Court File and Parties

Ontario Court of Justice

Date: 2015-12-18

Court File No.: Sudbury 4011-998-14-1454-cl

Between:

Her Majesty the Queen

— and —

Darcy Philpott

Before: Justice Andrew L. Buttazzoni

Heard on: August 17th and 18th, 2015

Reasons for Judgment released on: December 18, 2015

Counsel:

• Leonard Kim, for the Crown
• David Burke, for the accused Darcy Philpott

BUTTAZZONI J.:

[1] Charge and Charter Application

[1] Mr. Darcy Philpott has been charged that on May 19, 2014 he was in care and control of a motor vehicle while his blood alcohol concentration exceeded the legal limit contrary to section 253(1)(b) of the Criminal Code.

[2] The accused has brought a charter application alleging that his sections 8 and 9 Charter protected-interests have been violated. He seeks exclusion of the analysis of his breath samples. Originally, the accused's Charter application also alleged breaches of sections 7 and 12 of the Charter. These claims have been abandoned along with the request for a stay of proceedings.

1.0 Evidence Presented By The Crown

1.1 Mr. Brian Polowich

[3] On May 19th, 2014, he was working out of the fire hall in Val Therese. At 2:28 a.m. a call came in regarding a possible motor vehicle on fire at 59 Maurice Street in Hanmer, Ontario. He left the fire hall at 2:30 a.m. arriving at the scene at 2:35 a.m. He observed a motor vehicle with smoke coming from the engine compartment and he could see a person occupying the driver's seat of the motor vehicle. He approached the vehicle. Upon opening the door he observed a male in his late 20's early 30's. The motor vehicle was running. He reached across and turned off the motor vehicle.

[4] The male had his head tilted back and his eyes were closed. He could detect the odour of what he thought was alcohol coming from the driver.

[5] His attempts to communicate with the driver were futile. The driver was mumbling incoherently – he was unresponsive.

[6] At 2:38 a.m. he called for an ambulance. The driver briefly exited his vehicle and while out of the vehicle he had difficulty with his balance. Mr. Polowich asked the driver if he was all right and the driver provided a response which did not make sense. At this point he put the keys on the hood of the car. When the police arrived at around 3:09 a.m., he advised them of his observations. In cross-examination he confirmed that the driver was not belligerent and willingly went with the EMS team. While he was unable to identify the accused as the driver it has been conceded that identity is not an issue. Accordingly, the person Mr. Polowich located in the motor vehicle was the accused, Mr. Philpott.

1.2 Melissa Kiviaho

[7] Ms. Kiviaho is an EMS paramedic. On the evening in question her partner was Julian Jurczynski. At 2:41 a.m., they received a call to assist with respect to a vehicle on fire. They arrived at 59 Maurice Street one minute later.

[8] Upon attending at the motor vehicle they observed a male, later confirmed to be the accused, in the driver's seat. Upon opening the driver's door she detected the odour of alcohol. She described the accused as appearing confused. He did not know where he was. She escorted him to the ambulance in order to conduct an examination. The accused admitted to her that he had been drinking but he did not know how much. He denied any drug use. When the officer attended at the ambulance she believes she told him of her observations of the accused. At 3:20 a.m. she turned the accused over to the police.

1.3 Julian Jurczynski

[9] He arrived at the scene with Ms. Kiviaho at 2:42 a.m. He confirmed that as the accused was being escorted to the back of the ambulance he appeared intoxicated. He observed the accused to be confused as to where he was and how he got there. He testified that the accused's story kept changing. He smelled what he believed was the odour of alcohol coming from the accused when the accused got out of his vehicle. The accused admitted that he had some beer but Mr. Jurczynski could not recall if a quantity had been specified.

