R. v. Moniz

Court Information

Court: Ontario Court of Justice

Citation: 2018 ONCJ 593

Court File No.: Durham Region 16-A36844

Date: August 10, 2018

Judge: Justice Susan C. MacLean

Parties

Crown: Her Majesty the Queen

Counsel for Crown: Paul Murray (Tamara Jackson on first day of trial only)

Accused: David Moniz

Counsel for Accused: Robert Wulkan

Hearing Dates

• January 10, 2018
• March 23, 2018
• March 27, 2018
• April 6, 2018
• April 16, 2018
• May 9, 2018

Reasons for Judgment and Reasons for Dismissing Charter Applications: August 10, 2018

Overview of the Case

David Moniz was charged in Oshawa with Impaired (by alcohol) and Over 80 mg/100 mL Care or Control on September 25, 2016 by the Durham Regional Police Service. On May 9, 2018 he was convicted of Impaired Care or Control, sentenced to a Fine of $1,200 with a Victim Fine Surcharge of $360 and was given 15 months to pay the fines. A 12-month Driving Prohibition Order was also imposed.

The trial involved several Charter and trial issues. Part-way through the trial, the Defence sought a Stay of Proceedings on the basis that Mr. Moniz's section 11(b) Charter right to a trial within a reasonable time had been infringed. That Application was dismissed. On May 9, 2018, rather than adjourning the matter to a later date to deliver Reasons on the Charter Applications and trial issues, and because it was very late in the day, the Court advised the parties of its decisions on each issue and indicated that written Reasons would follow.

Issues to be Addressed

The focused issues addressed in these Reasons are:

1. Section 11(b) Unreasonable Delay: Was Mr. Moniz's right to be tried within a reasonable time pursuant to section 11(b) of the Charter breached and should the proceedings be stayed? The Court ruled that there was no section 11(b) breach.

2. Sections 8 and 9 Charter Rights: Did the police have reasonable grounds to arrest Mr. Moniz or were his section 8 and section 9 Charter rights breached? The Court ruled that there was no breach of these rights.

3. Section 10(b) Right to Counsel: The Crown fairly and appropriately conceded that Mr. Moniz's section 10(b) Charter Rights to Counsel were breached with respect to his right to consult counsel in privacy. This occurred due to an inadvertent audiotaping of Mr. Moniz's side of his call with Duty Counsel. The issue was whether the evidence following that breach (including breath readings) should be excluded pursuant to section 24(2) of the Charter. The Court ruled that the evidence should not be excluded pursuant to section 24(2).

4. Sufficiency of Evidence for Impairment: The Defence argued that there was insufficient evidence to prove beyond a reasonable doubt that David Moniz was Impaired when he was operating his motor vehicle. The Court found that there was sufficient evidence to prove this offence beyond a reasonable doubt and convicted Mr. Moniz.

5. Over 80 Charge: The Defence argued that the Over 80 charge should be dismissed due to R. v. St.-Onge Lamoureux issues. The breath technician gave very poor evidence about the alcohol standard which the Defence argued should raise a reasonable doubt about whether the Intoxilyzer instrument was functioning properly or whether there was operator error. The Court found a reasonable doubt and acquitted Mr. Moniz of the Over 80 mg/100 mL charge.

Section 11(b) Unreasonable Delay Issues

Application of the Jordan Framework

Since this matter took more than 18 months to be tried to its completion, the Supreme Court of Canada's timelines as set out in R. v. Jordan, 2016 SCC 27 and R. v. Cody, 2017 SCC 31 were engaged. Up to and including May 9, 2018 the trial took 18 months and 26 days to be completed.

On July 18, 2018 the Ontario Court of Appeal in R. v. MacIsaac, 2018 ONCA 650 revisited section 11(b) in the context of a re-trial on an Aggravated Assault charge. The Court emphasized the duty of the Crown to re-try cases as soon as possible. Without deciding the issue, the Court noted that re-trials in the Ontario Court of Justice should occur well before Jordan's 18-month presumptive ceiling.

