Ontario Court of Justice

Date: June 28, 2018

Between:

Her Majesty the Queen

— and —

Jinesh Shrirasa

Before: Justice B.M. Green

Heard on: May 15th and May 16th, 2018

Reasons for Judgment released on: June 28th, 2018

Counsel:

• Ms. S. Herbert, for the Crown
• Mr. Wulkan, for the Defendant, Jinesh Shrirasa

A. Introduction

[1] Mr. Shrirasa stands charged that, on or about the 18th day of April, 2017, he operated a motor vehicle with more than 80 mg of alcohol in 100 ml of his blood. There were no issues in this case with the grounds for Mr. Shrirasa's arrest or the timing of breath demand and the samples. The trial was focussed on two specific contested issues.

[2] First, during a Charter voir dire, Mr. Shrirasa testified as well as two other defence witnesses who were in his car that night. They claimed that, in addition to the arresting Officer, there was another unidentified uniformed Officer who also arrived on scene in the same cruiser as the arresting Officer. Mr. Shrirasa testified that this unidentified uniformed Officer became involved in the conversation about his rights to Counsel at the roadside even though he was not involved in the arrest or the investigation. After Mr. Shrirasa was read his rights to Counsel by the arresting Officer and after he asked for Duty Counsel, he asked if he could speak to a private lawyer. This unidentified Officer responded that private lawyers would probably not be available at that time of night and that the police would contact Duty Counsel for him. As a result, Mr. Shrirasa opted to consult with Duty Counsel because he felt that he had no other choice. He felt like he was directed by the police to speak with Duty Counsel and he was unsure what their true role was in terms of his rights. He would have preferred consulting with a private lawyer because he was not comfortable with Duty Counsel or satisfied with the advice he received from him. Counsel submitted that Mr. Shrirasa's section 10(b) Charter protected rights to counsel of choice were violated because he was channelled or funnelled to Duty Counsel despite expressing a desire to speak with private Counsel. The Crown urged the Court to reject the defence evidence and asserted that there was no unidentified Officer at the scene who influenced Mr. Shrirasa's decision about consulting with private Counsel.

[3] Secondly, Counsel advanced an interesting argument about whether this Court can rely on the Certificate of a Qualified Technician (hereinafter referred to as the CQT) as proof of the breath readings because the Manufacturer of the alcohol standard solution was identified as "Laborat io re Atlas Inc" instead of "Laborat oi re Atlas Inc" in the certificate. Counsel submitted that, since the CQT does not prove that the technician used an alcohol standard suitable for use in the approved instrument, the Crown has lost the benefit of the presumption of accuracy and Mr. Shrirasa must be acquitted. The Crown provided three compelling arguments in response. First, this is an issue with the admissibility of the CQT and Counsel did not object to the admissibility of the Certificate at the time that it was tendered in evidence. As such, he should not be permitted to challenge its admissibility at the end of the trial. Secondly, the error in the CQT does not adversely impact its admissibility in the unique circumstances of this case because the name of the manufacturer of the alcohol standard solution is not an essential part of the CQT. Alternatively, it is an inconsequential typographical error. Finally, when there is an error in the CQT, there is a long line of binding legal authorities that direct this Court to take a pragmatic approach to addressing typographical errors or omissions in the certificate.

[4] An in depth review of the evidence is warranted to provide detailed reasons for this Court's rejection of the defence evidence called during the voir dire and the finding that Mr. Shrirasa's Charter rights were not violated. The legal analysis will be devoted to the issues with the admissibility of the CQT and whether this Court can rely on the contents of the Certificate of the Qualified Breath Technician to find that the Crown has proven its case beyond a reasonable doubt.

B. Evidence and the Rights to Counsel Issue

i. Crown's Case: PC Polani and the Agreed Statement of Facts

[5] The trial proceeded by way of a blended hearing and the Crown called one witness, the arresting Officer, PC Polani. PC Polani presented remarkably well during examination-in-chief and cross-examination. In addition to his notes, he related a very clear independent recollection of the events before and after Mr. Shrirasa's arrest.

[6] PC Polani is an experienced Officer and he is also a Qualified Intoxilyzer Technician although he did not take the breath samples in this case. On April 18th, 2017, PC Polani was on duty in full uniform operating a fully marked police cruiser. PC Polani was explicit and unshaken that he was working alone in his cruiser while on patrol during his shift and he did not have any other uniformed Officer accompanying him. In addition to his testimony that he was working alone, he brought two documentary exhibits that were introduced for the truth of their contents. First, he provided a police activity log which was filed as Exhibit #1. It showed that, at the beginning of his shift, his badge number of 3636 was active as an "officer in service" with an associated number of "9211". 92 signifies the area that he was working and 11 signifies that he was working alone. If he had a partner with working him in this area, they would have entered 9212 to reflect that a second Officer was working with him.

[7] The only other Officer who responded to this call was Officer Weiner and his badge number is 3122. The police activity log showed that he was in service as "9311". This number represents that PC Weiner was assigned to another part of Ajax/Pickering and he did not have a partner working with him either. PC Polani assured the Court that every Officer has an individual secret password that allows him/her to log on. As a result, he was the only person who could have logged himself on as a single Officer on duty in his patrol car.

[8] Counsel pointed out during cross-examination that the entries of "9211" and "9311" were made at the start of their shifts as opposed to the time of this stop. Accordingly, he suggested that another uniformed Officer could have joined him later on during his duties. PC Polani noted in response that he had also referenced a detailed call summary produced by the police of all of the critical events with respect to this investigation. This call summary was filed as Exhibit #2 during the trial. Once again, it showed that two units responded to this incident. PC Polani's badge number 3636 was marked in service as "9211" which meant he was still working alone. Similarly, PC Weiner badge number 3122 was marked in service as "9311". If their status had changed to working with a partner, the last number would have changed to show "2". More importantly, the detailed call summary lists all officers who were involved in this call in any way and it shows that they were the only two Officers who participated in the call or the investigation. If there was another Officer on scene, that Officer would have been included in the call summary.

[9] Counsel asked Office Polani a hypothetical question. He asked if he picked up another off duty but fully uniformed Officer to give him a ride to the station, whether the last digit on the call summary would change in those circumstances. PC Polani agreed that would not change his call sign but there was no other fully uniformed unidentified Police Officer getting a ride with him to the station that night. There was no evidence that PC Polani was even on his way back to the station when he pulled Mr. Shrirasa over. PC Polani was completely unshaken in his evidence that there was no other uniformed Police Officer in his cruiser and the only other Officer who was involved or who responded to the scene was PC Weiner.

[10] PC Polani explained that he was travelling east bound on Kingston Road west of Elizabeth Street in Ajax when he noticed a white Honda Civic straddling the dividing lanes and then the vehicle proceeded North bound on Elizabeth Street. PC Polani advised that he did not see any debris or road kill that would account for the weaving that he observed so he decided to pull the vehicle over to check on the driver's sobriety at 1:19 a.m. He activated his emergency equipment and the vehicle pulled over immediately. PC Polani approached the driver's side and Mr. Shrirasa was identified as the driver of the vehicle. PC Polani noticed that he had significantly red bloodshot eyes. He asked Mr. Shrirasa for his license, insurance and ownership. When he received the documents, PC Polani conversed with Mr. Shrirasa about who the registered owner was because it was not in his name. During their conversation, PC Polani noted a moderate odour of an alcoholic beverage coming directly from Mr. Shrirasa's breath. As a result, he asked him if he had been consuming alcohol and Mr. Shrirasa confirmed that he had consumed one drink about two hours prior to the traffic stop.

[11] PC Polani advised that there were three other passengers in the vehicle, one male in the front passenger seat and two females in the back seat. In order to ensure that the only source of the smell of alcohol was from Mr. Shrirasa's breath, he asked if any of the other occupants had been consuming alcohol and they all denied that they had been drinking. At this time, Cst. Polani formed the reasonable suspicion that Mr. Shrirasa had alcohol in his body so, reading from the back of his notebook, he made a demand for Mr. Shrirasa to provide a roadside breath sample.

[12] PC Polani did not have an approved screening device readily available to take a sample of Mr. Shrirasa's breath. Another Officer, PC Weiner, had arrived on scene so he asked him to go to the nearby station and return with an approved screening device. PC Polani described where PC Weiner arrived on scene in relation to Mr. Shrirasa's vehicle. PC Polani stated "another officer, officer Weiner, was just behind me and I attended his cruiser and asked him whether or not he had one."

