Ontario Court of Justice

Date: 2016-05-16

Court File No.: 14-3705

Between:

Her Majesty the Queen

— AND —

Michael Wieczorek

Before: Justice J. Bliss

Heard on: April 8, 2016 and April 15, 2016

Reasons for Judgment released on: May 16, 2016

Counsel

S. McCartan — counsel for the Crown

R. Wulkan — for the defendant, Michael Wieczorek

BLISS J.:

Overview

[1] Michael Wieczorek is charged with operating a motor vehicle with over 80 mg of alcohol in 100ml of blood (over 80). The events that led to the matter coming before the courts were relatively simple. At 9:40 p.m. on June 28, 2014, Huronia West OPP received a call about a possible domestic incident in "Area 1" of Wasaga Beach Provincial Park. Police were advised that the parties were driving away in a black Acura and that the driver was possibly impaired. A partial licence plate, BDES, was provided. By 9:47 p.m., police had seen and followed that same vehicle as it parked in a parking spot in front of the Burger King on Beach Drive. An investigation ensued. Observations were made. A demand was made that the defendant provide a sample of his breath in to an Approved Screening Device (ASD). A fail resulted. Mr. Wieczorek was arrested for over 80 and transported to the Huronia West detachment. Mr. Wieczorek provided two breath samples of which produced readings of 100 mg and 90 mg of alcohol in 100 millilitres of blood. Those results, and the admission of the certificate into evidence, was challenged on a number of Charter and non-Charter grounds; namely, that:

• The officer did not make the roadside demand forthwith;
• The sample provided into the ASD at the roadside was without a warrant and therefore prima facie unreasonable and in contravention of s.8 of the Charter;
• The applicant's subsequent detention was unlawful and breached his rights under s.9;
• The breath technician did not operate the intoxilyzer properly and therefore the prosecution should not be able to rely upon the presumption of accuracy;
• If the evidence of the breath tests are not excluded pursuant to s.24(2), the prosecution should not be able to rely upon the presumption of identity pursuant to s.24(1).

Analysis

[2] In order to address the issues that arise in this case, the events of June 28, 2014 need to be reviewed in some detail:

[3] At about 9:40 p.m., police received a radio call about a possible domestic occurrence with a possible impaired driver attempting to drive away from the area at beach area 1, part of the provincial park in Wasaga Beach, by the waterfront. A partial licence plate BDES and description of a black Acura was provided. Cst. Loris Licharson responded. At the entrance to the park he was flagged down by an individual, presumably the caller, who directed the officer to the parking area close to Sturgeon Point which is near to where the land ends. As the officer headed in that direction, he was passed by a black Acura travelling in the opposite direction. The officer turned around onto Beach Street where he attempted to catch up to the vehicle. Just as he did, he was delayed by another vehicle backing up in front of him, but was able to see the black vehicle pull into a Burger King parking spot on Beach drive. At 9:47 p.m., the officer pulled up behind the Acura, licence plate BDES 189, activated his lights and saw a male driver, Michael Wieczorek, exit. There was a brief conversation in which Mr. Wieczorek was told the reason for the stop and asked to come to the officer's cruiser. In that brief time, the officer learned that the defendant's girlfriend was in the car and that he had consumed four shots earlier. By this time Sgt. Pileggi and Cst. Chapman arrived on scene and the defendant was turned over to those officers to continue the investigation while Cst. Licharson went to speak to the passenger to investigate the possible domestic matter. Cst. Licharson testified that while he had a suspicion of Mr. Wieczorek having alcohol in his body given the admission, his priority was the domestic; consequently, he made no demand for the driver to provide a sample of his breath into a roadside approved screening device despite having formed the grounds to make the demand and left that aspect of the investigation to Sgt. Pileggi.

[4] Cst. Licharson's involvement with the passenger, the defendant's girlfriend, took a few minutes. The passenger was intoxicated and very difficult to understand (and later arrested for public intoxication). The passenger advised that the argument was only verbal. Cst. Licharson then returned to where the defendant was standing with Sgt Pileggi. Once he confirmed with the defendant the purely verbal nature of the "domestic", his attention then turned to Mr. Wieczorek's admission of having consumed alcohol.

