Court File and Parties

Ontario Court of Justice

Date: May 7, 2019

Court File No.: Wikwemikong 18-134

Between:

Her Majesty the Queen

— and —

Jake Henry Shawana

Before: Justice V. Christie

Heard on: March 29, 2019

Reasons for Judgment released on: May 7, 2019

Counsel

D. Beaton — counsel for the Crown

J. Saftic and R. Adams (student-at-law) — counsel for the defendant J. Shawana

Judgment

CHRISTIE J.:

Charges

[1] Jake Shawana is charged as follows:

On or about the 13th day of January in the year 2018 at the village of Wikwemikong in the said region while his ability to operate a motor vehicle was impaired by alcohol, did have the care or control of a motor vehicle contrary to Section 253(1)(a) of the Criminal Code

And further that,

On or about the 13th day of January in the year 2018 at the village of Wikwemikong in the said region, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood did have the care or control of a motor vehicle contrary to Section 253(1)(b) of the Criminal Code

[2] The Crown elected to proceed summarily and a blended voir dire and trial was held, at which several witnesses were called by the Crown. Those witnesses included Cst. Catherine Peltier, Cst. Jamie Shawanda, Sgt. Todd Fox and James Rajotte.

Facts

Cst. Catherine Peltier

[3] On January 12, 2018 and into the morning of January 13, 2018, Cst. Catherine Peltier, a peace officer with the Wikwemikong Tribal Police, was scheduled on duty from 6 p.m. to 4 a.m.

[4] She testified that, at 4:24 a.m., after her shift had concluded but while she was still at the detachment, she was advised of a request for assistance by Cst. Jamie Shawanda. Specifically, she was requested to provide an approved screening device on Gabow Bend in Wikwemikong which was about a minute away from the detachment. The device was at the detachment in the intake room / guard area. Cst. Peltier stated that their devices have identification tags/stickers on them which indicate the last calibration, the last accuracy check and which breath technician performed the checks. With respect to this device on this particular night, Cst. Peltier noted the calibration date in her note book as December 4, 2017, which was about 5 weeks prior to these events. According to Cst. Peltier, her understanding from her training was that the calibration was within the appropriate time frame for this particular device, the Dräger Alcotest 6810. The manufacturer recommends calibration every 6 months, therefore, this instrument was within the appropriate calibration time. She was not aware of Wikwemikong Tribal Police having their own policy on calibration. She was not aware of the Centre of Forensic Sciences recommendation on calibration. She had been successfully trained on these devices in the summer of 2016. In cross-examination, Cst. Peltier stated that she did not check the drop down menu on the instrument to see when it was last calibrated. She was not trained on the drop down menu and has never used it. Cst. Peltier testified that she would rely on the tag/sticker to ensure that the machine was properly calibrated. She did note in her notebook that the tag/sticker indicated that the accuracy check had been performed on December 26, 2017 by Cst. Spry. When asked whether the manual stated that an accuracy check was required, she stated that in the manual, it does not mention the accuracy check and that she was only aware of the requirement for calibration. Cst. Peltier testified that she was never trained on the importance of the accuracy check and did not have any knowledge of the importance of the accuracy check.

[5] According to Cst. Peltier, she took the approved screening device to Csts. Shawanda and Jamie Peltier in the Gabow Bend area, where she arrived at 4:27 a.m. She did not have any discussion with Cst. Shawanda about the calibration or accuracy dates. She observed a red ATV stationary at Hills Trail and Gabow Bend. Cst. Shawanda was in the driver's seat of his police vehicle with Jake Shawana, who was in the front passenger seat beside him. She believed that the doors to the police vehicle were closed as it was pretty cold that night. Referring to her notes, she had noted that it was -14 degrees Celsius at the beginning of her shift.

[6] Cst. Peltier gave the approved screening device to Cst. Shawanda and returned to her vehicle. She could not see him administer the test. She remained there until the tow truck arrived, which was quite some time later. At some point, Cst. Jamie Peltier verbally advised her of the identification of the person being investigated by police and advised her that he had failed the approved screening device. She observed Mr. Shawana exit the police vehicle, at which time the officer conducted an arrest and a frisk search.

[7] Shortly thereafter, at 4:39 a.m., she contacted the communication centre to ask whether there were any available breath technicians on Manitoulin Island at the time, to which the response was negative. This would have included OPP and UCCM Police as well as Wikwemikong Tribal Police. In these circumstances, the practice was to contact a uniformed member in their service that was a qualified breath technician. Cst. Peltier then had the communication centre contact Sgt. Fox. She stated that she did this because he was a qualified breath technician and he was scheduled to be on shift later that morning. She believed that if anyone would be prepared to be called out it would be Sgt. Fox. Cst. Peltier was not aware of any policy of the Wikwemikong Tribal Police to use their own personnel for breath technicians rather than an outside agency.

[8] After she arranged for Sgt. Fox, at 4:51 am, Cst. Peltier asked through the communication centre if there was a tow truck available. She sat in the cruiser waiting for the tow truck to arrive. At 5:25 a.m., Cst. Jamie Peltier provided her with the keys for the ATV. She was present when the tow truck arrived.

[9] She cleared the scene at 5:57 a.m. She returned to the detachment at 5:59 a.m. where she remained until 8:30 a.m. She spent her time in the officer area. She never actually saw Sgt. Fox that morning and she had no recollection of which officers were at the station that morning. During this time, she assisted with completing release documents on the computer. She did not advise or give notice to Mr. Shawana of the breath results. She did not release Mr. Shawana.

Cst. Jamie Shawanda

[10] Cst. Jamie Shawanda, a Wikwemikong Tribal Police officer, was also scheduled on duty from January 12, 2018 at 6 p.m. until January 13, 2018 at 4 a.m. He explained that the weather on the overnight shift was clear but cold. He noted in his notebook at the time of the stop that it was -19 degrees Celsius and that there was a wind chill. Also on duty that night were Cst. Jamie Peltier and Cst. Catherine Peltier. None of them were qualified breath technicians.

[11] At 4:03 a.m., while Cst. Shawanda was at the detachment just about to end his shift, he was called out for service by the communication centre. The Sudbury ambulance was requesting police attend at an address on Wagosh Street in relation to a report of a female falling off an ATV. The address was approximately 2 minutes from the detachment.

[12] Cst. Shawanda and Cst. Jamie Peltier went to the address on Wagosh Street in separate units. When they arrived, Sudbury ambulance personnel were inside attending to the injured female, who was complaining of chest pains. According to the paramedics, the female had fallen off an ATV and sustained a chest injury. The name of the female was provided to Cst. Shawanda, however he did not speak to her. As soon as the female left with paramedics, Cst. Shawanda and Cst. Jamie Peltier tried to get information from people in the residence about what had happened and who the female had been with, however, no one was able to give any information.

[13] At about 4:17 a.m., Cst. Shawanda and Cst. Jamie Peltier left the address in separate units and started patrolling the immediate area. As they were patrolling, approximately 3 minutes later, Cst. Shawanda saw an ATV coming down Amikook Street. The ATV was approximately 200 feet away from him. He observed it come to a stop at the stop sign on Amikook Street and then turn on to Gabow Bend. Cst. Shawanda came down Wikwemikong Way toward Gabow Bend to try to catch up to the ATV. Cst. Jamie Peltier pulled in behind Cst. Shawanda as he pulled on to Gabow Bend. Cst. Shawanda activated his emergency lights to stop the ATV. Cst. Shawanda testified that he had not made any decisions about criminal charges at that point but rather he simply wanted to know if the driver knew anything about an accident or someone falling off an ATV. The time of the stop was 4:20 a.m. After he turned on the emergency lights, the ATV stopped at Gabow Bend by Hills Trail. There was just one person on the ATV. That was the first ATV they had seen while patrolling.

