Ontario Court of Justice

Date: December 19, 2016

Court File No.: Central East Region: Newmarket: 15-08951

Between:

Her Majesty the Queen

— AND —

Ledion Qemo

Before: Justice Peter C. West

Evidence heard: September 19, 2016

Oral Submissions heard: September 19, 2016

Reasons for Judgment given: December 19, 2016

Counsel

Ms. M. Daigle — Counsel for the Crown

Mr. N. Schachter — Counsel for the defendant Ledion Qemo

WEST J.:

Introduction

[1] On November 7, 2015, Mr. Qemo was charged with operating a motor vehicle with over 80 mg of alcohol in 100 ml of blood, contrary to s. 253(1)(b) of the Criminal Code. The defence brought a Charter application alleging Mr. Qemo's s. 8 Charter rights were infringed. It was agreed by counsel that the Charter application could be dealt with in a blended hearing.

[2] The Crown called two witnesses during the trial, P.C. Taylor Hankins of York Regional Police, the investigating officer and P.C. Sean Skanes, the qualified breath technician. Mr. Qemo testified on the Charter application only.

[3] The sole issue raised by the defence was that P.C. Hankins did not turn her mind to whether Mr. Qemo had residual mouth alcohol prior to the ASD demand being made by the officer. Mr. Qemo testified his last drink was less than 15 minutes before he was stopped by the police. Consequently, P.C. Hankins could not rely on the "fail" result of the ASD because it would be a false "fail" and she therefore did not have reasonable and probable grounds to arrest Mr. Qemo for over 80 and make a demand pursuant to s. 254(3) of the Criminal Code. The defence argued this was a serious breach of Mr. Qemo's s. 8 Charter rights. It is the defence position the breath readings should be excluded pursuant to s. 24(2) of the Charter.

[4] The Crown argued the mere possibility of residual mouth alcohol does not preclude reliance on the ASD result. Officers are not required to inquire about the time of the last drink. Consequently, there was no breach of s. 8 of the Charter.

Factual Background

[5] On November 7, 2015, P.C. Hankins was in uniform and operating a marked police cruiser on general patrol. Her police cruiser was equipped with an in-car camera. The video was entered as Exhibit 1. At approximately 1:16:23 a.m., according to the video, a motor vehicle being driven by Mr. Qemo on Keele Street southbound can be observed. This vehicle crossed the center line on two occasions. At 1:16:33 a.m., the vehicle can be observed coming to an almost complete stop in the live lane of traffic. This occurred on two occasions. At 1:16:39 a.m., P.C. Hankins activated her emergency lights and her police siren and effected a traffic stop.

[6] P.C. Hankins testified she initiated the traffic stop to ensure the driver was sober and had not been consuming alcohol. At 1:17:39 a.m., the officer approached the driver's door of the vehicle. When P.C. Hankins got to the driver's door, the driver was on his cell phone. She testified she let him finish the call before asking him to roll down the window. As the driver's window was rolled down, P.C. Hankins detected an odour of alcohol coming from the interior of the vehicle. She asked the driver if he had been drinking that night. The driver told her, "I was at work tonight and had one drink."

[7] Mr. Qemo identified himself with a valid Ontario driver's licence. Mr. Qemo also told the officer he was a bartender and worked at Jane and Rutherford Road. She observed Mr. Qemo had bloodshot eyes. At 1:18:30 a.m., P.C. Hankins returned to her police cruiser. She inputted Mr. Qemo's information into the police computer.

[8] At 1:19:00 a.m., P.C. Hankins testified she formed a reasonable suspicion that Mr. Qemo had alcohol in his body. Her grounds for this suspicion were the bloodshot eyes and the admission by the driver he had consumed one drink of alcohol. At 1:20:20 a.m., P.C. Hankins returned to the driver's door and requested Mr. Qemo to turn off his car and put the keys on the dashboard. At 1:20:34 a.m., a second police officer, P.C. Allison arrived on scene.

[9] P.C. Hankins read Mr. Qemo the approved screening device (ASD) demand from the back of her notebook pursuant to s. 254(2)(a) of the Criminal Code. She then asked Mr. Qemo to accompany her to the front of her police cruiser. At 1:21:06 a.m., P.C. Hankins testified she could detect the odour of alcohol coming from Mr. Qemo's breath, although she had already formed her grounds for the ASD demand.

