Court File and Parties

Court File No.: 15-336 Location: Brampton Ontario Court of Justice

Between:

Her Majesty the Queen

Sonya Andersen, for the Crown

— AND —

Michael Goldthorp

Douglas Lent, for the accused

Heard: September 15, 2015

Decision

Justice Kukurin:

Introduction

[1] These are Reasons for my decision given September 15, 2015. I dismissed the application brought by the accused under the Charter of Rights and Freedoms (the "Charter"), found him guilty of the offence of driving with excess alcohol under s. 253(1)(b), and imposed sentence, which was a fine in the amount of $1,000.00, and a one year driving prohibition. He was given six months to pay the fine as well as the victim surcharge resulting from the conviction. Time constraints did not permit delivery of my Reasons orally at the time. These are provided belatedly in written form pursuant to my undertaking to counsel to do so.

Facts of the Offence

[2] The circumstances of the offence itself are rather unremarkable. On a Sunday morning, shortly after Christmas last year, the accused went to the liquor store (LCBO) which was located in a shopping mall complex not far from his home. Parked nearby that morning was officer Dane Pallett of the Peel Region Police Service who was keeping an eye on patrons of the LCBO. Officer Pallett observed the accused leave the LCBO, enter his vehicle and drive through the shopping complex grounds to an egress at the intersection of Mill Street and Charolais Street in the City of Brampton. He followed, and several blocks along Mill Street, he effected a stop without incident. There was nothing in particular that drew his attention to the accused. His stop was completely random. He indicated that he was simply checking for sobriety. No issue was taken with respect to the stop itself.

[3] The stop took place at 11:10 am. The officer asked the accused if he had drunk any alcohol recently. The reply, which the officer recorded in his notes was "I drank last night".

The Charter Application

[4] What took place at the roadside formed the crux of the Charter argument. The relief sought in the Charter application was for a stay of the proceeding, or alternatively, for an order excluding evidence of the breathalyzer readings later obtained. Since the charge was one under s. 253(1)(b) of the Criminal Code, excluding his readings from evidence would be tantamount to an acquittal. The basis for this request was the violation of the accused's Charter rights, specifically given by sections 7, 8, 9 and s. 10(a) and 10(b). By the conclusion of evidence, the accused abandoned his argument based on violations of s. 10(a) and 10(b). The violations of s. 7 and s. 9 rights were not strenuously pursued. The main Charter challenge was with respect to s. 8.

[5] The story of what happened, somewhat abridged, is that the officer made a roadside demand for the accused to provide a breath sample in an approved screening device (ASD). This resulted in a "Fail" reading. The accused was arrested, cautioned, read his rights to counsel and a breath demand made of him. He was taken to Division 22 where, after being booked in, he provided two samples resulting in readings of .122 (truncated to .120) and .108 (truncated to .100), the meanings of which were that the accused had at the times of those samples, 122 and 108 millilitres of alcohol in 100 millilitres of blood, respectively.

The Section 8 Charter Argument

[6] How were the accused's section 8 rights infringed or violated? The argument is best approached from the breathalyzer test results. These results would never have been obtained but for the breath demand having been made. The breath demand would never have been made had the officer not formed the reasonable grounds required in s. 254(3) as a pre-requisite for making such a demand. The reasonable grounds of the officer would not have existed but for the fact that the accused blew a "fail" in the roadside approved screening device (ASD). The accused blew a "fail" only because a demand was made of him by the officer to blow in the ASD. The officer could make such a demand only if he formed a reasonable suspicion that the accused had alcohol in his body. The accused maintains that the officer could not possibly have relied on the ASD reading as the basis for his reasonable grounds to make a breath demand.

[7] Why this is so, in the argument of the accused, is because the officer, prior to administering the roadside ASD, did not properly address whether the accused had had substances other than alcohol in his mouth prior to implementing the test. He contends that other substances ingested by a person performing a breath test on an ASD, can result in false positives. This could be a "fail" or something short of a "fail" such as an "alert" result.

Credibility Issues

[8] This is where two issues arise. The first is that of credibility. The police officer testified that he had made notes at the time of the incident. These were on pre-printed forms on which he recorded various things in two categories: driving offence matters and alcohol and intoxication matters. His testimony, assisted by reference to his notes, told of his observations of the accused, noting that he detected alcohol on his breath, that he had a flushed face and that his eyes were blood shot and watery. However, he conceded that the accused's speech was not slurred, he was not unsteady on his feet, did not have dilated pupils, nor did he display any motor difficulties or any other unusual behaviour. He confirmed his opinion that the accused's driving was not impaired. The totality of these observations, with the accused's response to his question about whether he had consumed alcohol recently, caused the officer to form the suspicion he felt he required to make the demand for the roadside ASD test.

