stop for the purpose of conducting a sobriety check. Constable Galbraith acknowledged that there was no evidence of any bad or improper driving prior to the stop.

[4] ASD Demand

Constable Galbraith stopped the vehicle at 1:29 a.m. and approached the driver, the defendant David Dessources. While speaking to Mr. Dessources, Constable Galbraith noticed an odour of an alcoholic beverage. Based on this, he formed a suspicion that Mr. Dessources had alcohol in his body and accordingly made a demand, pursuant to s. 254(2)(b) of the Criminal Code, that he provide a sample of his breath into an ASD.

[5] ASD Results and Arrest

Constable Galbraith testified that he provided a sample of his own breath into the ASD, the make and model of which he did not identify, and that the results "came back as zero". He then asked Mr. Dessources to provide a sample. The first three times Mr. Dessources did so, the ASD showed an error code of "EO", which Constable Galbraith testified meant that the sample was unsuitable. On the fourth attempt, the result was "F". Based on the "F" result, Constable Galbraith placed Mr. Dessources under arrest and made a demand, pursuant to s. 254(3)(a)(ii), that he provide a sample of his breath into an approved instrument.

[6] Gaps in Evidence

Constable Galbraith did not testify as to what he understood an "F" to mean, nor did he testify as to when, if and how the ASD had been calibrated. Apart from indicating that the sample of his own breath resulted in a reading of zero, he gave no evidence as to his belief that the device was in good working order. He was not cross-examined on any of these issues.

[7] Approved Instrument Results

Mr. Dessources was later taken to a nearby police station. He provided samples of his breath into an approved instrument at 2:58 and 3:19 a.m., resulting in readings of 139 and 133 mg of alcohol per 100 ml of blood, respectively.

II. ISSUES

[8] Warrantless Search and Reasonable Grounds

It is well-established that the taking of breath samples is a warrantless search. As such, it is presumptively unreasonable unless the Crown can establish otherwise on a balance of probabilities: R. v. Haas (2005), O.R. (3d) 737 (C.A.); R. v. Bush (2010), 2010 ONCA 554, 101 O.R. (3d) 641 (C.A.) at para. 13. The Crown attempts to do so here by relying on Constable Galbraith's evidence that Mr. Dessources's breath sample registered an "F" on the ASD and that this result amounted to reasonable and probable grounds to arrest Mr. Dessources and make a breath demand. Reasonable and probable grounds have both a subjective and an objective component. The officer must subjectively believe that he has the requisite grounds, and this belief must be objectively reasonable.

[9] First Objection: Device Identification

While counsel for Mr. Dessources takes no issue with Constable Galbraith's subjective grounds, he submits that those grounds were not objectively reasonable for two reasons. First, although he testified that he used an approved screening device, he did not identify the device as being one of the models that has been approved in the regulations.

[10] Second Objection: Meaning of "F" and Calibration

The second reason is that while Constable Galbraith testified that the result was an "F", he did not explain what he understood "F" to mean. In particular, he gave no evidence with respect to how the device was calibrated or that it was calibrated such that it would only register a fail if the person's blood alcohol concentration ("BAC") exceeded the legal limit. Absent such evidence, the officer's belief was not objectively reasonable.

[11] Reliance on R. v. Dignum

The Applicant relies on the decision in R. v. Dignum, [2012] O.J. No. 5074 (C.J.), aff'd (unreported, September 20, 2013, Ont. S.C.J.), leave to appeal refused (unreported, November 19, 2013, Ont. C.A.), where the Court held (at paras. 50-51):

I do not believe that I can infer what the officer subjectively understood "F" to mean based on the facts of this case. The court cannot use judicial notice to correct this serious omission in the evidence nor can I infer that the officer subjectively had an honest belief that an "F" generally means the accused had in excess of 100 milligrams of alcohol in 100 millilitres of blood.

