Court File and Parties

Court File No.: 12-LE8177 Date: 2015-12-18 Ontario Court of Justice

Between: Her Majesty the Queen — and — Sayphonh Paspaporn

Before: Justice Gregory A. Campbell

Heard: March 26, November 8, 17 and 30, 2015

Released: December 18, 2015

Counsel:

• S. Pratt for the Crown
• M. Gordner for the Accused

Reasons for Judgment

[1] Introduction

On March 26, 2015, the prosecution proceeded with its case against Ms. Paspaporn, alleging that on August 4, 2012, she had care and control of her motor vehicle while her ability to operate it was impaired by alcohol and had a blood alcohol content exceeding 80 milligrams of alcohol in 100 millilitres of blood. I heard from the arresting officer, his partner, a qualified breath technician and the accused. I received written submissions and oral argument addressing substantive issues of impairment, care and control, as soon as practicable, and the rebuttable presumptions of instrument malfunction and operator error.

[2] Submissions also addressed Charter breaches and relief in regard to sections 8, 9 and 10. Those concerns related to whether there were reasonable grounds to arrest, the implementation of rights to counsel and overholding of the accused subsequent to her arrest. The following are a summary of the relevant facts.

1: Material Facts

[3] Officers Warren and Trudell were partners dispatched to respond to a report of a motor vehicle collision on Oak Street in Leamington. Upon arrival, they found Ms. Paspaporn seated in her car and broken debris on the roadway related to an impact to the right-front headlight and fender of her vehicle. This was occasioned as a consequence of Ms. Paspaporn's vehicle leaving the roadway, jumping the curb and striking a light standard before travelling a further distance of 15 or 20 metres where it came to rest.

[4] Before the officers exited their car, they pulled up next to Ms. Paspaporn at the road. She remarked at that time that she thought she needed a mechanic. The car was still running with the keys in the ignition. Ms. Paspaporn was seated in the driver's seat with her seatbelt fastened. Within two minutes of arrival, Officer Warren arrested Ms. Paspaporn for having care and control of her motor vehicle while her ability to operate it was impaired by alcohol.

[5] His grounds for arrest consisted of an odour of alcohol emanating from Ms. Paspaporn's breath, bloodshot eyes and unsteadiness, which he described as a loose, wobbly and free-flowing upper body he observed upon exiting her car. In addition to these observations, Officer Warren also indicated that his grounds for arrest included a statement made by Ms. Paspaporn. It was not the statement about needing a mechanic but something else. That statement was not disclosed during the trial but stipulated by counsel that the utterance was inadmissible as a compelled statement. Officer Warren nevertheless testified that he relied on that statement as part of his grounds for arrest.

[6] It was 2:51 a.m. when Ms. Paspaporn was informed about her rights to counsel. She exercised that right indicating that she wished to speak to duty counsel. A demand for a sample of breath was made for analysis by approved instrument. Four minutes later they left the scene. They arrived at the Leamington OPP detachment at 3:03 a.m. Officer Warren was assisted by a female officer for the purpose of searching the accused. She was processed and lodged in a holding cell. Officer Warren estimated this initial search and processing would have taken 7 or 8 minutes. It was at or around that time, or 3:10 a.m. when Police Constable Anderson, a qualified breath technician, arrived at the detachment and turned on the approved instrument as a first step to ready it to receive samples of Ms. Paspaporn's breath for analysis.

[7] Five minutes later the arresting officer met with the breath technician and provided his grounds for arrest by writing them down in Officer Anderson's notebook. Those grounds he recorded consisted of the collision, the accused being behind the wheel, engine running, heavy odour of alcohol and the compelled statement.

[8] Duty counsel called back at 3:40 a.m. The accused's call with counsel lasted approximately 15 minutes. It would appear from the test records the breath technician changed the alcohol solution and ran the instrument through its pre-testing checks while Ms. Paspaporn was on the phone with duty counsel. After Ms. Paspaporn completed her call with duty counsel, the breath technician took custody of Ms. Paspaporn, provided her with a secondary caution and explained the procedure that would next follow in relation to obtaining samples of her breath for analysis.

[9] The first test was completed at 4:12 a.m. and resulted in a reading of 149 milligrams of alcohol in 100 millilitres of blood. The second test was completed at 4:33 a.m. and yielded an identical result. Ms. Paspaporn was returned to her cell at 4:35 a.m.