[14] The operator turned off the ATV. Cst. Shawanda exited his vehicle and Cst. Peltier was right behind him. The operator of the ATV was wearing a helmet with no visor, and he noted that his face was red and eyes were glossy. Cst. Shawanda believed that without a visor, in those temperatures, this would cause those symptoms. Cst. Shawanda did not immediately recognize the driver with the helmet but when he said his name, Cst. Shawanda recognized who he was, as he had met Jake Shawana prior. [Mr. Saftic conceded that identity was not in issue]. Cst. Shawanda went up to the ATV and informed him of the reason for the stop – he said that there was an accident involving a female falling off an ATV and he asked Mr. Shawana if he knew anything about it. The weather was cold and it was not comfortable for being outside. Cst. Shawanda stated that he was freezing and suggested that they speak in his police cruiser. From the time he approached the driver until he suggested to go to the cruiser was a matter of minutes, maybe 2 minutes.

[15] In cross-examination, Cst. Shawanda agreed that when he initially asked the driver if he knew anything about a female passenger falling off, the driver stated that he did not know anything about it, but that he had just dropped off a friend. This conversation occurred shortly after the stop at 4:20 a.m. He agreed that his next note in his notebook indicated that the driver's eyes were red and glossy. It was suggested to Cst. Shawanda that the investigation started to change at that point and that he was then looking at whether the driver was impaired, to which he disagreed and stated that he was just making a notation of what he saw, including noting that the helmet had no shield. Cst. Shawanda, however, agreed that the next note in his notebook was that he asked Jake Shawana if he had been drinking. Again it was suggested to Cst. Shawanda that the investigation was changing to which he agreed that he asked Jake Shawana whether he had been drinking but that he was just trying to ask questions to determine why he was out so late, where he was coming from and why he was driving around. Cst. Shawanda would not agree that he was looking into whether he was an impaired operator of a motor vehicle at that time. He agreed that Mr. Shawana told him in response to his question about drinking that he had a drink around 6 pm.

[16] Cst. Shawanda agreed that his notes stated that "Jake asked to speak with officer in the force unit". However, he said that the note should have been that "Jake was asked to come to the force unit". Again it was suggested to Cst. Shawanda that the purpose of asking him to come back to the police cruiser was to investigate an impaired driver, to which he responded, no, not at that time, and that he just wanted to get out of the cold and it was warmer in the police cruiser. He repeated that he did not suspect that he was impaired at that time. He did not feel that he could rely on the fact that his face was red and eyes were watery given the weather.

[17] The two of them walked back to the police cruiser which was parked close behind the ATV. Cst. Shawanda got into the driver's side front seat and he invited Jake Shawana to get into the front passenger seat, which he did. Cst. Shawanda confirmed that this would not be usual for a person in custody to sit in the front seat, rather they would be frisked, cuffed and placed in the rear of the unit. Cst. Shawanda confirmed that he had no concerns with Mr. Shawana sitting in the front in these circumstances. Mr. Shawana was calm and there was no reason to fear for his safety. He had not decided on any criminal charges at this point but rather his focus was on the accident.

[18] In the cruiser, they were talking for a bit and Jake Shawana was explaining his night to the officer. As this was happening, Cst. Shawanda could smell an odor of alcoholic beverage coming from his mouth as he was talking. He was seated right across from and facing Cst. Shawanda. The odor of alcohol caused Cst. Shawanda concern and he then had a suspicion that Mr. Shawana had alcohol in his body and was operating the ATV. At this point, which he believed was around 4:30 a.m., he advised Mr. Shawana of his suspicion – something along the lines that he smelled alcohol and was concerned with his sobriety when operating the ATV. He then decided to and did in fact read the ASD demand. According to Cst. Shawanda, Jake Shawana understood. Cst. Shawanda believed that they had been together for about 4 minutes or possibly longer. Cst. Shawanda did not have an ASD with him so he then called over the radio, he believed through the communication centre, for Cst. Catherine Peltier to attend with an ASD. He said that he made this call over the radio right after he notified Jake Shawana of his suspicion of alcohol in his body and made the ASD demand. It was suggested to Cst. Shawanda that Cst. Peltier was asked to bring the ASD before 4:30 a.m. to which he replied that the times might be a little off, but from his recollection, it was shortly after he read the ASD demand to Mr. Shawana.

[19] According to Cst. Shawanda, Cst. Catherine Peltier arrived at 4:32 a.m., about 2 minutes after he made the request for her to attend with the ASD. He understood that she had been at the detachment which was about a minute drive from where they had stopped the ATV. Cst. Shawanda testified that he had been trained to operate the ASD three years prior. When he received the ASD, it was turned off and in its protective case. He made note of the serial number of the device. Cst. Shawanda turned on the device, the device then did some internal checks, and when finished doing those checks, it said "ready", which meant it was ready to receive a sample. This procedure was consistent with his training. Cst. Shawanda did not check the calibration date or the accuracy check date. He testified that it is supposed to be calibrated by a breath technician every 6 months and an accuracy check should be done every 14 or 15 days, but he believed that their breath technicians did it every 14 days. At 4:32 or 4:33 a.m., he did perform a test on himself to ensure the device was working properly and to demonstrate to Jake Shawana as to how to conduct a proper test. Cst. Shawanda's self-test registered a "0" meaning he did not have any alcohol in his body, which was in fact true. This was all still occurring as Jake Shawana was seated beside Cst. Shawanda in the front seat of the cruiser. After the self-test, the device was prepared for Jake Shawana to provide a sample. A new tube was used for Mr. Shawana's test. The device went through its internal checks again and the device said "ready", meaning it was ready to receive another sample.

[20] At 4:34 a.m., Jake Shawana performed the test and registered a "fail". According to Cst. Shawana's training, this meant that he had over 100 mg of alcohol in 100 ml of his blood and, therefore, was over the legal limit. Based on that result, he came to the conclusion that Mr. Shawana was operating his ATV, a motor vehicle, with more than the legal limit of alcohol in his body.

[21] There was nothing about the ASD that caused him concern. That night he tested the machine on himself and everything seemed to be in proper working order.

[22] Cst. Shawanda agreed in cross examination that he understood the importance of the device being calibrated properly and having an accuracy check performed within the proper time period. He agreed that it is important that the instrument is accurate and maintained properly because he will rely on the result. If the machine says fail, he will rely on it to make an arrest. Cst. Shawanda agreed that it was important for him to have the calibration and accuracy information before using the machine because he would want to make sure he was getting accurate results. He stated that the tags / stickers are usually placed on the protective casing but in this case he did not pay any attention to the tags, other than to record the serial number. He took the device from Cst. Peltier and conducted a self-test.

[23] The following exchange took place during the cross-examination (questions and answers taken from notes – not from transcript):

Q: If you knew the accuracy test had been expired or had not been accurately tested within 14 days or calibration was outside the 6 months, you would not rely on that machine?

A: I don't think I would use it on somebody without testing it on myself.

Q: You understand the importance of the machine being maintained properly with accuracy checks and calibration tests?

A: Yes

Q: If you know the accuracy tests expired or calibration expired, you would not rely on the results?