[9] It was the officer's notes that created some problems. The officer utilized what I will call shortcuts in his notations. For example, "ASC" was a short form for "ascertained". "No ETOH – 15" was a notation that the officer had ascertained that the accused had had no alcohol in his mouth for the past 15 minutes. "No Misc – 5" was a notation explained by the officer to mean that he had ascertained that the accused had not had other substances in his mouth for the preceding 5 minutes. The officer admitted in cross examination that his notes were not in the form of questions by him and answers by the accused. However, he did testify that he recorded information in his 'shortcut' format and that these notes were created from his conversation with the accused.

[10] The officer testified that the accused had informed him that he had nothing else in his mouth in the preceding five minutes. The accused also testified, with his testimony limited to the s. 8 Charter issue. His testimony was that he was not asked by the officer if he had had anything in his mouth within the last five minutes. He also denied making the statement, by way of the response, of which the officer states he made a note.

[11] This is clearly a credibility issue. Is it important? Yes it is in this case, as there is a second and related issue that arises. This second issue is tied to the reliability or, more precisely, the validity of the ASD test result when there may be substances present that could affect the results obtained. Alcohol in the mouth could certainly do this. However, it was argued by the accused that substances other than alcohol may also provide invalid or "false positive" results. That this is so, he claims, can be inferred from two documents filed as Exhibits 5 and 6 in this case.

Police Directives on ASD Testing

[12] Exhibit 5 is a Memorandum dated November 13, 2013 from Ontario Provincial Police Deputy Commissioner B.W. Blair addressed to O.P.P Regional Commanders in the form of a directive, the essence of which is captured in the sentence:

"Please ensure no food or drink is consumed fifteen minutes before a test is commenced"

[13] The underlying reason for this appears to be the belief that ASD readings can be compromised by alcohol based hand sanitizing products as well as by fruit juices, sugary foods/drinks and bread products. The source of this belief by the OPP appears to be from Drager Safety Canada, co-incidentally the manufacturer of the ASD used in this particular case.

[14] Exhibit 6 is a Corporate Communications memo dated December 1, 2014 that appears to have been circulated internally to the Peel Regional Police personnel. This memo relates to operational issues involving new ASD's recently introduced in the Province of Ontario. It instructs officers to question test subjects as to whether they have consumed anything by mouth 15 minutes prior to a breath test. It cautions that false positives may result but are rare when due to food or non-alcoholic beverages. It recommends a 15 minute delay before testing from time of last consumption of alcohol. It recommends a 5 minute delay before testing from time of last consumption of food or non-alcoholic substances.

[15] Officer Pallett acknowledged that he was aware of the O.P.P memo as well as the Corporate Communications memo. He indicates that he follows, and followed in this case, the Corporate Communications memo. He is not an Ontario Provincial Police officer but a member of the Peel Regional Police force.

The Accused's Argument on Evacuation Time

[16] The argument of the accused is that Officer Pallett failed to determine whether the accused had taken anything other than alcohol by mouth in the five minutes preceding his ASD test. Even if he is found to have done so, this, he argues, was insufficient as he should have done so for, not five minutes, but for fifteen minutes, immediately preceding the ASD test.

[17] This failure on his part, submits the accused, renders his reliance on the ASD test results to be faulty and an inappropriate foundation for the formation of the reasonable and probable grounds required for making a demand for a breath sample pursuant to s. 254(2) of the Criminal Code. In terms of a Charter violation, the accused's argument is that the securing of his breath samples was an unreasonable search and seizure in the circumstances, and thus a violation of his right to be secure therefrom.

Court's Analysis of Credibility

[18] As for the issue of credibility, I prefer the testimony of officer Pallett over that of the accused with respect to whether the officer addressed the question as to whether the accused had anything but alcohol in his mouth prior to the administration of the ASD test. There are reasons for this preference. Officer Pallett did make notes. In fact, making notes is a recognized part of a police officer's normal duties. These were available in court and clearly had been disclosed to the defence prior to the trial. He was cross examined on these notes. That the notes were atypical from what might normally be expected of police officers' notes does not render them any less trustworthy on this count alone. These were what the officer used for recording of incidents.

[19] At trial, he testified to his recollection of the incident involving the accused with the assistance of his notes. He had recorded that he asked the accused about his last intake of alcohol. He recorded the accused's response. This was done in his 'shorthand' note taking fashion. The information he provided at trial with respect to this particular question and answer was confirmed by the accused in his viva voce testimony to accurately reflect what was said by each of them. The word "alcohol" does not appear in his note of this exchange, but the question was clearly asked and answered. There is a recording, again in the officer's shorthand, "No Misc – 5". This was explained at trial and, in my view, adequately, to appreciate the meaning of this recording. The term "Misc" meant to the officer, anything other than alcohol. The number "5" meant in the immediately prior five minutes. That this was recorded at all means something. It means that the officer did address the question of whether the accused had substances other than alcohol in his mouth in the immediately preceding five minutes. To infer otherwise would require a belief that the officer was making notes of things that simply did not take place. There is nothing to support this inference. Nor is there anything to support an inference that this particular notation was not made contemporaneously with the exchange between the officer and the accused at the time of the incident.

