Court File and Parties

Court File No.: 13-03768 Central East Region-Newmarket Date: 2015-10-19 Ontario Court of Justice

Between: Her Majesty the Queen — And — Andrew David Nicolosi

Before: Justice Peter C. West

Evidence Heard: March 5, 2015 Submissions Heard: August 11, 2015 Reasons for Judgment Released: October 19, 2015

Counsel:

• Mr. D. Lerner for the Crown
• Ms. L. Izakelian for the accused

WEST J.:

Introduction

[1] On May 11, 2013, Mr. Nicolosi was charged with operating a motor vehicle with more than 80 mg of alcohol in 100 ml of blood, contrary to s. 253(b) of the Criminal Code.

[2] It was agreed at the outset of the trial the evidence would be adduced by way of a blended hearing dealing with the Charter applications and the trial proper. The onus generally lies on the defendant to demonstrate a violation of his Charter rights on a balance of probabilities. Where the Crown is relying on a warrantless search, the onus is on the Crown to establish on a balance of probabilities there were reasonable and probable grounds for the arrest and Intoxilyzer demand. Ultimately, as in all criminal cases, the Crown bears the burden of proving this offence beyond a reasonable doubt.

[3] Ms. Izakelian has raised four Charter issues in this case:

(a) Was the ASD administered forthwith and, if not, was the defendant's Charter right to counsel under s. 10(b) violated?

(b) Was there a violation of s. 8 of the Charter because P.C. DeMarco based his grounds for arrest on an unreliable approved screening device (ASD)?

(c) If P.C. DeMarco based his grounds for arrest on an unreliable ASD, was his subsequent arrest of the defendant a violation of s. 9 of the Charter, amounting to arbitrary detention?

(d) Was the demand pursuant to s. 254(3) made "as soon as practicable"?

Factual Background and Chronology

[4] P.C. DeMarco has been a York Regional Police Officer since 2011 and was on general patrol on May 11, 2013. He was driving a marked police cruiser in the area of Highway 7 and Wigwoss Drive in the City of Vaughan. At 3:30 a.m., he was driving westbound on Highway 7 when he observed a motor vehicle leaving a darkened commercial plaza and proceeding eastbound on Highway 7 at a high rate of speed.

[5] The officer made a U-turn and followed the vehicle. It turned south on Islington Avenue to Woodbridge Avenue where it turned left and then turned onto Clarence Street and the officer conducted a traffic stop at 3:31 a.m. P.C. DeMarco's police cruiser was equipped with an in-car camera. The video was filed as Exhibit 1.

[6] The following chronology of events is based on the evidence:

• 3:32 a.m.: P.C. DeMarco went to the driver's door; Mr. Andrew Nicolosi was the sole occupant of the car. P.C. DeMarco had conversation with Mr. Nicolosi and detected an odour of alcohol on Mr. Nicolosi's breath. Mr. Nicolosi admitted to consuming two double shots of vodka an hour and a half previously.

• 3:33 a.m.: P.C. DeMarco formed a reasonable suspicion Mr. Nicolosi had alcohol in his body while operating a motor vehicle. The officer requested Mr. Nicolosi to exit his vehicle in order to accompany him to his police cruiser to provide a sample of his breath into an ASD.

• 3:36 a.m.: P.C. DeMarco made a formal ASD demand from the pre-printed form in his police notebook after getting the ASD from his police cruiser and handing Mr. Nicolosi a new mouthpiece. Mr. Nicolosi indicated he understood the demand.

• 3:38 a.m.: While P.C. DeMarco was preparing the ASD to receive a breath sample he determined the ASD was not working properly as it was displaying a message indicating the battery was low. P.C. DeMarco testified he had tested the ASD at the start of his shift, at 6:20 p.m. on May 10, 2013, and confirmed it was in proper working order.

• 3:38 a.m.: P.C. DeMarco advised Mr. Nicolosi his ASD was not working properly because of a low battery and he had to request another ASD be brought to where they were. He directed Mr. Nicolosi to wait in his own vehicle until the ASD arrived.

• 3:39 a.m.: P.C. DeMarco requested on his police radio for another unit to bring an ASD to his location as his was not working properly. P.C. Morgan advised at 3:39 a.m. he was close to P.C. DeMarco's location and was on route.

• 3:41 a.m.: P.C. DeMarco approached Mr. Nicolosi's vehicle and observed Mr. Nicolosi smoking a cigarette. He asked Mr. Nicolosi to put the cigarette out and advised him the ASD test would have to be delayed because if someone had just smoked a cigarette, the cigarette smoke could affect the result. Consequently, they would have to wait for a certain amount of time before administering the test. P.C. DeMarco testified he believed he had to wait 10-15 minutes before administering the ASD. It was his belief any result obtained would be unreliable as smoke could damage the device. Subsequent to this investigation he has learned the wait time is only two minutes.

