Court File and Parties

Court File No.: 16-1154 Orangeville Date: October 3, 2017 Ontario Court of Justice Central West Region

Between: Her Majesty the Queen — and — Joey Lemos

Before: Justice Richard H.K. Schwarzl

Heard on: March 27 and September 18, 2017 Reasons released on: October 3, 2017

Counsel:

• Ms. Sandra Duffey for the Crown
• Mr. Douglas Lent for the Defendant

Reasons for Judgment

1.0: Introduction

[1] On October 5, 2016 the Defendant, Joey Lemos, was operating a motor vehicle that was stopped at a RIDE programme. As a result of a police investigation, the Defendant was charged with a single count of driving with excess blood alcohol concentration contrary to section 253(1)(b) of the Criminal Code of Canada.

[2] Three issues emerged at the trial. The first issue is whether the Defendant's right to be free from an unreasonable search and seizure as guaranteed by section 8 of the Canadian Charter of Rights and Freedoms (Charter) was violated by an improper breath demand. The second issue is whether the Defendant's right pursuant to section 10(a) of the Charter to be informed of his charge was breached. The last issue is whether the breath tests were taken as soon as practicable as required by law.

2.0: Issues and Analysis

2.1: Was the Defendant's section 8 Charter right violated?

[3] The Defendant submits that P.C. Vijay Rai, the officer who administered a roadside screening test upon him, was an unreliable witness who did not possess reasonable grounds to rely on the result of the test. The Crown submits that the officer was a reliable witness who acted reasonably in relying on the approved screening device test result to make a demand on the Defendant to provide breath tests at the station.

[4] P.C. Rai testified that he was justified in making a screening demand on the Defendant because he said he reasonably suspected that the Defendant was operating a motor vehicle with alcohol in his system. He said his suspicion was reasonably based on the following factors present at the time: (a) the Defendant was driving a car, (b) when asked if he had anything to drink, the Defendant answered "I had a couple of beers at a friend's place two hours ago" and (c) the officer could smell alcohol on the driver's breath.

[5] With respect to the question and answer regarding the Defendant's prior consumption of alcohol, P.C. Rai agreed with the Defendant that his note was limited to how much he drank and where and that his notes do not include any reference to when he drank. P.C. Rai added, however, that he did note the time of drinking in his Grounds Sheet made shortly after arriving at the police station. The officer also said that he had an independent recollection of the Defendant telling him he drank a couple of hours earlier.

[6] P.C. Rai was aware of the dangers of false positive tests if a subject blows into an approved screening device within 15 minutes of the test.

[7] P.C. Rai stated that it took the Defendant at least three opportunities to provide a suitable sample. P.C. Elwood recalled that the Defendant gave two unsuitable readings. Since P.C. Elwood was not the investigating officer and had no reason to be specific in his recall of the number of opportunities, I prefer P.C. Rai's testimony as to the number of opportunities given to the Defendant. The officer said that after the fail, the Defendant wanted to know the specific result to which the officer informed him there was no specific number given on the screening test but that he would be taken to the station where other tests would be done that would show an actual result.

[8] P.C. Rai told the Defendant he was under arrest for "driving over 80." In cross-examination, P.C. Rai acknowledged that his notes only state that the Defendant was arrested, but there is no note of the specific charge. He was also confronted with emails he wrote about this case wherein he said that the Defendant was told twice that he was arrested for impaired driving for failing a screening test. P.C. Rai responded to the challenge by stating that his use of the term "impaired driving" in the email was only meant as a generic term. I agree. If the Defendant had been arrested for impaired driving, it would have been unnecessary to conduct an approved screening device test. Such a test is traditionally used only where there is no reason to believe that the driver is showing any obvious signs of intoxication or impairment. The officer testified that in giving the Defendant his rights to counsel, he told him he was arrested for driving with more than 80 milligrams of alcohol per hundred millilitres of blood. He also said that he told the Defendant that if he passed the tests at the station, he would be released without charge. The Defendant was never charged with impaired driving. Assessing the evidence as a whole, I am satisfied that the Defendant was arrested for driving with excess blood alcohol concentration and was told so.

[9] Following the arrest, P.C. Rai cuffed the Defendant to the rear. The officer was certain that no other officer had any dealing with, or touched, the Defendant. P.C. Elwood testified that he helped P.C. Rai with the cuffing, but P.C. Rai did not recall this. P.C. Rai was also shown an email he wrote wherein he wrote that a couple of officers helped him cuff the Defendant. I accept that P.C. Rai's memory of who did, or did not, assist in cuffing the Defendant was poor at trial. Given his email, it is clear and the evidence of P.C. Elwood that P.C. Rai simply forgot that others helped him arrest the Defendant. This is a minor mistake that has no bearing on the issues at hand. I place no weight on this in assessing the reliability of P.C. Rai's evidence.

