Court Information

Ontario Court of Justice

Date: 2019-04-11

Court File No.: Brampton 3111 998 18 3812

Parties

Between:

Her Majesty the Queen

— AND —

Ravindra Jagernauth

Judicial Officer and Counsel

Before: Justice G.P. Renwick

Heard on: 10 April 2019

Reasons for Judgment released on: 11 April 2019

Counsel:

• A. Nigro — counsel for the Crown
• B. Brody — counsel for the defendant Ravindra Jagernauth

Judgment

RENWICK J.:

INTRODUCTION

[1] The Defendant faces one count of operating his motor vehicle while having an impermissibly elevated blood alcohol concentration ("over 80"). He brought a Charter application at the start of his trial alleging violations of ss. 8 and 9 and he seeks to preclude the prosecutor from adducing the evidential breath testing results in this trial.

[2] The parties agreed to have the Charter application heard in a blended proceeding alongside the trial proper. Through counsel, the Defendant conceded many of the issues usually challenged during an over 80 trial. The sole issue for determination on the Application is whether or not the arresting officer's reliance on the "fail" result of the approved screening device ("ASD") was misplaced.

[3] The Defendant challenges that the officer subjectively concluded that he had reasonable grounds to believe the over 80 offence had been committed and he argues that any subject belief apparently held was not objectively reasonable in all of the circumstances. Contrary to his training, and purely because of a mathematic miscalculation, the arresting officer administered the ASD within 15 minutes after he had reason to believe the Defendant had last consumed alcohol.

[4] The prosecution opposes a finding of a s. 8 Charter violation. Even if the ASD testing was performed approximately 14 minutes after the time estimated for the Defendant's last drink, the "fail" was still reliable and the officer was not aware of his mistake at the time. As such, the officer had an honestly held subjective belief in the reliability of the ASD results and the grounds to arrest and demand an evidential breath sample were objectively reasonable in light of what was known at the time. In the alternative, the prosecution submitted that the court in R. v. Jennings made it clear that technical violations of the Charter should not result in the exclusion of reliable evidence in these types of trials.

FINDINGS OF FACT

[5] The evidence received on this Application is undisputed.

[6] Constable Sehdev stopped the Defendant's vehicle as part of a stationary R.I.D.E. spot check of driver sobriety at 10:38 p.m. He smelled an odour of alcohol on the driver's breath and when he asked if the Defendant had consumed alcohol he was told, "Yes, officer, I did. Had approximately two beers, approximately five minutes ago." The officer formed a reasonable suspicion that the driver had alcohol in his body and demanded a sample of breath for alcohol screening, also at 10:38 p.m.

[7] Given his understanding that the Defendant had consumed alcohol approximately five minutes earlier, he decided to wait 10 minutes before performing the ASD screening. Constable Sehdev mistakenly took the ASD sample nine minutes later, at 10:47 p.m., and he received a "fail" result at that time. Constable Sehdev testified in chief that he was aware that waiting less than 15 minutes after the consumption of alcohol and before taking a breath screening sample could distort the ASD result because residual mouth alcohol can elevate the amount of alcohol detected and provide a false positive for an impermissible blood alcohol concentration. In his mind, the officer had waited for 15 minutes after the time when the Defendant estimated having last consumed beer. In cross-examination, this error became known and he admitted he had made a mistake.

ANALYSIS

[8] Determining whether there are reasonable and probable grounds to demand an evidential breath sample requires that the officer honestly believe that the driver has committed a drink driving offence and "there must be reasonable grounds for that belief."

[9] Although the Defendant took issue that the officer had appropriate subjective grounds for his belief, I have no difficulty finding that he did. It was obvious to everyone in the court that Constable Sehdev was aware of the requirement to wait 15 minutes and at the time, he thought he had done so. I find that Constable Sehdev was not aware that he had underestimated the waiting time by one minute until he was cross-examined on the timing. The officer relied on the ASD result to form his grounds to arrest the Defendant for the over 80 offence. I have no doubt that the subjective element of the Storrey test is made out.