• 3:42 a.m.: P.C. Morgan arrived on scene with an ASD, which he gave to P.C. DeMarco. P.C. DeMarco spoke to P.C. Morgan and provided him with the background information for why he stopped Mr. Nicolosi.

• 3:47 a.m.: P.C. DeMarco escorted Mr. Nicolosi to the front of his cruiser again.

• 3:48 a.m.: P.C. DeMarco read Mr. Nicolosi his right to counsel from the back of his police notebook. Mr. Nicolosi declined to speak to a lawyer.

• 3:49 a.m.: P.C. DeMarco re-read the ASD demand from his police notebook. Mr. Nicolosi said he understood.

• 3:52 a.m.: After three unsuccessful attempts to provide a sample of breath Mr. Nicolosi provided a suitable sample of his breath into the ASD and the ASD registered an "F".

• 3:53 a.m.: P.C. DeMarco testified he understood an "F" reading meant the individual had blown over 100 mg of alcohol in 100 ml of blood and as a result he arrested Mr. Nicolosi for operating a motor vehicle with more than 80 mg of alcohol in 100 ml of blood.

• 3:54 a.m.: P.C. DeMarco searched Mr. Nicolosi, handcuffed him to the rear and then placed him into the rear seat of his police cruiser.

• 3:56 a.m.: P.C. DeMarco retrieved Mr. Nicolosi's belongings from his car, including his wallet, keys and cell phone, and spoke to P.C. Morgan about the tow for Mr. Nicolosi's vehicle.

• 3:59 a.m.: P.C. DeMarco returned to his police cruiser and re-read Mr. Nicolosi his right to counsel. Mr. Nicolosi indicated he would like to call duty counsel. Mr. Nicolosi also told the officer his father would be attending the scene as he had called him.

• 4:01 a.m.: P.C. DeMarco read Mr. Nicolosi a caution from his notebook.

• 4:02 a.m.: Mr. Nicolosi's father arrived on scene and can be seen having conversation with P.C. Morgan.

• 4:04 a.m.: P.C. DeMarco was en-route to 4 District Headquarters. P.C. DeMarco testified he was taking Mr. Nicolosi to the police station to provide a sample of his breath.

• 4:16 a.m.: P.C. DeMarco arrived at 4 District. He had to wait to enter the sally port before coming into the police station for Mr. Nicolosi's booking.

• 4:23 a.m.: Mr. Nicolosi was paraded before the booking Staff Sgt. Smith, and then lodged in police cell number 2 at approximately 4:30 a.m.

• 4:30 a.m. (approximately): P.C. DeMarco moved his police cruiser out of the sally port and brought his belongings into the police station. This took approximately 10 minutes.

• 4:40 a.m.: P.C. DeMarco called duty counsel for Mr. Nicolosi.

• 4:46 a.m.: P.C. Metcalfe, the qualified breath technician, commenced performing diagnostic and calibration checks of the Intoxilyzer 8000C.

• 4:50 a.m.: Duty Counsel, A. Tilpins, called back and Mr. Nicolosi was placed into a private room for his consultation with counsel.

• 4:56 a.m.: P.C. DeMarco provided his grounds for Mr. Nicolosi's arrest to the qualified breath technician, P.C. Metcalfe, who noted the grounds for the arrest involved: P.C. DeMarco observing a car leave a commercial area, which was dark with all stores closed, speeding away in the area of Highway 7 and Wigwoss; P.C. DeMarco performed a traffic stop and detected an odour of alcohol from Mr. Nicolosi's breath; an admission by driver of consumption of 2 double vodkas an hour and a half before; the ASD was administered with a result of "F"; and as a result P.C. Metcalfe formed the opinion he had reasonable grounds to perform a breath test.

• 4:58 a.m.: Mr. Nicolosi finished his call with duty counsel and P.C. DeMarco advised P.C. Metcalfe of this.

• 5:01 a.m.: P.C. Metcalfe completed the data entry into the Intoxilyzer 8000C. Mr. Nicolosi was turned over to P.C. Metcalfe for breath tests. He confirmed Mr. Nicolosi had spoken to counsel and explained the process for conducting breath tests.

• 5:04 a.m.: P.C. Metcalfe read the breath demand pursuant to s. 254(3) to Mr. Nicolosi. (Defence counsel conceded proper wording was given by P.C. Metcalfe) Mr. Nicolosi indicated he understood the demand.