[5] Sgt. Pileggi had come onto the scene shortly after 9:41 p.m.. Mr. Wieczorek was exiting his vehicle and walking towards Cst. Licharson who was standing at the rear of the Acura. Sgt. Pileggi approached as the male and the officer were having a conversation. Within about fifteen seconds, Sgt. Pileggi asked Mr. Wieczorek if he was driving the vehicle. Mr. Wieczorek denied being the driver. That response led Cst. Licharson to tell Sgt. Pileggi that Mr. Wieczorek was indeed the driver. In his evidence, Cst. Licharson could not recall the nature of the conversation he had with Sgt. Pileggi.

[6] Sgt. Pileggi testified that he suspected the defendant had alcohol in his system when driving based on his own observations of Mr. Wieczorek exiting the vehicle from the driver's side door, the information from Licharson that the male was driving, and the male having red blood shot eyes and a heavy odour of alcohol. At 9:45 p.m. he asked Mr. Wieczorek if he had consumed any alcohol to which he responded "four shots and three beers about an hour ago". At 9:52 p.m., he made the demand that he provide a sample of breath into an approved screening device. Sgt. Pileggi explained the 7 minute gap as follows:

[7] From 9:41 p.m. until 9:45 p.m., the officer was engaged in conversation with the defendant. At 9:45 p.m. is when Sgt. Pileggi's suspicion crystallized. Before making the formal demand, Mr. Wieczorek was patted down for weapons and then placed in the rear of the police cruiser. While Mr. Wieczorek was still outside the police cruiser, Sgt. Pileggi retrieved the ASD from the trunk and turned it on to begin the process of enabling it for the test. The officer read the demand from the police issued card. The officer testified that the roadside screening device was the Alcotest 6810 that was last tested for accuracy on June 22, 2014. The officer seated himself in the front seat of his vehicle, waited for the instrument to ready for a test, and demonstrated the proper procedure for providing a sample to Mr. Wieczorek. He satisfied himself that the instrument was in proper working order in accordance with his training. At 9:54 p.m., Mr. Wieczorek provided a sample which registered a fail.

[8] Much was made of the exact positioning of the officer and the proximity of his portable radio antenna to the instrument so as to raise a question of it providing a false positive as a result of the proximity to radio frequencies (the training manual refers to 30 cm). The officer testified repeatedly that he was aware of the issue and that at no time was his portable radio or his personal cell phone close to 30 cm from the subject. The officer testified that when turned on, the ASD goes into an internal testing scheme and then provides a ready signal on the screen indicating it is ready for a sample. The officer testified that if there is an issue with the machine's proper functioning then an error code will be displayed on the screen and the instrument will not analyze a sample. In this case no error code was displayed.

[9] The defence argues that as officer formed the grounds to make the demand at 9:45 p.m. the making of the demand at 9:52 p.m. was not "forthwith" and so the demand was unlawful which then renders Mr. Wieczorek's subsequent detention/arrest unlawful.

[10] At 9:55 p.m., Mr. Wieczorek was arrested for over 80, searched, cautioned and provided with his rights to counsel. A breath demand was made at 9:56 p.m.. Mr. Wieczorek advised he understood all of his rights and requested police to call his mother as she had his lawyer's telephone number.

[11] Sgt. Pileggi testified that he drove directly to the Huronia West detachment which was the closest one. Mr. Wieczorek was booked and lodged in the cells. At 10:10 p.m., Mr. Wieczorek provided the telephone number for his mother. She was duly called and she provided Sgt. Pileggi with the telephone number for the lawyer. By 10:19 p.m., several messages were left for the lawyer with no response. That was conveyed to Mr. Wieczorek and he was asked if there was anyone else he wished to call. His response was that he would call his lawyer in the morning. He was then immediately turned over to the breath technician.

[12] While there was no evidence of Mr. Wieczorek being asked after his counsel of choice was unavailable if he wished to speak with duty counsel, no issue was taken with any statements made by the defendant at any time, nor any claim of any violation of Mr. Wieczorek's s.10(b) Charter rights for the failure to provide him with access to duty counsel after attempts to contact his own lawyer were unsuccessful.

