Court File and Parties

Court File No.: St. Catharines - 2111-998-14-S3683-00

Date: 2016-04-06

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Stephen Smith

Before: Justice A.J. Watson

Heard on: October 7, 2015; October 21, 2015; and February 8, 2016

Reasons for Judgment: April 6, 2016

Counsel:

• A. Brown, for the Crown
• K. Byers, for the defendant, Stephen Smith

Reasons for Judgment

WATSON J.:

The Charge

[1] Stephen Smith is charged with operating a motor vehicle with excess blood alcohol on September 28, 2014 in St. Catharines.

The Issues

[2] The defence has raised two issues both of which it is submitted result in a failure on the part of the Crown to establish that the arresting officer had reasonable and probable grounds for the making of an approved screening device demand and therefore a breach of sections 8 and 9 of the Charter.

The Evidence

[3] The matter proceeded as a blended trial.

[4] P.C. Mark Neufeld testified that on September 28, 2014 shortly before 1:46 a.m. he was exiting a parking lot on Ontario Street in St. Catharines when he observed a blue 2007 Chevrolet Equinox travelling northbound in the curb lane on Ontario Street. He believed the vehicle to be speeding and estimated the speed of the vehicle as 65 to 70 kilometres per hour in a posted 50 kilometre per hour zone. He followed the vehicle no more than 200 metres before it turned right into a parking lot to a business called World Gym located at 370 Ontario Street. P.C. Neufeld testified that as the vehicle turned right into the parking lot he noted that the back passenger tire was driven over the curb. P.C. Neufeld testified that he conducted a traffic stop because he believed the vehicle was speeding and he wanted to check the sobriety of the driver given the speeding and his observations of the driving over the curb. He also believed that it was suspicious since the vehicle had been driven to the rear of a business which he believed to be closed.

[5] P.C. Neufeld testified that he activated his emergency lights in the parking lot and the vehicle came to a stop at 1:46 a.m. P.C. Neufeld testified that he advised the defendant who was the driver as to the reason for the traffic stop, in particular for speeding and to check his sobriety, and that he found it suspicious that he was on the property. There were also three male occupants in the vehicle. P.C. Neufeld requested the defendant's driver's licence. P.C. Neufeld testified that the licence was a G-2 licence and persons with G-2 licences are not allowed to operate a motor vehicle with any alcohol in their system. P.C. Neufeld noted an odour of an alcoholic beverage emanating from the vehicle. He also noted that the defendant's eyes were red. P.C. Neufeld asked the defendant where he was going and the defendant advised that he was going to the gym. He asked the defendant to see his gym pass and he was shown a card. P.C. Neufeld testified that the defendant stated that he was coming from a wedding in Lincoln and that he had consumed one beer "around 12" which P.C. Neufeld took to mean midnight. At 1:48 a.m. P.C. Neufeld conducted a police records query in his cruiser and returned to the defendant's vehicle at 1:50 a.m. He asked the defendant to exit the motor vehicle to see if the odour of alcohol was from the defendant and they walked to the rear passenger side of the police vehicle. P.C. Neufeld testified that the defendant appeared steady on his feet, however he detected an odour of an alcoholic beverage emanating from his breath. P.C. Neufeld testified that he formed a reasonable suspicion to believe that the defendant had alcohol in his body and at 1:51 a.m. he read the approved screening device demand to him. The defendant blew into the Alcotest 7410 GLC and on his second sample, the device registered a fail at 1:52 a.m. P.C. Neufeld formed the opinion that the defendant's blood alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of blood and he arrested the defendant at 1:53 a.m. He once again asked the defendant how much he had to drink and the defendant advised him that he had four beer and his last drink was at the wedding at 1:00 a.m. He placed the defendant in the back of the cruiser and at 1:55 a.m. once again advised the defendant of the reason for his arrest and his right to counsel. At 1:56 a.m. he asked the defendant if he wanted to speak to a lawyer and the defendant said "No". P.C. Neufeld testified that he read the police caution and then at 1:57 a.m. he read the breath demand. He requested another unit to attend his location and at 1:59 a.m. P.C. Letford attended to stand by the defendant's vehicle. P.C. Neufeld testified that the passengers had walked away from the scene.