• 5:08 a.m.: First breath sample completed with result of 124 mg of alcohol in 100 ml of blood. This was a proper sample. Mr. Nicolosi was re-lodged in his cell.

• 5:30 a.m.: Second breath sample was completed with result of 122 mg of alcohol in 100 ml of blood. This was a proper sample.

[7] P.C. DeMarco testified he had investigated one or two impaired/over 80 investigations at the time of his investigation into Mr. Nicolosi.

[8] P.C. DeMarco testified he believed the ASD brought by P.C. Morgan was in proper working order. He obtained the information about P.C. Morgan testing the ASD at the start of his shift and the calibration date of May 5, 2013 after he used the ASD to take Mr. Nicolosi's breath samples.

[9] P.C. DeMarco agreed where there is a delay in performing an ASD test he has an obligation to provide a detainee with his right to counsel. He agreed he could have given Mr. Nicolosi his right to counsel earlier than he did.

[10] P.C. Morgan testified when he started his shift on May 10, 2013, at 7 p.m., he self-tested his Alcotest GLC 7410 approved screening device and determined it was in proper working order. It was calibrated on May 5, 2013. He advised P.C. DeMarco he was bringing an ASD to his location and he arrived around 3:42 a.m. He handed over his ASD to P.C. DeMarco upon his arrival.

Analysis

(a) Was the ASD administered forthwith and, if not, was the defendant's right to counsel violated?

[11] The authority to make an ASD demand is found in s. 254(2)(b) of the Criminal Code which reads:

s. 254(2) If a peace officer has reasonable grounds to suspect that a person has alcohol…in their body and the person has, within the preceding three hours, operated a motor vehicle…or had the care or control of 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 (emphasis added).

[12] As noted in R. v. MacMillan, 2013 ONCA 109, s. 254(2)(b) was revised by the Tackling Violent Crime Act, S.C. 2008, c. 6, s. 19(3). Rosenberg J. held there are two temporal limits on the validity of a s. 254(2)(b) demand (see paras. 28-31). First, although the wording of the section implies only the driver must act "forthwith" in providing a sample of breath into an ASD, the courts have also held that an officer must be in a position to administer the test forthwith (see R. v. Grant, [1991] 3 S.C.R. 139, at p. 150 and R. v. Pierman; R. v. Dewald, 19 O.R. (3d) 704 (C.A.), per Arbour J.A. (as she then was) at para. 5). The second temporal limit flows from the interaction of s. 254(2)(b) and s. 10(b) of the Charter. In R. v. Thomsen, [1988] 1 S.C.R. 640, the Supreme Court of Canada held that a motorist was detained within the meaning of s. 10(b) when required to comply with a demand under the predecessor to s. 254(2); however, the Supreme Court also held requiring the driver to comply with the ASD demand prior to exercising their right to counsel was a reasonable limit within the meaning of s. 1 of the Charter. Consequently, it is because the driver is detained and would otherwise be entitled to consult with counsel that the test must be administered immediately. Absent this requirement s. 254(2) would not pass "constitutional muster." R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205, at para. 15, 29.

[13] In R. v. Gill, [2011] O.J. No. 3924 (Ont. S.C.), Durno J. dealing with the "forthwith" requirement in s. 254(2) held:

30 The boundaries within which Charter rights are justifiably infringed have recently been described by the Court of Appeal as the "forthwith window." R. v. Degiorgio, 2011 ONCA 527 at para. 49. It is the period in which the detained person can be required to respond to a valid ASD demand by either providing a suitable sample, failing or refusing to provide a suitable sample. During that window, the detainee can incur criminal liability by failing or refusing to provide a sample unaffected by the Charter. Degiorgio, supra, at para. 34 and 47.

31 When the "forthwith window" opens and closes is determined with respect to the right to counsel. The critical question is whether there was a realistic opportunity for the detainee to consult counsel before being confronted with the ASD and required to provide a suitable sample. R. v. Cote, 70 C.C.C. (3d) 280, cited with approval in Woods, supra, at para. 35. It is not simply an opportunity to contact counsel. Rather, there must be a realistic opportunity to contact, seek and receive advice before being confronted with the ASD. R. v. Torsney, 2007 ONCA 67, 217 C.C.C. (3d) 571 (Ont. C.A.). [Emphasis added]

