Court Information

Ontario Court of Justice

Date: September 25, 2017

Court File No.: Sundridge 16-160360

Parties

Between:

Her Majesty the Queen

— and —

Colin Crump

Judicial Officer and Counsel

Before: Justice A. H. Perron

Heard on: May 3, 2017

Reasons for Judgment released on: September 25, 2017

Counsel:

• W. D. Beatty, for the Crown
• Brian Starkman, for the defendant Colin Crump

Reasons for Judgment

Perron, J.:

Introduction

[1] Colin Crump is charged with failed or refused to supply a breath sample contrary to section 254(2) of the Criminal Code of Canada in relation to an incident that happened in the Township of Armour on June 3, 2016. The matter proceeded to trial on May 3, 2017 with two police officers testifying during the trial. Submissions were provided on that date with defence counsel raising three specific issues.

[2] Counsel were not able to properly articulate their position concerning two of these issues as they did not have access to any case law from this satellite court. Accordingly, written submissions were ordered with specific instructions given and outlined in a lengthy endorsement.

Facts

A quick highlight of the facts are as follows:

[3] Members of the Almaguin Highlands detachment of the OPP were conducting a speed enforcement program on a northbound ramp on Highway 11 in the Township of Armour. During this program, they had the occasion to stop a pickup truck operated by Colin Crump, the accused in this matter. The police immediately detected the odour of alcohol from inside the motor vehicle and saw an open bottle of beer. The police requested the driver exit the motor vehicle and police confirmed that the smell of alcohol that they had detected was from the accused's breath. An approved screening device demand was made of the accused at 7:54 PM. Mr. Crump had no issue and provided a suitable sample which was analyzed and resulted in a fail. He was therefore arrested for operation of a motor vehicle with over 80 mg of alcohol per hundred milliliters of blood. He was then transported to the police detachment and arrived there at 8:13 PM.

[4] Upon arrival, he was placed in holding cells processed and the police contacted duty counsel as requested by the accused. At 8:35 PM, after he finished talking to duty counsel, Mr. Crump was turned over to Constable Bender, a qualified Intoxilyzer technician. She in fact testified that she was prepared to receive the first sample of the accused breath at 8:20 PM however waited until he had concluded his conversation with duty counsel.

[5] Once Mr. Crump was in the custody of Constable Bender, she provided him with a recap of his rights to counsel and caution. The Intoxilyzer 5000 C provides for a five minute time frame in order to provide a first sample. If an appropriate sample is not provided in that timeframe, the machine will timeout and needs to be reset. In this particular matter, the instrument timed out on three occasions. Mr. Crump was demonstrated and explained how to provide a suitable sample. He was coached through the samples and in fact was given a number of warnings of the consequences of not providing a suitable sample. After 20 or more attempts, he failed or refused to provide a suitable sample and was charged accordingly.

[6] This matter started out as a blended trial and Charter application. At the conclusion of the trial, defence conceded that he would not be successful on his Charter application and requested that same be dismissed as abandoned.

Issues

[7] Defence argues that there are three issues that this court must consider:

1. The crown has not proven beyond a reasonable doubt that there was a willful failure on the part of the accused to provide a suitable sample;

2. The crown has not proven beyond a reasonable doubt that the arresting officer had reasonable and probable grounds to make a breath demand.

3. The consequences of two breath demands.

Issue 1: Proof Beyond a Reasonable Doubt of a Willful Failure

[8] Constable Bender testified during this trial and indicated that she was the qualified technician on duty who attempted to administer an Intoxilyzer test on this accused.

[9] She mentioned that she was present at the ride stop with Constable Nagtegaal when this motor vehicle was stopped. Once she realized that there was a need for an Intoxilyzer test, she left the scene before him in order to attend the detachment.

[10] The accused was eventually turned over to her custody in order for her to administer the test. She mentioned that she first introduced herself and then revisited the issues of his rights to consult a lawyer. She once again read the breath demand in the breath room at the Almaguin Highlands detachment of the OPP. She then explained what she did to prepare herself and the instrument to receive breath samples from the accused.

[11] She provided the accused a new mouthpiece and asked him to open the package and place it on the air tube. She mentioned that you have five minutes to provide a suitable sample. This time elapsed and it appeared to her that he was not blowing properly. He was puffing his cheeks but no air was coming out. He did this for about five minutes while she was coaching him and how to properly supply a sample.

[12] The instrument timed out and she therefore had to reset the instrument in order to receive a suitable sample. It appears from her testimony that the instrument timed out a number of times. After every reset of the instrument, she would provide him for new mouthpiece to use. At one point in time, she got the accused to take the mouthpiece and to blow into her hand. She indicated that at that time he was able to blow properly. She was however concerned that there was a difference in his blowing from when he blew on her hand and when he was blowing in the instrument. He was cutting off the air and same was not going into the instrument.

