Court File and Parties

Ontario Court of Justice

Date: 2017-07-11

Court File No.: North Bay 15-2327

Between:

Her Majesty the Queen

— and —

Alexander Moore

Before: Justice A. H. Perron

Heard on: May 1, 2017

Reasons for Judgment released on: July 11, 2017

Counsel

Brigitte Laplante — counsel for the Crown

Christopher Avery — for the defendant Alexander Moore

Judgment

Perron, J.:

[1] Charge and Overview

Alexander Moore is charged with one count of operation of a motor vehicle with over 80 mg of alcohol per hundred millilitres of blood in relation to an incident that happened in Callander, Ontario on December 12, 2015. A blended trial and Charter Application was heard on May 1, 2017.

[2] Facts

A quick highlight of the facts is as follows. The investigating officer Constable Hampel received a dispatch at 12:17 AM of a possible impaired driver driving a black pickup truck. He located and stopped this motor vehicle on Highway 11 South at 12:24 AM. When he approached the cab of the motor vehicle, he saw three males. He immediately detected the smell of alcohol from the breath of the driver who is now the accused before the court. Mr. Moore advised that he was the designated driver and that he only had three beers with his last drink being approximately an hour and a half ago. He was asked to exit the motor vehicle in order that he can provide a breath sample into an approved screening device.

Constable Hampel advised that he read the breath sample demand after the accused was in his car at 12:33 AM. The accused provided his first sample at 12:35 AM which resulted in a fail. He was accordingly arrested and charged with Over 80. He was then provided his rights to counsel and caution. A formal breathalyzer demand was read to him at 12:37 AM.

Constable Hampel and Mr. Moore left the scene at 12:41 AM and arrived at North Bay police service headquarters at 12:54 AM. He was duly processed and temporarily placed in a holding cell. At 1:09 AM, he was escorted from his cell in order to speak to the lawyer of his choice. Once this was completed at 1:23 AM, he was immediately turned over to a qualified Intoxilyzer Technician Constable D. Wall.

Mr. Moore provided his first suitable sample directly into the Intoxilyzer 8000 C at 1:31 a.m. This first sample was analysed and provided results of 170 mg of alcohol per hundred millilitres of blood. The second sample was obtained at 1:52 a.m. and analysed with results of 160 mg for alcohol per hundred litres of blood. A number of documents were then served on Mr. Moore and he was eventually released from police custody.

[3] Defence Issues

Defence counsel alleges that there are two issues of concern:

1. The Intoxilyzer samples were not taken as soon as practicable as there are some unexplained delays between the time of arrival at police headquarters and the providing of the first sample

2. Constable Hampel did not properly utilize the ASD and therefore did not have the appropriate reasonable probable grounds to arrest Mr. Moore on the charge and accordingly, his Intoxilyzer reading should be excluded due to this charter violation pursuant to a section 24(2) analysis.

Defence counsel also confirms that besides the above two noted issues, he concedes that the crown has proven all the other necessary elements of the offence beyond a reasonable doubt on this matter. I thank counsel for this more than reasonable approach.

Issue 1: Delay in Obtaining First Sample

[8] Legal Framework

Section 258(1)(c)(ii) provides that when breath samples are taken as soon as practicable after the time the alleged offence has been committed, the accused's blood level is presumed to be at the same level at the time of the breathalyser test if same is taken no later than two hours after that time and with an interval of at least 15 minutes between the times the two samples were taken. In our particular case, counsel for Mr. Moore alleges the samples were not taken as soon as practicable and therefore this presumption cannot be relied upon. As we did not have a toxicologist testify during this trial, if this argument is successful, a finding of not guilty must result.

[9] Vanderbruggen Standard

The Ontario Court of Appeal in R. v. Vanderbruggen (2006), CCC (3d) 489, is a leading authority on this issue. That Appeal relates to the requirement the crown must meet to rely upon the presumption of identity in drinking and driving cases. It specifically addresses the issue of "as soon as practicable" as mentioned in section 258(1)(c)(ii) of the Code. In that leading decision, the Court of Appeal is dealing with a period of 46 minutes between the time the accused is placed in cells and then turned over to the breath technician. In paragraph 12 of that decision, Justice Rosenberg mentions that "decisions of this and other courts indicate that the phrase means that nothing more than the tests were taken within a reasonably prompt time under the circumstances. There is no requirement that the test be taken as soon as possible. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably."