32 Whether that "realistic opportunity to consult counsel" exists is a question of fact to be determined considering all the circumstances in the case. R. v. Latour, 116 C.C.C. (3d) 279 (Ont. C.A.), Torsney, supra, at para. 8. Courts have considered the following non-exhaustive list of circumstances:

i. the time the officer believed the ASD would arrive (R. v. George, 187 C.C.C. (3d) 289 (Ont. C.A.));

ii. the time between the demand and the taking of the sample (Latour, supra);

iii. the time between the demand and the ASD's arrival (George, supra and R. v. Yamka, 2011 ONSC 405, 267 C.C.C. (3d) 81 (S.C.J.));

iv. the day of the week and/or time at which the detainee would have been attempting to contact counsel (R. v. Singh, (2005), 24 M.V.R. (5th) 19 (Ont. C.A.));

v. whether the detainee had a cell phone, although this factor in itself is not determinative (George, supra, at para. 42; R. v. Beattie, [2009] O.J. No. 4121 (C.J.));

vi. the actual time it took for the ASD to arrive (Latour, supra);

vii. whether there was an explanation for the delay (R. v. Fildan, [2009] O.J. No. 3604 (S.C.J.)); and

viii. whether the detainee contacted counsel at the station after being arrested (Torsney, supra).

[14] The Court of Appeal in R. v. Quansah, 2012 ONCA 123, [2012] O.J. No. 779, set out the following summary for the analysis for determining if an ASD is administered "forthwith":

45 In sum, I conclude that the immediacy requirement in s. 254(2) necessitates the courts to consider five things. First, the analysis of the forthwith or immediacy requirement must always be done contextually. Courts must bear in mind Parliament's intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.

46 Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body. The immediacy requirement, therefore, commences at the stage of reasonable suspicion.

47 Third, "forthwith" connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible interpretation may be given. In the end, the time from the formation of reasonable suspicion to the making of the demand to the detainee's response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2).

48 Fourth, the immediacy requirement must take into account all the circumstances. These may include a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed to ensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns. These are examples of delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty. Any delay not so justified exceeds the immediacy requirement.

49 Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee's s. 10(b) rights before requiring the sample. If so, the "forthwith" criterion is not met.

[15] In the case before me, P.C. DeMarco formed his reasonable suspicion at 3:33 a.m. He requested Mr. Nicolosi exit his vehicle to provide a sample of his breath into an approved screening device. Although this was not a formal demand read from the back of the officer's notebook, it conveyed to Mr. Nicolosi the requirement he accompany the officer to provide a sample of his breath into an ASD. It is my view Mr. Nicolosi was detained after P.C. DeMarco requested Mr. Nicolosi exit his vehicle to accompany the officer to provide a sample of his breath. P.C. DeMarco read the formal demand at 3:36 a.m. after walking with Mr. Nicolosi to the police vehicle where he obtained the ASD. The officer handed Mr. Nicolosi a mouthpiece in a sealed plastic bag and Mr. Nicolosi indicated he understood the formal demand for a sample of his breath.

[16] At 3:38 a.m., P.C. DeMarco after starting the ASD, which he had self-tested at the commencement of his shift on May 10, 2013 and determined to be in proper working order, found the ASD was not working properly because of a low battery. P.C. DeMarco advised Mr. Nicolosi he could return to his car as another ASD would have to be brought to where they were because P.C. DeMarco's device was no longer working properly. At 3:39 a.m., P.C. DeMarco requested over his police radio that an ASD be brought to his location because his ASD was not working properly. P.C. Morgan responded saying he was close to P.C. DeMarco's location and would attend immediately.

[17] It is my view, based on P.C. Morgan indicating to P.C. DeMarco he was very close to his location and would bring his ASD, there was no realistic opportunity for Mr. Nicolosi to contact and consult with counsel and P.C. DeMarco was under no obligation to read Mr. Nicolosi his s. 10(b) Charter rights. In fact, P.C. Morgan arrived on scene at 3:42 a.m., three minutes after P.C. DeMarco requested an ASD be brought to his location. P.C. DeMarco became aware his ASD was not working properly at 3:38 a.m., when he started the ASD after reading Mr. Nicolosi the ASD demand and he determined the battery was low. He radioed at 3:39 a.m. and P.C. Morgan radioed immediately and advised he was very close and would bring his ASD to P.C. DeMarco's location.

[18] Just before P.C. Morgan arrived on scene P.C. DeMarco went back to Mr. Nicolosi's car to request Mr. Nicolosi return to the police cruiser as an ASD was on the way. However, when he got to Mr. Nicolosi's car he observed Mr. Nicolosi was smoking a cigarette. He advised Mr. Nicolosi to stop smoking and put out his cigarette. He also told Mr. Nicolosi the ASD test would have to be further postponed as cigarette smoke could damage the device, which could impact the accuracy of the test. It was P.C. DeMarco's mistaken belief he had to wait 10-15 minutes before administering the ASD test, although he testified he has subsequently become aware the actual wait time is only two minutes. P.C. DeMarco spoke to P.C. Morgan and advised him of what had transpired and his grounds for his reasonable suspicion Mr. Nicolosi had alcohol in his body when he was operating a motor vehicle. He then obtained from P.C. Morgan his ASD. P.C. DeMarco can be heard telling P.C. Morgan he had to read Mr. Nicolosi his right to counsel and he would explain why later.