[6] P.C. Neufeld testified that at 2:01 a.m. they left the scene and arrived at One District St. Catharines at 2:06 a.m. The defendant was escorted into the booking area and the defendant then indicated that he wanted to speak to a legal aid counsel. At 2:16 a.m. after the defendant was lodged in a cell P.C. Neufeld went to the booking area and called duty counsel at 2:18 a.m. and left a call-back message. At 2:20 a.m. P.C. Neufeld met with P.C. Austen the qualified breath technician and provided the grounds for the arrest and completed giving his grounds at 2:25 a.m. At 2:37 a.m. duty counsel called and at 2:38 a.m. the call was transferred to the defendant who spoke to duty counsel in private. P.C. Neufeld testified that when he checked on the defendant at 2:39 a.m. and 2:41 a.m., he appeared to be on the telephone. At 2:43 a.m. when the defendant knocked on the door, he was then escorted and turned over to P.C. Austen.

[7] P.C. Neufeld testified that he met later with the defendant at 3:37 a.m. and served him with copies of the Notice of Intent and Certificate of Analysis. At the request of the defendant, at 3:43 a.m., 3:55 a.m., and 4:50 a.m., P.C. Neufeld attempted to contact the defendant's parents but was not successful.

[8] P.C. Neufeld believed the parking lot of the business where the defendant had stopped to be private property. When asked as to his authority to stop a vehicle that was on a public street and pulled into a private parking lot, he indicated that if the vehicle was speeding on a public roadway and pulled into their residence he would have the authority to stop the vehicle because it committed a Highway Traffic Act offence on the public roadway and he has the authority to investigate the offence.

[9] In cross-examination P.C. Neufeld testified that although he had radar in the vehicle, he did not have it turned on. P.C. Neufeld testified that although he could not recall the specifics of the incident, he had charged another individual with the offence of speeding without the use of radar. He does not recall if the defendant's vehicle signalled its turn into the parking lot, however he agreed that the defendant's vehicle had to slow down to make the right turn and therefore the defendant did not speed the entire 200 metres that he was followed. When P.C. Neufeld was asked to describe the entrance to the parking lot, he described the curb as a normal size curb which was "down" for the entrance where it is flush with the parking lot and roadway. He did not recall if it was a square or curved entrance however the curb ran parallel to the roadway. He did not know if going over a curb was a Highway Traffic Act charge. He cannot recall if the vehicle did a 90-degree turn into the parking lot or if the vehicle angled in. P.C. Neufeld was shown a photograph and he recognized the gym where the defendant had stopped his vehicle in the photograph made exhibit 1.

[10] P.C. Neufeld's notes were reviewed and he agreed that it was at the end of his notes that he made reference to travelling over the posted speed limit and this was also the first time he referred to the defendant as driving over the curb. P.C. Neufeld testified that the earlier notes were done as he was engaged in his investigation and then once back at the detachment, he had time to think back to the incident and made more details. It was suggested to P.C. Neufeld that he had already made his mind up to stop the vehicle before the vehicle had driven to the back of the business, however P.C. Neufeld testified that he cannot say that he made his mind up to conduct the traffic stop prior to the defendant pulling into the parking lot but believes he made the decision to conduct the traffic stop after the defendant entered the parking lot of the business which he believed to be closed. P.C. Neufeld testified that he used his powers under the Highway Traffic Act because of his belief that the defendant was speeding and to check on sobriety.

[11] P.C. Neufeld confirmed that but for the defendant's failed reading on the approved screening device, he would not have arrested the defendant.

