Court File and Parties

Ontario Court of Justice

Date: 2017-02-16

Court File No.: Central East Region (Oshawa)

Between:

Her Majesty the Queen

— and —

Neil Holland

Before: Justice F. Javed

Heard on: December 13, 15, 2016

Reasons for Judgment: February 16, 2017

Counsel:

• S. O'Neill, counsel for the Crown
• E. Boeve, counsel for the defendant

A. INTRODUCTION

[1] On January 16, 2017, Neil Holland was charged by the Durham Regional Police Service (DRPS) with the offences of having care or control of a motor vehicle while his ability to drive was impaired by alcohol and operating a motor vehicle with greater than 80 mgs of alcohol in 100 mls of blood, contrary to the Criminal Code (Code).

[2] Mr. Holland was stopped by Cst. Jamie Pogson after exiting a plaza with a bar, "Chasers". He was investigated and subsequently provided two samples of his breath in excess of the legal limit.

[3] The Crown called Cst. Pogson and relied on a certificate of a qualified breath technician (CQT) as part of its case. Mr. Holland seeks to exclude the evidence of his breath samples arguing that the police violated his rights under the Charter of Rights and Freedoms (Charter) in two ways. First, he argues he was arbitrarily detained on private property in violation of s.9. Second, he says the police didn't have reasonable and probable grounds to make a breath demand in violation of s.8. As a remedy, he seeks to exclude the breath readings which he acknowledges must be proven on a balance of probabilities.

[4] The parties agreed to blend the evidence on the Charter and trial issues. Mr. Holland did not testify but did call Cst. Justin Bowler of the DRPS who was the breath technician. Latitude was given to the defence to examine him under s.258(6) of the Code.

[5] I reserved to consider my final decision. However during the trial, I rendered three oral rulings. For the sake of expediency, my reasons were brief to allow the trial to continue. I reserved the right to expand on my reasons. I dismissed two challenges by the defence to the admissibility of the CQT. Briefly, I ruled that the Crown had complied with the notice provision in s.258(7) of the Code and further, that the CQT comports with s.258(1)(g) of the Code as it identifies the time and place where the breath samples were taken. In addition, I dismissed a motion for a directed verdict based on the same complaints.

[6] These reasons will expand on the above issues as well as consider the other arguments raised by the parties.

B. ANALYSIS

[7] I will begin with consideration of the Charter issues to determine what admissible evidence, if any, I can consider on the ultimate issue of whether the Crown has proven the elements of both offences beyond a reasonable doubt.

(1) Was Mr. Holland arbitrarily detained in violation of s.9 of the Charter?

[8] Mr. Boeve argues that Cst. Pogson didn't have the right to conduct a random check for sobriety when he formed the intention to stop Mr. Holland when he was on private property. In addition, he says Cst. Pogson exceeded his common law powers to detain Mr. Holland because he waited a substantial amount of time before effecting an arrest, resulting in a substantial interference with his client's liberty. The argument follows that this conduct resulted in an arbitrary detention in violation of s.9 of the Charter.

[9] Mr. O'Neill disagrees arguing that the actions of Cst. Pogson were lawful both as part of his statutory duties and as part of his common law powers.

[10] I agree with the Crown's position.

[11] Section 216(1) and 48 of the Highway Traffic Act (HTA) confer broad powers to the police to randomly stop persons on a highway. They do not authorize random stops in parking lots. However, where the police observe a motor vehicle being driven on a highway, their statutory authority to stop that motor vehicle continues onto private property, such as a parking lot: R. v. Boughten, [2002] OJ No. 4060 (CA); R. v. McGregor, 2015 ONCJ 692 at para. 10.

[12] There is no dispute in the evidence that Cst. Pogson observed Mr. Holland driving a motor vehicle on a highway before and after he drove his vehicle on private property. The fact that his first and last observation of his driving was on private property is of no moment because at some point, Mr. Holland was driving on a highway. That would be enough to confer upon him the statutory authority to conduct a random stop to check on Mr. Holland's sobriety, investigate highway safety concerns and ensure the mechanical fitness of the vehicle.

[13] This statutory authority alone would be sufficient to dispose of the s.9 claim as the traffic stop in the Esso gas station was not arbitrary.

[14] However, I will go on to consider the alternative position that Cst. Pogson was not acting pursuant to his common law powers. Mr. O'Neill resists this argument relying on R. v. Nield, 2015 ONSC 5730 and R. v. Vander Griendt, 2015 ONSC 6644.

[15] Again, the Crown's position is well grounded in the law.

[16] In Nield, Justice Fregeau considered the same argument relying heavily on the analysis of Justice Molloy in R. v. Dillon, [2006] OJ No. 1366 (Ont. Sup. Ct.) at paras. 24-49 who set out a two part test to determine if the Crown has proven that the police were acting pursuant to their common law power to detain an individual during a traffic stop.

[17] At the first stage, it must be shown that the police conduct falls within the general scope of any duty imposed on them by statute or common law. The parties agree that as a matter of law, the police have a common law power to investigate crime and protect life which extends to detecting impaired drivers and preventing them from operating cars on highways.