[19] At 3:47 a.m., P.C. DeMarco read Mr. Nicolosi his right to counsel from the pre-printed form at the back of his notebook. He read the right to counsel because of the additional delay caused by Mr. Nicolosi smoking a cigarette. He testified he believed he had an obligation to advise a detained person of their s. 10(b) Charter rights where there was a delay in administering the ASD. When he asked if Mr. Nicolosi wanted to call a lawyer, Mr. Nicolosi said he did not wish to call a lawyer. The defence argued Mr. Nicolosi should have been read his right to counsel as soon as P.C. DeMarco realized the ASD test was going to be further delayed. P.C. DeMarco agreed in cross-examination he should have read Mr. Nicolosi his s. 10(b) Charter rights at 3:42 a.m., five minutes earlier than he did, when he observed Mr. Nicolosi smoking a cigarette and realized there would be a further delay in administering the ASD.

[20] P.C. DeMarco spoke to P.C. Morgan, advised him of the circumstances surrounding the traffic stop and obtained P.C. Morgan's ASD. This took approximately five minutes. P.C. DeMarco then read Mr. Nicolosi his s. 10(b) Charter right at 3:47 a.m. and it is my opinion, in light of Mr. Nicolosi refusing to speak to a lawyer, there was no infringement by P.C. DeMarco of the accused's s. 10(b) Charter rights. Mr. Nicolosi did not invoke his right to counsel.

[21] Consequently, it is my view the ASD was administered forthwith by the officer after forming his reasonable suspicion. As indicated by the Court of Appeal in Quansah, supra, (see para. 48) "…the immediacy requirement must take into account all of the circumstances. These may include a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed to ensure an accurate result of an immediate ASD test… These are examples of delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty."

(b) Was there a violation of s. 8 of the Charter because P.C. DeMarco based his grounds for arrest on what the defence argues was an unreliable approved screening device (ASD)?

[22] Ms. Izakelian argues the Crown is required to prove the ASD used by P.C. DeMarco was in proper working order and that the results from the test were reliable. She cites the following cases to support her proposition: R. v. Haas; R. v. Persaud, [2011] O.J. No. 1559 (ONSC); R. v. Johnston, [2007] O.J. No. 500 (ONCJ); R. v. Desmarais, 2011 ONSC 3723; R. v. Topaltis; R. v. Mastromartino; and R. v. Binelli, 2010 ONSC 539. It is her position P.C. DeMarco was unaware as to whether the ASD provided by P.C. Morgan was calibrated appropriately or whether it was in proper working order. She argues the onus is on the Crown to prove the ASD is working properly in order to establish the warrantless search was reasonable.

[23] It is my view, as I will explain in more detail below, the defence argument does not accord with binding appellate authority and in fact a number of the cases cited above do not support the defence position. Further, the caselaw places the onus on the defence to establish there is a "high degree of unreliability" with respect to the screening device used by the investigating officer.

[24] In R. v. Bernshaw, 95 C.C.C. (3d) 193, the Supreme Court of Canada held that "[w]here the particular screening device used has been approved under the statutory scheme, the officer is entitled to rely on its accuracy unless there is credible evidence to the contrary." Further, the Court noted at para. 80:

If the scientific evidence establishes a high degree of unreliability with respect to the screening device when certain conditions prevail, and if a police officer knows, for example based on his or her training, that the resultant screening device will provide inaccurate results where a suspect has consumed alcohol within the 15 minutes prior to administering the test, how can the police officer testify that he or she had an honest belief of impairment, absent other indicia? Surely the knowledge that the screening test is unreliable would vitiate any subjective belief that an officer may have regarding reasonable and probable grounds of the commission of an offence under s. 253 of the Code. A police officer will have difficulty in concluding that such a flawed test upgrades one's mere suspicion into reasonable and probable grounds. If the police officer is to give an honest answer as to his belief, I cannot see how, as a matter of law, we can tell the officer that the answer is wrong.

A "fail" result from a properly operating ASD is itself capable of providing reasonable and probable grounds for arrest and for making a demand for a motorist to provide samples of their breath into an approved instrument.