[12] P.C. Neufeld testified that the device used was an Alcotest 7410 GLC, serial number ARRA0616 and that the sticker on the device indicated that the device was last calibrated on September 14, 2014 by P.C. Letford badge 9367. P.C. Neufeld agreed that his understanding through his training is that the device needs to be calibrated within 14 days in order for it to be reliable. I note that P.C. Neufeld was not asked if there was a particular time of day that was date-stamped on the sticker as to when it was calibrated. P.C. Neufeld maintained that the approved screening device was in his opinion in good working order following cross-examination as to the manner in which he set up the instrument for use.

[13] P.C. Brent Austen testified that he is a qualified breath technician and that he was advised at approximately 1:55 a.m. on September 28, 2014 that he would be required to attend One District. P.C. Austen testified that he arrived at 1:59 a.m. in the parking lot and at 2:01 a.m. he entered the security sally port area which is also the location of the Intoxilyzer 8000C. While awaiting the arrival of the defendant, P.C. Austen testified that he prepared the instrument and formed the opinion the instrument was in proper working order. P.C. Austen testified that at 2:20 a.m. he received his grounds from P.C. Neufeld who advised that he observed a vehicle speeding on Ontario Street and that when the vehicle turned into a parking lot it hit a curb and then drove to the back of the lot where he initiated a traffic stop.

[14] P.C. Austen testified that the defendant was introduced to him at 2:43 a.m. and he was cautioned and thereafter a breath demand was made to him at 2:46 a.m. P.C. Austen noted that the defendant's eyes were red and glossy and that there was an odour of alcohol on his breath. The tests were videotaped. The defendant's first attempt at providing a breath sample was unsatisfactory. On his second attempt at 2:54 a.m. the defendant registered a reading of 171 milligrams of alcohol in 100 millilitres of blood. The second sample at 3:18 a.m. registered a reading of 169 milligrams of alcohol in 100 millilitres of blood. The Certificate of Analysis was introduced through this witness as exhibit "C" and the Notice of Intent as exhibit "D" subject to Charter scrutiny. In conversation with the defendant he advised P.C. Austen that he was operating his father's vehicle, he had come from a wedding and he was going to a friend's house. The defendant also advised that he had consumed six Heineken beers at the wedding starting at 12:30 a.m. and he did not know when he consumed his last drink. P.C. Austen noted that the defendant's eyes were watery, glassy and bloodshot and that his face was flushed. P.C. Austen further noted that there was a slight odour of alcohol on his breath and that his speech was fair.

The Charter Issues

[15] It is submitted that the arresting officer lacked reasonable and probable grounds to arrest the defendant and to make a demand for breath samples in breach of the defendant's rights pursuant to sections 8 and 9 of the Charter.

[16] In R. v. Haas, [2005] O.J. No. 3160, the Ontario Court of Appeal examined the issue as to who bears the burden of proof to establish reasonable and probable grounds in the context of a demand for breath samples pursuant to section 254(3) of the Criminal Code. The taking of breath samples is a seizure for purposes of section 8 of the Charter and since warrantless, once the defendant raises an alleged breach of section 8 the Crown bears the burden of proof on a balance of probabilities that the seizure was reasonable. It is therefore for the Crown to establish on the balance that the demand for breath samples pursuant to section 254(3) was based on reasonable and probable grounds. It has been held that reasonable and probable grounds to arrest or to search have both a subjective and an objective component thereby providing the requisite grounds for a demand pursuant to section 254(3) of the Criminal Code. The subjective component requires that the officer honestly believes that the defendant has committed an offence. The objective component means that the officer's opinion must be supported by objective facts.[1]

The Vehicle Stop

[17] It is submitted by counsel for the defendant that I should reject the defendant's evidence with respect to the reason for the vehicle stop. It is submitted that the evidence that he was stopped for speeding and going over the curb was fabricated by P.C. Neufeld after the fact in order to justify the grounds for the stop. It is submitted that P.C. Neufeld randomly stopped the defendant's vehicle and that he made up his reasons at a later time. It is submitted that P.C. Neufeld's testimony that he has given a speeding ticket without radar at least once and yet cannot recall the details is not credible. It is also noted that P.C. Neufeld could not recall what the curb looked like and yet the photograph introduced as exhibit 1 depicts the curb as having a curve in it out to the side of the roadway. It is submitted that it makes no sense that the officer would not be able to describe the curb if indeed the defendant's driving over the curb was a reason for the stop.