Initial Trial Date and Adjournment

David Moniz's trial was originally scheduled to be heard as a one-day trial on December 14, 2017 in front of Justice Wakefield. It could not proceed in front of Justice Wakefield due to the other work scheduled in his court, so it was traversed to Justice Devlin part-way through the day (in the morning). Before commencing the trial, the Defence was advised that they could obtain a new trial date the following week, on December 20, 2016. The alternative was to start the trial in front of Justice Devlin and continue it on February 6, 2017. When informed of this, Justice Devlin advised that she was not available on February 6, and later the parties were informed that her next available date would be in March 2017.

When the Crown checked with the arresting officer, P.C. Emily Vander Duim, he discovered that she was unavailable on December 20, 2016 because she had a "private matter that she's been waiting to go to for some time on that date." Over the objection of the Crown (who had his three officer witnesses present and wanted to start it that day), Justice Devlin acceded to the request of the Defence to adjourn it to start fresh on January 10, 2018.

Inadequate Time Estimate

The time set aside for this trial was woefully inadequate. All parties underestimated the time which would be required for the trial, estimating it could be completed within 1 day. In fact, with all of the issues being raised by Defence Counsel in this case, it took 6 days of evidence, submissions, rulings, judgment (without these Reasons) and sentencing, to be completed.

The transcript of the proceedings before Justice Devlin on December 14, 2017 demonstrates that even though "good faith" discussions about the trial-time estimate took place, no one, including the colleague judge, could have forecasted what ended up taking place in this trial. The Court concluded that this amounted to exceptional circumstances, namely discrete events, where the delay was reasonably unforeseen and that the Crown could not reasonably remedy the delay.

Chronology of Events

September 25, 2016: David Moniz is arrested and charged.

October 13, 2016: The Information is sworn.

October 20, 2016: First Appearance date for Mr. Moniz. The matter is adjourned at the request of the Defence for 4 weeks to review the initial disclosure. This is a reasonable request and in the normal course.

November 17, 2016: Second Appearance. The Defence requests another 1 month adjournment so that Mr. Starkman will obtain disclosure from Mr. Moniz and have a Crown pre-trial in the interim. It was not reasonable that Mr. Starkman had not yet obtained the disclosure from his client and reviewed it since he had already been given one month for this very purpose.

December 15, 2016: Third Appearance. The Defence requests an adjournment for a further 3 to 4 weeks, because a Crown Pre-Trial had been scheduled for December 21, 2016. There was no explanation offered as to why this had not already taken place during the one-month adjournment since November 17, 2016. The Court found that the delay from December 15, 2016 to January 12, 2017 is Defence delay.

January 12, 2017: Fourth Appearance. The agent advises the Court that the pre-trial meeting with the Crown had taken place the previous day, on January 11, 2017 (rather than on December 21, 2016) and a request was made to adjourn it again to January 26, 2017 to allow Mr. Starkman to discuss the pre-trial with his client. The Court found that this delay to January 26, 2017 is Defence Delay and should be subtracted from the overall delay.

January 26, 2017: Fifth Appearance. Trial date is set for December 14, 2017.

December 14, 2017: First Trial date. Trial does not commence at request of Defence and over objection of Crown.

January 10, 2018: Second scheduled Trial date. Trial commences. Civilian witness Taylor Drury-Labadie testifies for most of the day.

March 23, 2018: 2nd day of Trial. Evidence of Sgt. Valks is heard. The section 11(b) Submissions commence, but due to the limited time left, they cannot be completed.

March 27, 2018: 3rd day of Trial. Submissions continue on the section 11(b) Application.

April 6, 2018: 4th day of Trial. Evidence for the Crown is completed. The entire day is taken up with the evidence of the arresting officer, P.C. Vander Duim and the Qualified Breath Technician, P.C. Williams.

April 16, 2018: 5th day of Trial. The entire day is taken up with Submissions with respect to the sections 8, 9 and 10(b) Charter Applications.

May 9, 2018: 6th day of Trial. Submissions on section 11(b) and the Trial issues continue. Mr. Moniz is convicted and sentenced on this date.

Defence Delay Analysis

The Crown submitted that the period between January 12 and 26, 2017 which the Court found was an implicit defence waiver reduces the anticipated total delay for completion of this trial to 17 months, 19 days, below the presumptive ceiling. The Crown also submitted that the request for adjournment between December 15 and January 12 (28 days), should also be subtracted from that total, resulting in a total delay of 16 months, 21 days.