[10] P.C. Hankins had an approved screening device, Draeger Alcotest 6810, Serial # AREH0320, with her. This device is designed to detect consumption of alcohol. She had been trained on the use of this device. The device was in good working order and she tested it at the beginning of her shift when she blew into it and obtained a zero reading. She described the calibration of the device and testified a "fail" result indicated the person providing a breath sample was over 80 mg of alcohol in 100 ml of blood. Mr. Qemo was provided a new mouthpiece in a clear plastic wrap and she asked Mr. Qemo to remove it and attach it to the device. Mr. Qemo provided a sample of his breath, which resulted in a "fail."

[11] At 1:22:45 a.m., P.C. Hankins placed Mr. Qemo under arrest for over 80, as she formed the opinion his blood/alcohol concentration was over 80 mg of alcohol in 100 ml of blood. She contacted dispatch to advise she had an individual under arrest for over 80. Mr. Qemo was handcuffed and searched by P.C. Allison before being placed into the rear of P.C. Hankins police cruiser. Mr. Qemo was cautioned by P.C. Hankins because he began to talk to her about the charge. P.C. Hankins then read Mr. Qemo his right to counsel and she read the caution again from the back of her notebook.

[12] Mr. Qemo asked what would happen to his car and was told it would be impounded for 7 days. He was concerned whether his parents needed to be told about his arrest and P.C. Hankins advised him because one of his parents was the owner of the vehicle they had to be advised. P.C. Hankins testified she forgot to read Mr. Qemo the breath demand pursuant to s. 254(3) of the Criminal Code.

[13] At 1:34 a.m., P.C. Hankins left the scene to take Mr. Qemo to 4 District police station. They arrived at 1:41 a.m. at 2700 Rutherford Road in Vaughan. Mr. Qemo was booked by Staff Sgt. Villemere. Duty counsel was called at 2 a.m. as Mr. Qemo had requested to speak to duty counsel. Duty counsel called back at 2:14 a.m. and Mr. Qemo was taken to a private room to speak with duty counsel at 2:16 a.m. The call was completed at 2:24 a.m.

[14] At 2:25 a.m., Mr. Qemo was turned over to P.C. Skanes, the qualified breath technician. Prior to turning Mr. Qemo over to P.C. Skanes, P.C. Hankins advised P.C. Skanes of her grounds to arrest Mr. Qemo for over 80.

[15] In cross-examination P.C. Hankins testified she was sworn in as a police officer on January 8, 2015. She had investigated six impaired/over 80 cases prior to this investigation. She had a coach officer for the first five investigations and had conducted one investigation on her own prior to November 7, 2015. She tested the ASD at 19:35 hours on November 6, 2015 at the start of her shift.

[16] Mr. Qemo told her he had one drink at work that night. He had bloodshot eyes. She formed reasonable and probable grounds Mr. Qemo was over 80 because of the "Fail."

[17] It would take five minutes to drive from Jane Street and Rutherford Road to the location she stopped Mr. Qemo's vehicle.

[18] She was aware of certain things that can affect the accuracy of the ASD. If a driver blows into the ASD within 15 minutes of consuming an alcoholic drink she knows to wait 15 minutes before administering the ASD test. She agreed she did not inquire when Mr. Qemo consumed his one drink. She agreed she did not turn her mind to when Mr. Qemo had his last drink.

[19] She was aware P.C. Allison had searched Mr. Qemo's vehicle after the "fail" result. She did not specifically recall what type of bottle she was told was in car as she had no recollection of her conversation with P.C. Allison.

[20] In re-examination P.C. Hankins testified mouth alcohol was not in her mind at all.

[21] P.C. Skanes received Mr. Qemo into his custody at 2:25 a.m. from P.C. Hankins. P.C. Hankins provided P.C. Skanes with her grounds for the arrest; namely, the driver had crossed the centre line twice, he stopped for no reason in a live lane, detected the odour alcohol and he had bloodshot eyes and he failed the ASD. The offence occurred at 1:17 a.m. and he was arrested at 1:23 a.m. P.C. Skanes testified he detected a strong odour of alcohol on Mr. Qemo's breath, his face was flushed, his eyes were watery and bloodshot and his clothing was disorderly. P.C. Skanes believed he had alcohol in his body and knew he had failed the ASD. As a result he believed he had reasonable and probable grounds Mr. Qemo's blood/alcohol concentration was over 80. He read a breath demand pursuant to s. 254(3) to Mr. Qemo at 2:27 a.m.