A: Yes, I would have some concerns that it was not operating properly.

[24] At 4:35 a.m., Cst. Shawanda made a formal arrest for impaired care or control of a motor vehicle. He read the caution to Mr. Shawana to which he indicated that he did understand and did not wish to say anything in answer to the charge. Immediately following the caution, he read the rights to counsel. Mr. Shawana indicated that he understood and it was duty counsel that he was requesting to speak to as he did not know of or have a lawyer. At 4:37 a.m., Cst. Shawanda read the breath demand and from what he recalled, Jake Shawana understood. Cst. Shawanda explained that they would be going back to the detachment and he would be performing a breath test with a breath technician. Jake Shawana had no difficulty understanding and did not ask him to clarify or explain anything. This all occurred while they continued to sit in the front of the police cruiser.

[25] At 4:38 a.m., they both exited the cruiser, at which time Jake Shawana was formally arrested, placed in hand restraints, searched, and placed in the back of the police cruiser.

[26] At 4:42 a.m., Cst. Shawanda cleared the scene with Jake Shawana. They arrived at the detachment at 4:43 a.m. Cst. Shawanda believed that Cst. Jamie Peltier followed him back to the detachment to assist with lodging and that Cst. Catherine Peltier stayed behind to assist with the ATV.

[27] Cst. Shawanda indicated that at some point he had directed Cst. Catherine Peltier to make calls to locate a breath technician. At some later point, he learned that the breath technician would be Sgt. Fox. Sgt. Fox was not at the detachment when he got there at 4:43 a.m.

[28] At the station, Jake Shawana was searched again by Cst. Shawanda and then lodged in a cell. He was calm and compliant and there were no issues with lodging. After Mr. Shawana was lodged, Cst. Shawanda went to do a CPIC check to see if Mr. Shawana was on other conditions.

[29] At 5:04 a.m., Cst. Shawanda called duty counsel. Duty counsel called back at 5:07 a.m. and Mr. Shawana was moved to a private cell to speak with duty counsel. Cst. Shawanda could not hear the conversation. Mr. Shawana was in the private cell for approximately 3 minutes. He was then re-lodged back in the cell with no difficulties.

[30] Cst. Shawanda was still at the detachment when Sgt. Fox arrived but he did not remember exactly when that was, although his notes indicated that at 6:04 a.m., Sgt Fox was at the detachment. He had a brief discussion with Sgt. Fox to inform him of the stop, how Mr. Shawana came into custody and a brief rundown of the night. Cst. Shawanda confirmed that he had no training on the Intoxilyzer 8000C and did not know the procedure to make sure it was operating properly.

[31] Cst. Shawanda remained at the detachment until Mr. Shawana was released. He did not recall if Cst. Jamie Peltier remained at the station. He released Jake Shawana at 8:05 a.m. and at that time provided him with copies of the release forms and CEA notice. Cst. Shawanda believed that he and Cst. Catherine Peltier worked together on the release documents to speed things up. He served Jake Shawana with the documents at 8:10 a.m.

[32] Mr. Shawana was not causing any problems or being aggressive while at the station. When asked why he was lodged in the cell for over 2 hours while waiting for the breath test, Cst. Shawanda stated that he was in their custody and they did not even have a guard at the time so they could not just have him wandering around with no one watching him. He agreed that there were three officers at the station, however, he stated that it was common practice to lodge the person in the cells regardless of whether or not they are causing problems. Cst. Shawanda stated that if there was a call for service, they would have to go. He agreed that there were no other calls for service while Mr. Shawana was lodged, however, there was no way to predict when a call would come or how many officers would be required.

Sgt. Todd Fox

[33] Sgt. Todd Fox, a member of the Wikwemikong Tribal Police, testified that at the time of these events, he was a qualified breath technician, and had been qualified with respect to the Intoxilyzer 8000C since March 1, 2011. In January 2018, the other qualified breath technicians were Cst. Spry and Cst. King.

[34] Sgt. Fox was scheduled as the supervisor for day shift on January 13, 2018. At 4:46 a.m. on that day, he was at his residence in M'Chigeeng and was called to work by dispatch. He was advised that Wikwemikong Tribal Police required the services of a qualified breath technician in relation to a person that Cst. Shawanda had placed under arrest and issued a demand. He would be required to collect breath samples. With respect to whether he knew there was a possibility that he would be called out early to the detachment, he stated that there were only 2 field sergeants and he was on duty that weekend, so it was expected to get some type of call. Upon exiting his residence to get his car started, he noticed that it was cold and windy; he estimated that it was colder than -30 degrees Celsius. He stated that it was necessary to start the car and warm it up until it felt adequate to drive in those conditions, which he stated would take about 20 or 30 minutes. He stated that warming up the car was a matter of safety as it was very cold with a wind and he was waiting for the windows to defrost.

[35] He left his residence at 5:17 a.m. He could not recall the route he took that day, although he thought he took Bidwell Road, which is the shortest of three different routes from M'Chigeeng to Wikwemikong. He stated that it was still dark and there were usually quite a few deer on that road, although he could not remember seeing any deer that morning. The posted speed limit on that road was mostly 80 km/h, but reduces to 50 km/h in some locations. He stated that it would not be prudent to exceed the speed limit as it would jeopardize his safety and the safety of others.

[36] He arrived at the detachment in Wikwemikong at 6:04 a.m. First thing he did upon entering the detachment was to go straight to the breath room to see the status of the breath instrument. It was in a mode called "disabled mode". The alcohol standard solution had not been changed in the previous 14 days, and according to his training, it had to be changed. He immediately changed the solution and then went to get his uniform on. He stated that changing into his uniform usually takes 5 to 10 minutes. After he got changed, he came back to the instrument and noticed the thermometer on the simulator registered "cold" on the display. Sgt. Fox testified that the temperature of the solution must be at 34 degrees plus or minus .2 to be in proper operating parameters so he waited for the simulator to warm up. He stated that the area of the breath room and cell area where people were booked is typically cold, so the time it takes to warm up depends on the temperature of the bottle of solution. Based on his experience, it can take from 5 to 25 minutes to warm up. He agreed that Mr. Shawana would have been in this cold area and that his exterior clothing would likely have been taken from him, although they usually provide a blanket and he was not sure if Mr. Shawana asked for one or was given one.

[37] Sgt. Fox was not exactly sure as to when the solution was up to temperature but at 6:43 a.m., he commenced a calibration check, and in order to do that, the temperature on the simulator must be within proper operating parameters, so it would have been up to the appropriate temperature at that time. He explained that the calibration check is a quality assurance check to ensure that the instrument will provide accurate results and that it is in proper working order. The result on the calibration check showed the temperature of the simulator at 34 degrees and the calibration result was 100 mg in 100 ml of solution which was precisely the target result. He explained that he would not use the machine to collect samples if he had not done this check as it is a prerequisite to ensure that these are completed before the first sample. Sgt. Fox explained that these readings are displayed on the machine as well as printed out from the machine and in this case the display result and print out were in complete agreement. He explained that in total there were three quality assurance checks: calibration, diagnostic, and self-breath test. After completing the calibration check, at 6:47 a.m., he conducted the diagnostic check and all systems passed. At 6:48 a.m., Sgt. Fox was about to conduct a self-breath test, however during this process, there was some movement on the instrument and the display screen went blank. He checked the back of the instrument and it looked like the power cord might have been disconnected and then came back in. He tightened the cord, looked at the digital display and it appeared to be working. He then pressed the start test button and the machine counts down for 5 minutes, which is the time it takes to stabilize the operating temperature. After that 5 minutes, there were no concerns with the instrument. With respect to the self-breath test, Sgt. Fox explained that he never in fact did this quality assurance check as it skipped his mind when the display went blank and he had to correct that issue. Based on the quality assurance checks performed, Sgt. Fox was of the view that the instrument was in proper operating order to assess samples of breath.