[20] The accused made notes himself. However he did not have these available at trial. He indicated that he had reviewed these notes half a dozen times prior to the trial. His testimony was given orally, from memory, without any reference to these notes. The absence of the notes at trial is worthy of note as the defence raised the issue of what actually transpired at the time of the incident, knowing what the officer had recorded in his notes. The accused's notes themselves, had they been available might have bolstered the version of events of the accused, or may have weakened what he recounted at trial. We won't know. What those notes were used for was to refresh the accused's memory of events of the incident. Those notes, however, were not made contemporaneously with the incident. They were not made until lunch time the following day (Monday) while the accused was at his place of employment. This delay in recording makes the notes somewhat less reliable than if they had been made the same day, and near to the same time as the incident. As it was, the accused was testifying from memory of an event that took place about nine months ago. At that time, the particular question and any answer thereto would not have had the same significance that it appears to have today.

[21] The accused claimed to have a very good memory of the events. However, this self assessment of his ability to recollect accurately was questioned in cross examination by some rather innocuous questions of what he did on the afternoon of the day he was charged. He apparently attended a hockey game with family members but he could not readily recall which arena this game took place, seemed somewhat unsure as to which teams were playing and could not say who won the game. While a hockey game may not rank as significant in his mind as being arrested and charged, it does cause some question about his ability generally to remember with accuracy. He could not recall if he had had breakfast that morning before going to the beer store. Moreover, it appears, in retrospect, that even by about noon that day, he still had significant blood alcohol, a factor that can affect memory formation.

[22] In summary, I find on the evidence that the officer did address the question of whether the accused had anything in his mouth, other than alcohol, in the five minutes prior to taking the ASD test. I note from the evidence of the officer, which was not contradicted, that the initial stop was at 11:10 am from which point on, the officer and the accused were in close proximity. The actual ASD test did not take place until 11:14. It is reasonable to infer that, had the accused had anything in his mouth during this interval at least, the officer would have noticed this, and even more reasonable to infer that if such had been the case, the accused would have said so when he testified at trial.

Analysis of Evacuation Time

[23] The other issue relates to what is the appropriate time interval between non alcoholic substances in the mouth and the administration of the ASD test. For lack of a better phrase, I refer to this as the "evacuation" time. The accused argues that the officer should have considered the evacuation time to be 15 minutes, not 5 minutes. The reason for this is because 15 minutes is the time that is mentioned in the OPP directive and as well in the Corporate Communications memo as the evacuation time to be concerned about when dealing with an individual who is about to be administered an ASD test.

[24] Firstly, these memoranda or directives are completely hearsay as to the issue of what is an appropriate evacuation time. It is double hearsay in the case of the OPP memo and unattributed hearsay in the Corporate Communications memo. The best that can be said for these pieces of evidence is that Officer Pallett was aware of what these two police forces were advising their members in terms of dealing with evacuation times when dealing with individuals encountered by them in their police work. These two documents did not say the same things. I do not fault officer Pallett in that he followed the Corporate Communications memo. It was a memo that was circulated in his police force. It postdated the OPP memo by a year and was clearly more recent. It was more detailed in terms of information it provided to officers like him. I would assume that his Corporate Communications department would have been well aware of what the OPP were doing when it decided to circulate its memo.

[25] What the Corporate Communications memo conveyed was intended to give some guidance to police officers about to implement an ASD test on a subject. There is little doubt that, in terms of questioning the subject beforehand, the evacuation time referred to in the memo was fifteen minutes. This is apparent from the following paragraph 2:

2. Officers should question test subjects as to whether they have consumed anything by mouth 15 minutes prior to the subject being administered the breath test.

[26] However, this is not all of paragraph 2 in the memo. What follows are subparagraphs of paragraph 2 of this memo which qualify this general guideline, in particular with respect to non-alcoholic substances that the subject may have had in his or her mouth:

(a) False positive results due to food and non-alcoholic beverages are rare, transient and small in nature.

(b) Where there is reason to suspect the subject has consumed alcohol-containing substances, officers should wait 15 minutes from last consumption before administering the ASD test.

(c) Where there is reason to suspect the subject has consumed food or non-alcoholic substances, officers should wait 5 minutes from last consumption before administering the ASD test.