[13] She testified that she provided the accused with more than 20 opportunities in three different breath sequences to provide a suitable sample. She eventually cautioned him on the consequences of refusing to provide a breath sample and continued coaching him in an attempt to obtain a suitable sample. As same was never provided, he was therefore charged with refuse to provide a breath sample and eventually returned to the cells.

[14] During cross-examination, she did testify that when a proper sample is being provided an audible tone can be heard. She did say that on some occasion she could hear the tone but same was not long enough. It was only an intermittent tone. It was her belief that he was not trying however the accused was advising her that he was so she therefore gave him the benefit of the doubt and allowed him more than 20 attempts.

[15] Defence counsel argues that there is a doubt that the accused willfully failed to provide a breath sample. He explains that the officer herself testified that she gave him the benefit of the doubt.

[16] In my view, defence counsel is taking Constable Bender's evidence out of context. She did say she did give the accused the benefit of the doubt however, that is to explain why he had more than 20 attempts to provide a sample. She obviously had no doubt after all of these attempts as she charged him with the offence of refusal to provide a breath sample. In my view, after someone has been coached and warned of the consequences of not providing sample and is provided with more than 20 opportunities, that there is no doubt that he willfully failed to provide a sample and this court has no issues in finding beyond a reasonable doubt that this accused did willfully fail to provide a sample.

Issue 2: Reasonable and Probable Grounds to Make a Breath Demand

[17] In order to make a breath demand under section 254(3) of the Code, the officer needs to have reasonable and probable grounds that the person has within the preceding three hours committed an offence under section 253. The existence of reasonable and probable grounds entails an objective and subjective component that is, the code requires that the police officer subjectively have an honest belief that the suspect has committed an offence and objectively there must exist reasonable grounds of this belief. One must remember that the officer only needs reasonable and probable grounds to believe that the suspects' ability to operate a motor vehicle was only slightly impaired by the consumption of alcohol. On review by a trial judge, the court must be satisfied that a reasonable person standing in the shoes of the officer would have believed the individual's ability to operate a motor vehicle was impaired. This is not an onerous test. One must be careful not to inflate it to the context of testing trial evidence.

[18] It is clear from the evidence of Constable Nagtegaal that he only had reasonable suspicion that Mr. Crump had consumed alcohol based on the smell on his breath. He therefore had to rely on the ASD in order to form his reasonable and probable grounds to make a breath demand. Defence counsel suggests the testimony of this officer indicates that he did not know what the results of the ASD test meant and accordingly he could not rely on the ASD to form his reasonable and probable grounds.

[19] What is important to note is that even though this matter started as a blended trial and Charter application, counsel abandoned his Charter application mid trial and same has now been dismissed. The case law provided to me by counsel are all in relation to violations of section 8 of the Charter followed by 24(2) Grant analysis.

[20] Defence counsel relies on the decision of R. v. Inder-Bains, [2014] OJ No. 5441 which is an appeal to the Superior Court of Justice with the argument based as a section 8 Charter violation. He also relies on the decision of R. v. Hoare, [2005] OJ No. 6462 which also proceeded as a blended Charter voir dire and trial. The decision in R. v. Nymans, [1998] OJ No. 4064 in fact does not make any reference to approved screening devices and therefore can easily be distinguished on its facts.

[21] The crown relies on the decision of R. v. Haladus, [2008] OJ No. 1034 which also makes reference to a Charter application. However, the decision of R. v. Chatoor, [2013] OJ No. 3675 is not based on a Charter application but based on an issue of a breathalyser technician not properly describing the results of a breathalyser test.

[22] None of the case law in my view filed by either counsel is directly on point. However, I do have intention on relying on some of the general principles outlined in in them, even though they can all be distinguished.

[23] In reviewing the totality of the evidence of Constable Nagtegaal, he clearly misunderstands the functioning of an Alcotest 6810. He clearly identified the ASD device that he was using and testified about the last calibration and accuracy test done on the instrument. At the beginning of his shift, he did a self-test of the instrument and deemed that it was satisfactory to use during his shift.

[24] When questioned in chief about the results that the instrument can provide, he first said that it would give you a fail or a warn result. He was then asked what the blood alcohol concentration was for a fail where and he replied ".49 essentially". He then added "milligrams per hundred millilitres" and then continued by saying that a fail meant "anything over 80 mg per hundred millilitres". He immediately corrected himself and said that a fail would be at 100 mg. He then testified that he was satisfied that the instrument was working properly and that there were no defects. He then testified that he questioned him as to when his last drink was which leads me to believe that he clearly understood about the issue of mouth alcohol residue. He then demonstrated the use of the instrument by doing a self-test in front of the accused. The first sample was received and analysed and provided a result of failed. He then showed the screen result on the instrument to the accused and advised him that he was under arrest for over 80 mg per hundred millilitres. He then clarified that it was his understanding that Mr. Crump was over the legal limit as he was over 80 mg.