[12] Reliance on R. v. Heron

The Applicant also relies on R. v. Heron, [2007] O.J. No. 4599 (C.J.). As in this case, the officer in that case did not fully explain what a "fail" on the ASD meant, although the explanation in Heron was somewhat more detailed than in this case. As a result, the Court concluded that the arrest had been without the requisite grounds (at para. 16):

Constable Seed testified that the device was calibrated to fail "at 100". No one asked her what that meant. . . . A reasonable person looking at the circumstances dispassionately would have no grounds to believe that Mr. Heron had committed an offence based on the officer's evidence that he had registered an "F" on the machine which had been calibrated to register a "fail at 100" without further explanation.

III. ANALYSIS

A. Identification of the Approved Screening Device

[13] R. v. Gundy Standard

This issue has been determined against the Applicant in R. v. Gundy (2008), 2008 ONCA 284, 231 C.C.C. (3d) 26 (Ont. C.A.). In that case, Rosenberg J.A., writing for the Court, stated (at paras. 44-46):

In determining whether the particular device was approved, the court must consider all the evidence, including any circumstantial evidence. The court is entitled to draw reasonable inferences from the evidence. Thus, in my view, if the officer in his or her testimony refers to the device as an "approved screening device", the trial judge is entitled to infer that the device was indeed an approved device. As such, the officer is entitled to rely upon the "fail" recorded by the device to find that there were reasonable and probable grounds to make the breath demand.

Where, as here, the officer states that she made a demand that the motorist provide a sample for analysis by the approved screening device, surely the trier of fact can reasonably infer that the officer used an approved device. That was the holding of the trial judge in this case and I agree with that decision. As Langdon J. said in R. v. James, [1995] O.J. No. 190 (Gen. Div.) at para. 5, "what is the likelihood that the O.P.P. would supply its constables with an unapproved device with which to enforce the R.I.D.E. programme?"

See also R. v. Zhao, 2014 ONSC 1985, [2014] O.J. No. 1676 (S.C.J.) at paras. 14-16.

B. The Meaning of an "F"

[14] Purpose of Approved Screening Device

The purpose of an approved screening device is to confirm or refute a police officer's suspicion that an individual is operating a motor vehicle with an excess amount of alcohol in his or her system. This is clear from s. 254(1) of the Criminal Code, which defines an "approved screening device", and s. 254(2)(b), which outlines the circumstances in which the device may be used.

[15] Objective Reasonableness of Officer's Belief

In this case, there is no issue that Constable Galbraith subjectively believed that an "F" on the ASD provided him with reasonable and probable grounds to believe that Mr. Dessources was "over 80". The issue is whether that belief was objectively reasonable in the absence of any evidence as to how the device was calibrated.

[16] R. v. Coutts: Calibration Evidence

In R. v. Coutts (1999), 45 O.R. (3d) 288 (C.A.), the Court considered whether an ASD "fail" could be used to discredit "evidence to the contrary" within the meaning of s. 258(1)(d.1) as it read at the time. In concluding that it could not, Moldaver J.A. (as he then was) stated (at paras 19-20):

. . . [T]he evidentiary value of roadside test results to discredit "evidence to the contrary" is dependent on the fact that roadside screening devices are calibrated to register a "fail" where a motorist has a blood-alcohol level equivalent to or greater than 100 mg. of alcohol per 100 ml. of blood. And yet, no evidence was led in this case to establish that critical fact. Nor for that matter, was there any evidence as to when the screening device was last calibrated or whether it was in proper working order.

Manifestly, where a roadside test is being used solely for the purpose of confirming or rejecting a police officer's suspicion that a motorist might be impaired or over the legal limit, none of these facts need be proved. It is sufficient if the administering officer reasonably believes them to be true. Where, however, the test result is being offered for the truth of its contents, these facts must be proved by admissible evidence. [Emphasis added].