[38] Sometime prior to the first sample, Sgt. Fox received some information from Cst. Shawanda to form his grounds. He was advised by Cst. Shawanda that Jake Shawana had been on an ATV with a female passenger and there had been some kind of collision that caused the passenger injury. Officers were patrolling in the area to locate the operator and the ATV which was located. Jake Shawana was the driver. Cst. Shawanda had suspicion of alcohol, he issued the ASD which registered a fail and he was arrested for operating with over 80 mg of alcohol in 100 ml of blood.

[39] Mr. Shawana had remained in his cell while Sgt. Fox was getting the breath instrument ready and then he went to the cell area and extracted him. There was no turn over from another officer. As Sgt. Fox was waiting for the instrument to count down from 5 minutes, at approximately 7:00 a.m., he commenced the alcohol influence report with Mr. Shawana. At 7:01 a.m., he read the demand of a qualified breath technician to Mr. Shawana which Mr. Shawana understood. As part of the process of doing the alcohol influence report, he provided a primary caution to Mr. Shawana at 7:02 a.m. to which Mr. Shawana responded that he did not wish to say anything. Also as part of the alcohol influence report, he asked Mr. Shawana when his last drink was and he said 1:00 a.m. As to what he had been drinking, he had indicated beer and wine. It took about 7-10 minutes to go through the alcohol influence report and during that time he seemed to understand and was very cooperative. After the alcohol influence report was complete, he commenced the first breath sample. He instructed Mr. Shawana as to how to perform the breath test properly. Prior to the first sample, the instrument does a number of things. First it performs a system blank test, or an air blank, where it draws ambient air within the environment near the instrument and measures it to see if there is any external alcohol source detected in the instrument. If there is not any external alcohol source detected, the test should come back as 000, which is the target but can be as high as 10 mg and still function properly. In this case, the first system blank check was 000.

[40] The next check was a system calibration which is designed to target 100 mg of alcohol in 100 ml of solution – plus or minus 10 – to ensure the instrument is functioning properly. According to the test record at 7:08 a.m., the system calibration was 100 mg of alcohol in 100 ml of solution, in other words it was right at the target. All of the checks prior to the first sample were right on target showing that the instrument was functioning properly.

[41] The first sample of Mr. Shawana's breath was taken at 7:10 a.m. and the result was 117 mg of alcohol in 100 ml of blood.

[42] Sgt. Fox explained that there is a 17 minute interval after the first test, wherein the machine will not allow a second sample. It is an internal lock out. At 7:14 a.m., Mr. Shawana was re-secured in the cells. Sgt. Fox commenced the second breath test at 7:38 a.m. When asked why there was a 28 minute delay in this case, he stated that he was not sure, he might have been distracted by something or might have miscalculated the time.

[43] Prior to the second sample being taken, Sgt. Fox explained the process to Mr. Shawana again. Also, prior to the second sample, the instrument again does a number of checks including a system blank, diagnostic check, system blank, calibration check, system blank, diagnostic, and then the subject test. The system blank checks all registered 000 which was the target. The system calibration test was 99 mg of alcohol in 100 ml of solution. This was still well within operating parameters as there was a range of plus or minus 10.

[44] The second sample was taken at 7:39 a.m. and the results were 110 mg of alcohol in 100 ml of blood.

[45] The breath test records were entered as Exhibit 1.

[46] According to Sgt. Fox, the disparity between the two samples taken at least 17 minutes apart should be no more than 20 mg. In this case, the samples of 117 mg and 110 mg were considered to be in good agreement.

[47] He then prepared the certificate of a qualified breath technician and would have served it on Mr. Shawana. The certificate of qualified breath technician was marked as Exhibit 2.

[48] At 7:43 a.m., Mr. Shawana was re-secured in the cells, while Sgt. Fox talked to the investigating officer and said that he could be released upon documents being signed. Sgt. Fox was not directly involved in the release of Mr. Shawana.

[49] Even though Sgt. Fox did not operate the approved screening device that morning, he was asked about his role in maintaining the device. He stated that the calibration period was 6 months and that Cst. Spry was assigned to undertake this task, as in she would do the calibration and then print the date that she did that and stick it on the box of the device. The calibration date on the box is the date the calibration was performed and it remains good for 6 months moving forward from that date. With respect to accuracy checks on the approved screening device, he stated that it is best practice to do an accuracy check every 14 days, but that the emphasis is on calibration. He did not know whether the manufacturer required a 14 day accuracy check.

James Rajotte

[50] James Rajotte was qualified, on consent, as an expert in forensic alcohol analysis and was permitted to provide a read-back of the presence of alcohol in Mr. Shawana's blood at the relevant time of operation of the motor vehicle. Mr. Rajotte's toxicology letter of opinion was marked as exhibit 3. The letter of opinion stated in part as follows:

In connection with the above-noted matter the following is the information as specified in your submissions.

1. Involved in an incident at or between approximately 4:15 a.m. and 4:35 a.m.

2. Intoxilyzer 8000C results of 117 and 110 milligrams of alcohol in 100 millilitres of blood obtained at approximately 7:10 a.m. and 7:39 a.m., respectively.

Given the above information, the projected blood alcohol concentration (BAC) at or between approximately 4:15 a.m. and 4:35 a.m. is 115 to 165 milligrams of alcohol in 100 millilitres of blood (mg/100 mL). This projected range is independent of the gender, height, weight, and age of the individual, but is dependent on the following additional factors:

1. A rate of elimination of alcohol from the blood ranging from 10 to 20 mg/100 mL per hour.

2. Allowance for a plateau of up to two hours.

3. No consumption of large quantities of alcoholic beverages within approximately 15 minutes prior to the incident.

4. No consumption of alcoholic beverages after the incident and before the breath tests.

[51] Mr. Rajotte testified that at 115 to 165 mg of alcohol in 100 mL of blood, a person would be impaired at these rates, in that he would have a reduced ability to perform a task.

[52] Mr. Rajotte had reviewed the Intoxilyzer test record card. He stated that this told him that the instrument was operated properly and told him the test results of the subject. He reviewed Exhibit 1 and confirmed that this was the same information that he had been working from in electronic form. The test records told Mr. Rajotte that there were two subject tests, both values were accepted by the instrument and deemed suitable by the technician. The values obtained were greater than 15 minutes apart and when truncated were 110 mg of alcohol in 100 mL of blood.

[53] Mr. Rajotte testified that the information of alcohol consumption that he received from the synopsis was that he had his last drink at around 6 p.m. He was asked whether it would change his analysis if the last drink was moved to 1:00 a.m., and he stated it would not change his opinion.

[54] In cross-examination, Mr. Rajotte was asked about the approved screening device and the calibration requirements. He stated that the Dräger Alcotest 6810 is to be calibrated every 6 months as per manufacturer's guidelines. With respect to accuracy checks, the recommendations of the CFS are that it occur every 2 weeks, not exceeding 15 days, however, there is no manufacturer requirement. The CFS recommends this timeframe for checking accuracy, but it is not an essential things to do. The calibration check, on the other hand, must be done.

