Court File and Parties
Ontario Court of Justice
Date: August 20, 2018
Court File No.: BRAMPTON 16-11164
Between:
Her Majesty the Queen
— and —
Onkar Atwal
Before: Justice Sandra Caponecchia
Heard on: August 1 and 2, 2018
Reasons for Judgment released on: August 20, 2018
Counsel
Mr. M. Coombes — Counsel for the Crown
Mr. B. Starkman — Counsel for the defendant Onkar Atwal
CAPONECCHIA J.:
INTRODUCTION
[1] Mr. Atwal is charged with operating his motor vehicle with excess blood alcohol in his body.
[2] A trial was conducted on August 1, 2018. The Crown called two witnesses, PC Crawford and PC Saini. The officers initiated a traffic stop at approximately 10:00 p.m. on September 3, 2016 after they witnessed Mr. Atwal swerving within his lane on Derry Rd. Mr. Atwal blew a fail into an approved roadside screening device (ASD) at 10:04 p.m. He was arrested and subsequently provided two samples of his breath into an approved instrument at the police station. His readings were 140 mg of alcohol per 100ml of blood at both 10:56 p.m. and 11:20 p.m.
[3] The defence raised three issues in this case.
[4] First, Mr. Starkman argued that the Certificate of the Qualified Breath Technician should not be admitted due to inadequate notice.
[5] Second, Mr. Starkman's position is that the evidence given by PC Crawford did not comply with s. 254(2) of the Criminal Code because the officer did not specifically state that he had a reasonable suspicion that Mr. Atwal had alcohol in his body prior to making the roadside ASD demand.
[6] Third, the defence also takes the position that since PC Crawford did not specifically testify that he suspected Mr. Atwal had alcohol in his body prior to making the ASD demand a s. 8 breach has been made out.
ISSUE 1: Notice
[7] The evidence relevant to this issue can be briefly summarized as follows.
[8] Mr. Atwal was served with a copy of the Certificate of a Qualified Breath Technician on the night of his arrest, September 3, 2016. PC Crawford testified that he presented Mr. Atwal with a copy of the certificate at his cell at 12:02 a.m. on Sept 4, 2016. The officer could not recall if he gave Mr. Atwal a pen to use to initial the certificate. The officer thought it unlikely that he would have given a pen to someone in custody. In any event, the officer's testimony was that Mr. Atwal declined to sign the certificate and it was left in his property bag and given to Mr. Atwal upon his release later the same morning.
[9] The Certificate in this case does not include a Notice of Intent to introduce it. PC Saini testified that on November 18, 2016 he attended Mr. Atwal's residence and served him with a Notice of Intent. A copy of the Certificate was not attached to the Notice.
[10] The Notice of Intention to Produce a Certificate that was served on Mr. Atwal has his name on it, and reads:
Take notice that the Crown intends to tender into evidence at your trial on a charge of s. 253(1)(b) (Over 80) of the Criminal Code alleged to have been committed by means of a motor vehicle at the City of Mississauga on the 3 of September 2016, a certificate pursuant to para. 258(1) (g) of the Criminal Code a copy/copies of which is/are given to you.
[11] Mr. Atwal signed below a line that reads "I acknowledge receipt of a copy of this Notice and a copy/copies of the certificate attached hereto."
[12] The crux of Mr. Starkman's argument is that the Notice was not proper because the Certificate was not attached to it. Mr. Starkman did not suggest that Mr. Atwal never received a Certificate. He takes issue with the fact that they were not served simultaneously and a copy of the Certificate did not accompany the Notice served by PC Saini in November 2016.
Analysis & Findings
[13] S. 258(7) provides that no Certificate shall be received in evidence unless the party seeking to tender it has, before trial, done two things. One, give the other party notice of her intention to do so and two, provide the other party with a copy of the certificate.
[14] On the issue of adequate notice, I agree with Justice Duncan's summary of the law in R. v. Oslanski, 2006 ONCJ 488, [2006] OJ No. 5036, para. 31 to 35:
Reasonable notice is a concept not a document.
Reasonable notice must be established on a balance of probabilities by the Crown.
Notice need not be in writing, nor formal.
Notice can be given to counsel or counsel's representative.
Notice must be directed to alerting the other party as to the possibility, not certainty, that a Certificate will be used in evidence.
Reasonable notice is a question of fact, it can be established by direct evidence or inference.
[15] In this case I accept that Mr. Atwal was served with a copy of the Certificate of a Qualified Breath Technician by PC Crawford on the night of his arrest in September 2016. I also find that subsequently on November 18, 2016 he was served with a Notice that the Crown may tender a Certificate into evidence against him by PC Saini. Notwithstanding the wording on the pre-printed Notice used by Peel Regional Police in this case, I do not read s. 258(7) as requiring simultaneous service of both the Certificate and the Notice. Given there was evidence of only one Certificate issued in this case, there was no reasonable possibility that Mr. Atwal was misled or confused as what may be tendered in evidence against him. As a result, I am satisfied that the Crown has complied with s. 258(7) and established reasonable notice on a balance of probabilities.
ISSUE 2: Compliance with s. 254(2)
[16] Section 254(2) of the Criminal Code provides that a peace officer who reasonably suspects that a person has operated a motor vehicle in the preceding three hours and "has alcohol in the person's body" may demand that the person provide forthwith a breath sample into an approved screening device.