[10] Was it reasonable for the officer to rely on the ASD "fail" result?

[11] His training told him that the risk of residual mouth alcohol affecting the ASD result required that an officer wait 15 minutes before administering the ASD screening. He admitted that although he believed he had waited the appropriate amount of time that night, it now appears that he did not wait for 15 minutes as recommended by the manufacturer of the ASD.

[12] The objective standard for reasonable grounds is meant to protect individuals from exposure to arrest and engagement in the criminal law process where the honestly held subjective beliefs of an arresting officer are insufficient in law. The question is not simply whether the officer's subjective belief was reasonable in light of what was known, but rather was the officer's belief reasonable in all of the circumstances.

[13] In R. v. Golub, our court of appeal described reasonable and probable grounds in the following manner:

In deciding whether reasonable grounds exist, the officer must conduct the inquiry which the circumstances reasonably permit. The officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable.

[14] In this case, Constable Sehdev made a mistake that he acknowledged under cross-examination affected the reliability of the ASD result upon which he relied.

[15] In Jennings, the court spoke about a similar situation:

If an officer cannot rely on the accuracy of the ASD test results, those results cannot assist the officer in determining whether there were reasonable and probable grounds to arrest a driver and demand a subsequent breath test.

[16] The prosecution submits that the mistake here is technical and minor. The Defendant does not specifically challenge this characterization, but submits that this minor mistake had significant consequences for the Defendant: he was arrested, handcuffed, taken to a police station, his vehicle was towed, he was searched, breath tested, held for several hours, and charged with a criminal offence. None of this, says the Defendant, would have occurred but for this minor mistake.

[17] In Jennings, the Ontario Court of Appeal considered whether minor or technical imperfections in the operation of the ASD preclude reliance on the screening result:

Failure to follow policy or practice manual directions does not automatically render reliance on test results unreasonable. What matters is whether the officer had a reasonable belief that the device was calibrated properly and in good working order, and whether the test was properly administered: Bernshaw, at paras. 59-60, 83; R. v. Topaltsis (2006), 34 M.V.R. (5th) 27 (Ont. C.A.) at paras. 7, 9. A failure to follow a practice manual direction can serve as some evidence undermining the reasonableness of an officer's belief. But the fact that an officer failed to follow a practice manual direction is not itself dispositive. Not every failure to follow a direction is necessarily fatal to reasonableness of belief. Not all practice manual directions will bear equally, or perhaps at all, on the reasonableness of an officer's belief that the ASD is properly functioning. It is necessary to take the further step and determine how or whether each of the specific failures identified undermine the reasonableness of the officer's belief that the ASD was functioning properly.

[18] Knowing that the presence of residual mouth alcohol from recent consumption could affect the reliability of the ASD result made it incumbent upon Constable Sehdev to ensure that he took all reasonable precautions to avoid such an outcome. Short of following the manufacturer's recommendation to wait 15 minutes after known alcohol consumption amounts to accepting the possibility that the ASD result was unreliable. I find that it was not reasonable for Constable Sehdev to rely on the "fail" reading in these circumstances.

[19] Accordingly, s. 9 of the Charter was violated when the Defendant was arrested on the basis of an unreliable ASD result and imperfect grounds to believe the over 80 offence had been committed. When this unreliable result was communicated to the Qualified Technician and she relied on these grounds to perform the Breathalyzer sampling, s. 8 of the Charter was also violated.

SECTION 24(2) OF THE CHARTER

[20] Section 24(2) of the Charter recognizes that if evidence gained by constitutional infringements is regularly admitted in criminal trials this may weaken public confidence and bring the administration of justice into disrepute. This subsection seeks to mitigate the negative effects of inappropriate state conduct by considering a qualitative analysis of the long-term effect of state misconduct upon public confidence in the criminal justice system.