Position of the Parties

[55] Mr. Saftic, on behalf of Mr. Shawana, submitted that there were a number of Charter violations in this case as follows:

1. Mr. Shawana's section 8 Charter rights were violated because Cst. Shawanda did not have objectively reasonable grounds to believe that the ASD he used was in proper working order. The ASD was last calibrated on December 4, 2017 and the accuracy check was performed on December 26, 2017, however, Cst. Shawanda was not aware of either of these pieces of information when he used the ASD device that night;

2. At approximately 4:20 a.m., Cst. Shawanda had Mr. Shawana get off his ATV and speak with him in the police vehicle. Cst. Shawanda did not inform Mr. Shawana as to the reasons for his detention. This amounts to a s. 10(a) Charter violation;

3. Mr. Shawana's section 9 Charter rights were violated in two ways: first, when he was taken to the cruiser and not advised of his right to counsel and not advised when the investigation changed, and second, when he was placed in the cell at the police station for such a long period of time awaiting the arrival of Sgt. Fox, even when there were plenty of officers in the building to ensure he would not leave the premises;

4. Mr. Shawana's section 10(b) Charter rights were violated when Cst. Shawanda did not provide the ASD demand forthwith, when he formed the grounds to make a demand. Further, Mr. Shawana was detained in the police vehicle while Cst. Shawanda was requesting an ASD and Mr. Shawana was never given his rights to counsel;

5. Mr. Shawana's section 8 and 9 Charter rights were violated because the breath tests were the product of a warrantless search. The breath tests were not taken as soon as practicable.

[56] With respect to the allegation of impaired care or control, Mr. Saftic argued that there was simply no evidence of impairment apart from the expert's evidence. If the breath tests were excluded, there would be no evidence of impairment.

[57] The Crown argued that there have been no Charter violations and, even if there were, the violations would not warrant exclusion of the evidence under s. 24(2). Mr. Beaton argued that everyone's watch is slightly different and people may differ by a few minutes on the time. Therefore, it is reasonable that Cst. Catherine Peltier and Cst. Jamie Shawanda have different times in relation to the request and delivery of the ASD.

[58] Mr. Beaton does not agree that the detention commenced when the emergency lights were turned on to stop the vehicle. Further, it was a very cold night. Cst. Shawanda found a male with a flushed face and eyes watery which could have easily been caused by the weather, therefore, this did not give the officer reasonable suspicion. The officer asked about alcohol and Mr. Shawana said that his last drink was at 6 p.m. This also did not provide the officer with reasonable suspicion. In an effort to be fair, Cst. Shawanda requested that they go to the police vehicle and invited Mr. Shawana to sit in the front seat. The officer was trying to find out if a person fell off his ATV. After some time in the front of the car, the officer noticed alcohol. It was at that point that the officer formed reasonable suspicion. However, up to that point, he was not detained. Cst. Shawanda was never asked whether Mr. Shawana was free to leave. Cst. Shawanda noticed the smell of alcohol and then called for the device. There was no reason to discount what Cst. Shawanda said. From the time he read the demand until the unit was on scene was very short, leading to the conclusion that there was no delay.

[59] With respect to Cst. Shawanda's objectively reasonable grounds to believe the ASD was working properly, the Crown pointed to the fact that the device was calibrated within the proper time frame. The accuracy check was just a recommendation, not a requirement to ensure operability. There was no evidence as to what an accuracy check is on the evidence in this trial. The officer did a self-test and got a zero and he had no alcohol that night. He verified the accuracy of the unit.

[60] With respect to the as soon as practicable argument, Sgt. Fox was not unreasonable in any of the steps that he took. He needed to warm up his car for safety and drive safely to the detachment. He needed to take steps to make sure the instrument was working properly. There was no time unaccounted for throughout the events.

[61] Regarding his detention in the cell, the Crown submitted that this was not a big city detachment where there were lots of officers around. The officers do not know if or when there would be a call for service. It would be unreasonable to expect the officers not to lodge a detainee in a cell.

[62] The Crown argued that if there were any violations of the Charter, under the Grant analysis, there should be no exclusion. There is no evidence of the officers being high-handed, capricious or rude.

[63] Finally, with respect to impairment, the Crown agreed that if the readings were excluded for any reason, there would be no evidence of impairment.

Analysis

Were Mr. Shawana's Section 8 Charter Rights Violated Because Cst. Shawanda Did Not Have Subjectively and Objectively Reasonable Grounds to Believe That the ASD He Used Was in Proper Working Order?

Law

[64] The case law is clear that the officer must have subjectively and objectively reasonable grounds to believe that the approved screening device was working properly in order to rely on it to make the breath demand and ultimately to take samples of breath. Given that the taking of breath samples is a warrantless search, the onus is on the Crown to prove that the grounds of the officer were both subjectively and objectively reasonable. Proving reasonable grounds to make the breath demand is not meant to be a heavy onus. The Crown is not required to prove that the ASD was in proper working order as a matter of fact. Rather, the issue is whether, on a subjective and objective basis, the officer had reasonable grounds for believing that the approved screening device was in good working order.

[65] In R. v. Weese, [2004] O.J. No. 4502 (S.C.), McCombs J. was dealing with a summary conviction appeal for a conviction for drive over 80. The only real issue at the trial was whether the arresting officer had the requisite reasonable and probable grounds required to engage s. 254(3) of the Criminal Code and thereby entitle the officer to demand that the appellant provide samples of his breath for analysis. The issue arose because the sticker on the roadside screening device indicated that it had been re-calibrated on December 8, 2003. This re-calibration date was clearly wrong, because although the appellant was stopped in the early hours of December 8, the arresting officer had begun his shift and picked up the device before midnight on the evening of December 7. The summary conviction appeal court held:

8 The standard for determining the existence of an objective basis for the officer's belief is what he reasonably believed or appreciated at the time of the arrest, not what he knew at the time of trial. I adopt the observations of Hill J. in R. v. Censoni, [2001] O.J. No. 5189 (Ont. S.C.), at para. 35 :

In reviewing the objective component of reasonable grounds, the question is whether the officer's opinion was supported by objective facts: Regina v. Berlinski, [2001] O.J. No. 377 (C.A.) at para. 3 per curiam. The existence of a "constellation of objectively discernible facts", spoken of by Doherty J.A. in Regina v. Simpson (1993), 79 C.C.C. (3d) 482 (Ont. C.A.) at 501 in discussing "articulable cause", is also a necessary feature of reasonable grounds: Regina v. Hall, supra, at 74-75. In Storrey v. the Queen, (1990), 53 C.C.C. (3d) 316 (S.C.C.) at 324, Cory J. spoke of a reasonable person standing in the shoes of the police officer believing reasonable and probable grounds existed. This was the approach followed in R. v. Hall (1995), 39 C.R. (4th) 66 (Ont. C.A.), at 77 and to this end, in Regina v. Oduneye (1995), 1995 ABCA 295, 15 M.V.R. (3d) 161 (Alta. C.A.) at 168-9, the court accepted the existence of objective reasonable grounds must be based on facts known by or available to the peace officer at the time he or she formed the belief. (See also the succinct observations of Durno J. to the same effect in R. v. Mastromartino, [2004] O.J. No. 1435 (Ont. S.C.), at para. 28 )

9 The trial judge found as a fact that the arresting officer did not appreciate the significance of the notation on the roadside screening device indicating that it had been re-calibrated on December 8th. On a fair reading of the transcript of the evidence of the officer, the trial judge's conclusion as to the officer's state of mind was reasonable and supported by the evidence. The trial judge went on to hold that the officer's state of mind was both subjectively and objectively reasonable, based upon what he knew and appreciated at the time. I see no basis to interfere with his findings of fact.

