Court Information
Ontario Court of Justice
Date: November 10, 2017
Court File No.: Halton 1528/15
Parties
Between:
Her Majesty the Queen
— and —
Robert A. Birmingham
Before the Court
Justice: Lesley M. Baldwin
Heard: September 9, 2016 and September 11, 2017
Reasons for Judgment Released: November 10, 2017
Counsel
For the Crown: E. O'Marra and J. Dibski
For the Defendant: B. Daley
Judgment
Introduction
[1] Mr. Birmingham is charged with Operate Motor Vehicle with a BAC over 80 on May 6, 2015 in Oakville.
[2] Date, Jurisdiction and Identity were admitted.
[3] The case rises or falls based on the Applicant's s. 8 Charter Application which alleges that the arresting Officer could not rely on the results of the failed ASD test to demand a sample of the Applicant's Breath into the approved Intoxilyzer instrument, because the Officer knew nothing about a false positive result where there is the possibility of the existence of (residual) mouth alcohol.
[4] The Applicant seeks exclusion of the breath readings pursuant to s. 24(2) of the Charter of Rights and Freedoms.
Evidence
Officer Khalaf's Testimony
[5] The evidence on this issue comes from the arresting Officer, Matthew Khalaf. He has been an Officer with the HRPS since April of 2014. This was his third or fourth drinking and driving investigation at the time.
[6] He was driving an unmarked police cruiser on general patrol southbound on Kerr Street in Oakville. He was approaching a red light at Rebecca Street. As the light turned from red to green at 12:55 a.m., he continued through the intersection when the Applicant's car made an unsafe lane change and almost hit his police cruiser. As the Applicant was making the unsafe lane change, the Applicant honked his horn for a few seconds, then the Applicant continued west onto Rebecca Street. The Officer had to make an abrupt swerve to avoid a collision when the Applicant made the unsafe lane change. The Officer stopped the Applicant on Rebecca Street.
[7] After obtaining the Applicant's driving documents, the Officer returned to his cruiser to write a POA ticket for making an unsafe lane change.
[8] At 1:05 a.m., he returned to Mr. Birmingham and began to explain the ticket. At this time the Officer smelled a strong odour of alcohol emanating from the Applicant's breath and noticed that his eyes were bloodshot. The Officer advised the Applicant that he was now being investigated for an impaired driving offence and cautioned him.
[9] The Officer asked the Applicant where he was coming from. The Applicant stated that he was leaving the Moonshine Café, which the Officer knew to be a licensed establishment on Kerr Street just around the corner.
[10] The Officer asked the Applicant how much he had to drink and the Applicant responded 'nothing', then 'two beers' and later 'four and half beers over the past four hours'.
[11] Having formed the requisite suspicion, the Officer read the ASD demand at 1:06 a.m.
[12] After performing a self-test that assured him that the device was in proper working order, the Officer had the Applicant provide a suitable sample which resulted in a Fail result at 1:09 a.m. At this time the Applicant was arrested for the Over 80 offence and read the Breath Demand.
Examination in Chief
[13] In examination in-Chief the Officer testified as follows:
Q. Did you have — did you form any belief about when he completed his last drink or how long before the stop that was?
A. The stop was fairly close actually very close to the Moonshine Café so I figured that his last drink must have been fairly recent as, as like I said, the café is around the corner but that's just a belief, you know.
Q. And fairly recent, give us a sense of what you believed?
A. I would say within the last half an hour just due to the smell, the smell was fairly strong.
MS. O'MARRA: Nothing further, thank you.
Cross-Examination
[14] In cross-examination, Mr. Daley was all over this area of the evidence.
[15] First of all, the Officer could not tell the Court what model of ASD he used that night.
[16] In addition, the Officer knew nothing about the effects of (residual) mouth alcohol on the readings obtained from the ASD:
Q. And again, I mean no disrespect in saying idiot proof but are you aware that essentially the newest generation of devices, assuming you were using one of those, are basically meant to be idiot proof in the sense of not being available to you to give a test if calibration is gone wonky, correct?
A. Correct.
Q. All right. But no such protection for the test subject exists when it comes to the issue of mouth alcohol, correct?
A. Correct.
Q. All right. And you have been told and were of the belief that night and likely are today on your oath that if mouth alcohol is present you will inevitably receive a falsely higher result on the roadside test, correct?
A. I don't know. I can't answer that question.
Q. Do you know why are you trained then to make sure that mouth alcohol is not present? You're told to make sure that mouth alcohol is not present, correct?