[18] The disagreement is the scope of this power as it applies to the circumstances of this case. Mr. Boeve argues that the conduct of Cst. Pogson resulted in an unreasonable inference with Mr. Holland's liberty because he waited a substantial amount of time before effecting a traffic stop and arrest which he says was formed in a private lot.

[19] With respect, I disagree.

[20] Some background evidence is necessary to evaluate this submission.

The investigation on private property

[21] Cst. Pogson testified that has been a police officer for 19 years.

[22] On January 16, 2017 he was on patrol with Cst. Swaine in a fully marked cruiser. At 11:10 pm, he observed Mr. Holland sitting in his vehicle which was situated in a parking lot of a plaza with a bar "Chasers". This is located west of Townline Rd. on Hwy 2 (Exhibit 1).

[23] Mr. Holland was in the driver's seat and the vehicle was not on. He moved his cruiser to the east side of the parking lot and began to make observations of his vehicle thinking that he might have been inside Chasers as it was the only place that appeared to be open at the time. He did not see Mr. Holland exit the bar.

[24] He observed the vehicle for 3-5 minutes and decided that he would do a sobriety check. Mr. Holland began to operate the vehicle and went north east through the parking lot. He thought he would exit the plaza via Townline Rd. but didn't which he said was "weird". He began to follow him. Mr. Holland made a sudden turn then went south into a plaza and parked his vehicle close to a McDonald's restaurant. A Google map depicting his route was made Exhibit 2.

[25] He testified that his attention remained on Mr. Holland because of his indirect route to exit the plaza which he thought might have been because the driver was trying to avoid being detected. That said, there was nothing poor about his driving. When he pulled out of the spot, the turn was fine, he was not speeding and he did not swerve at any point.

[26] Cst. Pogson was cross-examined on Mr. Holland's route with the assistance of Exhibit 6. The defence position is that the route wasn't really indirect because of a curb and a snow-bank that prevented him from taking a more direct route. I tend to agree with this submission. I find that there was a curb which impeded direct access to the McDonald's plaza. (Exhibit 1) Arguably, Mr. Holland could have taken a shorter route to exit on Towline Rd., but instead chose to do the opposite and enter the McDonald's plaza from the rear, which is a longer route. However, I don't make much of this because given the time of day, both parking lots were fairly empty and an indirect route was not entirely illogical. I do not find that his route was necessarily a deliberate attempt to evade the police or indicative of a poor exercise of his motor function. If that was the case, stopping at McDonald's wasn't well thought out. Mr. Holland exited with a drink, thus the inference being he ate food while inside McDonald's and wasn't just hiding from the police. In the end, the route issue does not advance the s.8 or s.9 analysis because the focus is on what Cst. Pogson believed at the time – not after the fact when confronted with a plausible explanation.

[27] Mr. Holland parked his truck in a parking spot which Cst. Pogson said was "poor" as his part of his truck was sticking out of the marked parking spot. Exhibit 5 is a photograph which shows that his heavy duty truck is 23 feet in length. Cst. Pogson agreed that the parking spot was 18 feet in length, thus the truck would be sticking out regardless. Similarly, not much turns on this either on the s.8 issue because again, it was his thought process at the time which matters. It may matter on the issue of impairment but as I will explain below, I don't find that his parking was "poor".

[28] At 11:25 pm, Cst. Pogson observed Mr. Holland walk out of the McDonald's with no difficulty. While he was "very far away" he did not observe any "bad" walking. He saw Mr. Holland pull out of the plaza and travel on Townline Rd. – which is a "highway" as defined in the Code. In other words, Mr. Holland had moved from private property onto a highway. Cst. Pogson was determined to do a sobriety check and thought Mr. Holland would proceed to his home but he didn't. Instead, Mr. Holland pulled into an Esso gas station and parked his vehicle at the side of the station – not a pump. In cross-examination, he confirmed that during this period of following him, he did not see any evidence of poor driving. There was no swerving, speeding or erratic driving. He was 200-300 meters behind the vehicle and saw that he made a lane change. He thought he "probably would have" used his signal to do so. He did not activate his emergency lights at any point.

[29] Within this backdrop, Mr. Boeve argues that Cst. Pogson exceeded his statutory and common law powers because he formed the intention to stop him on private property – even though he saw him driving on a highway. He relies on the cases of R. v. Tresham, [1998] O.J. No. 1744 (Ont. Ct. Gen. Div.) and R. v. Hajivasilis, 2013 ONCA 27.

[30] In my view, reliance on these cases is misplaced. I accept the evidence of Cst. Pogson that in the Chasers parking lot, he wanted to do a sobriety check and this intention continued off private property onto a highway. Mr. Holland was never detained in the Chasers parking lot. Boughten is a complete answer to this argument. At para 4 the court said:

I do not conclude that the initial detention arose in a context in which legal authorization was absent. Expressed positively, in my view, the Highway Traffic Act permitted and authorized in the circumstances of this case continuing investigation off of the highway onto private property. The particular investigation started with the sole focus of the Highway Traffic Act violation pertaining to the lights and only progressed to a criminal investigation in the context of the continuing Highway Traffic Act investigation. As indicated, I do not find the initial detention to be arbitrary.