Conclusion on Section 11(b)

For all of these Reasons, the Court concluded that there was no breach of Mr. Moniz's section 11(b) Charter right to a trial within a reasonable time. The main reason for this result is that the original time estimate for the trial was for 1 day and it took 6 days including submissions on all issues to be completed. While there is some defence delay in this case, the decision is primarily based on a "discrete event" (exceptional circumstances).

Evidence of Impaired Driving

Civilian Witness Evidence

Taylor Drury-Labadie was a 25-year-old civilian witness who became concerned when he saw how David Moniz's car was being driven and called in to the Durham Regional Police Service that he was following a possible impaired driver. The Court found him to be a very credible and fair witness.

Late on the evening of September 25, 2016 Mr. Drury-Labadie was driving his Chevy Silverado 3500 Diesel with his fiancée in the front passenger seat. They were on their way home from a friend's place when they spotted Mr. Moniz's vehicle being driven badly. It was approximately 12:57 a.m. when he first observed Mr. Moniz's vehicle in the area of Columbus Road East and Grandview Street North.

Mr. Drury-Labadie observed that the silver pick-up truck was veering onto the shoulder quite frequently. When asked to describe the swerving, Mr. Drury-Labadie said that the silver pick-up truck would travel "from the center of the lane" to "probably two feet onto the shoulder and then another foot or so over the yellow line, back and forth", venturing into the oncoming traffic lane. Mr. Drury-Labadie believed that this swerving happened "at least half a dozen times" with the silver pick-up truck driving over the center lane into the oncoming lane "a good two to three times."

Mr. Drury-Labadie also observed that the vehicle was not holding its speed and would speed up to 80 then drop down to 60 k.p.h. The fluctuation in speed continued for the majority of the time that Mr. Drury-Labadie followed the vehicle.

After making the observations about the swerving and inconsistent speeds Mr. Drury-Labadie called 911 to report it to the police. He believes that the call to the dispatcher was made approximately half a minute up to 2 minutes after the silver pick-up truck first pulled onto Columbus Road in front of him. The 911 call lasted 10 minutes and 46 seconds.

Police Officer Observations

When P.C. Vander Duim responded to the call she made the following observations relevant to impairment:

1. When she approached the driver's side of the vehicle and Mr. Moniz rolled down his window she detected a strong odour of alcohol in the vehicle. After he exited his motor vehicle she could smell a strong odour of alcohol on his breath.

2. While Mr. Moniz was still in his truck P.C. Vander Duim noticed that his eyes were glossy.

3. While speaking to Mr. Moniz P.C. Vander Duim noticed that his speech was slurred and very slow.

4. When Mr. Moniz exited his vehicle, he staggered one step to the right and then was back on track. No other stumbling was observed by her at any point.

Breath Technician Observations

P.C. Williams was the qualified breath technician. During the course of his direct dealings with Mr. Moniz, P.C. Williams made observations of him and recorded them on his breath test form:

• With respect to the odour of alcohol, P.C. Williams ticked the box indicating that it was "moderate."
• With respect to the quality of Mr. Moniz's speech the officer ticked both "Fair" and "Good."
• P.C. Williams noted that Mr. Moniz's eyes were "watery, glassy and bloodshot."
• P.C. Williams noted that his face colour was "flushed."
• Mr. Moniz was "cooperative" and "carefree" in his attitude and no unusual actions were noted.
• With respect to P.C. Williams's opinion about the overall effects of alcohol on David Moniz he ticked "obvious" (the choices being none, slight, obvious and extreme).

Legal Test for Impairment

The Court directed itself to apply the law as affirmed by the Supreme Court of Canada in R. v. Stellato, where Justice Labrosse set out the test for proof of impaired driving:

In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.

Conviction on Impaired Charge

Based on the totality of the evidence of poor/erratic driving described by Mr. Drury-Labadie and the physical symptoms observed by the police officers, the Court found that the Crown has proven beyond a reasonable doubt that David Moniz had the care or control of a motor vehicle while his ability to do so was impaired by alcohol to the standard as required by the Stellato test. While his physical symptoms were at the "slight" end of the spectrum, that evidence combined with the poor driving observed by the civilian witness is more than sufficient to amount to proof beyond a reasonable doubt.