[13] PC Polani was aware that 19 Division was approximately two minutes away from where they were located so he was not concerned about how long it would take for PC Weiner to go back and forth from the station to the scene. PC Weiner returned to the scene with a recently calibrated and tested approved instrument within a very short period of time. PC Polani provided the following chronology of events:

1:19 a.m. — He stopped Mr. Shrirasa's vehicle to check on his sobriety and began engaging him in conversation.

1:24 a.m. — He formed the reasonable suspicion that he had alcohol in his body and he read the demand for a roadside breath sample from the back of his notebook and Mr. Shrirasa replied that he understood the demand.

1:28 a.m. — PC Weiner arrived with a recently calibrated and tested approved screening device. Once the ASD was available, PC Polani asked Mr. Shrirasa to exit his vehicle to perform the roadside test. He performed the test and failed.

1:29 a.m. — PC Polani formed reasonable grounds to believe that Mr. Shrirasa was operating a motor vehicle with more than 80 mg of alcohol in 100 ml of blood so he arrested him, handcuffed him, searched him and placed him in the rear seat of the cruiser.

1:32 a.m. — Once Mr. Shrirasa was seated in the cruiser, PC Polani read him his rights to counsel in full from the back of his duty book. Mr. Shrirasa replied that he understood his rights to counsel. PC Polani asked him if he wished to call a lawyer now and he replied that he did not have a lawyer and he asked to speak with Duty Counsel.

1:34 a.m. — PC Polani read Mr. Shrirasa the standard cautions and he replied that he understood the cautions "as well".

1:36 a.m. — PC Polani read Mr. Shrirasa the breath demand from the back of his note book and he replied that he understood the demand.

1:42 a.m. — They left the scene to go to 19 Division to provide the breath samples.

1:45 a.m. — They arrived at 19 Division and waited to be admitted to the sally port and then he awaited the arrival of the cell Sergeant.

1:53 a.m. — Mr. Shrirasa was paraded in front of the cell Sergeant.

1:56 a.m. — He took him to the washroom.

2:01 a.m. — PC Polani called Duty Counsel for assistance with providing legal advice.

2:07 a.m. — Duty Counsel called back and Mr. Shrirasa was placed in a private room to have a conversation with Counsel. While Mr. Shrirasa consulted with Duty Counsel, PC Polani provided the grounds for Mr. Shrirasa's arrest to the Intoxilyzer Technician.

2:14 a.m. — Mr. Shrirasa completed his seven minute conversation with Duty Counsel.

2:18 a.m. — PC Polani turned over custody of Mr. Shrirasa to the Technician.

2:49 a.m. — Custody was returned to PC Polani and he served Mr. Shrirasa with the results of the Intoxilyzer tests, the CQT and other relevant documents. Mr. Shrirasa was later released from the station.

[14] The most critical time period was when they were interacting at the roadside. PC Polani had a clear recollection of where Mr. Shrirasa's friends were during his interactions with Mr. Shrirasa. All three of them remained in the vehicle while he conducted the ASD testing. After he arrested Mr. Shrirasa, he directed PC Weiner to assist with attending to the vehicle and the occupants. When he placed Mr. Shrirasa in the back seat of the cruiser and he was explaining his rights to Counsel to him, that was when Mr. Shrirasa's three friends exited their vehicle.

[15] Cst. Polani related that Mr. Shrirasa did not express any concerns during their conversation about accessing Counsel. While he was in the back of his cruiser, however, he was concerned about whether his father had to be notified about his arrest. Officer Polani thought this was a natural concern in the circumstances. Officer Polani explained that he had to notify his father because he was the registered owner and the vehicle would be towed. Mr. Shrirasa also expressed concerns about his friends and what would happen to them. PC Polani explained that Officer Weiner may assist them by giving them a ride or calling an Uber service.

[16] Cst. Polani was emphatic that he was the only Police Officer who interacted with Mr. Shrirasa in any way at the roadside. After Mr. Shrirasa was arrested, he remained in the back of PC Polani's cruiser the whole time. Mr. Shrirasa did not speak with his friends at any point after he exited his vehicle and accompanied PC Polani to his cruiser. Similarly, PC Polani did not interact with Mr. Shrirasa's friends in any way since he tasked PC Weiner with attending to the vehicle and Mr. Shrirasa's friends. Each Officer logically concentrated on a different aspect of this investigation. PC Polani was certain that PC Weiner did not interact with Mr. Shrirasa at all. When Counsel suggested that there was a third unidentified fully uniformed white male Police Officer who interacted with Mr. Shrirasa while he was in the back seat of the police cruiser, PC Polani responded "that's absolutely 100% incorrect".

[17] PC Polani's account never wavered that he arrived on scene in a cruiser by himself. He was certain that he did not have a ride along Officer with him. He was not training anyone during that shift. No other third parties or Officers arrived on scene while he was present other than PC Weiner. He was the only Officer who had anything to do with explaining to Mr. Shrirasa's his rights to counsel. He agreed with Counsel that it would be "absolutely" inappropriate to dissuade a detainee from contacting a private Counsel. He agreed that, in his experience, private Counsel are available at all hours of the day and night. He has called private Counsel in the past in the middle of the night and Counsel has returned the call. He was adamant that he would not have told Mr. Shrirasa that private Counsel was not available because of the late hour and neither did any other Officer since he was the only Officer who spoke to Mr. Shrirasa about his rights to Counsel at the roadside or about anything else for that matter.

[18] Once they were at the station, PC Polani confirmed that there was a lawyer's directory available that Mr. Shrirasa could have reviewed to search for private Counsel and they have access to the Internet in the cells for searching up information about Counsel. He did not offer these resources to Mr. Shrirasa because he had already told him that he could speak to "any lawyer you wish" and he asked to speak with Duty Counsel.

[19] In addition to Officer Polani's evidence about Mr. Shrirasa exercising his rights to Counsel, there was an agreed statement of fact that Mr. Shrirasa also spoke to the Intoxilyzer technician about this issue. It was admitted that the Technician asked him if he spoke with Duty Counsel and Mr. Shrirasa replied "yes". The Technician asked him if he was satisfied with the advice that he received from Duty Counsel and he replied "yes".

ii. Defence Evidence During the Voir Dire

a. The Defendant – Mr. Jinesh Shrirasa

[20] In advance of the trial, Counsel filed an Application that notified the Court of the section 10(b) Charter issues to be argued in this case. In support of the Application, Mr. Shrirasa provided an affidavit attesting to what occurred on that night which was filed as Exhibit 5 during the trial at the request of Counsel after Mr. Shrirasa adopted the contents. In the affidavit, he stated that:

While at the roadside I asked a police officer who was present (not the arresting officer) whether I could find a lawyer right now. The officer told me that I probably wouldn't be able to get a lawyer at this time and that I could contact duty counsel.

Based on this information I believed that duty counsel was my only option. Had I not been told this I would have attempted to contact private Counsel. I would have been far more comfortable and forthcoming with a private lawyer that I was able to find myself than I was speaking to someone provided by the police. I was not at all convinced that this person was acting in my best interests since it seemed to me there was some connection between this person and the police.

[21] Conspicuously missing from the affidavit was any reference to the fact that this Officer who became involved in the discussion about Mr. Shrirasa's rights to Counsel was not identified in any way in the disclosure and supposedly arrived on scene in the same cruiser as the arresting Officer. During Mr. Shrirasa's evidence, he claimed that Officer Polani had another fully uniformed white male Officer accompanying him that night in his police cruiser and this anonymous Officer was initially seated in the passenger seat. For ease of reference, this unidentified Police Officer will be referred to as the passenger Officer.

[22] Mr. Shrirasa "first" saw the passenger Officer "just after Polani came by and spoke to me by the window after he pulled me over and he went back to his cruiser, so at that moment I looked at my rear mirror and that's when I saw the passenger, which was the other police officer besides Officer Polani." He repeated during cross-examination that he only noticed this passenger Officer after he was pulled over and after PC Polani had returned to his cruiser. It is important to note that PC Polani testified that PC Weiner had pulled up behind them while he was interacting with Mr. Shrirasa and he went to speak with him about bringing an approved screening device to the scene.