[25] What is important about the officer's belief is not its accuracy but its reasonableness. For example, an officer's mistaken understanding about the calibration of a device will not undermine the validity of his grounds to make an arrest and an approved instrument demand, if the belief was honest and reasonably based on the facts as he understood them: R. v. Weese, [2005] O.J. No. 749 (C.A.); R. v. Topaltsis, [2006] O.J. No. 3181 (C.A.); R. v. Deacutis, [2006] O.J. No. 3249 (C.J.). The officer's belief may be based on hearsay or incomplete sources and may contain assumptions. In R. v. Nixon, [2007] O.J. No. 2734 (C.J.) a police officer's expectation that a roadside screening device issued for a planned RIDE spot check would be properly checked and calibrated was held to be objectively reasonable.

[26] In R. v. Paradisi, [1998] O.J. No. 2336, the Ontario Court of Appeal held the onus was on an accused to establish there was "a high degree of unreliability" with respect to a screening device at the time it was administered. In the case at bar, the defence did not call any expert evidence respecting the proper working of the ASD. There was no evidence called to establish the ASD used by P.C. DeMarco had "a high degree of unreliability."

[27] In R. v. Mastromartino, supra, at para. 79, Durno J. held:

An officer using an ASD need only have a reasonable belief that the device is properly calibrated and in working order before relying on a "fail" result to confirm his or her suspicions that a driver may be impaired or over the legal limit. There is no requirement the officer knew the calibration setting of the device, when it was last calibrated, or whether the device was in fact working properly: R. v. MacPherson, unreported, released, March 11, 2004 (S.C.J.); R. v. Coutts, 45 O.R. (3d) 288 (Ont. C.A.); R. v. Hill [2001] O.J. No. 4505 (S.C.J.)(QL).

[28] The issue of what must be proven by the Crown respecting the proper working condition of the ASD is discussed in the Court of Appeal decision of R. v. Coutts, 45 O.R. (3d) 288. As Moldaver J.A. noted in Coutts at pp. 294-295:

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 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.

In the case before me the "fail" result on the ASD is not being tendered by the Crown for the truth of its contents. Consequently, based on Coutts, P.C. DeMarco does not need to know when the ASD was last calibrated or whether the device was in fact working properly. The issue is whether P.C. DeMarco reasonably believed the ASD was working properly.

[29] In a recent case, R. v. Beharriell, 2014 ONSC 1100, [2014] O.J. No. 882 (ONSC), Durno J. on a summary conviction appeal addressed the identical argument made by Ms. Izakelian.

38 The appellant places particular reliance on the Court of Appeal's judgment in R. v. Haas, 76 O.R. (3d) 737, in support of his position that the Intoxilyzer readings should be excluded because objectively the officer's belief was unreasonable and that there was an onus on the Crown to lead calibration evidence and evidence the ASD was working properly. The issue in Haas was whether the Crown or defence bore the onus where the accused alleged a breach of s. 8 in the course of a warrantless search. Collins v. The Queen, [1987] 1 S.C.R. 265 held in the early days of the Charter that where the accused establishes that a search was warrantless, the onus of proving reasonableness was on the Crown.

39 In Haas, the accused filed an affidavit establishing that the police obtained breath samples from him as a result of a warrantless search. Neither party led evidence on the issue of whether the officer had reasonable and probable grounds for demanding the Intoxilyzer sample. The trial judge, [2003] O.J. No. 5933, excluded the readings as the Crown had not discharged its burden of proving reasonableness. The Summary Conviction Appeal (SCA) judge, [2004] O.J. No. 2041, reversed that finding, concluding that since the accused led no evidence the seizure was unreasonable, there was no s. 8 violation.

40 The Court of Appeal agreed with the trial judge and acquitted the accused, finding the Crown had the burden of proof to show that the warrantless search was reasonable. Where, as in Haas, the Crown led no evidence in relation to the officer's reasonable and probable grounds for making the Intoxilyzer demand, the taking of the breath sample must be deemed unreasonable.

41 The appellant submits that following Haas, the onus is on the Crown to prove the ASD was properly calibrated and working properly in order to establish the search was reasonable. I disagree. The appellant is conflating two issues. In Haas, the issue was the burden of proof of reasonableness where the search was warrantless. The Court did not comment on what evidence the Crown was required to lead to establish reasonableness. There was no evidence regarding the officer's reasonable and probable grounds. The issue here is the nature of the evidence to be called by the Crown. The officer here said he had reasonable and probable grounds after the 'fail.' It is not the same factual situation as Haas. Since the Supreme Court of Canada had placed the onus in terms of the reliability of the ASD on the accused in Bernshaw and that finding had been reiterated by the Court of Appeal for Ontario in Coutts, I am not persuaded Haas overruled Bernshaw and Coutts when the issues were different. [Emphasis added]

42 Since the Court of Appeal has held in Coutts that there is no onus on the Crown to prove the ASD is working properly, I am unable to find that after Haas there is now an onus on the Crown to prove the calibration, that the ASD was properly calibrated or that the ASD was in proper working order when the evidence is being introduced to confirm or reject the officer's suspicions the accused was operating the motor vehicle while impaired or was driving having consumed excess alcohol.