[10] Minutes later, Officer Anderson informed the arresting officer about the results of the breath tests and indicated the accused could be charged with exceed. The breath technician then went to complete his paperwork. Nearly an hour later, at 5:35 a.m., Officer Warren photographed and fingerprinted Ms. Paspaporn. She was returned to her cell at 5:56 a.m. The timelines set out here, while tedious, are necessary to address some of the issues that were raised in the trial.

[11] Approximately 10 minutes later at 6:05 a.m., Officer Warren served the accused with documentation he described as including the results of her breath tests and release papers. Upon acknowledging receipt by her signature, the officer placed the paperwork with Ms. Paspaporn's personal property. Officer Warren said he had no further involvement with Ms. Paspaporn at the station but recalled that later that evening he went to her home around 7:30 p.m. to deliver notice that her vehicle would be impounded for 7 days.

[12] Ms. Paspaporn testified that it was a Friday night when she had the accident. She met a friend at a restaurant/club around 11:00 p.m. She had 3 or 4 glasses of orange juice with vodka to drink between the hours of 11:00 p.m. and 2:30 a.m. when she left the establishment. She recalled driving down Camelot toward its intersection with Oak Street, and starting into a left turn onto Oak when she recalled an emotionally traumatic event that had been troubling her. This caused her to take her mind off the road for a brief moment. The next thing she recalled was being stopped on the side of the road next to the curb. She said she tried to drive her car forward but it wouldn't move. She got out of the car to check the extent of the damage which she described as essentially the same as the arresting officer testified to.

[13] Ms. Paspaporn then got back into the driver's seat, fastened her seatbelt and sat there for a while thinking about who to call or what to do. It crossed her mind to call a tow truck or a friend. While seated there with the keys in the ignition and the car running the police pulled up. When asked why she fastened her seatbelt, she said it was habit to do so upon entering the car. When asked if she tried to put the car into reverse or move it in another manner, the accused said she only tried to move it forward just the one time before she got out to check the damage. She saw no reason to put the car into reverse. Her 1997 Oldsmobile was towed by police and later abandoned to the towing company.

[14] Ms. Paspaporn also spoke about being in custody after she provided her samples of breath for analysis. She said she remained in her cell for at least four hours after providing the breath samples to Officer Anderson. She recalled that it was around 8:00 a.m. when she asked why she was still being held and that it wasn't until almost 9:30 a.m. when she was finally released from custody.

[15] In addition to these facts related to the accused's arrest and detention, the defence also adduced evidence from the qualified breath technician in regard to the maintenance and operation of the Intoxilyzer 8000C. A series of references from material produced by the Centre of Forensic Sciences and the Alcohol Test Committee were put to and adopted as accurate information, steps and procedures to follow.

[16] To this end, Officer Anderson agreed that the primary means of assuring accuracy of the instrument is through proper calibration and/or calibration check procedures. The officer said that approved instruments should not only be individually inspected before placed into service, but acknowledged that periodic inspection thereafter on an annual basis is recommended to ensure that the instrument continues to meet the manufacturer's specifications.

[17] The Intoxilyzer that was used for Ms. Paspaporn's test on August 4, 2012 was last inspected and certified to be in compliance with the manufacturer's specifications more than three years earlier, on March 9th, 2009. There had been no further service or calibration checks on that instrument until March 21st, 2013, four years later.

[18] Officer Anderson testified that notwithstanding the requirement for regular maintenance and inspection of the approved instrument, the instrument conducts its own calibration checks before any test is undertaken. He said this was a critical step and necessary to verify the accuracy of the instrument before a sample of breath is taken for analysis. These sequences of checks that the instrument goes through have to be monitored by the technician in order to ensure it is operating properly and within a target range. Officer Anderson explained that the calibration checks the instrument does before the subject tests are taken must be within plus or minus 10 milligrams in 100 millilitres of the expected reading with the alcohol standard. To put it another way, the target reading must be between 90 and 110. He acknowledged however, that the instrument will not stop the pre-testing sequence itself if a check reading falls outside of that target range.

[19] Officer Anderson confirmed, consistent with the training aid and procedural guidelines published by the Alcohol Test Committee, that the operator is required to manually stop the sequence if the target reading is outside of the prescribed range.