[23] Mr. Shrirasa provided a curiously vague description of the passenger Officer. PC Polani is a person of colour. Mr. Shrirasa indicated that there were also two white male Officers on scene that night, the Officer who brought the "breathalyser" (PC Weiner) and this passenger Officer. PC Weiner was a little taller and the passenger Officer was "shorter". When he was pressed during cross-examination about the description of this Officer who he had an influential verbal exchange with that night, the only physical features he could recall were that he was "white" and "not too tall" and probably the same height as Officer Polani. The Crown returned to his description of this Officer later on and he indicated "he had like short hair. It's very vague. I can't really describe it." "I said, like, my memory's really vague about that officer. I wasn't really paying attention…"

[24] Mr. Shrirasa's first account while he was testifying in chief was that, following his arrest, he was seated in the rear passenger seat of PC Polani's cruiser and the back door of the cruiser remained open. He initially testified that, while he was on the passenger side of the cruiser, Officer Polani said "you have one phone call that you can make. Do you wish to make this phone call to anybody?" I note that this evidence as well as significant aspects of Mr. Shrirasa's account about other verbal exchanges at the roadside were never put to PC Polani. There was also no reference in his affidavit to this police direction that he only had one phone call.

[25] Mr. Shrirasa said that his brother was standing nearby when he had these exchanges with PC Polani and the passenger Officer so he asked his brother to call their mom or dad. He never explained to the Court why he asked for his brother to call his parents or how that related to the conversation about his rights to counsel. While he was seated on the passenger side of the cruiser, PC Polani was standing outside the cruiser on his left and the passenger Officer was to his right and he spontaneously asked them "can I contact a lawyer at this time?" The passenger Officer, who had not spoken with him and had nothing to do with the investigation prior to this moment, replied "You probably won't be able to find a lawyer at this hour but you can speak to Duty Counsel".

[26] As Mr. Shrirasa's evidence progressed, he was not consistent about what the passenger Officer said to him. Instead of stating that a private lawyer was "probably" not available which was similar to the statement in his affidavit, he also said the Officer stated that "you cannot find a lawyer at this time". As a result of this Officer's remark, he felt that he had no other choice so he followed through with what the passenger Officer told him to do. He had absolutely no clue about whether a private lawyer was accessible at that time of night, he was very nervous and he complied with what the Officer "directed" him to do.

[27] Mr. Shrirasa was unequivocal that Officer Polani was the only Officer who interacted with him at any point during the investigation or spoke with him until there was a very brief verbal exchange with the passenger Officer while Mr. Shrirasa was seated on the passenger side of the cruiser. However, he could not consistently relate other details like whether or not Officer Polani spoke to the passenger Officer during the investigation. At first he stated "yeah, I did not witness him talking to him or hear – over hear anything that was being said". The Crown asked "not any conversation" and then he immediately changed his answer within a sentence to "no, they had a conversation, I just did not hear it" and then another change to "yeah, they did. They spoke like nearby person to person."

[28] In addition to his uncertainty about various details, Mr. Shrirasa's account about what happened at the roadside changed considerably while he was testifying. While he initially claimed that PC Polani told him that he had one phone call to make and he asked to call Counsel while he was on the passenger side of the rear seat of the cruiser and the passenger Officer and PC Polani were standing outside the cruiser, he obviously forgot about the critical event of when he was read his rights to Counsel by PC Polani. When he was subsequently asked during examination-in-chief to recall when he was read his rights to Counsel, he tried to explain this oversight by adding that process happened before he was on the passenger side of the cruiser while he was on the driver's side of the cruiser. He said that PC Polani:

had just arrested me, he read me my rights and at that time he asked me, "do you have a lawyer?" and at that time, there was no lawyer at the top of my head that I knew that I can talk to or what not and he told me that I can speak to duty Counsel, so that seemed to me my only option, but I did wanna eventually see if there was opportunity to seek private Counsel which is why a couple of minutes later, when I was seated in the cruiser, I asked again "hey can I speak to somebody?" and the officer said "probably not". [Emphasis mine]

[29] Notably, Mr. Shrirasa's query to the Officers changed from asking to speak to a "lawyer", to asking to speak to "somebody".

[30] Mr. Shrirasa repeated during his evidence-in-chief and later on during cross-examination that PC Polani read him his rights to Counsel while he was on the driver's side of the cruiser. The standard rights to counsel read by PC Polani clearly included the direction that he had the "right to telephone any lawyer you wish". Mr. Shrirasa confirmed that he told PC Polani immediately after he was read his right to counsel that he didn't have a lawyer. He did not ask to speak to any lawyer at that time. He did not ask for a phone book or any resources to call a lawyer but he advised the Court that he did not know he could access a list of lawyers. Mr. Shrirasa volunteered that he could not initially think of any lawyer so that was why he told PC Polani that he wanted to contact Duty Counsel because he didn't have anyone else to speak to at that time.

[31] Apparently, Mr. Shrirasa then inexplicably switched sides inside the police vehicle and PC Polani also somehow ended up on the other side of the cruiser standing outside the passenger side. When he was asked how long after he was read his rights to counsel did this exchange occur on the passenger side, he said that it was "really quick, like, probably a minute. After I was arrested I was just put in the back seat and then – so, maybe even under a minute. I would say a minute max". During cross-examination, Mr. Shrirasa's attempts to explain where he interacted with PC Polani and how and when he ended up interacting with this passenger Officer made even less sense. In addition, his descriptions of who was where and when was internally inconsistent and contradicted the other defence witnesses. For two minutes after PC Polani "pulled" him out of his vehicle, the passenger Officer remained seated in the passenger seat of the cruiser while he interacted with PC Polani on the driver's side at the back of the cruiser. The passenger Officer then got out of the cruiser and stood on the passenger side. PC Weiner came "shortly after" when he brought the device to the scene. PC Weiner remained nearby while Mr. Shrirasa did the roadside screening test but then "after that I didn't really see him be anywhere like close to me" and "he was near his vehicle and then inside afterwards".

[32] It was obvious to the Court that Mr. Shrirasa could not consistently relate the surrounding details about this exchange with the passenger Officer. Mr. Shrirasa description of spontaneously switching sides of the cruiser to explain these distinct conversations about his rights to Counsel was inherently implausible.

[33] After this unidentified passenger Officer made the remark that profoundly impacted Mr. Shrirasa's decision about whether to contact Counsel of choice, he mysteriously disappeared from the scene. It is indisputable that Officer Polani drove to the station with Mr. Shrirasa from the roadside and there was no other uniformed Officer in his cruiser when he arrived at the station. If this uniformed passenger Officer fortuitously happened to be getting a ride to the station when Mr. Shrirasa was pulled over, then that passenger Officer should have still been in his cruiser when they left the scene and went to the station but he was not with them.

[34] Mr. Shrirasa was not able to explain what happened to this Officer. He only saw him in PC Polani's vehicle at the scene, he never saw him in any other police vehicle and he never saw him with PC Weiner. The last time Mr. Shrirasa saw the passenger Officer, he was standing outside when they left the scene. At the very end of cross-examination, Mr. Shrirasa claimed that he was "more worried about my brother and my friends, how they were going to get home" and so he was not paying attention to where the passenger Officer was on the scene. Mr. Shrirasa confirmed Officer Polani's evidence that he expressed concern to him about what was going to happen to his friends. When asked to describe how many cruisers were at the scene, Mr. Shrirasa related that a third cruiser came by while he was still at the scene to "check if everything's okay and just kept going, but at the scene, yeah, two".

[35] Mr. Shrirasa's explained that the day after he was released from custody, he went on line and discovered that there are lawyers who are "24 hour operational". He repeated that he had only consulted with Duty Counsel because he thought that was his only option. He was "not aware of that they were even a lawyer. I felt like they were more somebody that was like an advisor, so if duty counsel was – for me, my understanding was that I could go there, I'm gonna speak to somebody, they're going to give me some sort of feedback, advice. I was very unsure, unclear, and I had a whole different idea of what private counsel actual lawyer were because the Officer wouldn't [inaudible] a lawyer at Duty Counsel, so I thought they were two different things". Later on in his evidence, when he was confronted with the fact that he did not ask the Officer who Duty Counsel was or seek any clarification, he changed his account of his understating of the role of Duty Counsel to "I felt they're somebody that was similar to a lawyer, just gives advice or feedback".

[36] Mr. Shrirasa confirmed more than once during his evidence that he received the benefit of PC Polani reading him his rights to Counsel and that he responded that he understood his rights. Mr. Shrirasa repeated during cross-examination that PC Polani read him his rights to counsel and that he read it from the back of his notebook. After the Crown finished cross-examination and before re-examination, the Court asked Mr. Shrirasa about the Officer reading him his rights to Counsel "so you heard that whole wording read to you" and he replied "yes". As soon as the Court queried whether the rights recited "explained everything in the wording", Mr. Shrirasa's evidence about this critical fact changed instantaneously. He changed his evidence to:

A: He did not read it the way he said he worded it, but he did read – read my rights.