[18] To reiterate, the onus is on the Crown on the balance of probabilities and to that regard I find on the balance of probabilities that although P.C. Neufeld may have made the decision to stop the defendant's vehicle when he drove to the business, he stopped the defendant's vehicle because he did believe the vehicle was speeding and that he wanted to check the sobriety of the driver given his earlier observation of the speeding together with his observations of the vehicle being driven over the curb. Once the vehicle proceeded to the rear of the business, I accept that P.C. Neufeld also believed that this was suspicious since he believed the business to be closed however I find on the balance of probabilities that he would have stopped the vehicle even if it had not been driven to the rear of the business and that fact had become another reason for his investigation. The only evidence before the court is that P.C. Neufeld did advise the defendant at the time he was stopped of all of the reasons for the stop of his vehicle and I accept on the balance of probabilities that he was so advised. I find as well on the balance of probabilities that P.C. Neufeld's notes were made at a later time at the detachment as to the grounds for the stop not as a fabrication but as he testified, merely upon reflecting back on the incident and notating the reasons for the stop.

[19] I do not on the balance find P.C. Neufeld's credibility to be shaken by the fact that he had not used radar and did not have a specific speed. He estimated the speed of the vehicle as being significantly above the lawful speed limit. P.C. Neufeld did not say that he was going to charge the defendant with speeding. Objectively an officer could stop a speeding vehicle if only to warn the driver of their speeding. I am also unable to find that the defendant's vehicle did not mount the curb notwithstanding the officer's testimony that his recollection was unclear and that the curb may have been different than depicted in the photograph. Contrary to the defence submission, the nature of the curb is not something I would necessarily expect that P.C. Neufeld would have recalled in detail. I am satisfied on the balance that the defendant's vehicle did mount a curb as testified to by the officer providing additional grounds to stop the vehicle to check the sobriety of the driver. I am further satisfied on the balance of probabilities that when P.C. Neufeld stopped the defendant's vehicle not only did he have subjective grounds but that there were objective grounds to do so pursuant to his powers both under the Highway Traffic Act as well as at common law.[2]

The Approved Screening Device Calibration Issue

[20] P.C. Neufeld testified that as part of his examination of the approved screening device, in this case the Alcotest 7410 GLC, in order to determine if the device was in proper working order he checked the calibration sticker affixed to it, which indicated the device was last calibrated by P.C. Letford badge 9347 on September 14, 2014. It was put to him that the reason he had to check when the device was calibrated was that he had to be 100 per cent positive that the device was calibrated within 14 days in order for it to be reliable. P.C. Neufeld responded that was his understanding according to his training.

[21] The sample of breath in this case was taken at 1:52 a.m. on September 28th, 2014 which would be at the commencement of the 15th day since the most recent calibration of the approved screening device. It is submitted that the case at bar is similar to R. v. Rattiram Ramkisson, an unreported decision of the Ontario Court of Justice, Crawford J. given August 9, 2002. In that decision the issue concerned the belief of an officer as to the proper functioning of the approved screening device when she used it to obtain an analysis of the defendant's breath. She had testified that the device was last calibrated by Sgt. Dwyer on May 27, 2001 and that she believed it was in good working order when she received a sample for analysis at 5:00 a.m. on June 10, 2001. The officer had as in the case at bar testified that an approved screening device which was calibrated more than 14 days prior to its use could not have its readings "trusted". There was no evidence as to the timing of the calibration in that case. In the Ramkisson case, a calibration prior to 5:00 a.m. on May 27th would have meant that the sample would have been taken into the 15th day. Justice Crawford found an absence of subjective and objective reasonable and probable grounds in that case.