[20] The Intoxilyzer 8000C used on August 4th, 2012, went through a series of tests in this regard as a pre-requisite to determine if there were any errors or deficiencies in its operation. Reference was made to air blank tests and several calibration tests completed initially by the instrument itself with the benefit of a solution, and afterward when the officer tested it himself by providing a sample of his own breath. This was followed again by a further series of checks including air blanks and diagnostics, analysis of the simulator temperature and further calibration checks all before the instrument was ready to receive samples of Ms. Paspaporn's breath for analysis. The officer acknowledged that it was his responsibility to review and monitor the tests in order to ensure the instrument was operating properly and within the target range.

[21] Two things are noteworthy from the foregoing. Firstly, the last certificate of inspection with respect to calibration prior to Ms. Paspaporn's test was March 9th, 2009. Secondly, one of the calibration sequence checks that was completed approximately 22 minutes before Ms. Paspaporn's first breath test fell outside of the target range at 85. Officer Anderson testified that he was not aware of either of these facts until these were brought to his attention during the trial.

[22] Notwithstanding, Officer Anderson maintained the instrument was operating properly based on his understanding the instrument would not receive a sample for analysis if there was a problem. In short, the fact that it went through its testing sequence, received a suitable sample and analysed the breath yielding results made it plain to him that the unit was functioning properly. He indicated that the calibration reading of 85 had no bearing on the result of Ms. Paspaporn's tests because subsequent calibration checks done by the instrument fell within range.

2: Analysis

[23] As I indicated from the outset, in addition to alleged breaches of protected rights, the defence also raised substantive issues in regard to the elements of the offence. I will address them in a format that can be best looked at chronologically as the incident unfolded and the issues of concern arose.

2.1 Care and Control – The Demand and Section 8

[24] I am satisfied that the officer had reasonable grounds to believe the accused was in care and control of this motor vehicle at the time of arrest. The statutory presumption was met when the officers arrived and found Ms. Paspaporn fastened in with her seatbelt in the driver's seat while the vehicle was running and stopped in the middle of the road. Although I will address the elements of the offence of impaired later in these reasons, I will indicate here also for convenience that I am not satisfied the defendant has rebutted the presumption either by demonstrating Ms. Paspaporn did not occupy the seat for the purpose of setting the vehicle in motion.

[25] It is noteworthy that the car was found a distance of some 15 meters or so away from the point of the initial impact and still running. The damage described was limited to the headlight and fender. There was no basis to believe the vehicle could not be put in motion but for the accused's indication that she tried to move forward and was unable. As I indicated the only information I have about the damage was an impact to the right front headlight and fender. Although the vehicle was abandoned by its owner to the towing company it was a consequence of a cost analysis based on the age and condition of the 15 year old automobile. The cost of repair would have exceeded its value so Ms. Paspaporn let it go to the towing company, presumably to offset the storage charges. Although Ms. Paspaporn exited the vehicle after first trying to move it forward, it is clear that she re-entered the vehicle, positioned herself in the driver's seat and put her seatbelt back on. The car remained in the lane of traffic. There was no evidence to suggest that it could not be moved in reverse. The fact that the accused sat in the vehicle for five minutes wondering who to call, whether she might call a tow-truck or a friend, does not indicate to me that she was not going to attempt to move the vehicle in the absence of help from a third party. The car was still running with the keys in the ignition, and as I indicated, her seatbelt was on. I am not satisfied she had a settled intention not to move the car. Oak Street is a main thoroughfare in town. Notwithstanding the early morning hours, the vehicle being stopped in that location near an intersection presented, to my mind, a potential risk of danger for other motorists as Ms. Paspaporn sat there wondering what to do next. I am therefore satisfied the element of the offence with respect to care and control of the motor vehicle has been proven beyond a reasonable doubt.

[26] Insofar as the grounds necessary to effect the arrest for having care and control while being impaired by alcohol is concerned, the grounds consisted of an unexplained single car accident, an odour of alcohol on the accused's breath, bloodshot eyes, being unsteady or wobbly on her feet upon exiting the vehicle, and an utterance by way of a compelled statement.