[13] Cst. Lars Schroeder is a qualified breath technician. He was on general enforcement duties on June 28, 2014 when he received a radio call requesting he set up for a breath test. He arrived at the detachment at 10:08 p.m. and in the breath room to begin the start up procedure at 10:12 p.m.. The intoxilyzer was in standby mode. He pressed the start button to start the testing procedure and over the next two minutes the intoxilyzer went through its series of internal diagnostic tests. The machine indicated it was in disabled mode which meant that the alcohol test solution had to be changed as it had exceeded its life of 14 days or 50 tests. The officer had to physically remove the simulator and pour in new solution. No issue with taken with the lot of that the solution as it was well within its expiry date. The officer conducted a series of diagnostic tests, including a calibration test, to ensure the machine was in good working order. He was provided with the grounds by Sgt. Pileggi at 10:42 at which time he realized that he had forgotten to conduct a self-test which he did and registered a zero. At 10:52 p.m. the defendant was presented to him. Mr. Wieczorek provided two samples at 10:59 p.m. and 11:21 p.m. with readings of 100 mg and 90 mg of alcohol in 100 millilitres of blood.

Issues

[14] The defence challenges the reliance of the certificate of analysis on both Charter and non-Charter grounds. The defence submits that the roadside demand was not "forthwith" given the 7 minute gap between the suspicion being formed and the demand being made.

[15] The prosecution responds by submitting that there was clear evidence that the defendant was driving. The grounds for making the demand that Mr. Wieczorek provide a sample of his breath into the roadside ASD was founded on his admission of consumption along with the odour of alcohol and red glossy eyes. While Cst. Licharson formed a reasonable suspicion of alcohol in the defendant's system almost immediately, the prosecution says that his reason for not making the demand was entirely reasonable given the priority he attached to investigating the possible domestic incident involving the defendant and his girlfriend. Sgt. Pileggi made the demand at 9:52 p.m.. The prosecution says that the 7 minutes from suspicion crystallizing and the demand was "forthwith", and that once Mr. Wieczorek failed the roadside, then the constellation of grounds made the breath demand valid.

[16] Clearly, the roadside investigation of Mr. Wieczorek was a valid exercise of police powers. Mr. Wieczorek presented to Officer Licharson with an odour of alcohol and an admission of the earlier consumption of alcohol. To Cst. Pileggi, those grounds were more pronounced with what was described as a heavy odour of alcohol and admission of consumption. The constellation of factors that both Cst. Licharson and Sgt. Pileggi were faced with provided the officers with the reasonable grounds to suspect Mr. Wieczorek had alcohol in his body and had been operating a motor vehicle within the past three hours. Their testimony made it abundantly clear that their suspicion was honestly held and was, by any measure, both subjectively and objectively reasonable.

[17] Sgt. Pileggi had a reasonable belief that the ASD was calibrated properly and in working order. An officer is entitled to rely on its accuracy unless there is credible evidence to the contrary (R. v. Beharriel). While the defence raised questions about the operation of the ASD and radio frequencies, the officer maintained that the ASD was operated properly and was in good working order. There was no "evidence to the contrary" to displace the reliance on the accuracy of the ASD as one of the grounds to make the intoxilyzer demand.

[18] The defence's attention then shifted to the timing of the demand.

[19] Much was made of Sgt. Licharson's admission that almost as soon as he began his interaction with the defendant, he had formed a reasonable suspicion that Mr. Wieczorek had alcohol in his body. It is implicit in the wording of s.254(3) that the demand that the motorist provide a sample of his breath forthwith must be made by the police officer as soon as he forms the reasonable suspicion. (R. v. Quansah at para 30). That, however, does not end the analysis. Accepting that the clock started to tick with Cst. Licharson, it is necessary to have regard for the circumstances of the case and the reason for any delays. In this case, Cst. Licharson explained his concern for the safety of the passenger given the potential domestic nature of the call, the emotional state of the passenger, her level of intoxication which made his investigation much more difficult (and of note is her subsequent arrest for public intoxication) and the fact that he prioritized that aspect of the investigation upon the defendant being turned over to Sgt. Pileggi almost immediately upon Mr. Wieczorek exiting his vehicle.