[22] In the case at bar the Crown makes a compelling submission in response. It is submitted that in order for this argument to be successful, the court must speculate that the machine was calibrated in the one hour, 52 minutes 14 days earlier as opposed to any other time during that day. I note that the onus is on the defence to lead evidence that there was a high degree of unreliability with respect to the screening device at the time that it is administered.[3] The defence argues that the officer has provided this evidence, however the officer also testified that he was aware of this fact but still believed that the instrument was in proper working order. As set out earlier, the onus is upon the Crown on the balance to establish reasonable and probable grounds for the arrest and demand.

[23] I note that P.C. Neufeld was not asked by either counsel if the calibration sticker was time-stamped or how he could have come to his belief that the instrument was in proper working order given that it was now into the 15th day since the last calibration. The Crown also submits the test is not whether the grounds were objectively validated, but whether the officer's subjective belief was objectively justified. Noting that there was nothing to suggest otherwise than that the officer did subjectively hold a belief that the instrument was in proper working order, it is submitted that I ought to find on the balance that he did advert to the issue. The only evidence before the court is that he was aware of the calibration issue and formed the opinion that the instrument was in proper working order. I find this to be a compelling argument and although the same argument could have been made in R. v. Ramkisson, supra, I am not bound by that decision.

[24] I would further note that given the onus on the defence in this case to show a high degree of unreliability of the screening device at the time it was administered, would it not also have been incumbent on the defence to establish that the instrument was likely calibrated within that one hour, 52 minute window since it would not otherwise be probative of the issue given that there are 24 hours in a day? In other words, the reasonable inference on the balance of probabilities is that it is likely that the instrument was calibrated otherwise than in that one hour, 52 minute window and therefore that it was in proper working order.

[25] I am therefore satisfied on the balance of probabilities that the instrument was in proper working order and that there existed both subjective and objective reasonable and probable grounds to arrest the defendant and make a further demand for breath samples following the failed reading.

[26] I will go on to state, however, that in the event that I have erred in finding that a Charter breach has not occurred on this issue, I would nevertheless not have excluded the evidence of the intoxilyzer readings pursuant to section 24(1) of the Charter. On the three-prong test set out in R. v. Grant, [2009] S.C.R. 353 and R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, all three factors favour admission of the readings. The conduct of the officer could at best only be characterized as inadvertent, noting that at most, he did not realize that he was into the 15th day on the evidence that is before me.[4] The impact of the Charter violation on the defendant was slight, noting that the collection of the defendant's breath sample was accomplished through an approved instrument and is a relatively non-intrusive procedure. Finally, the intoxilyzer results are important, indeed determinative as to the outcome of this trial and are reliable evidence. A balancing of these factors would have led me to conclude on the balance that the intoxilyzer results were admissible pursuant to section 24(2) of the Charter.

Verdict

[27] The Notice of Intent and Certificate of Analysis will be introduced into evidence and the defendant is found guilty of the charge.

Released: April 6, 2016

Signed: "Justice A.J. Watson"

Justice A.J. Watson

Footnotes

[1] R. v. Censoni, [2001] O.J. No. 6189 (Ont. Sup. Ct.)

[2] R. v. Clayton, 2007 SCC 32, [2007] S.C.J. No. 32

[3] See R. v. Paradisi, [1998] O.J. No. 2336 (C.A.) citing R. v. Bernshaw, 95 C.C.C. (3d) 193 (S.C.C.) at 219.

[4] I have of course earlier found on the balance to the contrary, that is that he did advert to the issue on the basis of the evidence that is before the court.