[27] I have two concerns with respect to the grounds for arrest. Firstly, the officer's subjective grounds for arrest included the compelled statement. I am satisfied the compelled statement was a factor the officer relied upon in forming his grounds to arrest. This is re-enforced from the testimony of Officer Warren, the qualified breath technician. He said the arresting officer wrote his grounds for arrest down in Officer Warren's notebook. The grounds noted therein included the accused's compelled statement. It is also noteworthy that the noted grounds in Officer Warren's notebook didn't make any reference to Ms. Paspaporn having bloodshot eyes or being unsteady on her feet or wobbling as she exited the vehicle. And looking at the situation objectively, being unsteady or loose or somewhat wobbly only upon exiting the car to the exclusion of any further observations in this regard to her ability to walk afterward or beyond her exiting the vehicle, suggests her appearance at the time may just as well have been a consequence of the accident itself and being shaken up.

[28] It seems to me, notwithstanding the fact there was no obligation upon the officer to demand a sample of the accused's breath by way of approved screening device, that step would have been a more prudent one to follow in the circumstances.

[29] There is also to my mind good reason to believe that the compelled statement was not only one ground but may have been a significant part of the officer's grounds for arrest. The summary provided by the arresting officer during testimony is difficult to assess when viewed against the notes he recorded in Officer Warren's notebook insofar as the compelled statement was one of the few and limited grounds he listed.

[30] Moreover, trying to find common grounds between the two accounts of the arresting officer to the exclusion of the utterance leaves nothing more than essentially two considerations. An unexplained single car accident with an odour of alcohol. There were certainly grounds to have a reasonable suspicion Ms. Paspaporn might be impaired, but I am not satisfied one could reasonably find comfort in the conclusion that the accused's ability to operate her motor vehicle at the time was impaired by alcohol.

[31] Based on the foregoing, the officer lacked reasonable grounds to believe Ms. Paspaporn had committed an offence under s.253, and as such, the demand for a sample of her breath was contrary to law. The breath samples were therefore seized in violation of s.8 of the Charter. I must exclude the results of the analysis if I am satisfied admission of the result would bring the administration of justice under disrepute. I will address this issue later in these reasons.

2.2 As Soon as Practicable – Rights to Counsel

[32] In order for the Crown to be able to rely upon the presumption of identity, it is necessary that the Crown prove the first test was taken within a reasonable prompt time, having regard to all the circumstances. Of course, this does not mean as soon as possible. This is a question of fact to be determined based on an assessment of whether the police, having made a demand for a sample of Ms. Paspaporn's breath, acted reasonably by obtaining that first sample within a reasonably prompt period of time.

[33] Although there is no requirement that the Crown establish a detailed account or explanation of what occurred during every minute while Ms. Paspaporn was in police custody, it is nevertheless useful to prepare a timeline, again not for the purpose of requiring accountability for every minute, but to gain some insight about how the accused was processed following the demand. I've set out the timeline below but before looking at this further, I should point out that included in this sub-heading about whether the first test was taken as soon as practicable, a corollary issue arises with respect to the implementation of the accused's right to counsel. Concurrent with the demand for a sample of breath, Ms. Paspaporn was informed about her rights to counsel. She chose to exercise that right when she indicated to the officer she wanted to speak with duty counsel. The timeline that follows includes references to facts associated with this consideration.

Timeline:

• 2:51 a.m. – Arrest, rights to counsel and demand
• 2:56 a.m. – Departure from the scene following arrest
• 3:03 a.m. – Arrival at detachment
• 3:05 a.m. – Breath technician notified
• 3:10 a.m. – Breath technician enters breath room and turns on instrument to warm up
• 3:15 a.m. – Grounds for arrest provided by arresting officer to breath technician
• 3:29 a.m. – Duty counsel called by arresting officer
• 3:40 a.m. – Duty counsel returns call and speaks to accused
• 3:46 a.m. – Breath technician changes alcohol standard solution
• 3:49 – 3:52 a.m. – Instrument diagnoses and calibration checks conducted
• 3:55 a.m. – Accused completed call with duty counsel and taken to breath room with breath technician
• 4:01 – 4:08 a.m. – Air blank, diagnostic and calibration tests done
• 4:12 a.m. – First breath test

I should add also that the foregoing timeline is derived from the viva voce evidence and a review of the test records from the approved instrument that were produced and marked as Exhibit 2 during the proceeding.