[31] Furthermore, I agree with the Crown position that Cst. Pogson was also acting pursuant to his common law powers and accept his evidence that his only purpose was to stop Mr. Holland and perform a sobriety check as he saw him in the parking lot of a bar. As observed by Molloy J. in Dillon, this purpose is "squarely within the scope of the common law power as established in Dedman".

[32] In my view, the cases of Tresham and Hajivaslis do not advance the defence position because in those cases, the accused was never observed operating his vehicle on a public roadway – which isn't the case here. Cst. Pogson was forming grounds, thus there could be no basis to the argument that he substantially interfered with Mr. Holland's liberty interests. He was furthering his duty to perform a sobriety check.

[33] In the circumstances, Mr. Holland was not arbitrarily detained. The s.9 argument fails.

(2) Did Cst. Pogson have reasonable and probable grounds to make a breath demand?

[34] Mr. Boeve's next argument is that Cst. Pogson fell short in his grounds to make a breath demand which violated Mr. Holland's s.8 rights. The gist of the argument is that Cst. Pogson's subjective belief of impairment was not supported by objective grounds.

[35] Mr. O'Neill submits that Cst. Pogson's grounds, viewed cumulatively, did not fall short.

[36] I agree with the defence position. In my view, Cst. Pogson did not have the requisite objective grounds to support his subjective belief of impairment permitting him to make a lawful breath demand. In the circumstances, there was a violation of s.8 of the Charter but as I will explain below, it was of no moment in this case.

[37] The legal principles germane to this argument were nicely distilled by Justice Campbell in R. v. Suntharalingham, 2012 ONSC 6207. Drawing on appellate authority, including R. v. Bush (2010), 2010 ONCA 554 and R. v. Wang (2010), 2010 ONCA 435, Campbell J. summarized the principles into 6 critical conclusions at para. 21. The principles are well known and need not be reproduced. I have kept these in mind as I proceed through the analysis.

The traffic stop

[38] Cst. Pogson testified that at 11:30 pm, he saw Mr. Holland exit his truck as he walked towards him. The parties had a conversation. He asked him where he was going. Mr. Holland said "heading home" and added that he had been working in Pickering. He asked if he had consumed any alcohol. Mr. Holland replied "a beer earlier at lunch". He asked him for his identification which was provided. He asked if he had stopped along the way. Mr. Holland initially said no which prompted a comment that it was a strange route to his home in Ponty Pool. Mr. Holland then changed his position and said he stopped at McDonald's. Cst. Pogson challenged him on parking in the Chasers parking lot. Mr. Holland admitted stopping there and consuming one beer.

[39] Cst. Pogson continued by asking if him if he was deliberately trying to avoid the police. Mr. Holland said "no, he pulled in to get popcorn and a drink". He testified that the answer was strange. It wasn't until after his arrest that his partner advised of an unconsumed drink from McDonald's in his vehicle.

The grounds for the arrest

[40] Cst. Pogson testified that he was standing 4 feet away from Mr. Holland and smelled a very strong odor of alcohol coming from his breath when he spoke. His words were slow and deliberate and running together. His mouth appeared very thick and had sticky speech. He did not see him stumble or sway. He did not know if he was "rigid" given the cold weather.

[41] In cross-examination, Cst. Pogson was challenged on his note taking and in particular his failure to record in his memo book, his slurred speech. He explained that in his arrest report, he did not use "slurred" but wrote "very slow and running together" which is the same thing. He acknowledged that not all his words were running together. He also admitted that he may not have told the breath technician that he had "slurred" speech but did recall saying it was slow and deliberate. He was adamant that his speech was slurred. In the end, he said he did record in his report later on: "now red face, bloodshot eyes and still strong odor". He did not additionally note he was slurring his words. I find that Cst. Pogson did note indicia consistent with slurred speech even if he didn't use the exact words. Note taking is an aid to ones' evidence, not the evidence itself.

[42] Mr. Holland was able to produce his wallet without issue. He didn't note any evidence of fumbling. His face was not flushed and he did not have bloodshot eyes. He did not feel the need to do any coordination tests.

[43] He recalled that Mr. Holland turned his body to walk towards the wall to put out a lit cigarette and "stumbled a bit". However, I have seen Exhibit 4 which depicts this area of the gas station and there is a curb which may explain the stumble but also doesn't negate the observation which was being made at the time.

[44] Cst. Pogson testified that he thought he had an ASD with him but "didn't really" turn his mind to it.

[45] At 11:34 pm, Cst. Pogson formed the opinion that Mr. Holland's ability to operate a motor vehicle was impaired by alcohol as he had been driving his vehicle on a highway. Mr. Holland was arrested for impaired care or control.

[46] At 1135 pm, he was read his rights to counsel. He understood and wanted to speak to a lawyer. Mr. Holland did not raise any issues with right to counsel but I will review the evidence regardless as it may be relevant to any s.24(2) inquiry given the agreement to blend all the evidence.