[21] To perform the balancing exercise required by s. 24(2) of the Charter, I must consider:

i. The seriousness of the Charter-infringing state conduct;

ii. The impact of the breach(es) on the Charter-protected interests of the applicant; and

iii. Society's interest in the adjudication of the case on its merits.

[22] The first two factors serve to mitigate the loss of civil liberties by requiring exclusion of evidence when the Charter-infringing conduct is serious and the impact upon Charter-protected interests is significant. The third factor "pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown's case."

Seriousness of the Charter-Infringing State Conduct

[23] I recognize that there is a reduced expectation of privacy in vehicles, both because of the public nature of the activity and because driving is heavily regulated. Equally, it is uncontroversial that drunk drivers have caused untold misery and suffering to our community and continues to put motorists and other users of our highways at risk. However, the police are not authorized to act beyond the limits of the law. Those entrusted to protect our community are not given an unrestricted license to improperly detain motorists and search for evidence of suspected criminality without regard for individual liberties.

[24] My first task is to situate the Charter infringing conduct of Officer Sehdev on a spectrum "from mere technical breaches at one end to bad faith violations on the other."

[25] I find that the police conduct during the investigation of the Defendant was mostly reasonable, but it fell short due to small acts of preventable negligence. Everything began with a simple arithmetic error. That error was compounded when the arresting officer conveyed his grounds to the Qualified Technician, who also neglected to notice the arresting officer's bad math.

[26] Counsel for the Defendant argues that the arresting officer's behaviour while testifying was evasive, calculated to mislead, and demonstrative of a nonchalance toward Charter compliance. It was suggested that the officer resisted acknowledging his mistake in unambiguous ways: he tried to rationalize it, change the facts, and then diminish the significance of what he had done.

[27] I agree that it was always clear on Constable Sehdev's evidence in chief that he received the ASD result at 10:47 p.m., some nine minutes after he stopped the Defendant's vehicle. At one point in cross-examination the officer suggested that he may have given the ASD test at 10:47 p.m., but the ASD result could have come at 10:48 p.m., given that was when he arrested the Defendant.

[28] While I accept that this variation on the officer's evidence called into question his credibility, the substance of the officer's evidence was not contradicted or otherwise found to be wanting in any other way. There was no suggestion that the officer did not wait at least nine minutes (14 minutes in total) after the suspected last consumption of alcohol before administering the breath screening. On the whole, I found this witness was sincere, candid, conscientious, and knowledgeable about his responsibilities and individual rights. In the context of all of Constable Sehdev's testimony, on the material points, I have no concerns about his credibility or reliability as a witness.

[29] When Constable Sehdev was confronted with his mistake, he readily admitted it. Thereafter, the tone and tempo of the cross-examination was significantly elevated. At several points, counsel had to be reminded to permit the witness a chance to finish answering the question asked before peppering the witness with additional questions.

[30] I find that Constable Sehdev was caught by surprise when confronted with his error. He attempted to minimize the significance of his mistake, but I do not find that his inconsistency or rationalizations were attempts to mislead the court. His reactions seemed genuine and his testimony was imperfect but not dishonest.

[31] For these reasons, I characterize this Charter breach as minor and not the product of bad faith, poor training, or a disregard for constitutional norms. This officer made a simple and common human error. Although his testimony was not ideal, it was not evasive or misleading. Constable Sehdev's evidence was more likely than not the result of an attempt to justify the Defendant's arrest perhaps to protect the prosecution from what he perceived would be an unsatisfactory result.

[32] Much of what was said in Jennings applies here:

Although the constable did not abide by the strict letter of the policy manual, he subjectively believed that the ASD reading was accurate, took steps to ensure that it was, and acted in good faith. The trial judge fell into the error identified by Leach J. in R. v. Molakandov, [2013] O.J. No. 2482 (S.C.) at para. 59, of finding any breach of s. 254(3) of the Criminal Code sufficient reason to favour exclusion of evidence under the first Grant factor. The first Grant factor favours admission of the evidence.

