Court Information

Date: 2018-12-13 Toronto Region Ontario Court of Justice

Between: Her Majesty the Queen — and — Jonathan Gonzales

Before: Justice L. Feldman

Heard on: September 5, 11, 2018

Reasons for Judgment released on: December 13, 2018

Counsel:

• A. Penny for the Crown
• P. Connolly for the accused Jonathan Gonzales

FELDMAN J.:

Introduction

[1] Jonathan Gonzales entered a not guilty plea to Operation Over 80 and Stunt Driving under s. 172(1) of the Highway Traffic Act. It is alleged he was driving well over the speed limit while having more than the legal limit of alcohol in his system. Upon stopping the defendant, the investigating officer had a 'reasonable suspicion' that he had alcohol in his system and demanded he submit to a roadside screening device (ASD) breath test. He registered a 'fail' and was arrested.

[2] Mr. Connolly, for the accused submits that there is uncertainty when the ASD was last calibrated, so that the investigating officer necessarily lacked an objectively reasonable basis for believing the device was in proper working order rendering evidence of the 'fail' inadmissible under ss. 8 and 24(2) of the Charter of Rights and Freedoms. Without this evidence, he says, the officer would not have reasonable and probable grounds to arrest the defendant and demand that he provide a sample of his breath into an Intoxilyzer instrument.

[3] Mr. Connolly submits, in addition, that the breath tests provided later at the police division were not taken as soon as practicable and should not be admitted. Ms. Penny, for the prosecution, submits to the contrary.

The Evidence

[4] In the early morning hours of October 16, 2016, O.P.P. Sgt. Rallion Gentles was conducting speed enforcement on Highway 401, east of Morningside Rd. in Scarborough. The speed limit was 100 kmh. At 3:10 a.m., using a laser radar device, he tracked the accused driving his motor vehicle eastbound in the collector lane at 157 kmh over a distance of 186.28 metres. The officer pulled him over at 3:12 a.m. He requested his license, ownership and insurance.

[5] While speaking to the defendant, Sgt. Gentles noted a strong smell of alcohol on his breath and observed that his eyes were red and watery. Mr. Gonzales falsely denied consuming any alcohol. On this evidence, the officer had a basis for a reasonable suspicion that Mr. Gonzales had alcohol in his system. He escorted the defendant to his cruiser and read him a roadside demand for a sample of his breath at 3:14 a.m.

[6] Sgt. Gentles had an Alcotest 6810 device with him. He had earlier done a self-test on the instrument at 7:16 p.m. and proceeded to do another one at 3:16 a.m. It rendered a result of 0. He conducted a demonstration for the accused, then reset the machine and replaced the mouthpiece.

[7] In addressing calibration, Sgt. Gentles says it is O.P.P. policy to follow the recommendation in the Centre of Forensic Sciences (CFS) Manuel that the instrument be recalibrated every 15 days. He read the last calibration to be August 5 and last accuracy test to be October 13. It was his understanding that the accuracy check ensured that the machine was in proper working order. He was aware that if the result of the accuracy check fell outside the accepted tolerance of 95-105 mgs, then recalibration was required. In this case, he believed that the ASD was properly calibrated because it would otherwise not work.

[8] Mr. Gonzales provided a suitable sample of his breath at 3:19 a.m. The device registered a 'fail'. In light of that result, Sgt. Gentles arrested the accused at 3:20 a.m. and provided him rights to counsel. Mr. Gonzales did not have a lawyer and asked to speak to duty counsel. He was cautioned at 3:21 a.m. An Intoxilyzer demand followed at 3:22 a.m.

[9] Sgt Gentles spoke to dispatch to order a tow truck and to have a qualified breathalyzer technician attend the O.P.P. detachment at Hwy. 401 and Keele St. He then spoke with the female passenger to arrange for her to be taken home by the tow truck operator. He conducted another self-test on the device that indicated to him that it was working properly.

[10] Sgt Gentles was alone and waited for the tow truck to arrive in order to protect it from behind from traffic while it hoisted the defendant's car, as well as to arrange for the passenger's ride home. This took about 10 minutes. He left for the detachment at 3:34 a.m., arriving 16 minutes later. He was met by the Breathalyzer technician, P.C. James Myers, who assisted with the parading process.

[11] The accused was then placed in a cell. The officer called duty counsel at 3:53 a.m., receiving a call back at 4:05 a.m. Mr. Gonzales spoke to duty counsel in private between 4:07-08 a.m. At 4:09 a.m., he was escorted into the Breathalyzer room where he was turned over to P.C. Myers.

[12] P.C. Myers was at the O.P.P. detachment on Keele St. when he received a call from Sgt. Gentles at 3:23 a.m. He prepared his Intoxilyzer machine and had it ready by 3:49 a.m. He received Sgt. Gentle's grounds for arrest at 4:07 a.m. and custody of the accused at 4:12 a.m. Mr. Gonzales provided two suitable breath samples, each truncated at 160 mgs, at 4:25 a.m. and 4:47 a.m., respectively. P.C. Myers smelled a strong odour of alcohol on the accused's breath and noted slightly bloodshot and watery eyes.