[17] In this case PC Crawford only testified that he "formed his suspicion" before making an ASD demand. The officer said Mr. Atwal was the driver of a motor vehicle and he smelled alcohol coming from the sole occupant of the car. The officer did not specify that he suspected Mr. Atwal had alcohol in his body. Prior to forming his suspicion, PC Crawford also testified, and I accept, that he made the following observations:
i. Mr. Atwal was pulled over because moments earlier he was swerving within his lane as he drove westbound on Derry Road, and,
ii. When PC Crawford approached Mr. Atwal at his driver's side door he noticed the smell of alcohol. Mr. Atwal denied having anything to drink because he was a vegetarian. Mr. Atwal was the only occupant in the car.
[18] The defence relies on the decision of R. v. Martin, [2005] O.J. No. 670 para. 9-11 and urges me to take a strict interpretation of s. 254(2) and find that PC Crawford did not articulate the requisite suspicion for making an ASD demand in this case.
[19] The Crown's position is that there are no "magic words" required to establish compliance with s. 254(2). What is imperative is whether there is direct or circumstantial evidence from which to infer that PC Crawford had the requisite suspicion. The Crown relies on the decision in R. v. Nesbeth, 2008 ONCA 579, [2008] O.J. No. 3086 para. 19-20.
Analysis & Findings
[20] In the summary conviction appeal case relied upon by the defence, R. v. Martin, [2005] O.J. No. 670 (S.C.J.) at para. 10, emphasized the significance of strict construction and sound evidentiary proof in the context of enforcing a conscriptive provision such as s. 254(2). However the trial judge was found to have erred in failing to consider the totality of the evidence from which it could be inferred that the officer had the requisite suspicion even though he did not specifically state a belief that the accused had alcohol in his body. In Martin the summary conviction court held that while the requisite standard of belief in s. 254(2) is "alcohol in the body", the trial judge nevertheless erred in law by interpreting the relevant case law on this issue as establishing the principle that the requisite proof of this standard was for the officer to articulate the words of s. 254(2) ie. "alcohol in the body" and that anything less than an expression of these words fails to meet this standard of proof. On appeal the court held that any determination as to whether an officer had the required subjective state of mind should have been based on the totality of the evidence presented and not solely on whether he articulated the precise words of s. 254(2). To find otherwise would result in an inappropriate and unjustified reliance on "magic words".
[21] Hermiston J. in a case called R. v. Trory, [1998] O.J. No. 3297 (Ct. Jus. Gen. Div.) paras. 5-9, also found that while the standard itself is "alcohol in the body", the proof of this standard is based on a consideration of all the evidentiary factors, and not simply whether or not those specific words were expressed.
[22] Finally, in the summary conviction appeal case of R. v. Harris, [2007] O.J. No. 675 (SCJ), the court held, and I accept, that the words "reasonable suspicion" are not some magic incantation or formula which must be uttered precisely by the witness. It is quite sufficient if the testimony found credible, taken as a whole, establishes that the witness had the minimal reasonable suspicion. This was also held to be the case in an earlier summary conviction appeal cases of R. v. Long, [1999] O.J. No. 364 (S.C.J.) para. 12 and 13.
[23] In this case, I accept the evidence of PC Crawford as set out in paragraph 17 of this decision. I find that it can reasonably be inferred that PC Crawford had the requisite belief based on the totality of his evidence as opposed to an isolated answer. I decline to find that s. 254(2) was not complied with because PC Crawford did not utter the magic words "alcohol in his body."
ISSUE 3: S. 8 of the Charter
[24] I have already found as a fact that PC Crawford had the requisite suspicion to make an ASD demand. I also find that PC Crawford's failure to utter any "magic words" does not amount to a s. 8 breach on the facts of this case.
Analysis & Findings
[25] The evidentiary threshold for the decision to make a roadside approved screening device demand is low – a reasonable suspicion. The officer need not conclude or believe that the driver has alcohol in her or his body, a suspicion is enough.
[26] There is both a subjective and objective component in assessing whether an officer had the requisite suspicion to make an ASD demand. In this case, I am satisfied both existed based on the totality of the evidence provided by PC Crawford.
[27] In R. v. Mason, [2013] O.J. No. 2822, Justice Duncan found that the smell of alcohol from inside a vehicle provided the officer with reasonable grounds to suspect that the defendant had alcohol in her body and to make an ASD demand. Justice Duncan held, and I agree, that the smell of alcohol is indicative of the presence -- and therefore possible consumption -- and therefore presence in the body -- of alcohol. Justice Duncan relied on two other cases in which a reasonable suspicion was found to exist where there was a smell of alcohol from inside a car with no passenger or alternative explanation: R. v. Pozniak, [2008] O.J. No. 687, and R. v. Kokkinakis, [1999] O.J. No. 1326 (C.J.).[1]
[28] In this case PC Crawford testified that he smelled alcohol coming from Mr. Atwal, who was seated in the driver's seat of a motor vehicle. I find that the smell of alcohol from somewhere within the vehicle is a sufficient basis to form a subjective and objective reasonable suspicion given there was no passenger, Mr. Atwal denied drinking and there was no other explanation for the smell that the officer was aware of. As in the case of R. v. Mason, [2013] O.J. No. 2822, there was also additional evidence which supports both the subjective and objective grounds in this case. I am referring to Mr. Atwal's irregular driving on Derry Rd. moments before he was pulled over.
CONCLUSION
[29] In the result, I find the notice provisions in s. 258(7) have been complied with, as has s. 254(2) of the Criminal Code. A s. 8 Charter breach has not been made out. Accordingly, the Certificate of the Qualified Breath Technician is admissible and Mr. Atwal is found guilty of one count of "Over 80".
Released: August 20, 2018
Signed: Justice S. Caponecchia
[1] The single instance of swerving that led to the stop gave further reasonable support to that suspicion.