A. Is present before administering.
Q. Is present?
A. So the smell of alcohol, is that what you're asking me?
Q. No. I'm asking you about mouth alcohol. You realize, I hope, and maybe you don't given that answer, you realize there's all the difference in the world between mouth alcohol and the smell of alcohol, yes?
A. Yes.
Q. Okay. What's the difference?
A. Well, the smell of alcohol can be in the vehicle, can be from somebody else. Mouth alcohol is coming from the person's breath where you can smell it off the breath.
Q. So, in other words, if I were to make the following statement and I want you to listen carefully to me because while I am entitled to put words in your mouth in cross-examination I don't seek to do so now. I seek to ask you whether or not this was your belief as of that night. As of that night, you believed after you had come back, what I'll (call) the second time after you wrote up the ticket, you believed based upon what you observed with your sense of smell that my client and given where he was and the proximity of the bar, you believed that mouth alcohol was clearly present in the moment that you administered the demand, correct?
A. Yes.
Q. I'm going to suggest to you that if mouth alcohol is present there is something that you must always do before proceeding to test a subject, correct?
A. I don't know.
Q. No one's ever told you anything about — what happens — you smelled, you were convinced, reasonably…
A. Yes.
Q. …at the time that you were dealing with my client, that mouth alcohol was present, correct?
A. Yes.
Q. And no one has ever told you that if mouth alcohol is present there are certain things that you must do to make sure you don't get a falsely high test, correct?
A. Correct.
Q. What is that? What are you supposed to do?
A. All I'm supposed to do is — if I have suspicion I read the demand and I administer the approved screening device…
Q. And….
A. …that is what I'm told to do and trained to do.
Q. Has no one ever told you that if you reasonably believe that mouth alcohol is present that you must make sure that it has been at least 15 minutes from that person's last drink by asking him or her when they had their last drink? No one's ever told you that?
A. I may have been told that, I, I can't remember.
Q. More importantly, you never asked my client, correct?
A. Correct.
Q. And you have no idea when his last drink was, correct?
A. No, I did not note down a time.
Expert Evidence
[17] Officer Vu, the qualified Intoxilyzer Technician in this case testified that mouth alcohol will have an impact on the ASD test results. If present, it can result in a false positive reading because the alcohol is in the mouth not the blood.
[18] The proper procedure is to wait 15 minutes from the consumption of the last drink to perform the test. You should ask the person when they consumed their last drink, especially if they say that they were just coming from a bar. If the person will not provide this information, he himself would go ahead and perform the test.
Applicant's Evidence
[19] The Applicant testified on the Charter Application only. He testified as to bolus drinking before he left the Moonshine Café. His evidence is neither here nor there on this Application because it is not what he told the Officer at the scene and that is what matters. Mr. Birmingham did not tell the Officer at the scene that he had just consumed straight tequila before he left the bar.
Position of the Parties and Case Law
Applicable Case Law
[20] Both counsel referred to the Ontario Court of Appeal case in R. v. Einarson, [2004] O.J. No. 852.
[21] Einarson was stopped after making a U-turn out of a bar parking lot, near where officers were conducting a RIDE spot-check program. The Officer noted a smell of alcohol, and that Einarson's eyes were red and glassy and her speech was slurred. At trial, Einarson argued that the Officer could not have been sure that she had not consumed sufficient alcohol within the 15 minutes of the ASD test to register an accurate fail. The Officer, in his testimony, conceded that residual mouth alcohol could affect the device and cause an inaccurate result. Einarson argued that since the Officer's only basis for making a Breathalyzer Demand was the Fail on the ASD, there were no reasonable and probable grounds and the Breathalyzer test results should be excluded.
[22] The trial Judge convicted. However, on appeal, the conviction was set aside and a new trial ordered on the grounds that the Officer should have waited 15 minutes before administering the ASD test to ensure its accuracy.
[23] The Ontario Court of Appeal allowed the appeal and restored the conviction.
[24] The Court held that the Criminal Code provided in s. 254(2), that an ASD test must be administered forthwith. In the circumstances, the Officer was not under any obligation to wait, but rather to administer the test without delay. There were sufficient indicia of impairment to support the Officer's demand that Einarson provide an ASD sample immediately. While the Officer could have delayed administering the test on the grounds that Einarson had just left a bar, he was not obliged to do so. To hold otherwise would be to undermine the very important objectives of the provision.