[47] At 1137 pm he was read a breath demand and cautioned from the back of his notebook. There is no issue with the content of this demand. He responded "yes he understood".

[48] Cst. Pogson was advised that Cst. Bowler would be the QBT at 16 division. He thought this was the closest police detachment.

[49] Another police officer attended to take care of the tow. He didn't have a tow impound form which took a short period of time to arrange.

[50] At 1144 pm, he began transport of Mr. Holland arriving at 1151pm. He took the most direct route.

[51] Mr. Holland was given his phone to retrieve the name of his lawyer. At 12:00 am, Cst. Pogson called an office number leaving a message. He followed up with a cell phone number which went to voice mail and left a message. He spoke with Mr. Holland and gave him the option of "waiting for a bit" or calling a different lawyer of his choice or duty counsel. Mr. Holland said he didn't figure any lawyer would call back so he put him in touch with duty counsel.

[52] At 1206 am, he called duty counsel and spoke with Mr. Murphy until 1211 am.

[53] Mr. O'Neill argues that viewed cumulatively, Cst. Pogson's observations of Mr. Holland, furnished him with the requisite reasonable and probable grounds to make a breath demand under s.254(3) of the Code.

[54] I disagree.

[55] I accept that Cst. Pogson formed a subjective belief that Mr. Holland had consumed alcohol in the preceding 3 hours before he was stopped based on all his observed factors. It was reasonable for him to infer that Mr. Holland had consumed alcohol while seated in his car in the parking lot of a bar. This was supported by the strong odor of alcohol on his breath. It was further buttressed by the actions of Mr. Holland who took what he perceived to be an indirect route to McDonald's and wasn't forthcoming when confronted with his route. All of this was relevant to his subjective belief of impairment.

[56] However, I do not think that this belief could be supported with objective facts. The evidence of poor driving was weak. His belief that Mr. Holland's ability to drive was slightly impaired by alcohol was being driven by his actions which all pointed to his subjective belief which was strong. Cst. Pogson said he saw no poor driving except the hasty parking job in McDonald's. Given the time of day, including the fact that it was an empty parking lot, this couldn't be enough to furnish him with the objective grounds. The alleged stumbling at the Esso station was also a weak indicator of impairment. He also didn't use an ASD which was available to him which could have objectively advanced his subjective belief. Applying the principles in Sutharalingham, recognizing that it's not an onerous test, I find that he fell short in his formulation of reasonable and probable grounds.

[57] In my view, he did not have enough grounds to make a breath demand. He had ample suspicion but fell a little short. There was a violation of s.8 of the Charter.

(3) Should the evidence of the breath samples be excluded under s.24(2) of the Charter?

[58] Given my conclusion of a s.8 Charter breach, I must now consider whether Mr. Holland has proven on a balance of probabilities that the evidence should be excluded.

[59] On this record, I conclude that Mr. Holland has not met his onus.

[60] The determination of whether evidence ought to be excluded pursuant to s. 24(2) of the Charter requires a consideration of the three factors set out in R. v. Grant, 2009 SCC 32. These factors are (i) the seriousness of the Charter-infringing state conduct, (ii) the impact of the breach on the Charter-protected interests of the accused and (iii) society's interest in an adjudication on the merits. The analysis is contextual. Recently, the Doherty J.A. on behalf of the Ontario Court of Appeal assisted trial courts with how to approach this analysis in R. v. McGuffie, [2016] O.J. No. 3504 (C.A.) at paras. 62-63.

[61] I also draw upon the analysis of Campbell J. in R. v. Rehill, 2015 ONSC 6025 in which the learned Jurist surveyed the applicable jurisprudence in a case which also involved an allegation of deficient grounds to arrest in the context of a drinking and driving offence. In Rehill, the trial judge found a s.8 breach in similar circumstances even though he concluded that the officer had formed reasonable suspicion under s.254(2) of the Code. Campbell J. held that the s.24(2) inquiry was perfunctory and should have resulted in the breath samples being included – not excluded.

(i) Seriousness of the Charter Infringing State Conduct

[62] In this line of inquiry, the court must consider the nature of the police conduct and locate it on a continuum that runs between minor and technical breaches and those that result from a blatant and flagrant disregard for the Charter. The more severe the violation, the greater the need for the court to disassociate itself from the police conduct in order to maintain confidence in the administration of justice.

[63] I agree with Mr. O'Neill who argued that if Cst. Pogson fell short in his grounds, it wasn't by much, making this Charter breach less serious. Cst. Pogson had ample subjective grounds and certainly had enough grounds to suspect that an offence had been committed but fell a little short with his objective grounds. There may have been good reason for this because it appeared to him that Mr. Holland was dodging the police. Relying on his years of policing, his intuition might have been sound that Mr. Holland was in fact driving impaired but this could have been firmly grounded with an ASD test which was available: R. v. Molankandov, [2013] OJ No. 2482. However, by no means was this a flagrant breach. It was inadvertent and motivated by good faith.