[20] Accepting that Sgt. Pileggi had the requisite reasonable suspicion very shortly after his initial interaction with Mr. Wieczorek, there was nothing preventing Sgt. Pileggi from continuing to investigate to determine whether there were grounds for a s.254(3) demand before making a screening demand. Brief delays to complete other investigatory steps do not detract from the validity of the ASD demand. As it is, the ASD is an investigative tool in the formation of reasonable and probable grounds and is not evidence of proof of the offence (R. v. Coutts at paras 19-20; R. v. Mastromartino at paras 78-79).

[21] The interaction between Michael Wieczorek and Sgt. Pileggi started at 9:45 p.m. very shortly after Sgt. Pileggi arrived on the scene. First contact to the ASD demand at 9:52 p.m. consisted of the officer making inquiries of Mr. Wieczorek, receiving information from Sgt. Licharson after he had concluded his investigation with the passenger that Mr. Wieczorek had been driving, patting him down for weapons and placing him in the rear of the police cruiser, and retrieving the ASD and OPP issued card setting out the exact wording of the demand, and turning the device on to begin the process of enabling it for the test. The officer then read the demand from the policed issued card. The defendant does not claim any violation of his rights under s.10, but restricts his claims to ss.8 and 9 of the Charter. That being said, the ability to consult with counsel is one of the considerations under the "forthwith" heading.

[22] "Forthwith" means "immediately" or "without delay": Canadian Oxford Dictionary (2nd ed. 2004), at p. 585. (R. v. Woods at para 13)

[23] Section 254(2) authorizes roadside testing for alcohol consumption, under pain of criminal prosecution, in violation of ss. 8, 9 and 10 of the Canadian Charter of Rights and Freedoms. But for its requirement of immediacy, s. 254(2) would not pass constitutional muster. (Woods, supra, para 15)

Parliament enacted a two-step legislative scheme in s. 254(2) and (3) of the Criminal Code. At the first stage, s. 254(2) authorizes peace officers, on reasonable suspicion of alcohol consumption, to require drivers to provide breath samples for testing on an approved screening device. These screening tests, at or near the roadside, determine whether more conclusive testing is warranted. They necessarily interfere with rights and freedoms guaranteed by the Charter, but only in a manner that is reasonably necessary to protect the public's interest in keeping impaired drivers off the road. (Woods, supra para 30)

[24] At the second stage of the statutory scheme, where the Charter requirements must be respected and enforced, s. 254(3) allows peace officers who have the requisite reasonable and probable grounds to demand breath samples for a more conclusive breathalyzer analysis. Breathalyzers determine precisely the alcohol concentration in a person's blood and thus permit peace officers to ascertain whether the alcohol level of the detained driver exceeds the limit prescribed by law (Woods, supra, para 31).

[25] So long as the demand is validly made pursuant to s. 254(2) – that is, so long as it is made "forthwith" – for Charter purposes there is no unjustified seizure or arbitrary detention or breach of the requirement to advise the detainee of his or her right to counsel. This is because this statutory detection and enforcement procedure constitutes a reasonable limit on Charter rights, given the extreme danger represented by unlicensed or impaired drivers on the roads. (R. v. Quansah at para. 37).

[26] Referring to R. v. Degiorgio at para. 46, the Court of Appeal in Quansah made note that during the "forthwith" period, Charter rights are justifiably infringed despite ss. 8, 9 and 10(b) of the Charter.

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. 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. 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). 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. 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. (Quansah, supra, para 45-49)

[27] Mr. Wieczorek did not have his lawyer's telephone number and needed police to contact his mother later at the detachment to obtain counsel's contact information. Despite messages left, counsel did not call back. There is nothing to suggest the situation would have been any different at the roadside. There little to no evidence before me to realistically demonstrate that Mr. Wieczorek would have been able to reach counsel, even duty counsel, and consult with him or her before being subject to the ASD test demand. In all the circumstances, the demand was made forthwith and in accordance with s.254(3).

[28] The ASD and subsequent "fail" amounted to a search and seizure and raises considerations under s.8 of the Charter which provides "everyone with the right to be secure against unreasonable search or seizure". As a warrantless search and seizure, the burden rests on the prosecution to establish on a balance of probabilities the reasonableness of both the search and seizure.