The Court: Okay. You're saying what he read today from the back of his notebook was not what he read to you?

A: No, it was like half of that.

[37] Mr. Shrirasa did not say anything about the Officer only reading him part of his rights to Counsel at any point during the trial, quite the contrary. It was evident that he only changed his response at the very end of his evidence as soon as it occurred to him that the full rights to Counsel explain that Duty Counsel are lawyers and they provide legal advice. I find that Officer Polani read Mr. Shrirasa his full rights to counsel from the back of his notebook which included telling him that he had the right to "free advice from a Legal Aid Lawyer" and further that he could call a toll free number that would put him in touch with a "Legal Aid Duty Counsel for free legal advice". Furthermore, I find that Mr. Shrirasa consulted with Duty Counsel for seven minutes which was more than ample time to make clear what his/her role was in terms of providing legal advice. Mr. Shrirasa's claims that he did not know that Duty Counsel are lawyers are not credible.

[38] Mr. Shrirasa also expressed concern that he believed that the police had some sort of relationship or connection with Duty Counsel and he felt like he did not get the best treatment from them. In addition to his conversation with PC Polani, Mr. Shrirasa had two additional opportunities to raise any concerns with speaking to Duty Counsel as opposed to private Counsel.

[39] He agreed that the cell Sergeant asked him who he wished to consult with at the station. Mr. Shrirasa told the cell Sergeant that he did not have a lawyer and he did not ask to speak to private Counsel. During re-examination, he went further and stated that he was asked if he had a lawyer by the cell Sergeant and he replied no and "then I believe I asked can I – I can speak to Duty Counsel". Inferentially, he had no lawyer in mind at that time other than Duty Counsel and he was not concerned about consulting with Duty Counsel considering he specifically asked for the opportunity to contact them.

[40] Mr. Shrirasa was asked by the Intoxilyzer technician whether he was satisfied with the "advice" that he received and he replied affirmatively. He explained that he said that he was satisfied because of his limited knowledge at the time and now that he is aware that he could have "actually contacted private Counsel" he is not satisfied with the advice he received from Duty Counsel. If he felt uncomfortable because he thought that Duty Counsel was working with the police or connected to the police or he was unhappy with their assistance, he had ideal opportunities to express his concerns but he chose not to do so. If he did have these concerns, he wasn't diligent with advising the police about any of these misgivings and the police are not expected to be mind-readers.

[41] In terms of the aspects of Mr. Shrirasa's account about pivotal issues like his vacillating evidence about whether Officer Polani failed to read him his full rights to counsel or whether Officer Polani told him he was only entitled to "one phone call", this evidence was not put to Officer Polani and it was not alleged in the affidavit in support of the Application. As such, it has limited weight. More importantly, I found Mr. Shrirasa's account to be both internally inconsistent, externally inconsistent with the peripheral details provided by the other defence witnesses, externally inconsistent with the evidence that I do accept and completely incredible. Mr. Shrirasa presented as a witness who made up facts as he went along when it was obvious that his account did not accord with common sense or he was contradicting himself.

b. Ayishwar Shrirasa – the Defendant's Teenage Brother

[42] Mr. Ayishwar Shrirasa is the Defendant's 16 year old brother who was seated in the front passenger seat on the night of his brother's arrest. For ease of reference to differentiate the brothers, I will refer to them by their first names of Ayishwar and Jinesh. Ayishwar testified that an Officer pulled them over and asked his brother if he had anything to drink. The Officer told his brother to step out of the vehicle. "Like a minute after Jinesh stepped out of the vehicle", Ayishwar stepped out of their vehicle and he saw three Police Officers on scene. He explained that two of the Officers were in the vehicle that pulled them over, the arresting Officer and a passenger Officer, and there was another Officer in the vehicle that brought the machine.

[43] During cross-examination, Ayishwar related that he first saw all three Officers when he got out of the vehicle and they were all out of their vehicles. He clearly stated "no, they were all just outside". The Crown aptly pointed out a significant contradiction in his evidence that he claimed in chief that an Officer was in the passenger seat of the arresting Officer's vehicle and during cross-examination he claimed that all three Officers were outside of their police vehicles when first saw them as he exited the car. In response, Ayishwar claimed that he saw the passenger Officer in the right side mirror while he was still seated in the vehicle and then "well, like they got out of the car obviously and there were – when I got out they were outside". Later on in his cross-examination, he changed his mind again and stated that the passenger Officer was just sitting in the cruiser while his brother was being arrested and he "only got out after".

[44] Ayishwar maintained during cross-examination that he stepped out of the vehicle within a minute of his brother leaving the vehicle and the female passenger exited the vehicle when he got out. The female passenger was with him on the "right side" of the cruiser which would have been the driver's side based on their relative positions but she was "like behind our car". Once everyone was outside of the vehicle, Ayishwar provided a convoluted account as to what happened next at the roadside which accords with his obvious inability to consistently relate where this elusive passenger Officer was located at the scene.

[45] All of the passengers got out of the vehicle and they were communicating with the passenger Officer asking "common questions and concerns" like what was going to happen to the vehicle and Jinesh was sitting in the cruiser because he was arrested. During his examination in chief, Ayishwar said that Jinesh was also asking questions but he was not consistent about who his brother was speaking to or where the Officers were in relation to Jinesh. Ayishwar's answers changed from one moment to the next while he was testifying. He advised that his brother was speaking to the arresting Officer, then one of the Officers was in the vehicle, then the both of them (the arresting and passenger Officer) were standing around the vehicle and then his brother was having a conversation with the passenger Officer. During cross-examination, he claimed that all three Officers on scene were communicating with his brother at the roadside. He went so far as claiming that all three Officers were interacting with his brother "the whole time". Not surprisingly, he almost immediately changed his answer to "not the whole time, just like, one person would talk or two people would talk." This response contradicted one of his earlier varying accounts that the passenger Officer remained seated in the passenger seat of the cruiser for some time.

[46] Ayishwar's evidence about who was interacting with his brother was internally inconsistent and it was completely inconsistent with his brother's recollection that he did not interact with PC Weiner at all. Similarly, Jinesh said that the passenger Officer was sitting in the cruiser initially while he interacted with PC Polani, he interacted almost exclusively with PC Polani and he only had a brief exchange with the passenger Officer when they somehow ended up on the passenger side of the cruiser and the passenger Officer was standing outside and he made one remark.

[47] Although Ayishwar could not consistently relate where anyone was standing or who was speaking to whom and there was a lot going on at the roadside, he had an almost perfect recollection the words spoken by Jinesh and the Officers during a very brief verbal exchange. It was so similar that it seemed rehearsed although Jinesh messed up the wording during his evidence when he tried repeating it a few times. Ayishwar claimed that when they were standing to the right side of the cruiser, a police officer told Jinesh that he could make "one call" and then Jinesh asked Ayishwar to call his mom and dad and then he asked if he could get a lawyer at this time but the Officer responded "no, you probably can't (get) a lawyer at this time but duty counsel, he can do that." Of note, he claimed he exited their vehicle within a minute of his brother being removed and he was within earshot of his brother's conversation with these three Officers the whole time but he could not recall whether the arresting Officer read Jinesh his rights to counsel.

[48] Ayishwar commenced his evidence by indicating that he and the passengers from his brother's vehicle were engaged in asking common questions and concerns of the passenger Officer and all three Officers were also involved in the conversation with his brother. Later on, he suggested that none of the Officers spoke with the passengers at the scene and he was sure that the Officer who brought the machine, PC Weiner, never spoke with him or the other passengers.

[49] The Crown asked Ayishwar how he got home from the scene. He related that he walked to the station. The Crown pressed him again about whether an Officer spoke with them about the vehicle and then he recalled that "one officer, like one officer first said that Apira can take the vehicle but them he also discuss – after he discussed with someone else, the other officer, and he said, no, you can't, he just yeah…" and this officer was the "the one who was in the passenger."

[50] Ayishwar was asked to provide a description of the passenger Officer and his description was, coincidentally, as vague as his brother's and the other defence witness. He related the same amorphous descriptors of a uniformed officer who was "a bit big and white and kind of short – average". Even though Ayishwar remained on scene after his brother was taken away by the arresting Officer, he too conveniently had no recollection of where the passenger Officer went afterwards. Initially, he couldn't even recall how many Officers remained on scene after his brother left with the arresting Officer. The Crown pointed out that he claimed that there were three Officers and one left with his brother so that must mean that there were still two Officers there. He flippantly replied "Yeah. Yeah". He was also asked how many cruisers were on scene after his brother left and he volunteered that another cruiser "just stopped by to see if everything was okay."