[22] Mr. Qemo blew into an Intoxilyzer 8000C, which is an approved instrument. It was working properly and able to receive and analyze samples of breath. The Intoxilyzer performed the diagnostic test, calibration test and self-test within appropriate parameters and was in proper working order. Mr. Qemo's first sample was completed at 2:29 a.m., it was suitable for analysis and resulted in a reading of 158 mg of alcohol in 100 ml of blood. The second breath sample was taken at 2:52 a.m. and resulted in a reading of 138 mg of alcohol in 100 ml of blood. Mr. Qemo was returned to the cells at 2:56 a.m.

[23] P.C. Skanes agreed mouth alcohol can affect the accuracy of the ASD. If the investigating officer learns the driver has consumed their last drink within 15 minutes the officer should wait 15 minutes before administering the ASD. If the driver does not express they just had a drink the officer would not know and could administer the ASD.

[24] Mr. Qemo testified he was employed on November 6, 2015 at Ascott Parc Event Centre as a supervisor/bartender. This venue is located at 2780 Rutherford Road. He started work at 3 p.m. on November 6, 2015. He did not consume any alcohol before going to work. The bar closed at 1 a.m. by law. He had fought with his girlfriend that day and this caused him to have a few drinks, which he testified was between 5 or 6 drinks; gin and tonic. He was getting his alcohol from work, which he is not allowed to do. At the end of his shift, at 12:30 a.m. it was not very busy. He had a half bottle of gin and tonic, which he put in his bag. He finished work at 1 a.m. and went downstairs. He took a shot of gin and tonic from the bottle. He put his bag on the passenger's seat and started driving at 1:12 a.m. He called a friend and was on the phone when he saw the police car behind him.

[25] The wedding ended at 1 a.m. He knows he left at 1:12 a.m. because of calls he was making on his phone. After he was stopped he told the officer he only had one drink. He agreed he did not tell the officer when he had the drink. He did not tell the officer when he finished his work.

[26] In re-examination he testified he told the officer he only had one drink because he was afraid and thought he could get away with drinking and driving if he said he only had one drink. The officer never asked him when he had his one drink.

Analysis

[27] There was no argument by the defence that P.C. Hankins' suspicion Mr. Qemo had alcohol in his body was unreasonable. I find that P.C. Hankins did have a reasonable suspicion that Mr. Qemo had alcohol in his body while he was driving his car. The admission by Mr. Qemo that he had consumed one drink and the odour of alcohol emanating from inside the vehicle where Mr. Qemo was the sole occupant was more than sufficient to provide an objective basis for P.C. Hankins' reasonable suspicion. (See R. v. Lindsay, [1999] O.J. No. 870 (Ont. C.A.), at para. 2 and R. v. Singh, [2006] O.J. No. 5133 (Ont. Sup. Ct), at paras. 12-19).

[28] The defence questioned P.C. Hankins as to whether she had turned her mind to whether Mr. Qemo had consumed alcohol within 15 minutes of being stopped. P.C. Hankins testified Mr. Qemo told her he had one drink at work that night. He also told her he was a bartender. There was no way for P.C. Hankins to know when Mr. Qemo had last consumed an alcoholic drink. The defence focused his questions not on what P.C. Hankins believed at the time of stopping Mr. Qemo but what her training was respecting mouth alcohol. In my view, what is important is the officer's belief at the time of the investigation. See R. v. Mastromartino, [2004] O.J. No. 1435 (S.C.J., Durno J.), at paras. 20-28 and R. v. Einarson, [2004] O.J. No. 852 (C.A., Doherty J.), at paras. 15-35. P.C. Hankins was aware of the practice by York Regional Police, which she followed, of waiting 15 minutes before administering the ASD if she became aware an individual had consumed alcohol within 15 minutes of the traffic stop.

[29] It is important to note Mr. Qemo's evidence on this issue. He agreed he did not advise the officer he had just consumed a drink of gin and tonic from this bottle that was in his bag on the front passenger's seat minutes before being stopped. He also agreed he did not advise the officer when he finished his last drink. He agreed he told the officer he had one drink at work that night and he was a bartender. Further, Mr. Qemo agreed he did not tell the officer when he finished work. In my view, P.C. Hankins cannot be a mind reader. P.C. Skanes testified he was aware that mouth alcohol could affect the accuracy of an ASD test and if an officer learns a driver has consumed alcohol within 15 minutes of being stopped by police, the officer should wait at least 15 minutes from the time the last drink was consumed. P.C. Skanes evidences presupposes the officer being aware of when the driver consumed his last drink.