1.4 Constable Tyler Hagen

[10] He has been a member of the Greater Sudbury Police Service for nine years. In the early morning hours of May 19, 2014 he was working with Constable Rick Cirillo. At 2:38 a.m. he received information over his radio of a driver swerving all over the road. The vehicle had a license number of BNTA366 and it was heading towards the Valley. The vehicle was believed to be a silver Alero. At 3:08 a.m. they arrived at 59 Maurice Street. After speaking to Mr. Polowich, he went to the ambulance and observed Ms. Kiviaho attending to the accused. At that point he could smell the odour of alcohol coming from the ambulance and the breath of the accused. He described the accused's conversation as nonsensical. The accused was talking about cuts but he was not injured. The accused was also talking about having just dropped off his girlfriend at the airport at 7:00 p.m. when it was actually 3:00 a.m. He had difficulty understanding what the accused was saying. His pupils were dilated. The accused identified himself verbally and provided a date of birth. Based on his observations and his discussions with Mr. Polowich he made an Approved Screening Device (ASD) demand of the accused at 3:15 a.m. The accused provided three unsuitable samples of his breath into the ASD. At 3:22 a.m. a suitable sample was obtained and the accused registered a "fail" on the ASD unit. He was arrested for over 80, provided with his rights to counsel and cautioned.

[11] At 3:39 a.m. the accused was transported to the Greater Sudbury Police Station, arriving at 4:00 a.m. The accused was given an opportunity to speak with counsel and at 4:15 a.m. he was turned over to Constable Burnette, a qualified breathalyzer technician. At 4:55 a.m. the accused was placed back into the custody of Constable Hagen and he was ultimately released at 5:20 a.m.

[12] During cross-examination the officer testified that he did not recall getting any error readings on the ASD. He does not calibrate the machine. He simply turns it on and the machine "does a register itself". He again confirmed that during the three failed attempts the accused quit breathing into the machine which then caused the machine to stop functioning properly. When the accused stopped breathing properly the tone on the machine also stopped, indicating to the officer that the accused did not provide an appropriate sample.

1.5 Constable Rick Cirillo

[13] Constable Cirillo was working with Constable Hagen on the evening in question. He did not have any direct dealings with the accused. He did however observe the accused provide three unsuccessful or incomplete samples into the ASD and finally a fail at 3:22 a.m. He confirmed that the accused was given his rights to counsel and cautioned. He explained that after the accused was arrested at 3:25 a.m. they had to await the arrival of acting Sergeant McCrury before leaving the scene. They could not leave the scene until there was another officer there in order to secure the accused's vehicle. The sergeant arrived at 3:39 a.m., following which they departed from the scene. They took the most direct route to the police station downtown, arriving at 4:00 a.m. He described the accused as being cooperative throughout the investigation.

1.6 Constable Brett Burnette

[14] Constable Burnette has been a police officer since 2008. He was qualified as a breathalyzer technician on September 2nd, 2011. He is qualified to operate the Intoxilyzer 8000 C. At 3:28 a.m. he was notified that it was necessary for him to return to headquarters. He drove from his location on Skead Road arriving at 3:46 a.m. He started preparing the Intoxilyzer 8000 C at 4:00 a.m. and by 4:10 a.m. the machine was ready. At 4:13 a.m. he received the grounds for arrest from Constable Hagen. He received two samples of the accused's breath into the approved Intoxilyzer and the results of the analysis exceeded the legal limit.

1.7 Danielle Kennedy

[15] I do not propose to review the evidence of Ms. Kennedy to any significant extent as her evidence does not factor into the issues that I have to decide. Briefly, she called 911 to report her observations of a possible impaired driver. For example, she advised the dispatcher that the vehicle was swerving from shoulder to shoulder. She provided a licence plate number which eventually matched that of the vehicle being driven by the accused. She followed the accused's vehicle to 59 Maurice St. where it remained until the arrival of emergency personnel and the police. She never did see the driver.

2.0 The Legal Issues

[16] The only issue to be decided is whether Constable Hagen had the requisite legal grounds to make the Intoxilyzer demand of the accused following a "fail" reading on an ASD unit.