(ii) The Impact of the Breach

[64] Under this line of inquiry, the court must determine the extent to which the breach undermined the interests protected by the right that was infringed. There is a spectrum of conduct from fleeting or technical to profoundly intrusive. Campbell J. in Rehill, held at paragraphs 35-37, that the taking of breath samples has been held to be minimally intrusive upon constitutional rights.

[65] Viewed as a whole, I find that this was not an intrusive breach of his rights. The law has cautioned against using an accused's "arrest experience" on s 24(2) analysis: R. v. Shepherd, 2009 SCC 559. This also favors inclusion of the evidence.

(iii) Society's Interest in a Trial on the Merits

[66] This line of inquiry requires the court to determine whether the truth-seeking function of the trial process would be better served by the admission or the exclusion of the evidence. This branch clearly favors admission. The breath sample results are reliable and conclusive evidence of the over 80 offence and indispensable to the Crown's case. See Rehill, supra, at paragraphs 38-40.

[67] In my view, this is reliable evidence and critical to the prosecution. This factor also weighs in favor of including the evidence. In cases where the police fall short in their grounds to make breath demands, appellate courts have been reluctant to endorse the approach that breath samples should be automatically excluded. See for example, R. v. Ho, 2014 ONSC 5034, rev'd on other grounds, 2015 ONCA 559; R. v. Huang, 2014 ONSC 4785.

(iv) Balancing

[68] On balance, all Grant factors in this case favor inclusion of the evidence.

[69] Accordingly, from a constitutional perspective, the breath samples are admissible.

(4) Is the Certificate of a Qualified Breath Technician (CQT) admissible?

[70] I will now consider Mr. Boeve's submissions that the CQT should not be admitted which would mean that the Crown cannot rely on it as part of its case. Some additional evidence is necessary to evaluate this submission.

[71] At the police detachment. Mr. Holland was turned over to Cst. Bowler, the qualified breath technician. Cst. Pogson said his observations of Mr. Holland at the station were the same as those he witnessed earlier. He gave his grounds to Cst. Bowler.

[72] Cst. Bowler said that Mr. Holland told him he had the flu and was cooperative, talkative and very polite. He was able to open the mouthpiece in plastic wrapping with no difficulty. He did not see any bloodshot eyes. They were "just a bit glassy". He also didn't see him swaying.

[73] Mr. Holland ultimately provided two samples of his breath registering readings of 140 mgs of alcohol in 100 mls of blood.

[74] At 12:51 am, Mr. Holland was returned to Cst. Bowler. He was given the CQT which he served on Mr. Holland at 1:10 am. He compared the copy of the CQT with the original to make sure they were the same.

The alleged deficient notice

[75] Mr. Boeve objected to the admissibility of the CQT on two bases. First, he argued that the Crown had not complied with s.258(7) of the Code which requires proof of notice on the accused. Second, he said the CQT was statutorily defective because it only stated "16 Division" which he says does not explain where the breath samples were taken contrary to s. 258(1)(g) of the Code which mandates "the time and place of each sample".

[76] Mr. O'Neill disagreed with both submissions.

[77] In a brief oral ruling, I ruled that both objections could not be sustained. While not entirely necessary, I will explain my reasoning.

[78] Section 258 of the Code creates two presumptions which act as evidentiary shortcuts to the Crown in the prosecution of drinking and driving offences. The presumption of accuracy provides that when certain procedures prescribed by statute are followed, the CQT as to blood alcohol content (BAC) are presumed to be accurate in the absence of evidence to the contrary. The presumption of identity provides that again where certain pre-requisites are met, a BAC exceeding 80 mgs of alcohol in 100 mls of blood at the time of testing is proof of the accused's BAC content at the time of driving or care and control in absence of evidence to the contrary. Section 258(1) of the Code was amended in 2008 which I will discuss below when I address the arguments attacking the reliability of the breath samples.

[79] In R. v. Egger, [1993] 2 SCR 451, the Supreme Court clarified that the CQT is unrelated to the availability of the presumption but rather is governed by other provisions in s.258(1). Admissibility is subject to a notification requirement in s.258(7).

[80] Section 258(7) provides:

No certificate shall be received in evidence pursuant to paragraph 1(e), (f), (g), (h) or (i) is produced unless the party intending to produce it has before the trial, given to the other party reasonable notice of his intention and a copy of the certificate.

[81] Mr. Boeve argues that Mr. Holland didn't get notice as a true copy was not served on him.

[82] I ruled that the Crown had complied with the notice provision in s.258(7) for two reasons. Either would be sufficient to dispense with the argument.

[83] First, there is direct evidence of notice to Mr. Holland which was accomplished by the combination of (i) service of the CQT on him at the police station, (ii) evidence of his signature indicating he accepted service of the CQT and (iii) evidence that he received the CQT prior to being released from the station. I accept the evidence of Cst. Pogson that he compared the copy of the CQT to the original to ensure it was the same and then served it on Mr. Holland. He witnessed him receiving it by signing it.