[66] This case was appealed to the Court of Appeal, R. v. Weese, [2005] O.J. No. 749, where the court held:

4 The fact that the police officer, acting in good faith, did not appreciate that there was an error in the recorded calibration date is itself a showing that the inaccurate date did not establish, at the relevant time, a high degree of unreliability with respect to the screening device. In our view, it cannot be said that no reasonable police officer, in a position similar to that of the arresting officer in this case, could not have made the same mistake regarding the accuracy of the recorded calibration date.

[67] In R. v. Topaltsis, [2006] O.J. No. 3181 (C.A.), the Crown sought leave to appeal the decision of a summary conviction appeal court judge upholding the respondent's acquittal on a charge of "over 80". The Court of Appeal stated as follows:

8 On appeal to this court, the Crown contends that the trial judge erred by applying the wrong test in determining whether the officer had reasonable and probable grounds to demand a breath sample. In particular, the Crown submits that the trial judge required the Crown to prove that the approved screening device that was used in this case (and which registered a fail) was in good working order when the police officer administered the test to the respondent. Further, the Crown contends that the Summary Conviction Appeal Court judge erred by failing to recognize that the trial judge applied the wrong test.

9 We accept the appellant's submissions. We are satisfied that rather than simply assessing whether, on an objective basis, the officer had reasonable grounds for believing that the approved screening device was in good working order, the trial judge embarked on a consideration of whether the evidence established that the device was in good working order. We therefore agree that, in effect, the trial judge required the Crown to prove the device was in good working order. Further, because the trial judge applied the wrong test, his finding that the officer did not have reasonable and probable grounds is tainted and cannot stand.

10 Moreover, we agree that the Summary Conviction Appeal Court judge erred in law by failing to recognize that the trial judge applied the wrong test. Further, the Summary Conviction Appeal Court judge erred in law in holding that the trial judge's conclusion that the police officer did not have reasonable and probable grounds on an objective basis was, in the circumstances of this case, a finding of fact. See R. v. M.A.L., [2003] O.J. No. 1050 (C.A.) .

[68] In R. v. Lefebvre, [2016] O.J. No. 3606 (C.J.), it was argued that, because of a number of deficiencies in the steps taken by the officer to ensure that the ASD was in proper working order, the officer's belief was not objectively reasonable. The Court stated as follows:

32 In doing so, "the question is whether the officer's opinion was supported by objective facts", which must have been "known by or available to the peace officer at the time he or she formed the belief": R. v. Censoni, [2001] O.J. No. 5189 (S.C.J.), at para. 35 . Justice Hill in that case went on to state that "[r]easonable grounds in the context of a s.254(3) demand is not an onerous threshold": para. 43.

33 The Crown is not required to prove that the ASD was in proper working order as a matter of fact. Rather, the issue is "whether, on an objective basis, the officer had reasonable grounds for believing that the approved screening device was in good working order": R. v. Topaltsis, [2006] O.J. No. 3181 (C.A.), at para. 9 .

34 Justice Hill summarized the issue as follows: "[a] peace officer with an ASD need only have a reasonable belief that the device is properly calibrated and in working order before relying on a Fail test result to confirm his or her suspicions that the motorist may be impaired or over the legal limit -- the necessary grounds for an intoxilyzer demand": R. v. MacDonnell, [2004] O.J. No. 927 (S.C.J.), at para. 23 . In that case, the arresting officer was in possession of an ASD that had been calibrated by a Qualified Technician earlier the same day. The arresting officer tested the device at the start of his shift and again before using it on the subject motorist and found it to be working properly. Those factors "reasonably permitted the officer to believe that device was set to perform the only function it has for being in a cruiser -- screen out motorists or, in the case of a Fail test result, afford reasonable grounds for an intoxilyzer demand": para. 24.

35 In Mr. Lefebvre's case, PC Kowalyk relied upon an accuracy check performed by a Qualified Technician earlier the same day. He knew that such checks were performed every second Friday, and believed that instruments which failed to pass the accuracy check would be removed from circulation. Therefore, the fact that this ASD was in circulation is an objective fact that supported his belief the device was in proper working order. His belief was bolstered by the fact that the accuracy of the device had been checked within the previous 14 days in accordance with OPP policy. I accept PC Kowalyk's evidence that he checked this date on the ASD prior to administering the test to Mr. Lefebvre, and I find his explanation for noting this fact on the dash pad without recording the date at that time to be credible. I also accept his evidence that he conducted a self-test of the device before using it on Mr. Lefebvre, and that the result of the self-test was accurate, another objective fact supporting his belief that the ASD was in proper working order.

36 I am not troubled by the fact that PC Kowalyk did not take steps to ascertain and document details such as the name of the officer who conducted the accuracy check earlier that day, the name of the officer who conducted the last calibration check, or the manufacturer, lot number or expiry date of the alcohol standard solution. PC Kowalyk was entitled, in my view, to rely upon other officers to perform their duties properly and need not personally inform himself of the minutiae of those duties in order for his belief that they were carried out to be reasonable. He understood that other officers were trained and responsible for calibrating and checking the accuracy of the ASD's used by his detachment. He believed an accuracy check was done every 14 days. He confirmed that the ASD he used on Mr. Lefebvre was checked during the last 14 days, and confirmed its proper operation through a self-test. I can find no fault with his reliance upon this information collectively to conclude that the ASD was in proper working order.

[69] In R. v. Ram, [2016] O.J. No. 7187 (C.J.), one of the issues raised was whether there was a violation of section 8 of the Charter because the officer based the grounds for arrest on an unreliable roadside screening device. The court stated in part as follows:

13 An officer using an approved screening device need only have a reasonable belief that the device is properly calibrated and in proper working condition before relying on a 'fail' test result to confirm her suspicions that motorist may have a blood alcohol level above the legal limit. There is no requirement that the officer know the calibration setting of the device, when it was last calibrated or whether the device was in fact working properly: R. v. Coutts (1999), 136 C.C.C.(3d) 225 (Ont.C.A.) at para21; R. v. MacDonnell, [2004] O.J. No. 927 (S.C.J.) ; R. v. Mastromartino et al., [2004] O.J. No. 1435 (S.C.J.).

14 What is important about the officer's belief is not its accuracy, but its reasonableness. For example, an officer's mistaken understanding about the calibration of a device will not undermine the validity of her grounds to make an arrest and an approved instrument demand, if the belief was honest and reasonably based on the facts as she understood them: R. v. Weese, [2005] O.J. No. 749 (C.A.) ; R. v. Topaltsis, [2006] O.J. No. 3181 (C.A.); R. v. Deacutis, [2006] O.J. No. 3249 (C.J.) . The officer's belief may be based on hearsay or incomplete sources and may contain assumptions. In R. v. Nixon, [2007] O.J. No. 2734 (C.J.) a police officer's expectation that a roadside screening device issued for a planned RIDE spot check would be properly checked and calibrated was held to be objectively reasonable.