[51] The Crown asked Ayishwar if he has a close relationship with his brother and whether he would do anything to protect him and he answered "correct" to both questions. Suddenly and while smiling broadly, he asked for these very straight forward questions to be re-stated and he changed his answer to "we're not that close, 'cause we always fight and stuff, so…". When he was confronted with the opposite answer that he had given only seconds before, he changed his mind again stating "yeah, we're close but we always fight and stuff" and that he would not do what it takes to protect his brother. He was asked if he had spoken to his brother about the matter since it happened and he related that they only spoke "just when I found out that he was – he started drinking and stuff, so just about that. Correct." He agreed that they spoke about the incident but he claimed they only spoke about "like a day after the – the situation." He initially denied that they had spoken about it again since it happened but eventually conceded that they had spoken about the matter before Court but "just brief what's going to happen and stuff".

[52] What is not apparent from a review of the transcript was Mr. Shrirasa's demeanour while testifying. This teenage witness presented throughout as though he was amused by the Court proceedings. He was smiling, nonchalant and relaxed while he changed his answers from one moment to the next on a whim. It became quickly evident to the Court that Ayishwar Shrirasa was not being straightforward about his recollections of that evening, he and his brother had discussed their evidence beforehand and he had little regard for truth or the seriousness of testifying in Court. Ayishwar Shrirasa's evidence was internally inconsistent, externally inconsistent with peripheral details especially with the next defence witness and the evidence that I do accept in this case. Ayishwar's fickle recollections bordered on ridiculous. He was both an unreliable historian and a completely unbelievable witness.

c. Apira Jegatheeswaran – the Rear Passenger

[53] Ms. Jegatheeswaran was in the rear seat of Mr. Shrirasa's vehicle. She also testified that, after they were pulled over, an Officer came and talked to Jinesh and she turned around and there was "another cop in the car with him." It is hard to understand how an Officer could be in the vehicle with arresting Officer when he was already standing outside the vehicle talking to her friend when she first saw him. During cross-examination, she said that she turned around and saw this passenger Officer when they were pulled over but she had no idea if he got out at the same time as Officer Polani or where he went while Officer Polani was interacting with Jinesh Shrirasa at the window of their vehicle.

[54] She related that the next thing that happened was that they were all waiting together in the vehicle for the "breathalyzer" to come and then a couple of minutes later another car pulled up and that's when Jinesh got out. Ms. Jegatheeswaran did not seem to be aware that PC Weiner was on scene in his cruiser beforehand but then he left to go and get the roadside screening device. After Jinesh Shrirasa got out of the vehicle, she and the other passengers remained inside for a "couple of minutes" and then they also got out. She contradicted Ayishwar's account of exiting the vehicle almost immediately after his brother and she confirmed Officer Polani's timeline of the passengers' movements.

[55] Ms. Jegatheeswaran advised that there were three Officers on scene when they got out of their vehicle. There was one Officer who had been in the passenger seat of PC Polani's vehicle, PC Polani and the Officer who brought the roadside device. She provided the same basic description as the two other defence witnesses that this Officer was white, male and a "little bit shorter than the other two officers." Remarkably, she could not recall anything else about him.

[56] Ms. Jegatheeswaran's account of what happened at the roadside was substantially different than Ayishwar Shrirasa's evidence. After the Officer arrived with the roadside device and she got out of the vehicle with Ayishwar Shrirasa, she was engaged in a conversation with the passenger Officer. I note again that even though she was directly engaged in a face to face conversation with this Officer, she could not provide any specific or unique details about his appearance. She asked him if she could drive the car home and he initially agreed but after speaking with the other Officer, he came back and said she could not take the car. While this passenger Officer was speaking with them, the passengers from the vehicle including Ayishwar, the other Officer (PC Weiner) and PC Polani were interacting with Jinesh Shrirasa.

[57] She described where everyone from their vehicle was standing in relation to Jinesh Shrirasa. Ayishwar Shrirasa was "near me" while she was speaking with the passenger Officer. They were near the sidewalk grass area and Jinesh Shrirasa was "near the cop car". Ms. Jegatheeswaran was specifically asked if she ever saw the passenger Officer interacting with Jinesh Shrirasa and she replied "um, I'm not sure about that. He kept coming and talking to us." She was asked to clarify who she meant when she said "us" and she stated that it was me, my friend and his brother. She was standing close to Ayishwar at the roadside but she testified that she could not overhear any of the conversations between the other Officers and Jinesh Shrirasa. Moreover, she indicated that she did not interact with Jinesh Shrirasa at the roadside which confirmed PC Polani's recollection that Jinesh Shrirasa did not have "any direct conversation with either of his friends or any other individual for that matter".

[58] Ms. Jegatheeswaran was also asked where this passenger Officer went after Jinesh Shrirasa left the scene with PC Polani. She claimed that "she was not paying attention to the cops" so she had no idea where the other Officers went. However, when she was asked how many Officers remained on scene she replied "oh yeah, I think it's the guy who came with the breathalyzer, he was still there…" She saw PC Weiner leave a few minutes later but she did not see where this passenger Officer went or how he left the scene but it was not with the other two Officers. She remembered another Officer stopping to "check" on them at one point but he left the scene. It is interesting that both Ayishwar Shrirasa and Ms. Jegatheeswaran recalled an Officer stopping by to "check" on them after Jinesh Shrirasa left the scene but Jinesh Shrirasa also recalled another cruiser arriving on scene to "check" on them.

[59] Ms. Jegatheeswaran confirmed that she had spoken with Jinesh before she testified about what happened that evening. I find that Ayishwar also spoke with Jinesh about their recollections of that evening in more detail than he admitted to while he was testifying.

iii. Factual Findings and the Rights to Counsel

[60] This onus is on the Defendant to establish that his section 10(b) Charter protected rights were violated on a balance of probabilities.

[61] I found Officer Polani to be a professional, candid and straight forward witness. This Officer's recollections about how many Officers were on scene was supported by two different business records which confirmed that he was working alone and the only other Officer who assisted with this investigation was PC Weiner. His evidence also made sense. He pulled the vehicle over, he interacted with the driver, he arrested the driver and he provided the driver with the rights to Counsel. I accept that PC Polani provided Mr. Shrirasa with his full rights to counsel that he read from the back of his notebook. PC Weiner was not directly involved in the investigation. I find that PC Weiner was the Officer who assisted with the speaking with the occupants and making arrangements for the vehicle so that PC Polani could focus on his duties.

[62] In stark contrast to PC Polani's evidence, the defence evidence was convoluted, confusing and completely unbelievable. It is conceivable that the occupants of Mr. Shrirasa's vehicle were initially confused about whether another Officer was with PC Polani when he arrived on scene because PC Weiner pulled up almost immediately behind them. However, each of them insisted that they saw three police Officers at the scene. The inconsistencies in their accounts about the peripheral details, by their nature and alarming frequency, lends itself to the obvious inference that the witnesses were not able to maintain a consistent false story. After reviewing the conflicting and contradictory accounts of these witnesses in detail, I find that Jinesh and Ayishwar Shrirasa fabricated the presence of the third passenger Officer. I do not accept that there was a third Officer on the scene or that this Officer ever interacted with Mr. Shrirasa or the passengers. I do not accept that Mr. Ayishwar Shrirasa overheard any conversation between his brother and a police Officer. I do not accept that either PC Polani or any other Officer said anything to Jinesh Shrirasa about having only having one phone call or the unavailability of private Counsel at that time of night. This was a transparent attempt to mislead the Court and should be resolutely denounced.

[63] Mr. Shrirasa indicated in his affidavit that this comment by the passenger Officer was pivotal to his decision not to call private Counsel because "had I not been told this I would have attempted to contact private Counsel". Since I do not believe this comment was ever made or the other comments like having one phone call, I also find that he has not established that he felt like he was directed by the police to call Duty Counsel. Rather, I find that Mr. Shrirasa made an informed choice to consult with Duty Counsel after receiving his full rights to Counsel and decided that he could not think of any private lawyer to consult with at that time. He reiterated his choice to speak to Duty Counsel when he arrived at the station to the cell Sergeant. In accordance with his choice, he consulted with Duty Counsel for a significant period of time and he had ample opportunity to clarify their role if he was actually confused about whether or not they are lawyers. He confirmed with the Intoxilyzer technician that he was satisfied with the advice that he received before he participated in the breath testing process. Accordingly, he has not established that his rights to Counsel were violated in these circumstances.