[17] R. v. Beharriell: Evidence "On the Table"

In R. v. Beharriell (2014), 2014 ONSC 1100, 9 C.R. (7th) 334 (Ont. S.C.J.), Durno J. drew a distinction between cases where there was evidence that called into question the functioning of the ASD such that the issue was "on the table" and cases where the evidence was silent on the issue. Where there was evidence to suggest that the officer had some reason to question the accuracy of the ASD, it is open to the court to conclude that he or she lacked reasonable and probable grounds to arrest the accused based on the failed sample. However, where there is no such evidence, it is open to the court to conclude that the officer had the requisite grounds (at para. 62):

The use of circumstantial evidence to show the officer reasonably believed the ASD was appropriately calibrated and working properly was a route open to the trial judge in assessing whether the officer had reasonable and probable grounds to make an Intoxilyzer demand. It can be inferred that the officer had reasonably believed the ASD was operating properly and that on a balance of probabilities the officer had reasonable and probable grounds to arrest and make an Intoxilyzer breath demand. The officer is not required to say any particular words to express his belief in the machine's reliability when used. A reasonable inference can be drawn that the officer had that belief. R. v. Hall (1995), 22 O.R. (3d) 289 (C.A.) In addition, the trial judge was entitled to draw the inference that a reasonable person in the officer's shoes would have relied on the ASD result as reliable.

[18] Allocation of Burden

In this case, it was argued on behalf of the Applicant that because the Crown bears the onus of justifying the warrantless search, it was incumbent on the Crown to demonstrate that the ASD was functioning properly. I disagree. The Crown justified the search by adducing evidence that the officer relied on the "F" from the ASD, a device the sole purpose of which is to determine whether a person's BAC is in excess of the legal limit. Once it did so, the defence had the persuasive burden of showing why that failure did not amount to reasonable and probable grounds. As has been noted in another context, regardless of who carries the ultimate burden of persuasion, the onus on any issue will tend to shift back and forth between the applicant and the Crown, depending on what the particular contested issue is and which party is seeking to rely on it: R. v. Bartle, [1994] 3 S.C.R. 173 at para. 50.

[19] Illustrative Example

The point can be illustrated by the following example. A police officer testifies that he arrested an accused for robbery because earlier that day, he had seen the accused committing the offence. This testimony is not challenged in cross-examination. In these circumstances, it would be open to a court to conclude that the arrest was justified and there would be no onus on the Crown to adduce evidence that the officer had good eyesight. However, if there was evidence that the observations were made in bad lighting conditions, or that the officer was not wearing eyeglasses that he required, the court may well draw a different conclusion as to whether or not the requisite grounds existed.

[20] Dignum Distinguished

In R. v. Dignum, supra, on which the applicant relies, there was reason to question the officer's understanding of the ASD's functioning because he had testified to seeing error messages on the machine which it turned out the machine could not have displayed. The functioning of the ASD was "on the table", to use the language of Durno J. in R. v. Beharriell, which is why the trial judge in Dignum drew the inference that she did. However, as the Summary Conviction Appeal Court Justice in Dignum noted, the trial judge could have drawn a different inference: R. v. Dignum, supra (S.C.J.), at para. 8.

[21] Heron Reconsidered

With respect to R. v. Heron, the other case on which the Applicant relies, the conclusion drawn in that case is, with the greatest of respect, inconsistent with R. v. Coutts and R. v. Beharriell. In my view, evidence that the ASD is calibrated to "fail at 100", in the context of a charge of operating a motor vehicle with over 80 mg of alcohol per 100 ml of blood, would be more than sufficient to justify an arrest.

[22] Inference of Reasonable Belief

Based on the record in this case, I infer that Constable Galbraith relied on the ASD because he had reason to believe that it was in proper working order and that an "F" reading was an indication that Mr. Dessources's BAC was in excess of the legal limit. While Constable Galbraith's evidence on this issue was sparse and could have been more detailed, it was not challenged in cross-examination. It is of course possible that the ASD had not been properly calibrated, but as the Supreme Court of Canada observed in R. v. Bernshaw, [1995] 1 S.C.R. 254, at para. 38, "[t]he mere possibility that the [ASD] test might have been inaccurate . . . is insufficient to invalidate the reasonableness of the officer's belief based on the result of the test". I therefore find that Constable Galbraith had reasonable and probable grounds to arrest Mr. Dessources and make a breath demand. In the result, the application to exclude the certificate must be dismissed.

IV. DISPOSITION

[23] Finding of Guilt

The certificate having been properly admitted and there being no issue that Mr. Dessources had been operating a motor vehicle at the relevant time, Mr. Dessources is found guilty.

Justice P.A. Schreck

Released: September 15, 2015