He continues at paragraph 13 by saying that "in deciding whether the tests were taken as soon as practicable the trial judge should look at the whole chain of events, bearing in mind that the criminal code permits an outside limit of two hours from the time of the offense to the taking of the first test. The 'as soon as practicable' requirement must be applied with reason. In particular, while the crown is obligated to demonstrate that in all circumstances the breath samples were taken within a reasonable prompt time, there is no requirement that the crown provide a detailed explanation of what occurred during every minute that the accused is in custody."

In concluding that this is an issue of fact that the trial judge must decide, as Justice Rosenberg mentioned, it should not be interpreted so as to require an exact accounting of every moment in the chronology.

[12] Application to Facts

In the matter at bar, counsel is suggesting that there was some unreasonable delay from the arrival time at police headquarters at 12:54 AM and obtaining the first sample at 1:31 AM. In reviewing the testimony that was presented during this trial, very little information is provided as to what exactly happened during this period of time. At the conclusion of the Crown's case, defence counsel agreed that specific evidence did not need to be called and accepted that the crown advise me that Constable Whitehead escorted Mr. Moore from his cell to a privacy booth at 1:09 AM to permit him to speak to the lawyer of his choice, Nick St. Pierre. When this telephone call was completed at 1:23 AM, Mr. Moore was immediately escorted and turned over to the breathalyzer technician.

Constable Wall mentioned that once he had the accused presented to him, he reread the caution and breath demand to the accused. He also prepared the instrument in order to receive the first sample which included the quality assurance test and the machine doing the self-diagnostic in preparation of receiving this sample. This first sample was obtained and analysed within eight minutes of him being turned over to the Intoxilyzer Technician.

No specific evidence was presented to the court on exactly what happened between 12:54 AM and 1:09 AM. Constable Hampel mentioned that on arrival, Constable Macintosh had made arrangements for a phone call with his lawyer. He also mentioned that the accused would be processed by the resource platoon officer and shift supervisor and an arrest report would be prepared prior to him being placed in the cells. All of this took a total of 15 minutes.

[15] Court's Finding

In my view, it is clear that the police acted reasonably and that the test was taken within a reasonably prompt time under the circumstances. There was a total of 37 minutes between his arrival at police headquarters and the taking of his first breath sample. During that period of time, the police needed to prepare the arrest report, process the accused prior to placing him in the holding cells, a call was made to his counsel of choice, he was placed in a privacy booth and allowed to speak to the lawyer of his choice for 14 minutes. In my view, the police actions are not only reasonable but also show that he was processed in a very quick fashion in order to obtain the first breath sample as soon as practicable.

Accordingly, the samples where obtained as soon as practicable and the presumption as created by the code will apply.

Issue 2: Use of ASD in Order to Form Reasonable and Probable Grounds for Breath Demand

[17] Initial Assessment

It is clear from the evidence presented during this trial that Constable Hampel had the required reasonable suspicion in order to request a breath sample in an approved screening device. The evidence also clearly shows that without the use of the ASD results, Constable Hampel would not have had the appropriate reasonable and probable grounds in order to make the breath demand.

[18] Defence Position

Defence counsel suggests that Constable Hampel did not appropriately use the approved screening device and accordingly its results are not reliable and therefore same cannot be used to provide RPG on the breath demand. In order to support his position, he relies on the Ontario Superior Court decision of Justice Ducharme in R. v. Au-Yeung, 2010 ONSC 2292, [2010] OJ No. 1579. In this appellate decision, the court concluded that the arresting officer did not know how to use the ASD so he could not rely on the "fail" of the device. Following a Grant 24(2) Analysis the court concluded that admitting the breath sample in evidence would bring the administration of justice in disrepute.

[19] Crown Position

The crown disagrees with the defence's position and relies on the more recent appeal decision of the Ontario Superior Court in R. v. Huang, 2014 ONSC 4785, [2014] OJ No. 3820. In this decision, Justice McIsaac mentions that "rather than concentrating on the issues as to whether the roadside device was operating properly, the question he should have asked was whether the investigating officer could reasonably conclude from the failure of the roadside testing whether he was over the legal limit." After the 24(2) Grant analysis, the court concluded that the application to exclude the reading should have been dismissed.

[20] Live Issue

It is clear in reviewing Constable Hampel's evidence that there is a live issue about his understanding of the use of and the results of the Approved Screening Device.