[29] An accused bears the burden of persuading the court on a balance of probabilities that his Charter rights under s.8 have been infringed. In the context of a warrantless seizure of samples of Mr. Wieczorek's breath, that burden has been met. The burden then shifts to the prosecution to show that on a balance of probabilities the seizure was reasonable. (R. v. Haas at para 24-26)

[30] To establish reasonableness of the search and seizure, the prosecution must establish that Sgt. Pileggi had reasonable grounds to suspect that Mr. Wieczorek had alcohol in his body when he demanded that the defendant provide a sample of his breath into an ASD.

[31] Reasonable grounds to suspect or reasonable suspicion has both a subjective and objective element. The concept of "reasonable suspicion" has been recently addressed by the Supreme Court of Canada in R. v. Chehill at para 25-35).

The reasonable suspicion threshold respects the balance struck under s. 8 by permitting law enforcement to employ legitimate but limited investigative techniques…

Reasonable suspicion derives its rigour from the requirement that it be based on objectively discernible facts, which can then be subjected to independent judicial scrutiny. This scrutiny is exacting, and must account for the totality of the circumstances. In Kang-Brown, Binnie J. provided the following definition of reasonable suspicion, at para. 75:

The "reasonable suspicion" standard is not a new juridical standard called into existence for the purposes of this case. "Suspicion" is an expectation that the targeted individual is possibly engaged in some criminal activity. A "reasonable" suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds.

Thus, while reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded in objective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime. As a result, when applying the reasonable suspicion standard, reviewing judges must be cautious not to conflate it with the more demanding reasonable and probable grounds standard.

The fact that reasonable suspicion deals with possibilities, rather than probabilities, necessarily means that in some cases the police will reasonably suspect that innocent people are involved in crime… However, the suspicion held by the police cannot be so broad that it descends to the level of generalized suspicion, which was described by Bastarache J., at para. 151 of A.M., as suspicion "that attaches to a particular activity or location rather than to a specific person".

Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience: see R. v. Bramley, 2009 SKCA 49, 324 Sask. R. 286, at para. 60. A police officer's grounds for reasonable suspicion cannot be assessed in isolation: see Monney, at para. 50.

A constellation of factors will not be sufficient to ground reasonable suspicion where it amounts merely to a "generalized" suspicion because it "would include such a number of presumably innocent persons as to approach a subjectively administered, random basis" for a search...

While some factors, such as travelling under a false name, or flight from the police, may give rise to reasonable suspicion on their own (Kang-Brown, at para. 87, per Binnie J.), other elements of a constellation will not support reasonable suspicion, except in combination with other factors. Generally, characteristics that apply broadly to innocent people are insufficient, as they are markers only of generalized suspicion. The same is true of factors that may "go both ways", such as an individual's making or failing to make eye contact. On their own, such factors cannot support reasonable suspicion; however, this does not preclude reasonable suspicion arising when the same factor is simply one part of a constellation of factors.

Further, reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors. Much as the seven stars that form the Big Dipper have also been interpreted as a bear, a saucepan, and a plough, factors that give rise to a reasonable suspicion may also support completely innocent explanations. This is acceptable, as the reasonable suspicion standard addresses the possibility of uncovering criminality, and not a probability of doing so.

Exculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors. The totality of the circumstances, including favourable and unfavourable factors, must be weighed in the course of arriving at any conclusion regarding reasonable suspicion…

Finally, the objective facts must be indicative of the possibility of criminal behaviour. While I agree with the appellant's submission that police must point to particularized conduct or particularized evidence of criminal activity in order to ground reasonable suspicion, I do not accept that the evidence must itself consist of unlawful behaviour, or must necessarily be evidence of a specific known criminal act.