[30] It is important to note Mr. Qemo did not tell P.C. Hankins the truth as to the quantity of alcohol he had consumed at work that night. In fact, he admitted he lied to P.C. Hankins because he thought he could get away with drinking and driving by telling the officer he only had one drink. It is difficult to see how I could find Mr. Qemo's evidence to be credible or reliable as to when he says he had his last quick drink given his admission of lying to the officer.

[31] Mr. Schachter points to Justice Durno's decision in R. v. Mastromartino, supra, at para. 23, as providing support for his argument that because P.C. Hankins did not consider asking Mr. Qemo when he consumed his last drink, she cannot rely upon the "fail" result to provide her with RPG to arrest Mr. Qemo for over 80. With respect, Mr. Schachter completely misconstrues Justice Durno's reasoning. P.C. Hankins did address her mind to whether she was obtaining a reliable and accurate reading from the ASD she used. Justice Durno was discussing whether a police officer could briefly delay administering the ASD where there is "credible evidence which causes the officer to doubt the accuracy of the test result." For example, where a driver advises the officer they just finished their last drink at a bar close to where they were stopped or where an officer observes an individual leave a drinking establishment, get into their car and shortly after the officer stops the vehicle, the officer could reasonably decide to briefly delay the taking of the ASD to ensure its accuracy.

[32] However, in the evidence before me there was no credible evidence to cause P.C. Hankins to delay the ASD test. "The mere possibility that a driver has consumed alcohol within 15 minutes before taking the test does not preclude an officer from relying on the accuracy of the screening device" (see R. v. Bernshaw, [1994] S.C.J. No. 87 (S.C.C.), at para. 38; R. v. Einarson, supra, at para. 35; and R. v. Mastromartino, supra, at para. 23). Further, Justice Durno in Mastromartino, at para. 117, goes on to find, "…officers are not required to ask drivers when they last consumed alcohol."

[33] In R. v. Bernshaw, supra, at para. 80 the Supreme Court of Canada held:

In the present case, there is absolutely no evidence with respect to the timing of the respondent's last drink. That is, it is unknown whether any alcohol was consumed within a period of 15 minutes prior to the screening test. The police officer made no inquiry concerning how long it was prior to administering the screening test that the respondent last consumed alcohol. Without Constable Mashford having this knowledge, it is too speculative to assert that the screening device result was unreliable. 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. [Emphasis added]

[34] It is my view Bernshaw is a complete answer to the defence assertion that because P.C. Hankins did not ask Mr. Qemo when his last drink was consumed she cannot rely on the "fail" result as giving her reasonable and probable grounds to believe Mr. Qemo blood/alcohol concentration was over 80. P.C. Hankins did not have any credible evidence of Mr. Qemo consuming alcohol less than 15 minutes before she stopped him. Further, Doherty J. in Einarson, supra, at para. 35, comes to the same conclusion, which is cited by Durno J. in Mastromartino, supra, at para. 22:

Bernshaw makes it clear that the mere possibility that a driver has consumed alcohol within 15 minutes before taking the test does not preclude an officer from relying on the accuracy of the statutorily approved screening device. Where an officer honestly and reasonably concludes on the basis of available information that he can form no opinion as to whether the driver consumed alcohol within the prior 15 to 20 minutes, the officer is entitled to rely on the accuracy of the statutorily approved screening device and administer the test without delay. [Emphasis added]

[35] In Einarson, the police officer observed the accused leave a bar just prior to the officer effecting the traffic stop. Doherty J., at para. 29, in dealing with whether the officer should have briefly delayed the approved screening device test held:

…As in Bernshaw, it was "unknown whether any alcohol was consumed within a period of 15 minutes prior to the screening test". The assertion made in this case that the result of the test performed by Constable Williams could be unreliable is no less "speculative" than was the assertion in Bernshaw that the test result could be unreliable. In the circumstances based on the information he had, Constable Williams, like the officer in Bernshaw, was entitled to rely on the accuracy of the statutorily approved screening device and administer the test immediately so as to potentially minimize the detention of the respondent. [Emphasis added]

[36] P.C. Hankins testified she knew she had to wait 15 minutes to ensure the accuracy of the ASD result if she became aware the driver had consumed alcohol within 15 minutes of being stopped by the police. This was part of her training. I accept P.C. Hankins' evidence in this regard and I find if Mr. Qemo had told her that he had consumed this one drink just before driving from Rutherford and Jane, P.C. Hankins would have waited 15 minutes before administering the ASD. However, Mr. Qemo did not tell her when he had consumed the one drink he told he had. In fact, what he told the officer is he had just one drink while at work that night. I find it is a reasonable inference for P.C. Hankins to conclude this one drink was consumed by Mr. Qemo more than 15 minutes prior to his being stopped by the police. Consequently, there is no valid reason for P.C. Hankins to briefly delay the ASD test and she was entitled to obtain the ASD test without delay. Further, P.C. Hankins was not required to ask when Mr. Qemo last consumed alcohol (R. v. Mastromartino, supra, at paras. 23 and 26). In my view, it would be speculation, as indicated in Bernshaw, to find Mr. Qemo had consumed alcohol within 15 minutes of being stopped such that it would have affected the "fail" result.