(d) Officers must not consume anything by mouth for 5 minutes prior to conducting a self-test.

[27] What the officer did in this case was to address the question of alcohol in the mouth for 15 minutes and non-alcoholic substances in the mouth for 5 minutes prior to the ASD in his verbal interactions with the accused. This did not accord with the general directive to question subjects about anything in their mouths for the 15 minutes prior to the ASD test, but it did make sense from the directives of what should be done should there be any reason to conclude that a particular substance had been in the mouth. From any reasonable perspective, apart from alcoholic substances in the mouth, a person reading this memo would conclude that a five minute evacuation time was sufficient, and that false positive ASD readings resulting from the presence of food or other non-alcoholic substances in a subject's mouth would be a rare occurrence, perhaps even if they were present within the five minutes immediately prior to the ASD test.

Reasonable and Probable Grounds

[28] The Corporate Communications memo, in terms of the factual information it conveys, is as much hearsay as is the OPP memo. What is important is not so much whether the scientific basis for what is the appropriate evacuation time for various substances passing through one's lips has any validity. Rather, it is what is in the mind of the person who is making a demand of a subject for a breath sample for a breathalyzer test. The statutory pre-requisite is reasonable and probable grounds to believe that the accused has committed an offence under s. 253. The reasonable and probable grounds, must, according to current jurisprudence, have both a subjective and an objective basis (R. v. Storrey). The requirement in s. 254(3) that reasonable and probable grounds exist is not only a statutory but a constitutional requirement as a precondition to a lawful search and seizure under s. 8 of the Canadian Charter of Rights and Freedoms (R. v. Bernshaw).

[29] I am satisfied that Officer Pallett subjectively had an honest belief that the suspect has committed the offence under s. 253(1)(b) when he made his demand for a breath sample. As to whether objectively there were reasonable grounds for this belief, Parliament has set up a statutory scheme whereby a screening test can be administered by the police merely upon entertaining a reasonable suspicion that alcohol is in a person's body. A "fail" result may be considered, along with any other indicia of having consumed alcohol in excess of the legal blood alcohol concentration limit, in order to provide the police officer with the necessary reasonable and probable grounds to demand a breathalyzer. Here the objective grounds included the physical observations of the accused, his admission that he had, in fact, drank alcohol, albeit the night before, and the most cogent objective indication was the "Fail" on the ASD test.

[30] Whether that "Fail" reading was a reasonable objective factor to support the reasonable and probable grounds statutorily required for a breath demand is the main issue here. I am of the view that Officer Pallett was entitled to rely on the "Fail" reading on the ASD based on the investigation that he did prior to administering the ASD test. What he did complied with what he had understood to be what he was supposed to do as a police officer in those circumstances. What he asked and the answers he received addressed those very things that he and fellow officers were cautioned about in the Corporate Communications memo circulated among them. There was no indication from his own observations or from the accused that there had been anything of a non alcoholic nature in the accused's mouth in the five minutes preceding the test, and a reasonable person, informed of this memo's contents, would, I believe, have acted in precisely the same way.

[31] Accordingly, I do not find that the accused's Charter rights under s. 8 were infringed or violated as a result of what the officer did or did not do in his investigation, and his administration of the ASD, or in his reliance on the ASD "Fail" result in forming his reasonable and probable grounds to make his breath demand. The application of the accused under s. 8 is dismissed.

Section 7 Charter Rights

[32] I am not sure how the accused's life, liberty and personal security rights pursuant to s. 7 of the Charter were engaged by what took place in this case. I had no significant argument of a Charter violation on account thereof. I do not find that the accused's s. 7 rights were infringed or violated.

Section 9 Charter Rights

[33] As for the s. 9 right of a person not to be arbitrarily detained or imprisoned, there is no question that the accused in this case was detained and that the detention was arbitrary. However, such random stopping for spot check procedures are statutorily authorized in Ontario pursuant to the Highway Traffic Act:

s. 48. (1) A police officer, readily identifiable as such, may require the driver of a motor vehicle to stop for the purpose of determining whether or not there is evidence to justify making a demand under section 254 of the Criminal Code (Canada). 2007, c. 13, s. 10.

[34] Moreover, the existing case law relevant to such stops indicate that although such arbitrary detentions infringe on a Charter right, these are justified under s. 1 of the Charter (R. v. Hufsky). I do not find that there was anything that occurred that would render the treatment of the detention of the accused in this case to be anything other than a justified violation of a Charter right of the accused.

Verdict and Sentence

[35] Counsel agreed at the outset that this matter would proceed as a blended hearing. On the charge of excess alcohol under s. 253(1)(b), the crown has proven its case beyond a reasonable doubt.

Released: September 17, 2015

Signed: Justice John Kukurin