[32] Sgt. Pileggi's evidence was that Mr. Wieczorek had a heavy odour of alcohol, red glossy eyes, and admitted to the consumption of alcohol an hour earlier. The officer's evidence was that the result from the roadside screening device, coupled with the aforementioned observations, provide him with reasonable and probable grounds to make the breath demand. Whether that belief was objectively reasonable is at the core of the defence argument. Was there a possibility that Mr. Wieczorek had driven a vehicle within the preceding three hours with alcohol in his system? I find that the officer did indeed have a subjective and objective basis to have a reasonable suspicion and that any search and seizure was a reasonable one and did not, therefore, amount to a breach of his rights under s.8 of the Charter.

[33] If I am wrong, and the ASD demand did not comply with s.254(2) such that the subsequent search of Mr. Wieczorek's breath and unlawful detention violated his rights under ss.8 and 9 of the Charter, I will address the remedies sought by the application pursuant to s.24(2) and s.24(1) later in my reasons.

Was the Intoxilyzer 8000C Operated Properly?

[34] Much was made of the breath technician's procedures during the pre-testing process. While the officer acknowledged the Intoxilyzer 8000C training aid as the proper protocol, the officer was challenged on his failure to follow the procedure strictly in a number of areas. The intoxilyzer disabled itself when the simulator solution had met its 2 week or 50 test life. The procedure required the certified breath technician to change the solution and to check the simulator for leaks prior to connecting it back to the intoxilyzer. The exacting 4 step procedure in the Intoxilyzer 8000C training manual to check for leaks was not followed. The officer testified, however, that he had visually checked the simulator for leaks and that if there was an issue with air leaks, the instrument would diagnose an issue, the calibration checks would not be within the prescribed range and essentially the machine would shut itself down. So while the machine was not operated "properly", the machine was operating properly nonetheless.

[35] The same observations can be made in relation to the attack on the officer using a towel to wipe some liquid from the counter next to the intoxilyzer prior to Mr. Wieczorek's test and leaving the towel in the breath room. While defence suggested the officer had spilled alcohol and had simply placed the towel he used to wipe up the spill on the other side of the room, the officer, who had no recollection of doing so and had to remind himself from watching the video, thought it more likely he was clearing off condensation from a water bottle. In any event, if there was alcohol on the towel, the machine sensed no ambient alcohol. The defence assertions amount to no more than speculation in that respect.

[36] There was an issue in the breath room video where the breath technician clearly blew into the machine to conduct a self-test but no report was generated and the machine made no sound. Whatever error may have occurred, the subsequent self-test and self-diagnosis showed the intoxilyzer to be functioning properly and able to accept and accurately analyze Mr. Wieczorek's two samples of breath.

[37] The defence attack on the presumption of accuracy was based on the failure of the breath technician to follow the Intoxilyzer 8000C training procedure. The argument was that as the machine was not "properly operated", the prosecution cannot rely on the presumption of accuracy.

[38] The defence relies on R. v. St-Onge Lamoureux. That case set out the test an accused need meet in order to raise a doubt as to the instrument's results, but the Court also noted at paragraph 53 that if the arguments made by the defence are frivolous or trivial, they will not cast doubt on the proper functioning or operation of the instrument. The Court illustrated the point by reference to the facts of R. v. Crosthwait. In that case, the defendant had tried to raise a doubt that the instrument had functioned properly by arguing that the technician had not compared the air temperature with the temperature of the solution before making the analyses. The Court held that the mere possibility that the instrument had malfunctioned was not evidence to the contrary that could cast doubt on the reliability of the results. An accused must not simply show that a deficiency is possible but raise a real doubt that the instrument was functioning or operated properly. (see also R. v. Rienguette at para 32)

[39] All an accused needs to do pursuant to s.258(1)(c) is to point to evidence that casts a doubt on the reliability of the test results by casting doubt as to whether the instrument malfunctioned and/or was improperly operated. R. v. Sheahan at para 4. It is crucial, therefore, to keep in mind that presumptions are merely legal or evidentiary shortcuts designed to bridge difficult evidentiary gaps, and that they are rebuttable upon the leading of 'evidence to the contrary'. (R v. St. Pierre at para. 23)

[40] The question is a two part question: 1. Were the officer's "failures" in his procedure a failure to properly operate the approved instrument. 2. If so, do the failures cast a real doubt on the reliability of the results provided by the approved instrument?