[34] The demand and rights to counsel were dealt with at 2:51 a.m. The officers left the scene with Ms. Paspaporn in their car at 2:56 a.m. They arrived at the station at 3:03 a.m. The arresting officer said it took 7 or 8 minutes to process, conduct a search and deal with Ms. Paspaporn's property before she was lodged. A female officer assisted with the pat down search. It was 3:15 a.m. when Officer Warren provided his grounds for arrest to the breath technician who by this time was getting the instrument ready. The breath technician testified to entering the breath room and turning the approved instrument on at 3:10 a.m. At 3:29 a.m., 26 minutes after Officer Warren arrived at the detachment with Ms. Paspaporn, he placed a telephone call to duty counsel. Ms. Paspaporn took the return call from duty counsel at 3:40 a.m. Approximately 5 minutes later at 3:46 a.m. the breath technician changed the alcohol solution and took custody of Ms. Paspaporn and brought her to the breath room. Nine minutes later, after she finished her telephone call with duty counsel, a first sample of her breath was taken at 4:12 a.m.

[35] From the foregoing it can be seen that notwithstanding a first sample of the accused's breath having been taken within 1 hour and 22 minutes from the time of the incident, there were at least two or three significant gaps in time, that are for the most part unexplained. Firstly, notwithstanding the demand for a sample of breath having been made at 2:51 a.m., the breath technician was not notified until 14 minutes later that his services would be needed. Secondly, notwithstanding the arresting officer's arrival at the detachment at 3:03 a.m., neither he nor anyone acting on his behalf placed a call to duty counsel in furtherance of the implementational component of the accused's right to counsel, which she indicated she wanted to exercise. I point this out because I'm satisfied this delay in implementing the accused's right to counsel contributed to a delay in procuring Ms. Paspaporn's sample of breath.

[36] The arresting officer indicated that he, together with the female officer who assisted with the search of Ms. Paspaporn following arrival and related activities concluded within 7 or 8 minutes following their arrival, or by 3:10 a.m. which was the same time the breath technician entered the breath room and turned on the instrument to warm it up. Nothing else followed other than the arresting officer providing his grounds for arrest to the technician at 3:15 a.m. The breath technician had just finished turning the instrument on to warm also at 3:10 a.m. The grounds provided were short and concisely noted by the arresting officer in the breath technician's notebook. Nothing else happened between 3:15 a.m. and 3:29 a.m. when the call to duty counsel was made. Third, 36 minutes elapsed from the time when the breath technician entered the breath room and turned the instrument on, until when at 3:46 a.m. the technician changed the alcohol standard solution. Insofar as the breath technician's activities were concerned between 3:10 a.m. and 3:46 a.m., he did nothing more than turn the instrument on and receive rather the rather scant grounds already described from the arresting officer.

[37] It appears from a consideration of these three noticeable time periods reviewed against the whole of the activity, that the qualified breath technician sat idle and waited until the accused had an opportunity to speak with counsel. This becomes apparent from a review of the viva voce evidence and the test records because no diagnostic tests or entries are evident until 3:46 a.m. when the solution was changed. Thereafter, a sequence of instrument diagnoses and calibration checks follows with regularity. It does not appear that more than a couple of minutes of activity can be accounted for between 3:10 a.m., being the time when the arresting officer finished processing Ms. Paspaporn and lodged her into a cell, and 3:46 a.m. when the breath technician changed the solution. The only evidence I have about any activity that took place during these 31 minutes is that the arresting officer provided the breath technician with his grounds for arrest.

[38] So, looking at the activity of the arresting officer between 3:10 a.m. after he lodged Ms. Paspaporn and 3:29 a.m. when he placed the call to duty counsel, he did nothing but provide grounds to the breath technician at 3:15 a.m. Looking at the breath technician's activity, from 3:10 a.m. as well when he first entered the breath room until 3:46 a.m. when he changed the alcohol standard solution, there was no information in regard to his activity other than receiving the grounds from the arresting officer, again at 3:15 a.m. So as indicated, for in excess of a half hour after Ms. Paspaporn was placed in a cell, not much of anything happened.