The Sections 8 and 9 Issues re Reasonable Grounds and Arbitrary Detention

Initial Application and Renewal

At the beginning of the trial, the Court advised Defence Counsel that pursuant to the Supreme Court of Canada's decision in R. v. Cody, 2017 SCC 31 that it wished to have submissions about why the section 8 and related 9 Charter Applications should not be summarily dismissed, given that the materials failed to disclose a sufficient basis to demonstrate that any breach had occurred.

At the outset of the trial Mr. Wulkan was very frank with the Court and said, "Section 8 and 9 is filed on, I suppose – what I would use, a kind of colloquy term, a prophylactic basis." Upon receiving this response, the Court advised that it would dismiss this Application "without prejudice to bring it again if something new arises in the evidence that you weren't aware of from the disclosure originally." Later in the trial, Defence Counsel advised that he wished to renew this Application on the basis of new evidence, which the Court permitted.

Arresting Officer's Grounds

P.C. Emily Vander Duim was the officer who responded to the call dispatched while Mr. Drury-Labadie was on his 911 call with the police. She had 3.5 years' experience with the Durham Regional Police Service when she testified but had only been on the job for 2 years at the time of this investigation working out of Oshawa the entire time.

P.C. Vander Duim was dispatched at 12:57 a.m. on September 25, 2016 to the area of Columbus and Grandview in Oshawa. The information received from the dispatcher was that a citizen had called in that he was following behind an older model (1990s) GMC pick-up truck with license plate AN46595. The dispatcher was updating the information as the caller was describing it as it went along. The caller was behind the vehicle on Courtice Road and then southbound on Harmony Road. The pick-up truck was travelling at a slow rate of speed then speeding up. It was also swerving back and forth within the lane and "all over the road."

P.C. Vander Duim saw the vehicle with the matching license plate. It was an older GMC single cab pick-up truck matching the description. At 1:05 a.m. she took over a traffic stop of the vehicle at Harmony Road and Glebe to confirm whether or not the driver was impaired.

Observations at the Scene

At her request Mr. Moniz rolled down his window and at that point P.C. Vander Duim smelled a strong odour of alcohol. He advised he was coming from a house party in Peterborough. She asked if he had any alcohol at the party and he said, "No." The officer noticed that his eyes were glossy and that his speech was slurred and very slow. Mr. Moniz was asked why he was driving all over the road, to which he responded that it was because the vehicle was lowered, and he was trying to avoid the potholes.

P.C. Vander Duim did observe that the body of the pick-up truck was even lower than a normal car. In cross-examination P.C. Vander Duim was very fair when she agreed that Mr. Moniz's explanation about potholes "is a reasonable enough explanation" given his lowered vehicle. She later observed, however, that while the report of bad driving might be consistent with a lowered vehicle, it did not explain why the vehicle was speeding and slowing.

Reasonable and Probable Grounds Analysis

The Court applied the analysis found in R. v. Bush, 2010 ONCA 554 regarding what is required for an officer to have reasonable and probable grounds to arrest in impaired driving cases.

In cross-examination P.C. Vander Duim testified that her grounds for arrest were based on the totality of the information and observations she had made which included:

1. The evidence of the poor driving described by the caller to 911;
2. The fact that Mr. Moniz had initially denied drinking any alcohol and then later changed that to say he had one beer one hour earlier. The fact he had lied to her and it had gone from 0 to 1 raised her suspicion, to cause her to believe maybe he had more than one;
3. The fact she smelled alcohol on Mr. Moniz combined with his admission he had been drinking;
4. The slurred and slow speech; and
5. The stumbling on one foot.

Conclusion on Sections 8 and 9

The Court found that P.C. Vander Duim's grounds were both subjectively and objectively reasonable. The Court concluded that there was no breach of David Moniz's section 8 or section 9 Charter rights.

The Section 10(b) Breach by the Inadvertent Audiotaping of the Call with Duty Counsel

The Right to Counsel and Arrest

When David Moniz was arrested he was taken to the Whitby police station on Taunton Road where he was paraded before Sgt. Albert Valks. When Mr. Moniz was arrested at 1:10 a.m., he was also read his Right to Counsel at 1:11 a.m. When asked if he wanted to call a lawyer, he told P.C. Vander Duim, "I can't afford one", so she advised he could call free Duty Counsel and he said that is what he would like to do.