[17] The accused argues that it was not possible for the officer to have a reasonably grounded belief in the accuracy of the "fail" reading on the ASD unit given:

1. There was no evidence that the ASD unit was in proper working order.

2. The officer demonstrated a poor understanding of the functioning of the ASD unit.

3. There was no evidence adduced at trial regarding the officer's belief in the reliability of the ASD analysis.

[18] While defence counsel's submissions initially seemed to be focused on the lack of objectively reasonable grounds, his submission eventually included an assertion that the officer also lacked grounds to subjectively believe in the reliability of the ASD. Counsel on behalf of the accused submits that in the absence of reliable readings there was insufficient evidence available to Constable Hagen to arrest the accused for over 80 and then subject him to an Intoxilyzer demand. He argued therefore that following a Grant analysis the results of the Intoxilyzer analysis should be excluded from this trial.

[19] Mr. Kim on behalf of the Crown submits that it was not necessary for him to lead evidence that the ASD unit was in working order on the evening in question. The evidence available to Constable Hagen was sufficient to ground a belief in the accuracy of the ASD analysis that was both subjectively and objectively reasonable. He further submits that even if I find that the officer's belief in the accuracy of the ASD analysis could not be reasonably held, the Intoxilyzer demand can still be justified given all of the other information that the officer had available to him at the time. Accordingly, the accused was not subjected to an unlawful seizure of his breath samples. Finally, Mr. Kim submits that if I conclude there was an unlawful seizure of the accused's breath samples the results of the analysis should not be excluded given the minimally intrusive nature of the Intoxilyzer testing process.

[20] Mr. Burke has relied extensively on the case of R. v. Binelli, 2010 ONSC 539, [2010] O.J. No. 241. For the reasons that follow I find the decision of Justice S.B. Durno in the case of R. v. Beharriell, 2014 ONSC 1100, [2014] O.J. No. 882 to be more persuasive.

[21] While I do not propose to do an exhaustive analysis of the law regarding the evidentiary value of the results of an ASD analysis a brief overview would be appropriate.

[22] The logical starting point is the well-known decision of R. v. Bernshaw, [1995] 1 S.C.R. 254 at paragraph 80, where Justice Sopinka stated, "Where 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."

[23] Four years later in the case of R. v. Coutts, [1999] O.J. No. 2013, Moldaver, J.A. (as he then was) held that where the test results of the ASD unit were being offered for the truth of their contents, for example, to rebut the defence of evidence to the contrary, then the crown would have to lead evidence "…as to when the screening device was last calibrated or whether it was in proper working order." However, he went on to conclude that no such evidence is required when the issue involves the officer's reasonable grounds for making a demand. At paragraph 20 he states:

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

[24] In the case of R. v. Gundy, 2008 ONCA 284, [2008] O.J. No. 1410, Rosenberg, J.A., conveniently summarizes the approach to be followed and the criteria to be applied when assessing a Charter challenge because of lack of reasonable and probable grounds. At paragraph 50 he states:

4. Where the accused objects to the admissibility of the results of the analysis pursuant to ss. 8 and 24(2) of the Charter that the officer lacked reasonable and probable grounds to make the demand, the burden is on the Crown to establish the requisite grounds.

5. Reasonable and probable grounds involve an objective and subjective test. Where the grounds depend upon a "fail" from an approved screening device, the Crown must prove that the officer reasonably believed that he or she was using an approved device.

6. In the absence of credible evidence to the contrary, the officer's testimony that he or she made a demand with an approved screening device is sufficient evidence that the officer had the requisite reasonable belief. The officer is not required to give the particular model number or otherwise identify the device. Obvious errors such as incomplete reference to the model number do not undermine the officer's testimony that the device was an approved screening device. (emphasis added)

7. Where the officer did not have the requisite reasonable and probable grounds, the warrantless seizure of breath samples for analysis in an Intoxilizer or breathalyzer is an unreasonable seizure within the meaning of s. 8 and the results may be excluded under s. 24(2) of the Charter.