[39] Looking at the entirety of the timeline, it would appear that there was a considerable delay associated with simply notifying the breath technician that his services would be required. However, that did not compound or contribute to any delay associated with obtaining the sample of the accused's breath because during that 14 minutes, the accused was transported from the scene and processed following her arrival at the detachment. So, it is the 31 minutes after the accused was placed in her cell when essentially not much of anything was being done.

[40] Notwithstanding the fact that the first sample of breath was taken within the two hours prescribed by Statute, there was nevertheless an inordinate amount of inactivity without explanation. As I said from the beginning, while the police are not required to provide a minute-by-minute account of their activities, there is simply no explanation for what was going on during this period of time, and in fact, every reason to believe from looking at the whole of the timeline that there was a delay in placing the call to duty counsel. It appears that the breath technician was holding off from doing much of anything until after duty counsel called back. He then went to change the alcohol solution.

[41] I'm of the opinion the Crown has not adduced sufficient evidence to allow me to conclude the police in this case acted reasonably with respect to procuring the first breath sample. It was not taken as soon as practicable. The Crown is therefore without the benefit of the presumption of identity. There was no expert evidence offered to provide a read-back of the accused's blood alcohol content. Therefore, the Crown is unable to prove the accused's blood alcohol content at the time of the incident. The charge of over 80 has not been made out.

[42] Insofar as the delay in implementing the accused's right to counsel is concerned, on the face of the evidence it is troubling that neither the arresting officer nor anyone instructed on his behalf placed a call to duty counsel until 26 minutes following their arrival at the detachment. Even while the arresting officer had the assistance of a female officer, a third officer, not the breath technician, was also in attendance. There is nothing in the record to suggest that he was doing anything other than standing idly by from 3:03 a.m. until his departure from the detachment at 3:51 a.m. So even while Officer Warren was processing Ms. Paspaporn with the assistance of the female officer helping with the search, Officer Trudell could have been delegated to place the call to duty counsel. It simply wasn't done.

[43] It is puzzling when one considers that at least three officers were present and together from the time of arrival at 3:03 a.m. and four officers including the breath technician from 3:10 a.m., but no one placed a call to duty counsel until 3:29 a.m. Notwithstanding, there was really no consequence associated with the failure to contact duty counsel until 3:29. No evidence was procured. The defence made much of this but the reality is that the implementational component, while delayed, was discharged when the call was placed to duty counsel at 3:29 a.m. Ms. Paspaporn had an opportunity to speak to duty counsel and this was done before the samples of breath were taken. The delay associated with implementation was of no consequence. The accused's right to counsel was not breached.

3: Rebuttable Presumptions of Accuracy and Identity

[44] The accused has challenged the Crown's ability to rely on a statutory presumption on the basis that the instrument was not functioning properly or was operated in error. Test results are reliable only if instruments are operated and maintained properly. Evidence tending to cast doubt on the reliability of the results are indicative deficiencies in the maintenance of the instrument or the test process (see R v. St. Onge Lamoureux, 2012 SCC 2).

[45] The lack of annual inspections with a view towards proper calibration does not itself cause me to believe the instrument may not have been functioning properly. However, it's noteworthy that the calibration check of 85 at 3:51 a.m. that fell outside of the acceptable range, occurred just 20 minutes before Ms. Paspaporn's test was taken. It was part of the calibration check sequence undertaken and cause for concern about whether the instrument was functioning properly and perhaps owing to operator error. The crown points to the diagnostic steps included including air blanks and additional calibration checks before Ms. Paspaporn's first breath sample was taken within the acceptable target range as proof the instrument was functioning properly.

[46] It seems to me that either one of these concerns standing alone in isolation might not be cause to believe the instrument wasn't operating properly. However, what's troubling to me is the additional fact that the qualified technician acknowledged the importance of his observational role to conduct external checks while the instrument was running through its sequences, and in particular in respect to calibration. To my mind, this is of particular importance in the absence of evidence of an annual inspection certifying that the instrument is operating in accordance with the manufacturer's guidelines.

