Court Information

Ontario Court of Justice

Date: October 17, 2017

Court File No.: Newmarket 16 06202

Parties

Between:

Her Majesty the Queen

— and —

Giuseppe Gioia

Judicial Officer and Counsel

Before: Justice David Rose

Heard on: July 20, October 16, 2017

Reasons for Judgment released on: October 17, 2017

Counsel:

• Ms. I. Denisov — Counsel for the Crown
• Mr. A. Little — Counsel for the Defendant Giuseppe Gioia

Judgment

David Rose J.:

Overview

[1] Mr. Gioia was charged with Impaired Driving and Over 80 from August 3, 2016. On that day PC Wood of the O.P.P. was sent to a traffic accident on Highway 400. There she saw Mr. Gioia outside a car against the centre median. It had crashed. In due course Mr. Gioia failed an ASD test and was arrested. He later blew well over the legal limit. At trial he made various Charter Applications, but in oral argument Mr. Little suggested that one of them was dispositive of all, namely PC Wood's reliance on the ASD to form grounds to arrest Mr. Gioia contravened s. 8 under the Charter. At the end of its case the Crown invited a dismissal of the Impaired Operation charge. These are my reasons for granting the s. 8 Application.

Facts

The Accident

[2] PC Wood was called to attend a car crash on Highway 400 near Highway 7 around noon on August 3, 2016. She got there at 12:05 and saw three males. Two of them were standing outside a car and identified the third male, the accused, as the driver of the car which showed serious front end damage. When PC Wood approached the accused he was at the rear of the crashed car doing something in the trunk. She spoke with him to see if he needed an ambulance. He said that he was okay. There was no blood on him and he did not appear injured.

[3] PC Wood continued to speak to Mr. Gioia to see what happened, and then started to smell an odour of alcohol coming from his breath. That raised her suspicion that he had been drinking alcohol that day. He said that he hadn't, and after being pressed about the smell of alcohol explained that he had recently had oral surgery and it was probably mouthwash.

The ASD Test

[4] With the odour of alcohol on his breath PC Wood had a suspicion of alcohol in Mr. Gioia and read him the approved screening device (ASD) demand. He then provided an ASD sample and failed the test. With that he was arrested for Over 80. It was 12:18 pm. PC Wood said in evidence that without the fail on the ASD she would not have arrested him for anything else.

[5] Before administering the ASD device on Mr. Gioia PC Wood had done a self-test and got a zero, which told her that the machine was working properly. In her evidence in-chief PC Wood said that she believed that the machine was functioning and in good order. In cross-examination, however, she said that in order to determine if the ASD is in proper working order she needs to know when it was last calibrated. The self test, she testified, only tells her whether the device can detect the presence of alcohol, not the amount. She also testified that in order to tell whether the ASD is in proper working order she needs to determine the calibration date. It turned out that this particular ASD was calibrated last on June 13, in other words about 7 weeks before the incident. She knew at the time that the device needed to be calibrated every 15 days, and she was trained to check the ASD for its calibration date at the commencement of every shift. If the device is not current in its calibration her training is to get another device that is. She never checked the calibration date before her shift, or at all, before Mr. Gioia provided his roadside sample.

[6] Notably, PC Wood testified that she was trained that if the ASD hasn't been properly calibrated then she can't rely on its results. She admitted that she used an ASD which was not properly calibrated.

Post Arrest

[7] Ultimately Mr. Gioia provided Breathalyzer samples which indicated that his Blood Alcohol Content (BAC) was 230 and 210 mg of alcohol in 100ml of blood at 1:10 and 1:33pm respectively.

Discussion

[8] The Defence Argument is that PC Wood used an ASD which was not properly calibrated and which she knew was not reliable. Mr. Little argues that PC Wood may have had the subjective grounds to arrest Mr. Gioia, but not the objective grounds.

[9] There is no shortage of authority for the proposition that the test for an arrest in the context of s. 254(3) is not onerous, see R. v. Censoni, [2001] O.J. No. 5189 (S.C.), R. v. Persaud, [2011] O.J. No. 1559 (S.C.), or R. v. Bush, 2010 ONCA 554. It is a test of reasonable and probable grounds. The officer's subjective grounds must be objectively reasonable. In this case, Cst. Wood relied on the ASD to form subjective grounds to believe that Mr. Gioia's BAC was over 80. The question here is whether her subjective belief was objectively reasonable.

[10] In R. v. MacDonnell, 2004 CarswellOnt 942 at par. 23, Hill J. articulated the relationship between a police officer's knowledge of the ASD calibration and the validity of the testing procedure.

A peace officer with an ASD need only have a reasonable belief that the device is properly calibrated and in working order before relying on a Fail test result to confirm his or her suspicions that a motorist may be impaired or over the legal limit - the necessary grounds for an Intoxilyzer demand. There need not be proof at trial that the ASD operator knew the calibration setting of the device, when it was last calibrated, or whether the device was in fact in proper working order. In the words of Moldaver J.A. in R. v. Coutts (1999), 136 C.C.C. (3d) 225 (Ont. C.A.), at 232:

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 reasonably 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.