[21] Constable Hampel's Evidence in Chief

During the examination in chief, he mentioned that he had an approved screening device, namely an Alcotest 6801 with him in his police cruiser and provided its serial number and that same had been calibrated on December 9, 2015. He also advised that he read the standard ASD demand at 12:33 AM to Mr. Moore. He then demonstrated how to use the ASD and did a self-test which provided a reading of zero. The accused provided a suitable sample on his first try at 12:35 AM. This sample provided a result of fail and the accused was therefore arrested for operation of a motor vehicle with over 80 mg of alcohol per hundred millilitres of blood. When specifically asked what a fail meant Constable Hampel mentioned that "the blood alcohol content is above the legal limit".

[22] Constable Hampel's Evidence in Cross-Examination

During cross-examination, he confirmed that sometime between 4:46 AM and 5:17 AM he verified that the ASD he utilized in this matter was properly calibrated. He clearly said that when he used the device at 12:35 AM he was unaware of the calibration date and only satisfied himself of the calibration date well after using the device. To his understanding, this particular model needs to be calibrated every two weeks. He confirmed that he received training on the use of the ASD by one of the forces breath tech. He mentioned it was a short demonstration and does not recall if any training material was provided. He is unaware as to when this training was he indicated it was something like five years ago. He was questioned as to whether he knew the North Bay Police Service or the Centre of Forensic Science's written policy on the use of an ASD. He mentioned that he was not aware of such policies or manuals.

He did mention that he does not recall the accused smoking at the time. He confirmed that if he was aware of him recently smoking he would have needed to wait at least 15 minutes before obtaining a sample. He also confirmed that he took the ASD device out of the case and turned it on by pressing the button. He mentioned that the instrument then goes through a cycle and eventually has a message that comes up on the screen saying that it passed its internal test. He mentions that there is a green light that comes up that says when it is ready. He mentioned that, to his knowledge, there is a sticker on the back of the device showing the date of calibration. He confirmed that he did not verify the calibration date of the device at the beginning of the test.

He was then specifically asked "At what was it calibrated to fail at?" To which he replied "I do not recall". He then mentioned that he "obtained a sample that put him over the legal limit of .08". He was clear that the instrument worked properly and he had no concerns with the device. The failure of the ASD test is the reason for the arrest. He also confirmed that he knew his last drink was 1 ½ hour ago and therefore was not concerned about mouth alcohol residue.

He continued by saying that when a sample is analysed as "Pass", this means that the readings are between 0 and 49 and that the device would show an exact reading. He mentioned that he was not sure if there was a colour code or any audible alarm with each result. When asked what is a warn, he mentioned it was over .05 and below either 80 or 100 but that he was not sure how it was calibrated. He mentioned that "the instrument gives you a display result of an alert for the warn range". When asked if there was colour, he mentioned that he was not sure but it would come up yellow for the alert, green for 0 to 50 and red for a fail.

[26] Constable Wall's Evidence

Constable D. Wall, the Intoxilyzer technician who testified during this matter, was briefly cross-examined on his understanding of the ASD and its operation. He did mention that he is trained in the use of them and that as a breathalyzer Technician, he would calibrate them once a week, usually on a Sunday. After calibration, they would place a sticker on them with their name and date of calibration. He did confirm that the devices they use simply show the word fail on the screen and that he is not sure of any audible alarms. He did however confirm that it has been quite a while since he has used one as he has been working as a detective since the incident.

[27] Comparison to Au-Yeung

In reviewing the totality of the evidence mostly from Constable Hampel on his use of the ASD in this matter, it would be grossly unfair to place him the same categorization of PC Wollenzien in the decision of Au-Yeung. In that matter, PC Wollenzien was unable to identify the type of ASD that he was using, never turned his mind to the issue of fresh mouth alcohol or asked when his last drink was, did not perform a self-test, never verified the calibration date and clearly admitted that he was not sure of the technical side of the use of the ASD. He clearly confirmed that he was not sure if he had used the device properly. One must also remember that this particular officer had performed two or three breath test on Mr. Au-Yeung that yielded no results.