C. The Error in the Certificate

[64] The Crown did not call the qualified Intoxilyzer technician in this case. Instead, the Crown elicited evidence of Mr. Shrirasa's breath reading through PC Polani because he had the original of the CQT. PC Polani served a true copy of the CQT on Mr. Shrirasa on the night of his arrest and witnessed his signature. A qualified technician certified that he obtained two samples of Mr. Shrirasa's breath directly into an approved instrument. The first sample was obtained at 2:25 a.m. and registered a truncated result of 110 mg of alcohol in 100 ml of blood and the second sample was obtained at 2:47 a.m. and registered a reading of 120 mg of alcohol in 100 ml of blood.

[65] When the Crown sought to have the CQT admitted as an exhibit for the trial proper with the qualification that its admission was subject to the outcome of the Charter application, the following exchange occurred:

The Court: Any issues with the certificate?

Mr. Wulkan: Again, subject to the Charter, that's fine.

The Court: It will be admitted unless excluded as a result of the Charter argument. So, that will be Exhibit #3.

[66] Counsel did not object to the admissibility of the CQT at any point during the trial. However, the very first question that Counsel asked Officer Polani in cross-examination was whether he is a qualified Intoxilyzer technician. Near the end of his cross-examination, Counsel asked PC Polani if he knew the name of the Manufacturer of the alcohol standard solution that is suitable for use with the approved instrument. PC Polani advised that the "only company that's used exclusively" as the supplier of the suitable alcohol standard solution to Durham Regional Police is Laboratoire Atlas Inc. Counsel also sought to tender a google search of the name of the Manufacturer of the alcohol standard solution. Crown counsel objected to the relevance of this evidence since the CQT had been already been admitted by Counsel. Considering that the CQT had been admitted, the following exchange occurred:

The Court: What is the relevance of this document?

Counsel: Just the name of the company. [Emphasis mine]

The Court: …well, for what it's worth, it was referred to. I guess we can have it filed as an exhibit

[67] Counsel did not raise any issues with the spelling of the name of the Manufacturer of the alcohol standard solution in the CQT or make further submissions about the admissibility of the CQT during the trial despite being specifically asked by the Court about the relevance of the document filed as Exhibit 4 during the proceedings.

[68] After the close of the Crown's case and Counsel were making their submissions, Counsel submitted that the Crown had not proven the case against Mr. Shrirasa beyond a reasonable doubt because the CQT did not comply with the statutory requirements for admissibility or reliance on its contents. The manufacturer of the alcohol standard was identified in the CQT as Laborat io re Atlas Inc as opposed to Laborat oi re Atlas Inc.

[69] There are a number of issues with Counsel's objections to the admissibility of the certificate commencing with the timing of this argument.

i. Timing of an Objection to the Admissibility of the Certificate

[70] Although I advised Counsel during submissions that his objection to the admissibility of the certificate should have been made at the time the certificate was tendered as opposed to the end of the trial, I allowed Counsel to address me to permit a fulsome opportunity to advance all arguments about this issue.

[71] Counsel conceded that, when the certificate was tendered, he consented to the admission of the certificate subject to the Charter argument. Nevertheless, Counsel submitted that the entry of the wrong name of the manufacturer was not an objection to the "admissibility" of the certificate rather it was an issue with respect to whether the Court could rely on the contents of the certificate for the presumption of accuracy. Alternatively, even if it was an issue with the admissibility of the certificate, Counsel submitted that he should not be precluded from arguing the admissibility of a previously tendered exhibit when new evidence subsequently arose during the trial.

[72] The Court did not have the benefit of the evidence of a Qualified Technician about the name of the Manufacturer of the suitable alcohol standard until Counsel cross-examined Officer Polani and elicited this additional evidence. To be fair, at that point, Counsel's questions should have made it obvious to the Crown that there was an error in the certificate but she chose not to re-examine the Officer on this issue and she chose not to call the Qualified Technician who took the breath samples. While I agree that Counsel's questions of the Officer ought to have alerted the Crown to a potential issue with the CQT, Counsel was asked a direct question by the Court about the relevance of this area of cross-examination and Counsel replied that it was "just" about the name of the company. The Crown relied on that response and it was misleading. If Counsel intended to object to the admissibility of the certificate or its contents, the appropriate time to do so in this case was in response to an unequivocal query from the Court about how this information was relevant considering the certificate had been previously admitted by Counsel.

[73] The timing of an objection to the admissibility of a certificate of analysis has been the subject of quite a few binding appellate decisions in Ontario. In R. v. Gundy, 2008 ONCA 284, the Ontario Court of Appeal reviewed a number of decisions and concluded that an objection to the admissibility of a certificate of a qualified technician ought to be made at the time the certificate is tendered as an exhibit. The Court of Appeal summarized the guiding legal principles at paragraphs 20 to 23:

Over fifteen years ago, this court explained in clear terms that objection to the admissibility of evidence should be taken at the time the evidence is tendered. Finlayson J.A. said this in R. v. Kutynec (1992), 70 C.C.C. (3d) 289 at 294-95:

Prior to the proclamation of the Charter, no one conversant with the rules controlling the conduct of criminal trials would have suggested that an objection to the admissibility of evidence tendered by the Crown could routinely be initiated after the case for the Crown was closed. It is self-evident that objections to admissibility of evidence must be made before or when the evidence is proffered. This common sense proposition is equally applicable to Charter applications to exclude evidence: R. v. Myers (1984), 14 C.C.C. (3d) 82 at p. 91, 28 M.V.R. 144 (P.E.I.S.C. App. Div.); Tse, "Charter Remedies: Procedural Issues" (1989), 69 C.R. (3d) 129 at pp. 136-40.

Litigants, including the Crown, are entitled to know when they tender evidence whether the other side takes objection to the reception of that evidence. The orderly and fair operation of the criminal trial process requires that the Crown know before it completes its case whether the evidence it has tendered will be received and considered in determining the guilt of an accused. The ex post facto exclusion of evidence, during the trial, would render the trial process unwieldy at a minimum. In jury trials it could render the process inoperative. [Emphasis added.]

21 More recently, also in the context of a drinking and driving case, the Saskatchewan Court of Appeal held that an objection to the admissibility of breath sample evidence must be taken when the evidence is tendered. Sherstobitoff J.A. said this in R. v. Enden (2007), 2007 SKCA 100, 52 M.V.R. (5th) 92 at para. 20:

It is trite law that an objection to the admissibility of evidence must be made when the evidence is tendered. See R. v. Pelletier (1995), 97 C.C.C. (3d) 139, 128 Sask. R. 214 (Sask. C.A.) and R. v. Kutynec (1992), 70 C.C.C. (3d) 289, 7 O.R. (3d) 277 (Ont. C.A.). To allow the delay [in the taking of breath samples] argument at the final argument stage of the trial would deprive the Crown of the opportunity to lead evidence relevant to the issue. It is further noted in this respect that the respondent did not cross-examine the Crown witnesses respecting delay, and did not take up the Crown on its offer to put the officer who accompanied the arresting officer on the stand for cross-examination. [Emphasis added.]

22 In Kutynec at pp. 296-97, Finlayson J.A. went on to explain that a judge has a discretion to allow counsel to challenge evidence already received and "will do so where the interests of justice so warrant". An example where the judge would exercise that discretion is if other evidence subsequently given puts into doubt the admissibility of evidence to which no objection was previously taken. However, that was not this case. Nothing happened after Constable Twilley identified the technician's certificate and it became an exhibit to cast doubt on the admissibility of the Intoxilizer results. To the contrary, the case for admissibility of the evidence grew stronger during Constable Cormier's evidence when she referred to the grounds upon which Constable Twilley made the demand and then Exhibits 2C and 2D were admitted without objection.

23 In my view, the trial judge erred in permitting the defence to challenge the admissibility of the certificate and the results of the Intoxilizer test at the completion of the trial. Allowing the argument at that stage did not serve the interests of justice. I do not agree that the Crown was not prejudiced by the manner in which the challenge to the evidence unfolded. Had timely objection been taken, Crown counsel would have had the option of calling additional evidence. A month later, the case was closed and presumably the witnesses were gone. As it turned out, the trial judge dismissed the objection, but the Crown could have been unfairly prejudiced because of the defence's failure to make a timely objection. These observations do not relate solely to the Charter issue but apply to all of the other objections to the admissibility of the Intoxilizer results that were taken by counsel for the first time at the end of the case.