[25] After being stopped, Einarson was asked if she had consumed any alcohol that night. She replied 'no' on two occasions.
[26] In cross-examination the Officer testified that he was aware from his training that if a person had consumed alcohol in the 15 minutes prior to the administration of the test, residual mouth alcohol could render the result shown by the ASD unreliable.
[27] The Court held that the Officer was not required to ask when Einarson had consumed her last drink, noting it would be pointless since she twice denied consuming any alcohol.
[28] The OCA also referred to the decision in R. v. Bernshaw (1995), 95 C.C.C. (3d) 193 (SCC), which took a flexible approach to the interpretation of s. 254(2) and demands a case-by-case analysis of claims that the demanding Officer should have waited or should not have waited before administering the test. It focuses on the Officer's belief as to the accuracy of the test result if the test were to be administered without delay and the reasonableness of that belief.
[29] Sopinka J.'s application of the flexible approach to the facts in Bernshaw is found at p. 226:
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 Marshford 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.]
[30] At paragraph 35 in Einarson the OCA concludes as follows:
Bernshaw makes it clear that the mere possibility that a driver has consumed alcohol within the 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. That is not to say that another officer might not assess the same situation differently and have legitimate concerns about the reliability of a test administered without a brief delay and act accordingly. In each case, the officer's task is to form an honest belief based on reasonable grounds about whether a short delay is necessary to obtain a reliable reading and to act on that belief. " [My Emphasis added.]
Applicant's Position
[31] Mr. Daley submits that the facts in this case – that the Applicant had just come from a bar around the corner and had consumed alcohol – should have triggered the Officer to ask when the last drink had been consumed.
[32] Mr. Daley submits that the fact that this Officer was not even aware of the issue of residual mouth alcohol and its effects on the accuracy of ASD test results is a serious matter that reflects poorly on the training this Officer has received in how to conduct an investigation using an ASD.
[33] Mr. Daley submits that ignorance on this important issue cannot result in the Court finding that the Officer's grounds were objectively reasonable.
Respondent's Position
[34] The Crown submits that the Officer's ignorance on the issue of residual mouth alcohol does not disqualify the Court from finding that his grounds are objectively reasonable.
[35] The Crown submits that 12 minutes went by between the time that the Officer first saw the Applicant at 12:55 a.m. and when the Fail result was obtained at 1:09 a.m. and that no harm was done by failing to consider the issue, ask when the last drink was consumed and wait another 3 minutes.
Court's Analysis and Decision
[36] I reject the position of the Respondent. The issue of residual mouth alcohol and its effects on accurate test results using the ASD has been discussed in judgments for over two decades now. To submit that ignorance of this issue by Officers using the ASD is irrelevant in assessing the Officer's RPG on an objective basis is wrong and there is no basis in the case law to support this position.
[37] The fact that this Officer could not tell the Court what model of ASD he was using, together with the fact that he has never been trained on the issue of residual mouth alcohol, speaks to a serious deficit in the HRPS' training on ASD investigations.
[38] It should be standard practice for all Officers conducting ASD investigations to know the protocol associated with their use and to be able to assure the Court that they have complied with it.
[39] The Crown has not met their onus on this s. 8 Charter Application and the breach has been established.
Section 24(2) Analysis
[40] Having found that the Applicant's s. 8 Charter rights were violated, I must now determine whether or not it is just to exclude the breath results at the station.
[41] I find that the Charter breach was a serious one as it was a failure by the Officer and the HRPS to ensure reliability of the ASD test result.
[42] The impact on the Applicant was tangible and meaningful in that the breach undermined a Constitutional right to be free from unconstitutional searches and seizures.
[43] These factors weigh in favour of exclusion.
[44] On the other hand, the interests in trying the matter on its merits favours inclusion because this is a serious offence and the breath tests at the station are reliable.
[45] In balancing the three lines of inquiry, I have determined that the interests of justice dictate that the breath tests be excluded in this case. The law requires that police have reasonable and probable grounds to demand a breath sample from an individual. The long-term interests of the administration of justice are not served by allowing officers to be ignorant of the law pertaining to ASD breath testing.
[46] As stated by the Supreme Court of Canada in R. v. Bernshaw (supra) 22 years ago: "In each case, the officer's task is to form an honest belief based on reasonable grounds about whether a short delay is necessary to obtain a reliable reading and to act on that belief."
Final Decision
[47] The charge is dismissed.
Released: November 10, 2017
Signed: Justice Lesley M. Baldwin