[84] Second, there is evidence before me that Mr. Holland was in possession of the CQT as part of his disclosure package. Ostensibly, this too would put him on notice that the CQT may be used against him at his trial. There is binding authority for this proposition. In R. v. El-Boury, 2016 ONSC 4900 (SCJ) at para. 25, Justice Miller adopted the reasoning in R. v. Redford, 2014 ABCA 336 which I find persuasive. In my view, there is no evidence that Mr. Holland was prejudiced in this case by an alleged failure to comply with s.258(7). I find that the Crown did comply with the provision.

The alleged failure to advise of the time and place of the sample

[85] Mr. Boeve also argued that there was non-compliance with s.258(1)(g) of the Code as the CQT does not adequately state where the sample was taken.

[86] The CQT must confirm the following:

(a) That each analysis has been made by means of an approved instrument;

(b) The results of the analyses;

(c) The time and place when where each sample was taken;

(d) That each sample was received into an approved container.

[87] Mr. Boeve says "16 Division" is not enough information to comply with item (c) above. The argument follows that the CQT is null and void and cannot be amended by the Crown.

[88] With respect, I disagree for two reasons.

[89] First, the Supreme Court in R. v. Noble, [1977] SCJ No. 68 and its progeny has endorsed a pragmatic approach to the content and form of CQT's provided that the accused has not been prejudiced by the alleged omission or error. In this case, the CQT states "16 Division", but is preceded with the name of the technician, (Bowler) of "Durham Regional". Mr. Boeve says this is vague and should at a minimum, identify the municipality. Mr. O'Neill argues that it's clear that 16 Division is a "place" attributed to the DRPS in Bowmanville. I tend to agree.

[90] As a judge in the Durham Region, I can take judicial notice that 16 Division is a "place" in Bowmanville in the Durham Region. A court may take judicial notice of any fact or matter that is so generally known and accepted that it cannot be reasonably questioned: R. v. Potts (1982), 66 C.C.C. (2d) 219 (Ont. C.A.). Leaving this aside, the purpose of the provision is to put an accused on notice of a piece of evidence that may be used against her at trial. Mr. Boeve didn't point me to any authority that stands for the proposition that a police station where the breath samples were taken wouldn't qualify as a "place" or that 16 Division in Bowmanville is not generally known by the community so as to take it out of the realm of judicial notice. Applying a pragmatic approach, Mr. Holland was charged in the Durham region and taken to a police station in Bowmanville. I can take judicial notice of 16 Division, the same way Mr. Holland or any member of the public in his shoes could. He was served with a CQT that identifies the breath technician (Bowler), in the Durham region, in the Province of Ontario. There is simply no evidence that he's been prejudiced.

[91] If I'm wrong that judicial notice can't be taken of the above fact, the law permits errors or clarifications in the CQT to be rectified with supplementary viva voce evidence: R. v. Carbno, [2005] No. 3336 (SCJ) at paras. 14-15 per Hill J.; R. v. Rebelo, [2003] OJ No. 4634 SCJ at para. 41. In this case, Cst. Pogson and Cst. Bowler both testified that 16 Division is a police station in Bowmanville. It is important that this came out in the evidence of Cst. Pogson and further amplified by Cst. Bowler, who was called by the defence to explain a matter in the certificate pursuant to s.258(6) of the Code.

[92] Mr. Boeve pointed me to the case of R. v. Padula, [1981] O.J. No. 57 (CA) where Jessup J.A. held that the "Municipality of Metropolitan Toronto" was an adequate description of a place permitting the Crown to rely on a CQT. I do not think Padula advances the defence position because Jessup J.A. ruled on what description was adequate - not what was inadequate. Put differently, the Court of Appeal did not say that in all cases, the CQT must identify the municipality in which the samples were taken. It must identify the time and place where the sample was taken which could or could not include language involving the municipality.

[93] In my view, there is compliance with s.258(1)(g) of the Code and in any event, Mr. Holland was not prejudiced by either issue. Consequently, the CQT is admissible.

(5) Is there evidence which raises a reasonable doubt about the reliability of the breath results?

[94] In any case where an accused challenges the presumption of accuracy or the presumption of identity, the presumption can be rebutted if there is evidence which raises a reasonable doubt about whether the accused's BAC exceeded the legal limit at the time of driving: R. v. Gibson, [2008] SJC No. 16 at para. 50.

[95] In 2008, Parliament amended the Code to provide that where the Crown satisfied the pre-requisites to prove the elements of the offence under the statutory scheme, only evidence tending to show (i) the approved instrument malfunctioned or was operated improperly, (ii) the malfunction or operator error produced the results exceeding the legal limit and (iii) the accused's BAC was under 80 mgs at the time of the offence could raise a reasonable doubt as to guilt.

[96] In R. v. St-Onge Lamoureux, 2012 SCC 57, the Supreme Court clarified that where the Crown is able to satisfy the presumption and rely on the CQT as proof, it remains open to an accused to raise a reasonable doubt as to the reliability of the results by identifying a defect in either the testing or operation of the instrument.

[97] Mr. Boeve says there is a debate in the case law as it relates to what is required to cast a reasonable doubt about the breath testing procedures. He relies on St-Onge to argue that there was a deficiency in the procedure as to Cst. Bowler's operation of the instrument which raises a reasonable doubt about the reliability of the breath samples. In particular, he says Cst. Bowler did not rule out residual mouth alcohol by not waiting 15 minutes before the first sample and didn't confirm that the alcohol standard solution in the simulator was suitable.