[74] There are a number of decisions that have followed the Court of Appeal's decision in R. v. Gundy, supra, about the timing of an objection to the admissibility of evidence: R. v. Lee, [2008] O.J. No. 1056 (Ont.C.J.); R. v. Hamel, [2018] O.J. No. 2304 paras 38 to 43 (Ont.C.J.); R. v. Tello, [2018] O.J. No. 196 (Ont.S.C.J.).

[75] While Counsel initially disputed whether he was obliged to object when the certificate was tendered as opposed to waiting until the end of the trial during submissions, he eventually conceded that this case law is binding and unambiguous that objections should be raised when the certificate is tendered. What makes this case somewhat unusual was counsel's alternative argument that was based on paragraph 22 of the Gundy decision. He urged this Court to exercise its discretion to allow Counsel to challenge evidence that was already received because it is warranted in the interests of justice. Counsel emphasized that there was other evidence subsequently elicited during cross-examination that put into doubt the admissibility of the certificate despite the fact that no objection was previously made by Counsel.

[76] I don't know when Counsel noticed the error in the CQT. Nevertheless, as soon as Counsel became aware that he intended to object to the admissibility of the certificate, he should have done so at that moment and not wait until after the Crown closed its case. The Crown has a right to know before a case is closed whether the evidence that was tendered would be received and considered when determining the guilt of the accused. As Justice Harris found in R. v. Hamel, [2018] O.J. No. 2304 at paras 38 to 43 (Ont.C.J.):

Both decisions recognized that a judge has a discretion to allow counsel to challenge evidence already received and "will do so where the interests of justice so warrant". An example where the judge would exercise that discretion is if other evidence subsequently given puts into doubt the admissibility of evidence to which no objection was previously taken

I note that this was not the case here.

(… the Court cited Gundy supra and the prejudice to the Crown of not being able to make an informed decision about whether to call more evidence)

I will comment here that I accept completely counsel's statement that this was not a deliberate stratagem adopted by him in this case. He simply missed the fact that Constable Morris had failed to refer in his evidence to making a demand. It was only brought to his attention by his co-counsel moments before he raised the issue before me.

That does not change the fact that the admissibility of the evidence was not challenged in a timely fashion. Had the objection been raised then it would have been open to Crown counsel to ask further questions of Constable Morris which may or may not have cured the deficiency in his evidence. Whether that would have succeeded will never be known but only because of counsel's failure to object at the appropriate time.

The application to exclude the certificate on this basis is dismissed.

[77] Similarly in this case, the interests of justice did not warrant allowing Counsel to object to the admissibility of this evidence after the close of the Crown's case when it was clearly admitted during the trial subject to the Charter argument. Once Counsel became aware of a change in his position about the admissibility of the certificate, he should have advised the Court especially in light of the inquiry from the Court. The objection to the admission of the certificate in this case was "too late" and as such, I should have dismissed the argument when it was raised during closing submissions.

[78] Finally, I note that Counsel argued that he was not objecting to the "admissibility" of the certificate, rather, he was advancing an argument as to what use could be made of an arguably defective certificate. I disagree. The objection with respect to this certificate was an alleged failure to comply with the prerequisites to the admissibility of the certificate as set out in section 258(1)(g) of the Criminal Code. This was not an issue with what use could be made of evidence, it was an issue about whether the information contained in the CQT could be admitted to prove the truth of its content. Counsel was obliged to provide timely notice of an objection to the admission of this evidence to avoid unduly prejudicing the Crown's decision whether to call additional evidence.

[79] While I find that I should not have permitted this untimely objection, I also find that the error identified by Counsel would not have impacted the admissibility of the certificate in any event or the Court's ability to rely on the contents of the CQT as proof of Mr. Shrirasa's breath readings.

ii. Prerequisites to the Admissibility of the CQT

[80] This is not a case where the Court was asked to consider whether the presumption of identity is available on the facts. Rather, the argument was focused on whether the certificate itself can be admitted as proof of the readings obtained because of an alleged deficiency on the face of the certificate. While Counsel tried to frame his argument as rebutting the presumption of accuracy as opposed to an issue of admissibility, there was no expert evidence called in this case about what, if any, impact a purportedly different Manufacturer of the alcohol standard solution would have on the test results or whether or not it was suitable for use with the approved instrument. As noted, this was an objection to the admissibility of the certificate for the truth its contents because of a failure to comply with the statutory requirements.

[81] A careful analysis of the current wording of section 258 of the Criminal Code is essential to address any objections to the admissibility of a Certificate of a Qualified Technician. The relevant subsections in section 258(1) of the Criminal Code are as follows (with emphasis added relevant to this case):

(f) a certificate of an analyst stating that the analyst has made an analysis of a sample of an alcohol standard that is identified in the certificate and intended for use with an approved instrument and that the sample of the standard analyzed by the analyst was found to be suitable for use with an approved instrument, is evidence that the alcohol standard so identified is suitable for use with an approved instrument without proof of the signature or the official character of the person appearing to have signed the certificate;

(g) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), a certificate of a qualified technician stating

(i) that the analysis of each of the samples has been made by means of an approved instrument operated by the technician and ascertained by the technician to be in proper working order by means of an alcohol standard, identified in the certificate, that is suitable for use with an approved instrument,

(ii) the results of the analyses so made, and

(iii) if the samples were taken by the technician,

(A) [Repealed before coming into force, 2008, c. 20, s. 3]

(B) the time when and place where each sample and any specimen described in clause (A) was taken, and

(C) that each sample was received from the accused directly into an approved container or into an approved instrument operated by the technician,

is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate;

and further

Attendance and right to cross-examine

(6) A party against whom a certificate described in paragraph (1)(e), (f), (f.1), (g), (h) or (i) is produced may, with leave of the court, require the attendance of the qualified medical practitioner, analyst or qualified technician, as the case may be, for the purposes of cross-examination.

Notice of intention to produce certificate

(7) No certificate shall be received in evidence pursuant to paragraph (1)(e), (f), (g), (h) or (i) 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.

[82] It is important to read the full CQT that was filed with the consent of Counsel to assess the impact of one error in the certificate. A Qualified Technician signed and dated this document which asserts "that an analysis was made of each of the samples by means of the said instrument which was operated by me and which I ascertained to be in proper working order by means of an alcohol standard that was suitable for use with the said instrument and identified as"… This is a direct quote from the CQT. The form continues on to particularize both the manufacturer of the suitable alcohol standard "LABORAT IO RE ATLAS INC" (as opposed to Laborat oi re) and the alcohol standard lot number 17IA. Considering the preprinted part of the CQT specifically certifies that the alcohol standard was suitable for use and the specific lot number was provided should Counsel have wished to challenge its suitability, the particularization of the manufacturer was superfluous and unnecessary.

[83] Counsel referred me to the summary conviction Appeal decision of Justice Thomson in R. v. Campbell, [2002] O.J. No. 158 (Ont.S.C.) for the proposition that the name of the manufacturer must be proven by the Crown. He emphasized one quote out of context from this decision at paragraph 14:

The Crown must establish beyond a reasonable doubt that the alcohol standard solution be identified and correctly identified. That issue cannot be established unless the Crown establishes correctly the type of solution, the lot number and the manufacturer. Failure to prove those essentials will result in the certificate being inadmissible.

[84] First, this case was decided prior to a long line of cases commencing with Justice Durno's decision in R. v. Rebelo, [2003] O.J. No. 4634 (Ont.S.C.J.) that endorsed a much more pragmatic approach to considerations of the impact of omissions or errors in a certificate of analysis. In addition, subsection 258(1)(g)(i) does not require that the certificate must state the name of the manufacturer as a prerequisite to the admissibility of a certificate. Finally, this quote should not be read in isolation from the rest of the judgement. Justice Thomson went on in Campbell to find at paragraph 20 that:

I am satisfied that the learned trial judge considered the proper test and agree that there was sufficient information to identify the precise solution used so that it could be sought out for further experimentation. The fact that the word "Laboratoire" was left out is of no real consequence. It was an "alcohol standard lot number 17QD" and that with the shortened name was sufficient identification.

[85] Considering the conflicting language in the Campbell judgement itself and the fact that the Court went on to decide that leaving out the word "Laboratoire" entirely would be of no consequence, this decision did not support Counsel's argument that a misspelled manufacturer's name in any way impacts the admissibility or use of the contents of the certificate.