[30] In Beharriell, supra, Justice Durno summarized the legal principles applicable when a police officer uses an ASD to confirm his suspicions a driver has operated a motor vehicle having consumed excess alcohol and the accused alleges his or her s. 8 Charter rights were infringed (see para. 56). I adopt his reasons as set out at para. 56:

1. the determination is made on a case-specific basis;

2. breath samples taken pursuant to an Intoxilyzer demand, involve a warrantless search and the onus is on the Crown to establish, on a balance of probabilities, that the search was reasonable;

3. police officers may, but are not required to, rely on 'fail' readings obtained on an ASD as the basis or one of the bases upon which they conclude they have reasonable and probable grounds to make an Intoxilyzer breath demand;

4. police officers using an ASD are entitled to rely on its accuracy unless there is credible evidence to the contrary;

5. in doing so, the officer must have a reasonable belief the ASD was calibrated properly and in working order before relying on the 'fail' reading as a component of their reasonable and probable grounds to make an Intoxilyzer demand;

6. a relevant consideration is whether the record discloses that because of his or her training the officer knows that in the circumstances in which the ASD is being used the results will be unreliable;

7. whether an officer had that reasonable belief can be established by direct or circumstantial evidence;

8. there is no requirement that the Crown prove the instrument's calibration or that the ASD was working properly; and

9. there is a heavy onus on the accused to establish a high degree of unreliability in the specific facts of the case. That evidence may arise in the Crown's case or through defence expert evidence.

[31] I agree with Justice Durno's reasoning in Beharriell, supra, and I find the defence has misunderstood the Court of Appeal's decision in R. v. Haas, supra. Further, I find P.C. DeMarco's belief that the ASD provided by P.C. Morgan was in proper working order was reasonable. P.C. DeMarco testified he believed P.C. Morgan brought an ASD that was properly calibrated and in proper working order. He testified it was part of York Regional Police training for a uniform patrol officer to self-test his or her ASD at the start of their shift to determine if it was in proper working order and to check the calibration date to ensure it was properly calibrated. In fact, P.C. Morgan testified he had self-tested the ASD he brought to the scene at the start of his shift and had determined it was properly calibrated on May 5, 2013. I find P.C. DeMarco's belief the ASD brought by P.C. Morgan was working properly to be both subjectively and objectively reasonable. It is my view the argument made by the defence, namely that P.C. Morgan, knowing P.C. DeMarco's ASD was not working properly, would bring another ASD that was not properly calibrated or was not working properly, to be illogical.

[32] Consequently, I find P.C. DeMarco was able to rely on the "fail" result to form his reasonable and probable grounds to arrest Mr. Nicolosi for operating a motor vehicle with greater than 80 mg of alcohol in 100 ml of blood. P.C. DeMarco testified the ASD was calibrated to register a "fail" if the blood/alcohol level was greater than 100 mg of alcohol in 100 ml of blood. I find Mr. Nicolosi's s. 8 Charter rights were not infringed.

(c) If P.C. DeMarco based his grounds for arrest on an unreliable ASD, was his subsequent arrest of the defendant a violation of s. 9 of the Charter, amounting to arbitrary detention?

[33] Given my findings that P.C. DeMarco based his reasonable and probable grounds on an ASD, which he reasonably believed, both subjectively and objectively, to be reliable, there was no breach of Mr. Nicolosi's s. 9 Charter rights and this application is also dismissed.

(d) Was the demand pursuant to s. 254(3) made "as soon as practicable"?

[34] After arresting Mr. Nicolosi for over 80, P.C. DeMarco again read him the right to counsel at 3:59 a.m. Mr. Nicolosi indicated on this occasion he wanted to speak to a lawyer. P.C. DeMarco read him a caution from the back of his police notebook and Mr. Nicolosi indicated he understood. This is recorded on the in-car camera video which was filed as Exhibit 1. After reading the caution, Mr. Nicolosi's father arrived on scene. Mr. Nicolosi advised P.C. DeMarco he had called his father while he was sitting in his car. P.C. Morgan can be seen on the video speaking to Mr. Nicolosi's father.

[35] P.C. DeMarco did not read Mr. Nicolosi the breath demand pursuant to s. 254(3) of the Criminal Code. He was not asked, either in chief or cross-examination, why he did not read the formal breath demand from the back of his police notebook. On the in-car camera video P.C. DeMarco read Mr. Nicolosi the right to counsel and caution from his notebook. The breath demand was not read. P.C. DeMarco then left the scene at 4:04 a.m. and arrived at District 4 police station at 4:16 a.m.