[98] Mr. O'Neill disagrees arguing that the defence arguments are speculative.

[99] I agree with the Crown's position.

[100] In my view, there may have been debate in the case law on this issue prior to St-Onge, but those debates were squarely settled by the Supreme Court. There remains no confusion in the law. A discussion of this issue requires a closer examination of St-Onge. Justice Deschamps made it clear that evidence must be lead to cast a doubt that the instrument malfunctioned or wasn't operated properly. At para. 47 she remarked:

47 … The evidence to be adduced is more complex. The accused must retain a technician or an expert to determine whether the instrument malfunctioned or was operated improperly. It is impossible for a layperson to do this. However, it should be borne in mind that the Carter defence also required the accused to retain an expert.

[101] At para. 52, Justice Deschamps provided an example of the type of evidence that would be insufficient to raise a reasonable doubt about the operating or functioning of the Intoxilyzer 8000C. She stated:

52 At this step in the defence process, it must be accepted that the judge will not consider evidence showing a connection between a deficiency and the determination that the blood alcohol level of the accused exceeded the legal limit unless the accused has already proved that the instrument was malfunctioning or was operated improperly. At this stage, if the arguments made by the defence are frivolous or trivial, they will not cast doubt on the proper functioning or operation of the instrument, and the defence must fail. The facts of Crosthwait provide a good illustration of this. In that case, the accused had tried to raise a doubt that the instrument had functioned properly by arguing that the technician had not compared the air temperature with the temperature of the solution before making the analyses. The mere possibility that the instrument had malfunctioned was not evidence to the contrary that could cast doubt on the reliability of the results. [Emphasis added]

[102] Finally, the evidence must be capable of raising a real reasonable doubt not one that is trivial or frivolous. At para. 53 she wrote:

53 Thus, it is necessary to proceed on the basis that the accused must not simply show that a deficiency is possible, but raise a real doubt that the instrument was functioning or operated properly. In short, if Parliament's objective was to eliminate frivolous cases, that objective would be achieved through the assessment of the evidence by the trier of fact.

[103] In R. v. Lam, [2015] ONSC 2194, Justice Goldstein sitting as a summary conviction appeal court approved the reasoning in St-Onge. At para. 31 he said: "An accused person must be able to say 'the machine wasn't maintained properly and it led to a problem with the machine'. It is not enough to say 'the machine wasn't maintained properly'".

[104] Moreover, appellate authority has confirmed that this cannot be premised on speculation: R. v. Singh, [2017] O.J. No. 5670 (SCJ).

[105] In this case, the defence did not call any evidence. The only evidence dealing with the operation of the Intoxilyzer 8000C came from Cst. Bowler. He testified that he was satisfied that the instrument was functioning properly based on a diagnostic check, self-test and a calibration check. Given the tests, the instrument would have not accepted a sample if there was mouth alcohol. This did not happen and the testing proceeded without issue. Moreover, the two samples were in good agreement which is further evidence of the reliability of the samples. I accept Cst. Bowler's evidence on this issue.

[106] Mr. Boeve argues that Cst. Bowler didn't properly complete some preliminary checks in accordance with the Intoxilyzer 8000C Training Aid (Exhibit 7). He pointed to two alleged errors.

[107] First, he says Cst. Bowler didn't rule out residual mouth alcohol for 15 minutes prior to the first test.

[108] I reject this argument because it is wholly speculative.

[109] In R. v. Mastromartino, [2004] OJ No. 1435 (Ont. Sup. Ct.) at para. 23, Justice Durno helpfully summarized the principles on this issue. Mr. Holland was in police custody at the time he was turned over to Cst. Bowler. There is simply no evidence that in the preceding 15 minutes before he was tested, he had consumed alcohol or placed any alcohol containing substances into his mouth. This is buttressed by the fact that he was searched incident to arrest and no such substances were located. Mr. Boeve hinges his argument on a 6 minute period when the officers were discussing their grounds. However, this too is speculative.

[110] Moreover, Cst. Bowler testified that he's been trained to observe subjects prior to testing and knows that he must confirm if the subject has recently vomited or regurgitated. While he couldn't recall if he specifically asked Mr. Holland about either issue, he was satisfied based on the information from Cst. Pogson that neither were a live issue. Nor was the issue of recent consumption of alcohol. Had he been told otherwise or had reason to believe that either was a live issue, he would have watched him prior to the test. He also said that during the entire time that Mr. Holland was with him, he did not vomit, regurgitate or raise concerns of mouth alcohol. In my view, the evidence in support of the defence argument is entirely speculative.