[86] Even if I am incorrect and the name of the manufacturer is essential, this is obviously a typo. Counsel submitted that this Court cannot assume that there was a typographical error because that would be speculation. He suggested, for example, that there could be a company with this name that is not a supplier of suitable alcohol standard solutions. First, Courts can and ought to rely on basic common sense in these situations. Two letters were reversed in a name that had to be typed into the form. Human beings are imperfect and make errors. This is a minor error. In R. v. Carrie, [1997] O.J. No. 4053, Justice Libman remarked that:

36 It can hardly be gainsaid that the proffering of certificate evidence affords the Crown a statutory shortcut in the sense of not having to rely upon viva voce evidence: R. v. Lightfoot (1981), 59 C.C.C. (2d) 414, [1981] 1 S.C.R. 566. Accordingly, the Crown ought to be put to strict proof when relying upon certificate evidence.

37 This is not to say, however, that prosecutions for drinking and driving offences are to become mere exercises in penmanship. To put it another way, there is no good reason to impose upon the certificate a standard of perfection. The position advocated by the defence would, it seems to me, frustrate at once the salutary effect of the legislation and the very mischief it seeks to eradicate…

And further that:

40 The law in respect of challenges to certificate evidence is not such, in my opinion, as to mandate rejection of this form of evidence in the face of the slightest or most minor form of typographical or like errors. In my respectful view, the balance of appellate authority on point supports this proposition.

[87] Secondly, the determination that this is a typo is not speculation, it is a logical inference from the facts. While the name of the manufacturer was incorrectly entered, the pre-printed precursor to this fill in the blank section is evidence that I can consider to draw this inference. The Qualified Technician certified that a suitable alcohol standard was used with the approved instrument. In addition, I have evidence from Officer Polani that the only supplier of the suitable alcohol standard in Durham Region is Laboratoire Atlas Inc. In light of these two factors, the certification of the qualified technician that it was a suitable standard and Officer Polani's confirmation of the proper spelling of the Manufacturer, there is ample evidence from which I can infer that this was an inconsequential and minor typographical error. As Justice Sprout aptly observed in R. v. Pereira, [2011] O.J. No. 2225 at para 5 (Ont.S.C.J.) when dealing with a similar and possibly more significant error of a misidentified alcohol standard lot number:

While logic and common sense do not always dictate the result, there appears to me to be only one explanation for the discrepancy. The qualified breath technician testified that he was recording the number for the alcohol standard from a sticker of some sort that was on the Intoxilyzer machine itself. The only explanation I can think of is the qualified breach technician made a regrettable but human error in writing down the lot number and/or transposing it to the certificate. I can't think of any scenario in which this error could cast the slightest doubt on the validity of the reading.

iii. Strict vs Pragmatic Approach to Errors or Omissions in the Certificate

[88] In spite of the clear ratio in Pereira, supra, Counsel urged the Court to find that any defects in the certificate including minor errors or omissions ought to be strictly construed and prohibit the admission of or reliance on the contents of the certificate as evidence of his client's breath readings. I am cognizant that these certificates are an evidentiary short-cut for the Crown and some judgements have urged strict adherence to the prerequisites to admissibility.

[89] Counsel cited the summary conviction appeal judgement of Justice Ferguson in R. v. Shadoff, [1993] O.J. No. 534 (Ont.S.C.J.), which favoured strict adherence to compliance with all preconditions to admissibility or reliance and any ambiguities in the certificate ought to be resolved in favour of the accused. First, the Shadoff decision addressed an issue with the times recorded in the certificate or the "relating back" provisions in section 258(1)(c) of the Criminal Code. The Court was considering whether the certificate could be relied on to prove the rebuttable presumption of identity. As a result, it is factually distinguishable. More importantly, other Courts have declined to follow the Shadoff decision. In Rebelo, supra, Justice Durno declined to follow aspects of the decision and noted that the same quotations relied on by Counsel in this case were obiter and therefore not binding on this Court. Similarly, in R. v. Tregear, [2010] O.J. No. 4182 (Ont.C.J.), Justice Dawson reviewed the conflicting appellate authorities and declined to follow the Shadoff decision because the comments relied on by Counsel were obiter and she was not bound by the decision because of the more persuasive conflicting appellate authority.

[90] I also respectfully decline to follow the Shadoff decision. I am guided instead by the pragmatic approach to these determinations commended by Justice Durno in the conflicting Superior Court judgement of R. v. Rebelo, supra. Justice Durno outlined the history of the approach to be taken with respect to the use of certificates at paragraphs 36 and on:

36 The use of Certificates of Analyses is an "evidentiary shortcut" given to the prosecution to facilitate proof of "over .80" offences, without the necessity of calling the technician to testify at every trial. It saves the technician having to come to court, and the police service the expense of paying for the attendance.

37 The Supreme Court of Canada has outlined the approach to be taken to the use of certificates: R. v. Noble (1978), 37 C.C.C. (2d) 193, dealing with the predecessor to s. 258:

The effect of s. 237 both before and after the amendment is to establish the conditions under which the certificate of a qualified technician is admissible, without further evidence, as proof of the proportion of alcohol in the blood of the accused. These provisions are obviously designed to assist the Crown in proving its case, and as they serve to restrict the normal rights of the accused to cross examination and saddle him with the burden of proving that the certificate does not accurately reflect his blood alcohol content at the time of the alleged offence, they are to be strictly construed and, where ambiguous, interpreted in favour of the accused.

38 While I accept that certificates are to be strictly construed, the weight of authorities since Noble has favored a pragmatic approach to certificates which contain omissions or typographical errors, provided the accused has not been prejudiced and the error is manifest having regard to all of the evidence. [Emphasis mine]

And further:

41 While R. v. Wickert, supra, dealt with evidence which "completed" the certificate, I agree with LeSage J. that extrinsic evidence may be relied upon in a case in which a certificate has been introduced. I am also persuaded that the evidence to "correct" the certificate does not have to be given by the technician who prepared it, provided at the end of the trial the judge is satisfied the error is "manifest" and there is evidence to correct it.

[91] Justice Durno's decision in Rebelo is dispositive of the arguments made in this case. In addition, as Justice Hill noted in R. v. Carbno, [2005] O.J. No. 3336 at para 14 and on:

Can, as here, the prosecution prove its case by supplementing the certificate to clarify an alleged ambiguity or omission? In my view, as a general rule, the Crown is entitled to do so. A trial judge has an overriding discretion to see that justice is done and that both parties receive a fair trial.

In this case, the respondent was given disclosure and no complaint is made respecting the notice of intent to use certificate evidence required by s. 258(7) of the Code. An accused wishing to challenge the official character of the certificate maker may always seek the court's leave to have the technician called to explain a matter in the certificate: s. 258(6) Code; R. v. Evanson, supra, at p. 280 per Dickson J.A. (as he then was). There was no "contradictory" evidence in this case justifying a non-suit.

The prejudice alleged here by the respondent, that he would be "left in a position ... [of] not know[ing], based on the certificate itself, the nature of the breath testing machine utilized" is simply not sustainable. The technician clearly certified the use of an approved instrument, the Intoxilyzer 5000C.

[92] It is apparent that this was a minor typographical error and the typo was easily corrected by the certification in the CQT that an approved solution was used in conjunction with Officer Polani's evidence that the only Manufacturer used by Durham Regional Police is Laboratoire Atlas Inc. The Defendant had the benefit of a signed CQT that specifies the alcohol standard lot number and the certification that it was an alcohol standard suitable for use in the approved instrument. There was absolutely no prejudice to the accused by the admission of the certificate in this case or the Crown's reliance on the Certificate to prove the results of Mr. Shrirasa's breath tests.

D. Conclusion

[93] While I disagree with Counsel's perspectives of the facts in this case and how to approach errors in a certificate, I was impressed with his creativity. He was well prepared, thoughtful and respectful but tenacious. He earnestly made submissions based on his understanding and interpretation of the law. Mr. Shrirasa's interests were very well represented by his Counsel.

[94] The certificate of the Qualified technician was properly admitted as proof of the breath readings obtained from Mr. Shrirasa and there were no issues with the availability of the presumption of identity in this case. As a result, the Crown has proven beyond a reasonable doubt that Mr. Shrirasa was operating a motor vehicle with breath readings in excess of 80 mg of alcohol in 100 ml of blood. Mr. Shrirasa is found guilty of the offence as charged.

Released: June 28th, 2018

Signed: Justice B.M. Green