[36] P.C. DeMarco formed his reasonable grounds as a result of the "fail" result on the ASD at 3:52 a.m. and placed Mr. Nicolosi under arrest at 3:53 a.m. There are no issues concerning whether the breath samples were obtained "as soon as practicable" pursuant to s. 258(1)(c)(ii) of the Criminal Code. The issue here is whether the breath demand under s. 254(3) was made "as soon as practicable."

s. 254(3)(a) If a police 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 police 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.

[37] The issue to be determined in this case is where an arresting officer forgets to make a breath demand, but that officer later conveys grounds to a qualified breath technician at the station who then makes a breath test demand, whether that demand is a valid 254(3) demand by the second officer made "as soon as practicable" after he or she received the grounds?

[38] In R. v. Krawcar, [2002] O.J. No. 2307 (SCJ) the summary conviction appeal court considered the former "forthwith or as soon as practicable" demand requirement in 254(3) and held that the section does not require the demand be made by the arresting officer. A timely demand made by the breath technician after he or she receives grounds is sufficient to comply with 254(3). The word "forthwith" was removed from s. 254(3) when it was amended as part of the Tackling Violent Crime Act, S.C. 2008, c. 6, s. 19(3). The summary conviction appeal courts in R. v. Dhaliwal, [2005] O.J. No. 1129 (ONSC); R. v. Chilton, [2009] O.J. No. 3655 (ONSC) and R. v. Guenter, [2011] O.J. No. 2233 (ONSC) and the trial courts in R. v. Hillis, 2010 ONCJ 114, [2010] O.J. No. 1332 (ONCJ) and R. v. Kyoz, [2014] O.J. No. 5559 (ONCJ) all apply the same reasoning as in Krawcar, supra.

[39] While a trial court must consider the demand by the breath technician, the court is not required as a matter of law to find the later demand sufficient. It's open to the court to find the breath technician's demand does not comply with 254(3). The finding is a factual one within the discretion of the trial court. See: R. v. Laws, [2011] O.J. No. 4261 (ONSC) and R. v. Howe, 2013 ONCJ 166, [2013] O.J. No. 1482 (ONCJ).

[40] In the case before me, P.C. DeMarco did not make a breath demand. It would appear from the evidence he simply forgot. At 4:56 a.m. P.C. DeMarco provided his grounds for arresting Mr. Nicolosi for operating a motor vehicle with a blood/alcohol concentration greater than 80 mg of alcohol in 100 ml of blood.

[41] P.C. Metcalfe noted P.C. DeMarco's grounds for arresting Mr. Nicolosi to be as follows: P.C. DeMarco observed a car speeding away from a commercial plaza, which was dark with all of the stores closed, in the area of Highway 7 and Wigwoss. P.C. DeMarco performed a traffic stop and, in speaking to the driver, Mr. Nicolosi, he detected an odour of alcohol coming from the driver's breath. P.C. DeMarco received an admission by Mr. Nicolosi of consumption of alcohol, namely, two double vodkas an hour and a half before. P.C. DeMarco formed a reasonable suspicion pursuant to s. 254(2) and made a demand for a breath sample into an ASD, with a result of "F". As a result of this information P.C. Metcalfe, the qualified breath technician, testified he formed reasonable and probable grounds to make a breath demand, which he did, after Mr. Nicolosi completed his telephone call with duty counsel and was brought to the breath room. P.C. Metcalfe made the breath demand at 5:04 a.m., which I find was made as soon as practicable and was a proper demand pursuant to s. 254(3).

[42] It was agreed by both counsel the timing of the approved instrument demand pursuant to s. 254(3) of the Criminal Code is a Charter issue and is to be assessed as to whether there has been an infringement of s. 8 of the Charter. I am familiar with Justice Kenkel's judgment in R. v. Inataev, 2015 ONCJ 166 at paras. 60-70, which sets out the authorities supporting this position. Consequently, in light of my findings that the demand made by P.C. Metcalfe was a valid demand pursuant to s. 254(3), the Charter application is dismissed. Therefore the two breath samples of 124 mg of alcohol in 100 ml of blood and 122 mg of alcohol in 100 ml of blood obtained by P.C. Metcalfe were validly obtained and admitted into evidence. All Charter applications brought by the defence are dismissed for the reasons indicated.

[43] Consequently, there will be a conviction registered on the charge of operate a motor vehicle having consumed alcohol in such a quantity that the concentration is greater than 80 mg in 100 ml of blood.

Released: October 19, 2015

Signed: "Justice Peter C. West"