[111] Mr. Boeve further pursued the issue by adding that the police could not have continuously observed Mr. Holland for 15 minutes because there was a period of time when he was exercising his right to counsel in private. Cst. Bowler confirmed that he didn't observe him for this period when he was exercising his rights in private. In my view, there is no basis in the evidence to conclude that something happened in the time when Mr. Holland was speaking with his lawyer in private. Mr. Holland did not testify to this, nor is there anything on the record to suggest that Cst. Bowler ought to have been aware of a potential issue before he let him exercise his rights in private. The fact that he didn't disagree that Mr. Holland might have told him that he ate some "hot chicken, fries and a coke" during the testing doesn't mean that this was cause for alarm. That too is speculative. Continuous monitoring of Mr. Holland would frustrate the right to counsel in private. Even if there was merit to this position, there's no evidence in this case that the failure to do so was of any consequence.

[112] The second complaint pertains to the alcohol standard solution. Cst. Bowler testified that prior to a breath test, he has to satisfy himself that the alcohol standard solution in the simulator is suitable for use by checking the calibration/alcohol standard log for the instrument and the Certificate of an Analyst (Certificate). Ideally, this would be done by physically examining the Certificate but in this case, the Certificate was at Traffic Services. He called Cst. Gribbons who is in charge of the Intoxilyzer Tech program and learned that the solution had arrived at the detachment without the Certificate. However, he telephoned and emailed the appropriate parties and verified the manufacturer, lot number and expiry date of the solution.

[113] Mr. Boeve says that the failure to have the Certificate on site meant that he should have changed the solution because the training guide mandates this. Again, I disagree. The training guide simply states "If necessary, follow the recommended procedure for changing the alcohol standard solution". There's no evidence to suggest that it was necessary for Cst. Bowler to do this.

[114] Moreover, in R. v. Lightfoot, [1981] SCJ No. 48, the Supreme Court confirmed that the Crown is not required to prove the suitability of the standard solution or any other element by oral evidence. The statements in the certificate are sufficient proof of the elements therein and nothing more is required.

[115] In this case, the Crown did not have to call Cst. Gribbons to prove that the alcohol solution was suitable. Cst. Bowler learned of this information from him and was satisfied that it was not necessary to change the solution. There is no basis to impeach this conclusion.

[116] There were no deficiencies in the breath testing procedure and in any event, there is no evidence to cast a real doubt about the reliability of the breath results. Consequently, both challenges to the reliability of the breath results are speculative and fail.

[117] In conclusion, the CQT is admissible and the presumption in s.258(1)(d) has not been displaced. Together, they are conclusive proof of Mr. Holland's guilt on the over 80 offence.

(6) Is there merit to the motion for a directed verdict?

[118] Mr. Boeve relied on the same admissibility submissions to move for a directed verdict. In brief reasons, I dismissed this motion. In my view, there is a basis in the evidence, especially after ruling that the CQT is admissible, that a reasonable jury properly instructed could convict on both offences: R. v. Arcuri, 2001 SCC 54. To be clear, I have not considered the evidence of Cst. Bowler on this issue as he was called by the defence, not the Crown. In Carbno, this argument suffered from the same fate as Hill J. held that the certificate evidence ought to have been considered by the trier of fact.

(7) Has the Crown proven that Mr. Holland's ability to drive was impaired by alcohol?

[119] The final issue is whether the Crown has proven that Mr. Holland's ability to operate a motor vehicle was impaired by the consumption of alcohol. This must be proven beyond a reasonable doubt.

[120] Mr. Boeve argues that the evidence of impairment falls short of the required standard. Mr. O'Neil disagrees as the test for impairment is a modest one.

[121] I agree with the defence position.

[122] There is no definition of "impairment" in the Criminal Code. It is a factual question that must be decided on the evidence in each case: R. v. Stellato, (1993), 78 C.C.C. (3d) 380 affirmed , [1994] 2 S.C.R. 478.

[123] The core issue is not whether Mr. Holland drank and drove but whether that drinking impaired his ability to drive. The legal basis for this argument is set out in the oft-quoted case of R. v. Andrews (1996), 1996 ABCA 23, 104 C.C.C. (3d) 392 (Alta. C.A.), at paras. 19, 20, 24, 27; leave to appeal refused, [1996] S.C.C.A. 115.

[124] In R. v. Bush, 2010 ONCA 554 at para. 47, the Ontario Court of Appeal cited Stellato with approval and held, "slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road: Censoni at para. 47."

[125] On this record, I find that the evidence when viewed as a whole falls short of meeting the Crown's burden. Cst. Pogson testified that he did not witness any poor driving from the moment he began to observe Mr. Holland in the Chasers parking lot to the time he stopped him at the Esso gas station. Mr. Holland was able to perform complex motor functions without difficulty. The only area of controversy is the parking job in the McDonald's which I have already explained above raises a doubt on whether this was attributed to impairment of his ability to drive given the sheer size of his vehicle.

[126] After reviewing the breath room video and comparing it to the evidence of Cst. Pogson, there is nothing remarkable about Mr. Holland's physical movements that suggests his reaction, response time or functioning was impacted by the consumption of alcohol.

[127] While reasonable people may disagree about the ultimate conclusion of impairment of the ability to drive, on this record, it cannot carry the Crown's heavy burden of proof.

C. CONCLUSION

[128] Mr. Holland will be found guilty of the over 80 offence but not guilty of impaired care or control.

Released: February 16, 2017

Justice F. Javed