The Privacy Booth Procedures

Sgt. Valks is a very experienced police officer, having been with Durham Regional Police Service for 27 years. He has worked at the Taunton Road Whitby Division for 10 years and always held the rank of sergeant at that location. He is very familiar with the practices and procedures at that police station.

Sgt. Valks explained that the usual procedure when someone is paraded before the sergeant is for the sergeant to switch on the audio at the beginning of the parade and switch it off after the parade has been completed. When an arrested person requests to speak to Duty Counsel or a lawyer, they are placed in the privacy booth to the left of the sergeant's desk. The privacy booth is a separate booth with a door which locks, built inside a cell which has been converted for this purpose. Sgt. Valks stated that the privacy booth is built out of soundproof material, creating a "soundproof booth" which was "specifically designed to muffle the sounds inside that specific cell."

The normal procedure is to place the person inside the privacy booth with the door closed but left unlocked and then the outer cell door is closed and locked so that the booking area is secure.

The Inadvertent Recording

On this occasion, the arresting officer, P.C. Vander Duim, was an Oshawa officer who was not familiar with the usual Whitby practices. P.C. Vander Duim had worked out of Oshawa for the entire 2 years that she had been an officer with the Durham Regional Police Service and had not had much involvement with the Whitby Division.

When P.C. Vander Duim placed Mr. Moniz inside the privacy booth she locked him inside the smaller booth area and then left the cell door leading to the parade area wide open. She said she wasn't aware that both doors should have been closed. She testified that in Oshawa, where she usually worked, it is a different set-up where you place the person under arrest inside a room with a single steel door, you close it and walk away. There is no separate privacy booth within the cell.

All officers left the parade area at approximately 1:41:20 and went back to the nearby report writing room beyond a closed door. Without any officer knowing, Sgt. Valks had inadvertently left the audio running in the parade room while that call was taking place. Sgt. Valks was asked in examination-in-chief if he intended to leave the audio on after the booking was completed and responded, "No. That was an oversight."

Discovery of the Recording

It was only when the lawyers were preparing for trial later that anyone even became aware that this had occurred. None of the officers were aware that some of Mr. Moniz's side of the telephone call with Duty Counsel could be overheard on the parade room audio. None of them testified that they knew anything at that time about what any of the contents of that telephone call were.

Exhibit 3.2 is the transcript prepared by Crown and Defence Counsel after listening to the audiotaped portion of the video at the police station. The lawyers augmented their ability to make out what was being said by using earphones. They jointly agreed that the transcript accurately sets out what can be heard of David Moniz's side of the telephone call between Mr. Moniz and Duty Counsel through the use of headphones.

Breach of Section 10(b)

The Crown fairly conceded that due to the breach of privacy, Mr. Moniz's section 10(b) Rights to Counsel were breached. The only issue is whether evidence of the breath tests should be excluded pursuant to section 24(2) as a result of this breach.

Section 24(2) Analysis

The Grant Framework

The Court applied the section 24(2) Charter analysis as set out by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32. The key inquiry is whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute. The Court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to:

1. The seriousness of the Charter-infringing state conduct;
2. The impact of the breach on the Charter-protected interests of the accused; and
3. Society's interest in the adjudication of the case on its merits.

1) The Seriousness of the Charter Violation

In this case, the Court found that the audiotaping of Mr. Moniz's conversation with Duty Counsel was completely inadvertent and accidental and therefore in no way deliberate. No officer was attempting to record the telephone call. No officer tried to listen to the call or overheard it. No officer was even aware at the time that it had been recorded.

While the accidental audiotaping of Mr. Moniz's discussions with Duty Counsel is serious, no inculpatory evidence was obtained as a result of this breach. The Supreme Court in Grant emphasized that under the first branch, the Courts are not to punish the police but rather, that the "main concern is to preserve public confidence in the rule of law and its processes."

While the conduct of the police in this case does not amount to "bad faith", neither is it "good faith". The constellation of facts might be equated with "negligence". P.C. Vander Duim, who was unfamiliar with the Whitby police station, should have made inquiries about their practices before placing Mr. Moniz in the privacy room for his call with Duty Counsel. P.C. Williams, who was a Whitby officer and accompanying P.C. Vander Duim when she placed Mr. Moniz in the privacy booth, should have assisted her in explaining that the outer cell door needed to be closed to muffle the sound properly. Sgt. Valks should also have ensured that the officer who was not familiar with the practices at the Whitby police station was instructed on the local procedures.