[41] The defence evidence posed questions and attempted to pick at various flaws in the procedure employed by Cst. Schroeder. It is not simply that the machine must be shown to have not been operated properly but also that the "improper" operation raises a doubt about its functioning and accuracy. The officer remained steadfast in his evidence that any questions or shortcomings in his procedure did not affect the reliability of the instrument and accuracy of the results. I found the officer to be credible, his evidence was reliable, and the evidence before me did not cast a doubt on the reliability of the test results.

Charter Section 24(2)

[42] If I am wrong in my assessment that there was no s.8 violation, I will address whether it has been established, having regard to all the circumstances, that the admission of the evidence would bring the administration of justice into disrepute. If so, then the appropriate and just remedy is an order excluding the evidence. As set out in R. v. Grant at para 71:

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the defendant (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

Seriousness of the State Conduct

[43] The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct (Grant, supra, at para 72). If there was a violation of Mr. Wieczorek's Charter rights, I do not find that Sgt. Pileggi's actions, or Cst. Licharson's conduct for that matter, was the result of bad faith or wilful blindness or ignorance of standards required by the Charter. The conduct, if indeed unreasonable, was at the lower end of the spectrum and favours admissibility of the Certificate.

Impact of the Charter Breach

[44] If there was a violation of Mr. Wieczorek's s.8 rights at the roadside, then the violations continued with the demand that he provide samples of his breath along with his continued unlawful detention to effect such a purpose until his release from custody. As noted in Grant at paragraph 111, however, "where an intrusion on bodily integrity is deliberately inflicted and the impact on the defendant's privacy, bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability. On the other hand, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the defendant's body may be admitted. For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive."

[45] This factor too favours admission of the Certificate.

Societal Interest in a Trial on the Merits

Would the truth seeking function of the criminal trial process be better served by the admission of the evidence or by its exclusion? Clearly, if the consideration is truth-seeking, then the exclusion of this kind of otherwise relevant and presumptively reliable evidence supports admission.

Balancing all of these factors leads inexorably to the conclusion that even if there was a breach of the defendant's Charter rights, the repute of the administration of justice militates in favour of the admission of the evidence.

Charter Section 24(1)

[46] The defence submits that even if the court declines to exclude the evidence under s.24(2), that an appropriate remedy is available under s.24(1) to deny the prosecution the right to rely on the presumption of identity.

[47] Parliament has established presumptions in s. 258(1) to facilitate proof of the defendant's blood alcohol level. According to the presumption of identity in s. 258(1)(c), the defendant's blood alcohol level at the time when the offence was alleged to have been committed is the same as the level at the time of the breathalyzer test. Where the alcohol level exceeds 80 mg at the time of the test, there is a presumption that it also exceeded 80 mg at the time when the offence was alleged to have been committed.

[48] The defence fallback position is that if I decline to exclude the evidence under s.24(2), that resort may be had to s.24(1) and the remedy is to prevent the Crown from relying on the presumption of identity. The genesis of this argument was succinctly summarized by Trotter J. in R. v. Rambissoon. The summary conviction appeal in that case dealt, in part, with the trial judge's exercise of his discretion to refuse to allow argument on the s.24(1) for failure to comply with the Rules having only arisen after the trial judge ruled on the s.24(2). Code J., sitting as a summary conviction appeal court, dealt with availability of a remedy pursuant to s.24(1) in R. v. Zhao. I adopt the reasoning in that case. While there is no authority prohibiting such a remedy, it seems paradoxical to deny s.24(2) Charter relief because the exclusion of the evidence would not bring the administration of justice into disrepute and yet find that it would be "appropriate and just" to exclude essentially the same evidence under s.24(1). I did not find that Mr. Wieczorek's Charter rights were violated. If I had found a violation of Mr. Wieczorek's rights under s.8 of the Charter, I would have found that the evidence of the results of the breath samples should be admitted pursuant to s.24(2); similarly, I would have found that denying the prosecution reliance on the presumption of identity not to be a remedy that is appropriate and just.

Conclusion

[49] The case against Mr. Wieczorek has been proven beyond a reasonable doubt and he shall be found guilty of the charge.

Released: May 16, 2016

Signed: "Justice J. Bliss"