[11] Two more recent Summary Conviction Appeal decisions are of assistance in assessing the objective component to PC Woods' grounds. In R. v. Persaud, 2011 ONSC 1233, Justice Goodman considered a fairly similar scenario as the one before me, namely an officer who used a failed ASD test to form reasonable and probable grounds but where the ASD had not been calibrated recently. In Persaud the calibration occurred some three months before the impugned test, and there was no evidence that the ASD was otherwise properly functioning. The officer had relied on another officer to do the self-test. In Persaud, Goodman J. noted that the self-test tells nothing about the reliability of the ASD in the context of evaluating alcohol levels. She also noted that the calibration is the "…single most important criteria available to police officers to assess whether it would be reasonable to rely on an ASD" Persaud at par. 60. In Persaud the trial judge found a Charter breach and excluded the evidence. That ruling was upheld on appeal. Justice Feldman's decision in R. v. Johnston, 2007 ONCJ 45 was similarly decided.

[12] In R. v. Kirk Demarais (June 22, 2012) Justice G. Miller sitting as Summary Conviction Appeal Court came to a similar conclusion. That was another case where the officer did not turn his mind to a calibration date which had been calibrated 35 days before the investigation. Miller J. commented that, "The only scenario which could have permitted the officer to have a reasonable (albeit mistaken) belief that the device was properly calibrated would have been if he had adverted to the calibration date under the mistaken impression that the device should have been calibrated within "a month or so" but did not make a note of the date in the box with the words "must be within 14 days" until after the arrest. It is not clear on the evidence that this is what occurred." Miller J. overturned the conviction from trial, found the Charter breach, and acquitted Mr. Demarais.

[13] In the case at Bar the only evidence about the reliability of the ASD was a self-test done by PC Wood. The uncontradicted evidence is that such a test says nothing about the device's ability to determine alcohol levels. Since PC Wood was free of alcohol in her system the self test says nothing about whether the ASD was calibrated to fail at the appropriate level. On the other hand there is evidence that the ASD had not been calibrated for several weeks. In that time frame it would have been calibrated 3 times, if the 15 day schedule had been adhered to. I find that the time difference between the required calibration and the real calibration (7 weeks) is a significant one as opposed to a minor or technical discrepancy. It is not a matter of the ASD being a day or a week beyond the calibration date. There is evidence that PC Wood was to have checked the calibration date before each shift, but didn't on August 3. There is also evidence that PC Wood was trained that in such circumstances she couldn't rely on the device. There is no evidence that the ASD was in fact reliable. It is not a difficult thing to establish in a case such as this. The officer often speaks about the instrument being properly calibrated, or if it isn't why it is nonetheless in proper working order see R. v. Topaltsis (2006), 34 M.V.R. (5th) 27 (Ont. C.A.).

[14] In the unusual circumstances of this case I find that it was not objectively reasonable for PC Woods to rely on the ASD results. The ASD test did not furnish reasonable and probable grounds to arrest Mr. Gioia. Accordingly, I find a s. 8 violation.

Charter Analysis Under Section 24(2)

[15] Taking the three part test from R. v. Grant, 2009 SCC 32 in turn. First, the Charter violation is the result of negligence on the part of PC Wood, namely her lack of real efforts to confirm that the ASD being used that day was working properly. The self-test is not sufficient. She failed to put her training to use on the day of Mr. Gioia's arrest. As Ducharme J. noted in R. v. Au-Yeung, 2010 ONSC 2292 at par. 53, the proper use of ASD's by the police is central to the constitutional integrity in the breath testing scheme. This case is not as serious a Charter infringement as Au-Yeung, because there was no suggestion that PC Wood did this as a matter of routine. In passing, I would comment that her candour in evidence was quite helpful, and to be commended. This may well have been a one-off incident, but that said, I would follow Ducharme J.'s comments at par. 55 of Au-Yeung. The first factor of Grant modestly favours exclusion.

[16] The second factor in the admissibility analysis must recognize that the breath testing scheme is minimally invasive and that seizure of a detainee's breath does not involve capture of anything which touches that person's biographical core of information. What it does do is take a person to a police station for a matter of hours when there is no lawful basis for the arrest. Applying this to the facts before me I find that the second factor modestly favours exclusion.

[17] Turning to the third factor in Grant, I would find that the public always has an interest in the adjudication of trials on their merits. This is particularly true when the offence is drinking and driving and where there is evidence of an accident and a very high BAC. In R. v. Taylor, 2014 SCC 50, the Respondent had been involved in an impaired operation motor vehicle collision where people were injured. The Charter violation in that case was quite different. That said, in considering the s. 24(2) analysis Abella J. commented at par. 38 that the public's interest in adjudication of trials on their merits is commensurate with a public interest "in ensuring that the justice system remains above reproach in its treatment of those charged with these serious offences". I therefore find that the third factor of Grant modestly favours admission of the breath test results.

[18] Considering all three factors of Grant, the breath evidence is excluded. Mr. Gioia is acquitted of the charge.

Released: October 17, 2017

Signed: Justice David S. Rose