The Court concluded that the analysis under the first branch of the Grant test in this case marginally weighs in favour of the exclusion of the evidence.

2) The Impact of the Breach on the Charter-Protected Interests of the Accused

Under the second branch of Grant, "the extent to which the breach actually undermined the interests protected by the right infringed" must be examined. While not the only purpose, a very important aspect of this is to protect the accused person against self-incrimination.

The fact that Mr. Moniz's telephone call with Duty Counsel was recorded is serious as it strikes at the heart of the requirement that such calls be afforded absolute privacy. There is an inherent expectation by anyone consulting their lawyer in a police station that it will not be overheard or recorded.

However, the Court had no evidence that Mr. Moniz was aware that parts of his side of the telephone call with Duty Counsel was being recorded, so his ability to consult with counsel was not in fact impacted by the police conduct.

Since the police were completely unaware of the recording of or contents of the call, it was not used in any way by them to inculpate Mr. Moniz. There was no incriminating evidence obtained against Mr. Moniz from the audiotaped telephone call with Duty Counsel. No evidence from the phone call with Duty Counsel is being tendered or used in any way by the Crown.

Furthermore, the remedy which the Defence is seeking is the exclusion of the breath test results. The taking of breath samples is minimally intrusive and the evidence obtained is reliable. There is no evidence that the recording of the call with Duty Counsel had any impact on the provision of those breath samples.

The analysis under this second branch of the Grant test favours inclusion of the evidence.

3) The Societal Interest in Having the Case Adjudicated on its Merits

With respect to the third branch of the Grant test, the Court is mindful of the Supreme Court of Canada's decision in R. v. Taylor, 2014 SCC 50, where they state:

It goes without saying that the public has an interest in an adjudication of the merits of a case where, as here, the evidence sought to be excluded is reliable and key to the case. But as this Court has consistently said, most recently in R. v. Spencer, 2014 SCC 43, at para. 80, the public also has an interest "in ensuring that the justice system remains above reproach in its treatment of those charged with these serious offences".

Defence Counsel fairly conceded that this third branch of the analysis favours inclusion, in light of the Jennings case stating that the breath tests are real and reliable evidence. It was also conceded that society has an interest in the adjudication on the merits. It was argued, however, that there is still an important societal interest in ensuring that telephone calls with counsel are not overheard or recorded.

Final Balancing

Having balanced the assessments of the three branches of the Grant analysis, the Court concluded that the admission of the results of the breath samples provided by Mr. Moniz would not bring the administration of justice into disrepute. While the Court found the breach to be serious, it is marginally so, and the other two factors favour inclusion. The breath test results are therefore admitted into evidence in this trial.

The St.-Onge Lamoureux Issue on the Over 80 Charge

Statutory Framework

Section 258(1)(c) of the Criminal Code states that the results of the breath samples are conclusive proof of the Blood Alcohol Concentration (B.A.C.) at the time of the offence if the pre-conditions set out there have been met, which include that "an analysis of each sample was made by means of an approved instrument operated by a qualified technician". This is also subject to the absence of evidence tending to show that:

1. The approved instrument was malfunctioning or was operated improperly;
2. The malfunction or improper operation resulted in the determination that the concentration of alcohol exceed .80 mg of alcohol in 100 ml of blood; and
3. The concentration of alcohol in the accused's blood would not in fact have exceeded 80 mg of alcohol in 100 ml of blood at the time when the offence was alleged to have been committed.

Section 258(1)(g) indicates that a certificate is evidence of the facts set out therein if certain pre-conditions have been met. One of those preconditions includes reference to what the certificate must state about the alcohol standard:

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.

Supreme Court Guidance in St.-Onge Lamoureux

In R. v. St.-Onge Lamoureux, 2012 SCC 57 there was a constitutional challenge to section 258(1)(c) and (d.01). The Supreme Court upheld the requirement that there must be evidence raising a reasonable doubt that the approved instrument was malfunctioning or was operated improperly. However, the Court concluded that apart from the issue of instrument malfunction or operator error the other two requirements to raising a defence did not withstand constitutional challenge.