[33] If I am wrong in this comparison, this factor only slightly pulls in favour of excluding the evidence. The officer was properly trained, properly motivated, and carried out his duties reasonably. He may be well advised to use a calculator in similar situations in the future, but his actions do not require the court to condemn his numerical inattention.

Impact of the Charter Violation Upon the Defendant's Rights

[34] Paragraphs 29 and 30 of Jennings suggest that the loss of liberty and hours of inconvenience suffered by the Defendant are irrelevant because breath sampling is "minimally intrusive:"

To find otherwise would be to create a categorical rule that s. 8 breaches in breath sample cases automatically favour the exclusion of evidence under the second Grant factor, since drivers in these cases are almost invariably arrested and taken to the police station to provide further breath samples. This would be contrary to the approach taken by the Supreme Court in Grant and to a sound characterization of what is at stake for the individual in providing a breath sample.

[35] This seems to beg the question whether the Ontario Court of Appeal has unintentionally undermined the second Grant factor by creating an automatic inclusionary rule in breath sampling cases. Rhetorically, counsel for the Defendant asks what type of Charter violation in an over 80 case could ever be said to require exclusion of the evidence under the second branch of Grant, short of beating up the driver or fabricating a failed ASD screening.

[36] I agree with the Court of Appeal that breath sampling is minimally intrusive, despite the attendant consequences of arrest and detention over a significant period of time. This factor favours inclusion of the breath sampling readings in this case.

Societal Interest in an Adjudication on the Merits

[37] There is no doubt that the evidence of the Defendant's BAC is reliable. In fact, counsel for the Defendant took no issue with the functioning and the operation of the approved instrument and the results it provided. Counsel's argument was that the Charter violation and the officer's attempts to minimize the seriousness of his mistake requires the court to disassociate itself from the state misconduct in order to protect the administration of justice from falling into disrepute.

[38] I am not satisfied on a balance that the third Grant factor requires exclusion of the breath readings. On the contrary, a reasonable member of the public would well wonder why critical, reliable scientific evidence is being excluded from the Defendant's trial when the arresting officer was aware of the requirements to properly operate the ASD and attempted to do so, but made a simple math error, and in every other way he respected the Defendant's constitutional rights.

[39] In my view, if the breath results were excluded in this case, the public would be justified in concluding that the only appropriate standard for policing is perfection. Such a standard is not recognized in criminal law.

[40] Does the fact that there are two Charter violations alter the result? It should not, for at least two reasons. First, this is not the case of an officer failing to appreciate constitutional requirements in two distinct areas. But for the misplaced reliance on the ASD result there would not be any Charter violations.

[41] If Constable Sehdev had also failed to provide the Defendant with his right to counsel, that breach would be separate and independent of the s. 9 breach. That situation is worse than what took place here; one failure (imperfect grounds for arrest) that led to two separate Charter rights being impacted.

[42] Second, this situation is no different than what occurred in Jennings. In that case the trial judge characterized the violation in search and seizure terms: but for the s. 8 violation, the breath samples of Mr. Jennings would never have been taken. That was all that the Court of Appeal had to consider. There is no doctrinal reason precluding consideration of s. 9 in those circumstances. Happenstance (how counsel for a particular accused chooses to characterize the state misconduct) is not a rational basis to assess either the severity of the Charter violation(s) or the consequences to the defendant.

CONCLUSION

[43] Though the first Grant factor slightly favours exclusion of the evidence of the Defendant's BAC, the minor nature of the arresting officer's mistake, the minimal effect it had upon the Defendant, and public perception militate in favour of dismissing the Application.

[44] In balancing all of the Grant factors, I am not satisfied on a balance of probabilities that the Defendant's breath sampling results ought to be inadmissible in the trial, despite having found that the police officer lacked objectively reasonable grounds upon which to base the Defendant's arrest and demand his breath samples.

[45] Accordingly, the Application for Charter relief is dismissed.

Released: 11 April 2019

Justice G. Paul Renwick