[10] Given the totality of the evidence, I am well satisfied that P.C. Rai had grounds to administer a screening test. I am also satisfied that the officer turned his mind to finding out when the Defendant drank, which was a couple of hours earlier. But this does not end the matter of whether the officer could reasonably rely on the fail result to make a breath demand.

[11] The approved screening device used in this case was the Drager Alcotest 6810. This particular device is highly sensitive. Due to this sensitivity the highest echelon of the Ontario Provincial Police issued a memorandum in November 2013 stating that hand sanitizers, fruit juices, sugary foods and drinks, and bread will affect the readings of the approved screening device (emphasis added). Officers were instructed to ensure that no food or drink is consumed 15 minutes before a test is commenced. Officers are also told that it is imperative to complete self-tests before commencing their shift and before and after a roadside test. The memorandum clearly implies that "fail" test results may well be unreliable unless all these steps are followed.

[12] P.C. Rai testified that he was well aware of the memorandum's contents at the time of this investigation. P.C. Rai tested the device earlier in his shift and shortly before stopping the Defendant but there is no evidence he did a self-test after the Defendant's fail result as required by the memorandum. P.C. Rai also testified that he did not ask the Defendant about consumption of fruit juices, sugary foods and drinks, and bread despite knowing he should. The officer testified that he could not explain why he did not comply with this instruction but added there was nothing to cause him to think the Defendant had consumed any sugary foods. The problem is that there was no reason to think that the Defendant had not consumed such foods.

[13] Assessing the evidence as a whole, it would appear that P.C. Rai did not eliminate the possibility of a false positive caused by the consumption of sugary foods or beverage as he knew he was required to do. Nor did he follow instructions to complete a self-test after the subject test. The Ontario Provincial Police memorandum creates clear and easily followed instructions to officers to eliminate what appears to be a real possibility of false positive tests with the approved screening device they have chosen to deploy. Knowing the instructions but not following them eviscerated any subjective belief of P.C. Rai that the screening test result was reliable. Thus, in these circumstances, the officer's reliance on the fail to make a breath demand was not reasonable. Therefore, the breath demand was based on an unreasonable search and seizure of the Defendant's breath. I find that in this case the Defendant's section 8 Charter right was breached by the State.

[14] Having found a violation of the Defendant's constitutional right, I must determine whether or not it is just to exclude the breath test results at the station. In my view, the breach was a serious one as it was an abrogation of a duty created by the police force to ensure reliability of a test result. That abrogation was not inadvertent as the officer was well aware of his obligation and it unexplained. Apathy towards one's duties can result in needless and avoidable false test results. There were no mitigating factors to ameliorate the seriousness of the breach. The impact on the rights of the Defendant were tangible and meaningful in that the breach undermined a fundamental right to be free from unconstitutional searches and seizures and the subsequent arbitrary detention. To condone or excuse the behaviour in this case would send a message to the public that, despite their Charter rights under sections 8 and 9 of the Charter, the police can ignore those rights by ignoring the duties they are aware of, and bound by. Both these factors weigh in favour of exclusion. On the other hand, the interests in trying the matter on its merits favours inclusion because this is a serious offence and the breath test results themselves are reliable. On balance, the interests of justice dictate that the breath test results be excluded.

[15] Given my findings on this first issue, by findings on the remaining two are moot. Nevertheless, for completeness I shall briefly address them in turn.

2.2: Was the Defendant's section 10(a) Charter right violated?

[16] After arresting the Defendant, P.C. Rai recited rights to counsel to counsel which included a statement that the Defendant was under arrest for driving with excess blood alcohol. The Defendant understood his right and wished to speak with duty counsel at the station.

[17] On the way to the station, the Defendant told P.C. Rai that he could lose his job if convicted of a drink/drive charge. The officer then explained the breath test process and told the Defendant that if he didn't blow over the legal limit that he would be released without a charge.

[18] Based on these facts alone, the Defendant has failed to show that his right to be informed of the charge was probably violated.

2.3: Were the breath tests taken as soon as practicable?

[19] The Defendant was arrested at 1:29 a.m. and the breath tests were taken at 2:29 and at 2:48 a.m. for a total time of one hour and twenty minutes. The breath tests have to be taken within a reasonably prompt time, but not as soon as possible. Here, the police acted both reasonably and promptly. There was never a derogation by the police of their duty to conduct themselves expeditiously. The officers were focussed at all times on dealing with the Defendant promptly. There is nothing to show, let alone hint, that the police were dragging their heels or wasting time. When examining the evidence as a whole the police took no more and no less time than was needed to take the tests without any unreasonable delay.

3.0: Conclusions

[20] For the brief set out herein, I find that although the tests were taken as soon as practicable and the Defendant's section 10(a) Charter right was respected, the prosecution must fail for the sole reason that the police breached the Defendant's right to be free from unreasonable search and seizure because reliance on the fail result of the screening test was unreasonable in these circumstances. Given that the breath test results are excluded as a remedy for violating the constitutional right of the Defendant, a verdict of not guilty must be entered.

Richard H.K. Schwarzl, Justice of the Ontario Court of Justice