[37] Consequently, unless P.C. Hankins had information to suggest Mr. Qemo had consumed alcohol within 15 minutes of being stopped there is no obligation for her to inquire as to when his last drink was finished or delay the administering of the ASD test.

[38] The issue is whether or not the officer had a reasonable suspicion to make an approved instrument demand at the time the demand was made, not on the basis of the trial record. In R. v. Oduneye (1995), 1995 ABCA 295, 169 A.R. 353 (Alta. C.A.), the test was framed as follows:

...the question of the existence of reasonable and probable grounds must be based upon facts known by or available to the peace officer at the time he formed the requisite belief.

[39] In R. v. Censoni (2001), 22 M.V.R. (4th) 178 (S.C.J.), Hill J. approved of the above comments in R. v. Oduneye and also cited the following judgment of the Alberta Court of Appeal in R. v. Musurichan, (1990), 56 C.C.C. (3d) 570 with approval:

The important fact is not whether the peace officer's belief, as a predicate of the demand, was accurate or not, it is whether it was reasonable. That it was drawn from hearsay, incomplete sources, or that it contains assumptions, will not result in its legal rejection by resort to facts which emerged later. What must be measured are the facts understood by the peace officer when the belief was formed ... [Emphasis added]

[40] It is also interesting to note that Mr. Qemo did not testify as to the exact time he consumed the last shot of vodka and tonic from the bottle. He testified he finished work at 1 a.m. and because it had not been busy from 12:30 a.m. he was able to clean up before he left at 1 a.m. On his evidence he had the final drink before he got into his car. He testified he knew he left the parking lot at 1:12 a.m. because of calls he was making. From the evidence I find there is a reasonable inference these calls occurred prior to his leaving the parking lot and after he had the final shot of vodka and tonic. Mr. Qemo never testified how many calls he made or how long they lasted. He also never produced any cell phone records to substantiate when the calls were made. Mr. Qemo never provided a time of when he consumed the final shot, other than it was after he went downstairs to the first level at 1 a.m. Consequently, if he consumed this final shot anywhere between 1 a.m. and 1:07 a.m. the first breath sample would have been received more than 15 minutes after this final shot and mouth alcohol would not have been present.

[41] The defence has not challenged the operation of the ASD in their Charter application. It is my view, however, the following cases provide further support for my finding P.C. Hankins was entitled to rely on the "fail" result of the ASD as giving her RPG to arrest Mr. Qemo for the offence of over 80. In R. v. Ho, [2015] O.J. No 3997 (C.A.), at para. 1, the Ontario Court of Appeal held "…the trial judge failed to consider the reasonableness of the officer's belief that the test result was reliable, but instead focused on whether the officer actually knew whether the result was reliable."

[42] 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).

[43] 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. (as he then was) 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.

[44] 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. Hankins does not need to know when the ASD was last calibrated, although she did know or whether the device was in fact working properly, although she tested it at the beginning of her shift and it was working properly. The issue is whether P.C. Hankins reasonably believed the ASD was working properly. I accept P.C. Hankins' evidence she believed the ASD was working properly as a result of her self-test and its calibration date.

[45] Considering all of the evidence before me, I find P.C. Hankins had reasonable and probable grounds to arrest Mr. Qemo for over 80. I further find P.C. Hankins honestly and reasonably concluded on the basis of the information available to her that she could rely on the ASD "fail" result as being accurate. There is no breach of s. 8 of the Charter. P.C. Hankins was not required to inquire when Mr. Qemo had his last drink and it would be speculation for me to consider mouth alcohol as affecting the ASD "fail" result. The two breath readings are therefore admissible in evidence.

[46] The defence has raised no other Charter issues respecting the admissibility of the breath samples and consequently, Mr. Qemo is convicted of the over 80 charge.

Released: December 19, 2016

Signed: Justice Peter C. West