[25] In Gundy, the focus of the appeal was on the identification of the screening device and not whether it functioned properly. If therefore comes as no surprise that Rosenberg J.A. did not address the reasonableness of the officer's belief in the proper functioning of the unit as was done by Moldaver, J.A., in Coutts (supra).

[26] Fast-forward to 2014 and Justice S.B. Durno in the case of R. v. Beharriell succinctly summarizes the relevant legal principles to be applied where a police officer uses an ASD device to confirm suspicions of impaired driving. At paragraph 56 he states:

56 Based on the caselaw, the following principles can be derived where a police officer uses an ASD to confirm his or her suspicions a driver has driven while impaired or having consumed excess alcohol and the accused alleges his or her s. 8 Charter rights were infringed:

i) the determination is made on a case-specific basis;

ii) 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;

iii) 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;

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

v) 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;

vi) 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;

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

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

ix) 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.

[27] In my view Justice S. B. Durno has accurately set out the legal principles which are binding on me.

[28] When I apply these principles to the facts of this case I come to the conclusion that Constable Hagen's belief that the "fail" reading on the ASD provided sufficient grounds to believe that the accused was operating a motor vehicle with more than 80 mg of alcohol in 100 ml of blood was both subjectively and objectively reasonable. The officer testified that he was using an approved screening device that had been calibrated on May 14th, 2014, five days before the alleged offence. He had turned his mind to the issue of calibration. He used a sterile mouthpiece. He instructed the accused on how to provide an appropriate sample of breath. While the officer could not recall if an "error" reading was displayed on the ASD he was able to confirm that the tone of the ASD unit was interrupted when the accused stopped breathing as instructed. It was the improper breathing technique of the accused that resulted in the three unsuccessful attempts. This demonstrates to me that the officer had an understanding of how the unit works.

[29] I appreciate that the officer was not specifically asked whether or not he believed that the unit was functioning properly. Nonetheless, based on the evidence that I have heard I am prepared to make an inference that the officer had a reasonably held subjective belief that the unit was operating properly. He was aware that it had recently been calibrated. He was aware that the accused's improper breathing technique was not permitting the machine to analyze the breath sample. When the accused finally did blow properly into the machine, the unit was able to analyze the sample of breath. In these circumstances it would have been reasonable for the officer to believe that the machine was operating properly.

[30] I agree that the officer did not display a tremendous understanding of how the machine itself actually functioned. There was no evidence adduced either by the Crown or the defence regarding the proper or improper operation of the ASD unit. The officer's admitted lack of experience with this machine did not in my view undermine the reasonableness of his belief in the results of its analysis.

[31] Having considered the information that was available to Constable Hagen, I further come to the conclusion that he could have made an Intoxilyzer demand in the absence of an ASD demand. Upon being dispatched to the scene he was advised that the suspect vehicle was seen swerving all over the road. He spoke to the accused at the scene and he could smell the odour of alcohol coming from his breath. The accused was making statements that were illogical and in some cases incomprehensible. While it would have been a close call, these facts would have justified a demand under section 254(3) of the Code. I would, however, not criticize the officer for having elected to make a demand under section 254(2) of the Code. The ASD demand was made at 3:15 a.m. and at 3:22 a.m. the accused registered a "fail". He was arrested at 3:25 a.m. In the absence of an ASD demand he could have been arrested at 3:15 a.m. This 10 minute delay does not, in my view, change the result that the Intoxilyzer samples were taken as soon as practicable. In any event, the officers could not leave the scene until acting Sergeant McCrury arrived. The delay is of no consequence.

[32] Having said that, I am confident that if the accused had been arrested without an ASD demand, I likely would be deciding the issue of whether Constable Hagen had taken an impermissible shortcut by proceeding directly to a demand pursuant to section 254(3).

[33] I therefore conclude that there has been no breach of either section 8 or 9 of the accused's Charter protected-interests and the results of the analysis of his breath samples are properly admissible.

Released: December 18, 2015

Signed: "Justice Andrew L. Buttazzoni"