15 The law in this area is very helpfully summarized by Durno J. in R. v. Beharriell, 2014 ONSC 1100, [2014] O.J. No. 882 (S.C.J.) at para 56 :

Based on the case law, the following principles can be derived where a police officer uses an ASD to confirm his or her suspicions a driver was driving while impaired or having consumed excess alcohol and the accused alleges his or her s. 8 Charter rights were infringed:

i) the determination is made on a case-specific bases;

ii) breath samples taken pursuant to an Intoxilyzer demand involve a warrantless search and the onus is on the Crown to establish, on a balance of probabilities, that the search was reasonable;

iii) police officers may, but are not required to, rely on 'fail' readings obtained on an ASD as the basis or one of the bases upon which they conclude they have reasonable and probable grounds to make an Intoxilyzer breath demand;

iv) police officers using an ASD are entitled to rely on its accuracy unless there is credible evidence to the contrary;

v) in doing so, the officer must have a reasonable belief the ASD was calibrated properly and in working order before relying on the 'fail' reading as a component of their reasonable and probable grounds to make an Intoxilyzer demand;

vi) a relevant consideration is whether the record discloses that because of his or her training the officer knows that in the circumstances in which the ASD is being used the results will be unreliable;

vii) whether an officer had that reasonable belief can be established by direct or circumstantial evidence;

viii) there is no requirement that the Crown prove the instrument's calibration or that the ASD was working properly;

ix) there is a heavy onus on the accused to establish a high degree of unreliability in the specific facts of the case. That evidence may arise in the Crown's case or through defence expert evidence.

16 It is well established that, absent evidence of a high degree of unreliability of the screening device, a police officer is entitled to rely on its results as reasonable and probable grounds: R. v. Paradisi, [1998] O.J. No. 2336 (C.A.); R. v. Wharton, [2003] O.J. No. 3846 (S.C.J.) ; R. v. Hill, [2001] O.J. No. 4505 (S.C.J.) ; R. v. Merkley, [2001] O.J. No. 4615 (S.C.J.) ; R. v. Watson (1998), 37 M.V.R. (3d) 154 (Ont.Ct.(G.D.)).

17 In R. v. Beharriell, supra, Justice Durno found that cases in which a high degree of unreliability has been established are ones in which the calibration and/or working condition of the approved screening device were "on the table". For example, in R. v. Persaud, [2011] O.J. No. 1559 (S.C.J.) there was a self-test performed and the reading was zero. However, the officers did not check the calibration of the unit. Significantly, there was evidence adduced that the approved screening device had not been calibrated in three months, when the police service's guidelines established that calibration was required every 14 days.

18 In this case, I am satisfied that Cst. Yin honestly and reasonably believed that the approved screening device was in proper working order, based on her successful self-test. I recognize that both Cst. Yin and Dejonge failed to give any consideration to the timeliness of the unit's calibration. The working condition of the approved screening device was put "on the table" through the cross-examination of the two officers. In particular, Cst. Yin did not note the error codes of the device when the breath samples were unsuccessful and she did not know whether the interruption signal meant that the device was not working. The officer testified that it was possible the unit was not working between one time and another. In these circumstances, the Crown has not established that the officer's belief, which led to a seizure of the defendant's breath, was objectively reasonable.

[70] In R. v. Jennings, 2018 ONCA 260, the issue was whether the breath sample demand constituted an unreasonable search or seizure under s.8 of the Charter of Rights and Freedoms, and if so, whether the breath samples should be excluded as evidence under s. 24(2). The trial judge had concluded that the officer did not have reasonable and probable grounds to believe the respondent had committed the offence of driving "over 80" from the results of the roadside test with the ASD, and that the taking of the subsequent breath sample at the police station accordingly violated s.8 . The trial judge found that the officer's belief was not objectively reasonable because he had not followed specific procedures set out in the O.P.P. manual for using the specific ASD, the Dräger Alcotest 6810. The failure to follow these procedures, the trial judge concluded, meant that the officer could not have reasonably believed that the ASD was in proper working order, and therefore could not have used the results of the roadside test as a reason to believe the respondent had a blood alcohol level over .80. The summary conviction appeal court upheld the decision of the trial judge. On appeal, the Court of Appeal entered a conviction and remitted the matter to the trial judge for sentencing. The Court stated in part as follows:

[17] 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.

[22] Accordingly, the SCAJ and the trial judge erred in concluding that the Cst.'s subjective belief that the respondent had committed the offence of driving over .80 was not objectively reasonable. The uncontested evidence was: (i) the Cst. observed the respondent's vehicle swaying into the wrong lane; (ii) the Cst. detected alcohol on the respondent's breath; (iii) the respondent admitted to having consumed alcohol; (iv) the Cst. followed the procedures for use of the ASD, with the exception of those noted above; (v) the results of the self-test and the calibration check indicated the device was working; and (vi) the breath sample provided by the respondent registered over .80.

The Court of Appeal concluded that the summary conviction appeal court erred in law in upholding the trial judge's ruling that there was a breach of the respondent's s. 8 rights.

Application to the Facts

[71] There is no question that the seizure of samples of Mr. Shawana's breath by the police for the purpose of analysis by an approved instrument constituted a warrantless search and seizure. Warrantless searches are presumptively unreasonable, and the onus is on the Crown to establish that the police had reasonable grounds to conduct this search and seizure. In this case, the grounds to conduct the search and seizure of samples of Mr. Shawana's breath were generated by the fail result obtained by Cst. Shawanda on the ASD. According to the evidence of Constable Shawanda, based on the fail result on the ASD, he came to the conclusion that Mr. Shawana was operating his ATV, a motor vehicle, with more than the legal limit of alcohol in his body. The officer did not say that he was relying on any other factors to form his grounds to make the demand. For example, he agreed that the red face and glossy eyes could have been the result of the cold. Therefore, this case comes down to whether Cst. Shawanda's reliance on the ASD was subjectively and objectively reasonable given the particular facts of this case and the information known to him at the time. In other words, in order to be reasonable, the grounds must be based on a subjective belief by Cst. Shawanda that the ASD he used was in proper working order, and further, that belief must be objectively reasonable.

[72] Cst. Shawanda seems to have subjectively believed that the ASD was functioning properly. He testified that there was nothing about the ASD that caused him concern. He tested the machine on himself and everything seemed to be in proper working order. The analysis, therefore, must focus on whether Cst. Shawanda's belief was objectively reasonable.

[73] Cst. Shawanda testified that he had been trained to operate the ASD three years prior. When he received the ASD that night from Cst. Peltier, it was turned off and in its protective case. He made note of the serial number of the device. He turned on the device, the device did some internal checks, and then said "ready", which meant to him that it was ready to receive a sample. This procedure was consistent with his training. Cst. Shawanda did not check the calibration date or the accuracy check date. He testified that the device was supposed to be calibrated by a breath technician every 6 months and an accuracy check should be done every 14 or 15 days, but he believed that their breath technicians did it every 14 days. He did perform a test on himself to ensure the device was working properly and to demonstrate to Jake Shawana as to how to conduct a proper test. The self-test registered a "0" meaning he did not have any alcohol in his body, which was in fact true. After the self-test, the device was prepared for Jake Shawana to provide a sample. The device went through its internal checks again and the device said "ready", meaning it was ready to receive another sample. Jake Shawana performed the test and registered a "fail". According to Cst. Shawana's training, this meant that he had over 100 mg of alcohol in 100 ml of his blood and, therefore, was over the legal limit. Based on that result, he came to the conclusion that Mr. Shawana was operating his ATV, a motor vehicle, with more than the legal limit of alcohol in his body.