The Supreme Court observed that "if the arguments made by the defence are frivolous or trivial, they will not cast doubt on the proper functioning or operation of the instrument, and the defence must fail". However, where the accused raises a reasonable doubt that the instrument functioned or was operated properly, this simply means that the prosecution loses the benefit of the presumptions under section 258(1)(c). The prosecution can still tender additional evidence to prove that, despite the proven deficiency, the blood alcohol level of the accused exceeded .08 as shown by the test results.

Breath Technician's Evidence

P.C. Williams has been a police officer with the D.R.P.S. since 2005. He has also been a Qualified Breath Technician since 2011 and was acting in that capacity for the Whitby police station from the evening of September 24 to the early morning of September 25, 2016.

Since the Crown was not able to tender the Certificate of Analysis in this case, they took P.C. Williams through the set-up procedures for the approved instrument which was used for Mr. Moniz's breath tests. Exhibit 4 is the printout for the Intoxilyzer 8000C setup and breath tests for David Moniz. The printout clearly indicates that prior to and during the breath tests for Mr. Moniz the Intoxilyzer instrument noted that it passed all Diagnostic and Calibration Tests including Air Blanks and Simulator Temperature checks.

Poor Evidence on Alcohol Standard

P.C. Williams testified very poorly in cross-examination about his understanding of how the alcohol standard is used to calibrate the approved instrument to ensure that the Intoxilyzer is working properly. To sum up what he said in his evidence, he seemed to be indicating that if the Intoxilyzer is working fine, then it tells him that the alcohol standard is suitable. He could not articulate what every Qualified Breath Technician should know and be able to testify to, i.e., that the known standard is used to make sure that the Intoxilyzer instrument is properly set up and functioning as it should (not the other way around).

When Defence Counsel pointed out that using the instrument to determine the suitability of the alcohol standard is backwards, the officer responded, "What do you mean backwards?" When it was pointed out to him that the alcohol standard is being used to test to see if the machine is working properly P.C. Williams said, "it works both ways, no?" Mr. Wulkan also suggested that if the quality assurance was reciprocal that it would only be a relative test rather than an objective one. The witness did not understand this and seemed very confused about the issue of what the purpose of the alcohol standard is in testing the approved instrument.

Lack of Personal Verification

P.C. Williams agreed that he could not rely on an expired alcohol standard and testified that he did not personally verify the expiry date of the alcohol standard before taking the breath samples from Mr. Moniz. He said a police officer who is a member of the Traffic Unit is the person at the Whitby police station who is responsible for doing this.

P.C. Williams also testified that the alcohol standard should only be used a maximum of 50 times. If it exceeded 50 times it could affect the reliability of the calibration checks. While he made no note of how many times the alcohol standard had previously been used, he testified that the Intoxilyzer tells the breath technician if it goes beyond the maximum number by shutting down and indicating that the alcohol standard needs to be changed and the instrument re-calibrated.

When asked what efforts he had made to determine if the 9GL alcohol standard in this case was suitable, P.C. Williams said, "if the instrument checks and it is no good then the instrument shuts itself down".

Circular Reasoning

The Crown conceded during submissions that, based on P.C. Williams's evidence, there was no evidence in this trial as to whether the alcohol standard was the proper solution or not. There is also no evidence about the expiry date, although it had been changed the day before. While there is some evidence that the alcohol standard might have been set at 100 mgms of alcohol in 100 mls of blood, there is lack of clarity from P.C. Williams about what the concentration of the alcohol standard was (he seemed to be guessing when he testified about this issue).

There is no evidence that P.C. Williams used the alcohol standard to ascertain that the approved instrument was in proper working order (see section 258(1)(g)). P.C. Williams in effect stated the opposite, that he used the Intoxilyzer to ascertain that the alcohol standard was suitable for use. Despite all of this, the Crown submits that the Court should simply rely on the evidence of P.C. Williams when he says that the approved instrument was working properly and gave proper results. The difficulty with this submission is that it is circular. If the Qualified Breath Technician does not know whether the alcohol standard was suitable, or that he needs to use that alcohol standard to calibrate the instrument then how can the court be satisfied beyond a reasonable doubt that the instrument gave proper results and that there was no operator error as set out in section 258(1)(c).