[13] P.C. Myers is also trained in the use of the ASD. In his experience, if the device is not calibrated every 14 days it won't work. In that event, he says, once turned on it will flash orange and give out a long beep indicating a need for recalibration. In this case, while he was unable to explain the confusion between his initial belief that the last calibration date was May 8 and his acceptance that it accorded with Sgt. Gentles' evidence of Aug 5.

[14] P.C. Myers told the court that at his detachment recalibration is done every 15 days and that technicians are brought in to perform accuracy tests. He says the fact that the accuracy test in this case was done on Oct 13 and that there was no calibration warning once the machine was turned on means to him that it was done in a timely manner and that the device was in proper working order.

Was the Officer's Belief that the ASD was in Proper Working Order Objectively Reasonable?

[15] Mr. Connolly concedes there is an evidentiary basis for Sgt. Gentles' subjective belief that the roadside screening device was in proper working order. But he says the fact that the instrument was last calibrated at least 2 months prior to its use in this case serves to undermine the objective basis for the officer's reasonable belief.

[16] In support of his position, Mr. Connolly referred to Theory and Calibration of Approved Screening Devices: Alcotest 7410 GLC, Drager Alcotest 6810, Alco-Sensor FST Training Aid for Qualified Technicians, a protocol prepared by the Toxicology Section of the Ontario Centre of Forensic Sciences (CFS). At para. 2, under Recommendations for Calibration, the Centre recommended that the calibration of the device be checked or re-calibrated by a Qualified Technician at least every 15 days. It noted that the ASD must be calibrated to indicate a 'Fail' at BAC's (blood-alcohol concentration) of 100mg (alcohol)/100 mL (blood) and greater. It is a recommendation only. Of significance, the text goes on to say:

The Drager Alcotest 6810 and the Alco-Sensor FST have an accuracy feature that allows a Qualified Technician to check the calibration of the device without initiating a re-calibration procedure. This accuracy check is parallel to a calibration check on the Intoxilyzer 5000C and Intoxilyzer 8000C and allows the Qualified Technician to assess whether the calibration of the device has been retained.

An ASD can be considered to be properly calibrated if the results of the accuracy check fall within the range of 95-105 mg/100mL. If the result of the accuracy check falls outside the accepted tolerance, re-calibration of the device is required.

[17] In this case, the accuracy check was conducted three days prior to its use by a technician brought in by the O.P.P. for that purpose and met the tolerance standard set out in the manual. As well, it is the experience of both officers that the accuracy check ensures that the instrument is in proper working order and that if re-calibration is necessary a flashing orange light together with a long tone will indicate there is a mechanical problem. That did not happen.

[18] On this evidence, without more, I am not left in reasonable doubt that there was an objectively reasonable basis for Sgt. Gentles' belief that the ASD was in proper working order. The officer was entitled to rely on the 'fail' in finding reasonable and probable grounds for the arrest. In the result, the s. 8 application is dismissed.

Were the Breath Tests Taken as Soon as Practicable?

[19] Suitable breath samples need be taken 'as soon as practicable' in order for the Crown to be able to rely on the presumptions in Code s. 258(1)(c). In R. v. Vanderbruggen, [2006] O.J. No. 1138 (Ont. C.A.), Rosenberg J.A. interpreted this to mean 'within a reasonably prompt time under the circumstances'. In his view, the trial judge is to look at the whole chain of events bearing in mind that the Code permits an outside limit of 2 hours from the time of the offence to the taking of the first test. There is no requirement that the Crown provide a detailed explanation of what occurred during every minute of this process.

[20] In the case at bar, the arresting officer pulled the defendant over at 3:12 a.m. The roadside screening process was conducted efficiently resulting in an arrest 8 minutes later and a Breathalyzer demand at 3:22 a.m. Sgt. Gentles did not leave with his detainee for the station for 12 minutes. As he was alone, he had to wait for the tow truck to arrive, he said, in order to protect it from behind as it hoisted the defendant's vehicle on the shoulder of the highway, as well as arrange for the passenger to have safe passage home. This explanation is reasonable in the circumstances. At the division, the accused's rights to counsel were implemented in a reasonable time. There is no evidence the officer gave unreasonable priority to other tasks. The first test was taken an hour and 14 minutes after Mr. Gonzales was stopped, well within the statutory two hour requirement and, in my view, within a reasonably prompt time in the circumstances. I cannot give effect to this complaint.

Conclusion

[21] On the evidence, the Crown has proven the essential elements of the offence. There will be a finding of guilt.

Released: December 13, 2018

Signed: "Justice L. Feldman"