[47] During the trial, Officer Anderson acknowledged that not only was there a calibration check outside of the prescribed target range, but he confirmed further that he was not aware of it occurred at the time. He testified that if he had seen this at the time, he would've been concerned. Based on the Center of Forensic Science's Alcohol Test committee guidelines, he would have been required to terminate the sequence. That didn't happen. Instead, the officer submitted that he had no issue in regard to the instrument functioning properly because it was his understanding that it would not receive a sample of Ms. Paspaporn's breath if there was a problem. This to say, notwithstanding his training and acknowledged acceptance of the value in the procedural guidelines from the alcohol test committee published for the purpose of assuring accuracy and proper calibration of the instrument, he was prepared to rely on the fact that because the instrument indicated it was ready to receive a sample that it must have been functioning properly. It is difficult for me to accept this statement when jurisprudence has indicated the approved instrument are not infallible.

[48] Although I received no further evidence about what next would have been required in the event the operator noticed the reading that was outside of the range and terminated the sequence, it's clear something more would have been done as a consequence in order to ensure the instrument was operating properly and would produce an accurate result.

[49] With his background, I have trouble finding comfort with a bald statement from the technician simply indicating he believed everything was fine because the approved instrument indicated it was ready to receive a sample and did in fact receive samples from Ms. Paspaporn that were analyzed and produced results. The best I could glean from this answer was that this was his belief but it was not founded on anything more than his own belief.

[50] It is my understanding the results of an analysis by an approved instrument will be reliable only if the instrument is operated and maintained properly. I believe on the facts of this case, the defence has gone beyond raising a suspicion about the reliability of the results. There are three important things that occurred. There's reason to be concerned because of the lack of proper maintenance, there was reason to be concerned because a calibration check fell outside of the target range, and there is reason to be concerned because the operator who was responsible to conduct external calibration checks missed the error. With all of this, there's the testimony of the qualified technician who acknowledged that if he'd seen the 85 reading he would have been concerned. As such, the manual would have required him to terminate the sequence. That didn't happen.

[51] These facts taken together cause my concerns to embrace the probability that the instrument was not only operated improperly but that this error together with the concern raised about the lack of maintenance and the reading falling outside the target range suggests the instrument may also not have been functioning properly. The Crown submits that these concerns should be negated by the fact there was 2 subsequent calibration checks that fell within the target range before the breath samples were taken from Ms. Paspaporn. There is of course a certain attraction to that argument on its face. That is, because the instrument recorded a suitable sample for analysis, it must have been working fine. I'm not prepared to make that finding without more evidence from an expert who could speak to this issue definitively. The qualified technician is but an operator. His opinion about the proper functioning of the instrument at the time when it received the sample of Ms. Paspaporn's breath are, in the circumstances of this case, not persuasive. He could offer no authoritative opinion to address or explain the consequences of any of these other concerns that I have set out. Accordingly, I am satisfied the accused has adduced sufficient evidence to raise a doubt about the reliability of the test results.

3.1 Over Holding

[52] Finally, there is the issue in regard to over holding. This part of the case was devoid of much in the way of reliable evidence. The accused said she was not released until approximately 9:25 a.m. That was approximately four hours beyond the time when one might reasonably expect to be released. Insofar as the second sample of her breath was completed at 4:33 a.m. and Ms. Paspaporn was lodged back into her cell at 4:35 a.m., of course some time would have been required for the breath technician to complete his paperwork which he indicated included fingerprinting and photographs. As indicated, the arresting officer's last involvement with Ms. Paspaporn was at 6:05 a.m. when he served her with paperwork and then left her in her cell, after leaving to file the documentation she acknowledged receipt of with her personal property.

[53] Officer Warren's next involvement with Ms. Paspaporn was more than 13 hours later when he delivered notice about her vehicle being impounded for 7 days. There is nothing by way of documentary or additional viva voce evidence from any police officer or servant of the State to indicate when Ms. Paspaporn was released from custody. Only the accused's account asserting that she asked why she wasn't being released around 8:00 a.m. addressed the void before the time she indicates when she was released from custody being around 9:25 a.m. While I can't go so far as to suggest there is a lack of credibility on this point, from the accused's account, I am troubled with not having anything more than bold statements. The prisoner's log sheet should have been produced and someone should have been called to address this issue from the detachment so that I may have been able to make a more informed discussion regard to the merits of the application asserting a breach under s.9 of the Charter. I am not satisfied the onus has been met to demonstrate Ms. Paspaporn was arbitrarily detained or imprisoned.