[25] Later on back at the station, he had to provide the qualified breathalyser technician his grounds for arrest. Among other things, he advised her that Mr. Crump had failed the ASD, and therefore had over 80 mg of alcohol per hundred millilitres of blood in his body.

[26] During cross-examination, he was specifically asked if his testimony of .049 mg for a fail was accurate. His reply was that he is not exactly sure but it was in that range. He then testified that .50 and above would be a fail.

[27] During re-examination, he confirmed that the numbers he was providing were wrong and that he knew that the instrument was calibrated to register a fail at 100. He then clarified that for anything below .049 that you would get an actual numerical reading.

[28] Clearly, there has been some misstatement from the officer on the measurement of the blood-alcohol concentration and the results provided by an ASD. Case law has been provided even though not exactly on topic which makes reference to officers making reference to readings of .08 rather than 80 mg of alcohol per hundred millilitres of blood.

[29] What the crown must prove in this particular matter is that the officer had reasonable and probable grounds to make a demand. The officer clearly knew the importance of verifying the accuracy and calibration of the instrument prior to use in same. He did at least two self-tests during his shift in order to verify that the instrument was working properly. He knew of the importance of verifying as to when the suspect's last drink was. Of great importance also is that it was his belief that the instrument was working properly. Even though he misspoke on more than one occasion as to the associated blood-alcohol concentration results for a warn reading, he clearly knew that a fail result meant that the suspect was over the legal limit. His reliance on the ASD in my view was reasonable in all the circumstances viewed objectively.

[30] Accordingly, I conclude that Constable Nagtegaal did have reasonable and probable grounds to make a breath demand and accordingly that demand was a valid demand as provided by the Criminal Code.

Issue 3: Two Breath Demands

[31] Section 254(3) provides that a breath test conducted pursuant to that section may be taken pursuant to demand based on reasonable grounds. Section 254(5) then sets out an offence of failing or refusing to comply with a breath demand. The code contemplates that the officer making the demand must believe that an offence under section 253 of the code has occurred within the preceding three hours. This demand must be made as soon as practicable and the code provides that sample for analysis by a qualified breath technician must also be taken as soon as practicable.

[32] The variety of case law provided to the court by both counsel clearly contemplates the possibility of having two breath demands. To outline this, defence refers to a variety of decision including Justice Durno decision in R. v. Dhaliwal [2005] OJ No. 1129. Paragraph 26 of that decision mentions:

[26] As long as there was evidence of a valid demand, either the technician was acting as the agent for the demanding officer, or there was a continuing demand: R. v. Nasseir, [1998] OJ No. 2166 (Gen. Div.); R. v. McNeill, [2001] OJ No. 3770 (S.C.J.); R. v. Dhinsa, [2003] OJ No. 876 (O.C.J.). Where the accused is charged with refusing to provide a breath or Approved Screening Device sample, the name of the officer who made the demand is routinely included in the wording of the information, and it would have to be established that that officer made the demand. The name of the officer who made the demand is not an essential element of the offence of driving having consumed excess alcohol provided there is evidence of a valid demand.

[33] Reference is also made to Justice Kenkel's decision in R. v. Yin, [2016] OJ No. 7051, which clearly mentions that the crown had proved a second lawful demand or that the qualified breath technician demand would be a repetition of the continuing valid demand made by the arresting officer. He concludes paragraph 16 by saying that "The crown only needs to prove one lawful demand".

[34] While the crown also makes reference to the Dhaliwal decision, they rely on the Ontario Court of Appeal decision of R. v. Townsend, [2007] OJ No. 1686. Defence counsel suggests that I should not rely on this Court of Appeal decision as it is only a three paragraph endorsement. I do clearly understand the caution given by the Ontario Court of Appeal in R. v. Singh (2014), 2014 ONCA 293, 120 OR (3d) 76. However, the Townsend decision, as well as the other decisions noted above, clearly show that all the crown needs to prove is that there has been a valid demand.

[35] I have already ruled that the arresting officer's breath demand was a valid demand. By applying the case law noted above, all that the crown must prove is there has been a valid demand. The fact that there was a subsequent demand or whether this was a valid or not a valid demand in our view is irrelevant. As long as there is one valid demand that is acted upon this is sufficient to satisfy the provisions of the Criminal Code.

[36] As for the particularization of the information, Justice Durno is clear in the last sentence of paragraph 26 of the Dhaliwal decision when he mentions "The name of the officer who made the demand is not an essential element of the offence of driving having consumed excess alcohol provided there is evidence of a valid demand". I also adopt the reason in the decision of R. v. Lok, [2007] OJ No. 5423 on this point clearly realizing that I am not bound by that decision.

[37] Accordingly, I reject defence counsel's submission on this point.

Conclusion

[38] Accordingly, I am satisfied beyond a reasonable doubt that the crown has proven each and every element of the offence and accordingly, there will be a finding of guilt on the charge now before the court.

Released: September 25, 2017

Signed: "Justice A. H. Perron"