Crown's Options Not Taken

The Crown argued that the Defence was obliged to call an expert witness to link the issues raised in this case to establishing that the approved instrument was not operating properly. The Court agreed that from a reading of paragraph 47 of St.-Onge Lamoureux, the Supreme Court clearly indicated that in most cases the defence will have to call an expert "to determine whether the instrument malfunctioned or was operated improperly". However, the Supreme Court did not state that this is the only way that the issue can be raised. It is very important to remember that the test set out by the Supreme Court is whether the Defence has raised a reasonable doubt that there was instrument malfunction or operator error. It is the evidence called by the Crown in this case which raises doubt about these issues, in particular, operator error.

As referred to in paragraph 57 of St.-Onge Lamoureux, the Crown had options in this case to call evidence about the specific alcohol standard which was used to rebut/correct the mistakes made by P.C. Williams. They elected not to do so. For example, they might have called P.C. Curcio, who had last changed the alcohol standard the day before the incident, to give evidence about the details which P.C. Williams was unable to testify to. They might have tendered the Certificate of Analysis for the Laboratoire Atlas Inc. alcohol standard solution Lot Number 9GL pursuant to section 258(1)(f). They did not. They might also have called an expert from the Centre of Forensic Sciences regarding issues relating to the presumption of accuracy if they felt it could remedy these concerns. They did not.

Acquittal on Over 80 Charge

While it is very likely that there was in fact no malfunction in the approved instrument in this case, based on the very poor evidence of P.C. Williams the Court is left with a reasonable doubt about whether there was operator error as set out in section 258(1)(c). For this reason, the Court must acquit Mr. Moniz of the Over 80 mgms offence.

Conclusions

To summarize, having reviewed all of the evidence and submissions in this case, and for the Reasons set out above, the Court has concluded the following:

1. Section 11(b) Charter Rights: The Court finds no breach of David Moniz's section 11(b) Charter rights. The Application to stay the proceedings on the basis of unreasonable delay is dismissed. The main reason for this result is that the original time estimate for the trial was for 1 day and it took 6 days including submissions on all issues to be completed. While there is some defence delay in this case, the decision is primarily based on a "discrete event" (exceptional circumstances).

2. Sections 8 and 9 Charter Rights: The Court finds no breach of Mr. Moniz's section 8 and section 9 Charter rights as P.C. Vander Duim had more than sufficient grounds to arrest Mr. Moniz for Impaired Care or Control based on the information about the observations of poor driving received from the civilian witness, together with her observations of his physical symptoms. If there had been such a breach the Court would not have excluded the evidence pursuant to a section 24(2) analysis and the direction from Ontario Court of Appeal in the case of Jennings.

3. Section 10(b) Right to Counsel: The Crown fairly concedes that there was a breach of Mr. Moniz's section 10(b) Rights to Counsel when the police inadvertently audiotaped Mr. Moniz's side of his telephone call with Duty Counsel. This infringed his right to privacy while making that call. Having balanced the three branches of the Grant test, the Court concludes that no evidence should be excluded pursuant to section 24(2) of the Charter. While any breach of privacy when an accused person is exercising his Rights to Counsel is serious, the circumstances of this case do not rise to the level that exclusion of the evidence is warranted.

4. Impaired Driving Conviction: The Crown has proven beyond a reasonable doubt that David Moniz's ability to have the care or control of a motor vehicle was impaired by alcohol. This is based on the totality of the evidence of the poor driving described by the civilian witness together with the physical symptoms observed by the arresting officer and the Qualified Breath Technician. There is more than sufficient evidence to meet the "slight" impairment test as set out in Stellato.

5. Over 80 Acquittal: The Court finds David Moniz not guilty of the offence of Over 80 mgms based on reasonable doubt about the operation of the Intoxilyzer 8000C, given how poorly P.C. Williams testified about the alcohol standard and related issues.

Sentence

For these Reasons Mr. Moniz was found guilty of the Impaired charge and not guilty of the Over 80 mgms charge.

Mr. Moniz was sentenced to:

• A Fine of $1,200
• A Victim Fine Surcharge of $360
• 15 months to pay the fines
• A 12-month Driving Prohibition Order

Released: August 10, 2018

Signed: Justice S.C. MacLean