Court File and Parties

Court File No.: Central West Region 15-2632

Date: 2016-08-31

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Matthew John Greenwood

Before: Justice Alan D. Cooper

Heard on: June 29, 2016

Reasons for Judgment released on: August 31, 2016

Counsel:

Laurie E. Jago for the Crown

Jeffrey V. Milligan for the defendant Matthew John Greenwood

Case History

[1] Matthew Greenwood is charged that on August 25, 2015, in the Town of Oakville, he operated a motor vehicle after having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, contrary to Section 253(1)(b) of the Criminal Code.

[2] On the above date Halton Regional Police Service officer Jesse Vandervelde was parked on the south side of Cornwall Road in Oakville, and saw a car coming in an eastbound direction toward him at 2:38am. The car signal to turn left was on, but there was no street to turn left onto. Then the right signal was put on, but no turn was made, and the car was weaving in its own lane.

[3] As a result of this unusual driving, the officer stopped the vehicle at 2:38am. Mr. Greenwood was the sole occupant and he produced his driver's licence, insurance, and car ownership documents. He said he was on his way home. He was nervous, his hands were trembling, and his chest was pounding. There was an odour of alcohol coming from his breath and his eyes were slightly bloodshot. He was asked to exit his car and he walked normally to the police cruiser and sat in the rear.

[4] At 2:42am he was given a caution and an approved screening device demand. He failed the test and was arrested at 2:47am for the above offence.

[5] Prior to testing the defendant, officer Vandervelde had tested himself on the screening device and found it to be in proper working order. At 2:48am, Mr. Greenwood was provided with his right to counsel information and he said he understood what was read to him and did not wish to speak to counsel.

[6] The officer had to wait for another officer to arrive to arrange to have Mr. Greenwood's vehicle towed from the scene. At 2:56am, officer Vandervelde and the defendant left for the Oakville police station. At 2:57am, en route, the officer realized he had forgotten to read the breath demand to the defendant, and stopped by the road side to do so. At 3:04am, they arrived at 20 Division station.

[7] At 3:18am, after Mr. Greenwood was booked and processed, officer Vandervelde gave his grounds for arrest to breath technician David Bacon. Officer Bacon tested the defendant and obtained a blood alcohol readings of 120 and 110 milligrams of alcohol in 100 millilitres of blood. At 6:47am, officer Vandervelde served documents on the defendant, and released him at 7:25am.

[8] Under cross-examination, officer Vandervelde testified that he became a police officer in 2015. He described the approved screening device as an Alcosensor FST, which he thought had to be calibrated every two weeks. He said that although he did not make a note of when it was last calibrated, he would not use one which had not been calibrated.

[9] In re-examination, the officer said there is a sticker on each screening device which indicates when it was last calibrated, and he would not use one which had not been properly calibrated. The Crown asked "is that something you look for when you take it out?" The witness replied that it was.

[10] Officer Bacon, the qualified breath technician tested the defendant and obtained the readings referred to in paragraph 7, above. He was not cross-examined.

[11] No evidence was called by the defence.

Charter Application

[12] At the outset of the trial, the defence launched an application under sections 8 and 9 of the Charter of Rights and Freedoms. It was alleged that officer Vandervelde did not have reasonable and probable grounds to make a demand for breath samples under section 254(3) of the Criminal Code, or to detain and arrest the defendant. It was also submitted that this breath demand was not made by officer Vandervelde as soon as practicable. Because of these alleged breaches, it was submitted that there should be an exclusion of all evidence following these breaches under section 24(2) of the Charter.

Onus

[13] The onus is on the defence to establish a breach of sections 8 and 9 of the Charter on a balance of probabilities. However, if a search was conducted without a warrant, the Crown must prove, on a balance of probabilities, that the search was reasonable: R. v. Collins, [1987] 1 S.C.R. 265. If the search was unreasonable and a breach of section 8, the defence has the burden of establishing that the impugned evidence, if admitted, would bring the administration of justice into disrepute. On the trial proper, the Crown must prove the essential elements of the charges beyond a reasonable doubt.

Submissions of Defence Counsel

[14] Mr. Milligan submitted that there were no reasonable and probable grounds to arrest the defendant because officer Vandervelde had no objective belief that the approved screening device had been calibrated. He asked the court to give no weight to what he said were leading questions by the Crown in the re-examination of this witness. A breach of section 8 of the Charter is alleged.

[15] The defence also contended that the breath demand was not made as soon as practicable, and there was no reasonable and probable grounds to make that demand, because officer Vandervelde had not turned his mind to the calibration issue. In the present case, he said the delay in making the demand was 11 minutes. Section 8 of the Charter is said to have been breached. Because of these breaches, counsel asked the court to exclude the blood alcohol readings from the evidence. On the trial proper, defence has conceded that the Crown has established guilt beyond a reasonable doubt.

Submissions of Crown Counsel

[16] Ms. Jago argued that the officer had the requisite subjective and objective belief that the screening device had been properly calibrated. She disagreed that her re-examination was leading, and said she was properly questioning the officer on what had been raised in cross-examination.

[17] The Crown further submitted that delayed breath demand was not 11 minutes, but only eight minutes, running from 2:48am to 2:57am. This delay did not render the demand invalid, and it was made as soon as practicable.