[28] Constable Hampel's Knowledge

As for Constable Hampel, he clearly knew the importance of mouth alcohol residue and how recent smoking could also affect the instrument. He did perform a self-test and knew of the importance of verifying the calibration but only took note of it well after Mr. Moore had failed the Intoxilyzer test. He clearly had some difficulties in explaining the internal functioning of the ASD and how results are communicated. He was however very clear that he believed the instrument to be working properly and that he believes that he used it according to his training.

[29] Legal Test from Au-Yeung

In the Au-Yeung decision, Justice Ducharme mentions at paragraph 34 that the Code requires that the police officer subjectively have an honest belief that the suspect has committed a drinking and driving offence and that objectively there must exist reasonable grounds for that belief. He continues by making reference to the decision of R. v. Einarson (2004), 70 OR (3d) 286 (Ont. CA) which concluded that "if the officer does not or reasonably should not rely on the accuracy of the test result, it cannot assist in determining whether there is reasonable and probable grounds for the arrest." It later describes this as "litmus of reasonableness".

[30] Proper Test from Huang

The decision referred to by the Crown R. v. Huang mentions the proper question that should be asked is whether the investigating officer could reasonably conclude from the failure of the roadside testing that he was over the legal limit. It continues in saying that the absence of any evidence one way or the other on the issue of calibration could not have a negative impact on the objective basis of the officer's belief. Clearly, both for these decisions argued by counsel direct the court to assure itself that the reliance of the arresting officer on the ASD was reasonable under all the circumstances viewed objectively.

[31] Court's Finding on ASD Use

The simple answer to this question in the matter at bar is yes, clearly Constable Hampel does not know about all the bells and whistles of the ASD but he does understand its basic operation. He performed a self-test with the results he expected, he knew of the importance of waiting 15 minutes before administering the test if there was recent consumption of alcohol or tobacco and obtained a suitable sample on the first attempt. Clearly, there was some miss apprehension on how the instrument was calibrated however, he clearly understood that a fail meant that he would have reasonable and probable grounds to arrest the accused for operation of a motor vehicle over 80 mg of alcohol per hundred millilitres of blood. For these reasons, I conclude that Constable Hampel's conclusion from the failure of the ASD in providing him reasonable grounds for the arrest on this matter was reasonable under all of the circumstances.

Section 24(2) Grant Analysis

[32] Preliminary Comment

Having not found a violation of Mr. Moore's charter rights, it is not necessary to do a section 24(2) Grant analysis. However, since the decision of R. v. Huang and R. v. Au-Yeung reached different conclusions following this analysis, I do wish to briefly comment on this topic.

[33] Section 24(2) Framework

Under section 24(2) of the charter, once a breach has been found, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. The burden of proof of this is on the applicant on a balance of probabilities.

[34] Grant Test

R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, outlines the test for the exclusion of evidence under section 24(2). A court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regards to the following three points:

1. the seriousness of the charter infringing state conduct;

2. the impact of the breach on the charter protected interests of the accused and;

3. the society's interests in the adjudication of the case on its merits.

[35] First Grant Factor: Seriousness of Conduct

On the first grounds of the Grant template, I would adopt the position of Justice McIsaac in Huang when he mentions that "in no way can this conduct (of the arresting officer) be described as severe, deliberate, willful, reckless or flagrant which would tend to have a negative effect on the public confidence in the rule of law nor would it risk bringing the administration of justice into disrepute."

[36] Second Grant Factor: Impact on Charter Rights

As for the impact on Mr. Moore's protected charter rights, breath samples involve minimally intrusive procedures that do not reveal jealously protected biographical information. I therefore also adopt the conclusion reached in Huang on this part of the analysis.

[37] Third Grant Factor: Society's Interests

It is also clear that given the seriousness and the number of drinking and driving cases across this country, it is in the society's interests that these cases be adjudicated on their merits. I in fact reach the same conclusion of both Justices Ducharme in Au-Yeung and McIsaac in Huang on this third part of the analysis.

[38] Balancing the Factors

In balancing the three factors noted above and, as mandated by the Supreme Court of Canada, having regard to all the circumstances, the admission in the proceedings would not bring the administration of justice into disrepute and in the event that there would have been a charter violation, the readings should not be excluded pursuant to a Grant 24(2) analysis.

Conclusion

[39] Finding of Guilt

As all other elements of the offence are not contested and in my view have been proven beyond a reasonable doubt, and since the charter application has now been dismissed, there will be a finding of guilt on the charge now before the court.

Released: July 11, 2017

Signed: "Justice A.H. Perron"