3.2 Remedy under Section 24

[54] Having concluded that the breath samples were obtained in a manner that infringed Ms. Paspaporn's right to be secure against an unreasonable seizure, s.24(2) requires the evidence to be excluded if I'm satisfied that its admission into evidence would bring the administration of justice into disrepute.

[55] My analysis of the evidence did not take issue with the arresting officer's subjective belief, but rather the lack of clarity in being able to determine the sufficiency of the grounds objectively based on inconsistencies between his own observations and those grounds he shared with the breath technician, also of importance the fact that he relied on a compelled statement as part of his grounds for arrest. While I appreciate the officer is not required to engage in a mini-trial at roadside, or as Mr. Pratt suggested compile a scorecard, he must nevertheless use sound judgment based on legal principles, which to my mind fell short of probable cause.

[56] Having said that, there was no hint of deliberate misconduct or flagrant disregard for the accused's rights, and I have every reason to believe the officer acted in good faith. So the seriousness of the infringing State conduct, while material, was not great. In so far as the impact on the accused's protected interests is concerned, it's been said in jurisprudence before that the procuring of breath samples is hardly very intrusive. The facts of this case were rather uneventful to that extent. A demand was made, the accused complied and the samples were obtained without difficulty or incident. But having said that, the reliability of the evidence and the circumstances surrounding the eventual procurement of the samples remains troubling to me while I remain mindful about the ultimate consideration at issue here, and that is the repute of the administration of justice.

[57] If I were to consider the s.8 breach arising from lack of reasonable grounds to arrest in isolation, I would have no alternative but to admit the evidence concerning the results of the breath samples. But I can't lose sight of my other findings with respect to the delay associated with obtaining those samples which I discussed under the heading of whether they were obtained as soon as practicable, and my finding with respect to the maintenance of the instrument and the operator's error. And while I found no s.10(b) violation, the foregoing considerations invite me to reflect on lack of any explanation for why the accused expressed desire to exercise her right to counsel was delayed for no apparent reason. The handling of Ms. Paspaporn and the procuring of this evidence from the time of demand through to the time of testing was at times casual at best, inattentive at least, and really substandard. All of this leads me to conclude that in the circumstances involving this single car accident where no one was injured, the admission of the results of the breath test, would bring the administration of justice into disrepute.

[58] Accordingly, for this reason and others already provided, there is an absence of evidence to make out the case of care and control with a blood alcohol level over .08. Count two is therefore dismissed.

4: Charge of Impaired

[59] I've already indicated earlier that I was satisfied Ms. Paspaporn had care and control of the vehicle although at the time of arrest there were insufficient grounds for arrest. I addressed at that time one of the officer's grounds included the manner in which Ms. Paspaporn exited her vehicle that was noteworthy to the officer as it did not appear normal, but his concern about her initially appearing slightly unsteady on her feet was no longer observed after she exited the car. She walked to the back of her vehicle where she was arrested. She was escorted to the back of the police car, into the station where she was processed and lodged in cells, and then removed from cells for the breath test and then placed back into cells.

[60] At no time did the arresting officer or any other witness, including Officer Trudell who was there throughout, comment about an inability to walk or appearing unsteady on her feet or even a hint of any slurring of her speech, stammering or an inability to communicate effectively. Officer Anderson had Ms. Paspaporn conduct balance and coordination tests, including fingers to nose and walking, all of which he noted was good or "sure".

[61] There's also a lack of consistency among the officers regarding some of the symptomology described. While impairment does not have to be to a specific degree, I'm not satisfied from the evidence I've heard that there was proof of impairment beyond a reasonable doubt. But for the accident, nothing from these observations give me any comfort in concluding that Ms. Paspaporn's ability to pay attention, react properly or judge speed or distance accordingly was compromised.

[62] I'm not suggesting that the absence of a multitude of overt signs of impairment equates to a reasonable doubt. I have however considered all the evidence and as attractive as it may seem to want to conclude that Ms. Paspaporn must have been impaired because she crashed her car and had an odour of alcohol on her breath and bloodshot eyes, these limited observations with some unsteadiness only upon exiting the vehicle are not persuasive when I consider the amount of time she spent with all of these officers under close supervision and not much else was shown to be indicative of impairment.

[63] For the foregoing reasons, count one is also dismissed.

Released Orally: December 18, 2015

Gregory A. Campbell Justice