[18] There were no Charter breaches, and even if there had been, the breath readings should not be excluded.

Analysis

The Calibration Issue

[19] The caselaw makes the threshold of admissibility quite low on whether the screening device has been calibrated or not. Even if it had not been calibrated at all does not matter, so long as the testing officer had a reasonable belief that it was adequately calibrated and was in proper working order. See R. v. Beharriell, 2014 ONSC 1100, [2014] O.J. No. 882 at para 56 (S.C.J.).

[20] R. v. Nicolosi, 2015 ONCJ 653, [2015] O.J. No. 6120 (O.C.J.) is a case in which a screening device had to be brought to the arresting officer by another officer. The arresting officer testified that he believed it was in proper working order when he used it, even though it was only after he used it that he obtained the information that the delivering officer had self-tested it, and had found it had been calibrated properly, and was in proper working order. West J. stated the following:

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

22 Ms. Izakelian argues the Crown is required to prove the ASD used by P.C. DeMarco was in proper working order and that the results from the test were reliable. She cites the following cases to support her proposition: R. v. Haas, [2005] O.J. No. 3160 (CA); R. v. Persaud, [2011] O.J. No. 1559 (ONSC); R. v. Johnston, [2007] O.J. No. 500 (ONCJ); R. v. Desmarais, 2011 ONSC 3723; R. v. Topaltis, [2006] O.J. No. 3181; R. v. Mastromartino, [2004] O.J. No. 1435 (ONSC); and R. v. Binelli 2010 ONSC 539. It is her position P.C. DeMarco was unaware as to whether the ASD provided by P.C. Morgan was calibrated appropriately or whether it was in proper working order. She argues the onus is on the Crown to prove the ASD is working properly in order to establish the warrantless search was reasonable.

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

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

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

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

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

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

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

An officer using an ASD need only have a reasonable belief that the device is properly calibrated and in working order before relying on a "fail" result to confirm his or her suspicions that a driver may be impaired or over the legal limit. There is no requirement the officer knew the calibration setting of the device, when it was last calibrated, or whether the device was in fact working properly: R. v. MacPherson, unreported, released, March 11, 2004 (S.C.J.); R. v. Coutts (1995), 45 O.R. (3d) 288 (Ont. C.A.); R. v. Hill [2001] O.J. No. 4505 (S.C.J.) (QL).

28 The issue of what must be proven by the Crown respecting the proper working condition of the ASD is discussed in the Court of Appeal decision of R. v. Coutts (1995), 45 O.R. (3d) 288. As Moldaver J.A. noted in Coutts at pp. 294-295:

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

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

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

38 The appellant places particular reliance on the Court of Appeal's judgment in R. v. Haas (2005), 76 O.R. (3d) 737, in support of his position that the Intoxilyzer readings should be excluded because objectively the officer's belief was unreasonable and that there was an onus on the Crown to lead calibration evidence and evidence the ASD was working properly. The issue in Haas was whether the Crown or defence bore the onus where the accused alleged a breach of s. 8 in the course of a warrantless search. Collins v. The Queen, [1987] 1 S.C.R. 265 held in the early days of the Charter that where the accused establishes that a search was warrantless, the onus of proving reasonableness was on the Crown.

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

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

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

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

[21] In Mr. Greenwood's case, officer Vandervelde said in his evidence in chief that before using the approved screening device he self-tested it and believed it to be functioning properly. In cross-examination, he testified that the device in question had to be calibrated every two weeks, and that he does not take out one which has not been calibrated, although he did not make a note of when it was last calibrated. In re-examination, he said that there is a calibration sticker on the device. The Crown did ask a leading question when she queried the witness as to whether that was something he looked for when taking the screening device out on the road, but that did not vitiate the crucial evidence given during examination in chief and in cross-examination.

[22] I agree with West J.'s summary of the law in this area and I find as a fact that officer Vandervelde had a reasonable subjective and objective belief that the screening device had been calibrated and was in proper working order.

[23] Therefore, I conclude that there have been no breaches of section 8 or 9 of the Charter.

Was the Demand Made Pursuant to s. 254(3) Made "As Soon As Practicable?"

[24] In R. v. Nicolosi (supra), the arresting officer completely forgot to read the demand, but it was given to the defendant at the station by the breath technician:

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

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

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

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

s. 254(3)(a) If a police officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the police officer may, by demand made as soon as practicable, require the person

(a) to provide as soon as practicable,

(i) samples of breath that, in a qualified technician's opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person's blood.

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

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

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

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

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

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

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

[25] In Mr. Greenwood's case, officer Vandervelde initially forgot to read the demand to him at the scene. One minute after leaving for the police station with the defendant, he pulled over by the roadside to read the demand. The delay was from the arrest at 2:47am until the demand was read at approximately 2:58am. I find as a fact that the officer corrected his error as soon as possible and that the delay was minimal.

[26] Once again, I agree with West J.'s decision and conclude that there have been no breaches of section 8 or 9 of the Charter.

Conclusion

[27] The Crown's evidence is credible and trustworthy and on the trial proper I conclude that the defendant is guilty beyond a reasonable doubt of the charge before this court.

Released: August 31, 2016

Signed: "Justice Alan D. Cooper"