[74] Cst. Shawanda testified that he understood the importance of the device being calibrated properly and having accuracy performed within the proper time period. He agreed that it is important that the instrument be accurate and maintained properly because he will rely on the result. Specifically, if the machine says fail, he would rely on it to make an arrest. Cst. Shawanda agreed that it was important for him to have the calibration and accuracy information before using the machine because he would want to make sure he was getting accurate results. He stated that the tags / stickers are usually placed on the protective casing but in this case he did not pay any attention to the tags, other than to record the serial number.

[75] In all of the cases cited, the police officer took some steps to ensure that the device was in proper working order and was properly calibrated. In the case at bar, the only thing Cst. Shawanda did was to perform a self-test. He did nothing else to satisfy himself that the device was working properly and he did nothing to satisfy himself that the device was calibrated within the manufacturers recommended timeframe, not to mention the accuracy check. Cst. Shawanda did not inquire of Cst. Catherine Peltier about her knowledge of the performance of the instrument. He did not look at the readily available tag/sticker on the instrument or on the box for the instrument to demonstrate when it was last calibrated or when the last accuracy check was performed. He obviously did not rely on a calibration check or an accuracy check to form his belief that the device was in proper working order, as he did not even turn his mind to the calibration or accuracy date. Cst. Shawanda gave absolutely no reason for this failure on his part.

[76] Surely, where a police officer simply does not turn his mind to available evidence about the proper functioning of the device, this cannot be said to be objectively reasonable in the circumstances.

[77] Cst. Shawanda did not follow his training to permit him to form a belief that the device used on Mr. Shawana was properly calibrated by confirming that the device had been calibrated within the last 6 months and that the accuracy of the device had been confirmed within the past 14 days. The conclusion that he drew that the device was in proper working order was not objectively reasonable based on what he knew, or more importantly, did not know, at the time. Cst. Shawanda did not take reasonable steps to ensure that the device he used to test Mr. Shawana was within proper calibration range and was in proper working order at the time. Cst. Shawanda would have been entitled to rely upon calibration and accuracy check records created by other police officers in the course of their duties, however he did not do that. A reasonable person standing in the shoes of the officer would have checked the calibration and accuracy dates to ensure that those dates were within the appropriate time frame to ensure the reliability of the test. Clearly, based on the evidence in this case, it was within Cst. Shawanda's knowledge and experience to check the calibration and accuracy dates and it would also, therefore, be a part of the knowledge of the reasonable person standing in the shoes of the officer. Objectively it cannot be concluded that the officer acted reasonably in all of the circumstances.

[78] The Crown has not met their onus to establish that the police had reasonable grounds to conduct this search and seizure. The Crown has not demonstrated that the officer's belief in the proper functioning of the ASD device was objectively reasonable. There has been a violation of Mr. Shawana's section 8 Charter rights in these circumstances.

Does the Breach of Mr. Shawana's Section 8 Charter Rights Warrant Exclusion Under Section 24(2)?

[79] In R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32, the Supreme Court of Canada set out the approach to be taken to section 24(2) of the Charter, articulating a three-part inquiry designed to determine in all of the circumstances whether the admission of the evidence would bring the administration of justice into disrepute. In determining whether evidence should be excluded under section 24(2), consideration is to be given to all of the circumstances, while balancing three factors: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the defendant's Charter protected interests; and (3) the societal interest in an adjudication of the case on the merits.

[80] It is the view of this court that this was not a trivial breach. Police officers are given training as to how to ensure that an approved screening device is in proper working order. It is not an onerous requirement to expect the officer administering the device to check a tag / sticker on the device or get information from another officer as to when the last calibration check and accuracy check was performed. Cst. Shawanda acknowledged the importance of having the calibration check within 6 months and the accuracy check within two weeks, yet did nothing to assure himself that this was in fact done in accordance with his training. This court does not believe that the officers in this case were acting in bad faith. Nonetheless, the conduct cannot be mitigated by good faith, as it involved an unreasonable and complete disregard for basic requirements. See: R. v. Buhay, 2003 SCC 30, [2003] S.C.J. No. 30 at para 59 . As Ducharme J. observed in R. v. Au-Yeung, 2010 ONSC 2292 at para 55 :

The reputation of the administration of justice is jeopardized by judicial indifference to unacceptable police conduct. Police officers who stop and detain motorists in order to perform ASD tests must execute their duties efficiently, competently, and accurately. There is no question that the need to combat drinking and driving is a pressing social concern. The public therefore accepts the use of breath samples both for roadside screening and ultimately for the determination of blood alcohol levels. Nonetheless the administration of justice would inevitably fall into disrepute if such shoddy police conduct were permitted to form the basis for the arrest, detention, and subsequent testing of drivers.

[81] Grant requires an examination of the police conduct and a determination of where it fits on a spectrum from a mere technical breach at one end to bad faith violations at the other. The circumstances of this case are that the officer administering the roadside test simply did not check when the device was last calibrated or checked for accuracy. There was absolutely no reason given by the officer for his failure to do so. He did not say that he was relying on Cst. Peltier to have checked the device; he did not say that he forgot; he did not provide any reason whatsoever for not checking the dates to ensure that the device had been maintained properly and was, therefore, reliable. The officer did not act in bad faith, however, his actions bordered on wilful blindness.

[82] On the first branch of the Grant test, the s. 8 breach was serious and favours exclusion of the evidence.

[83] With respect to the effect of the breach on Mr. Shawana's protected interests, it is clear that the taking of breath samples is minimally intrusive, both physically and in its impact on personal privacy. The consequences flowing from the arrest and breath demand did affect Mr. Shawana. He was arrested, handcuffed, searched, taken to a police station, held in a cold area for several hours awaiting the arrival of the breath technician and readiness of the instrument, required to provide breath samples and then held for another 30-40 minutes awaiting his release. Most formal demands for breath samples would be accompanied by an arrest and some, albeit, not all of the accompanying incidents that follow arrest. It is the view of this court that this factor tends to favour admission of the evidence. See: R. v. Jennings, 2018 ONCA 260

[84] With respect to the societal interest in a trial on the merits, the evidence obtained from Mr. Shawana's breath samples appears to be reliable and necessary in order to prove the serious offence of driving with a blood alcohol level above the legal limit. This consideration supports admission of the evidence.

[85] Considering all three factors in the circumstances of this case, it is necessary to determine whether the overall, long-term reputation of the administration of justice would be adversely affected by the admission of this evidence. In my view, the public is entitled to assume, and in fact expect, that when they are stopped by the police, basic proper procedures will be followed before their bodily samples are taken. I am satisfied that admitting the breath samples into evidence in this case would bring the administration of justice into disrepute. While there is no question that the officers were courteous and respectful toward Mr. Shawana, the Charter breach in this case represents conduct from which the court must disassociate itself. The evidence was directly linked to the conduct and exclusion is necessary in order to preserve the public confidence in and ensure state adherence to the rule of law.

Conclusion

[86] As a result of the court's conclusion on the s. 8 Charter violation and exclusion of the evidence, the court does not feel it necessary to rule on the other alleged Charter violations. Counsel candidly acknowledged during submissions that the s. 8 Charter violation relating to reasonable grounds was the strongest of the Charter arguments. The court agrees with this statement.

[87] Given that the results of the breath samples are excluded, and considering the concession of the Crown, there is no evidence of impaired care or control.

[88] Jake Shawana is found not guilty of both offences.

Released: May 7, 2019

Signed: Justice V. Christie