Ontario Court of Justice

Date: 2019-06-10

Court File No.: Central East - Newmarket 4911-998-18-00519

Parties

Between:

Her Majesty the Queen

— and —

Timothy Magondo

Before: Justice P.N. Bourque

Counsel

For the Crown: M. Henry

For the Defendant: M. Engel

Reasons for Judgment

Released on June 10, 2019

Overview

[1] A supervising sergeant of the York Regional Police was on patrol at 03:13 and saw a car stopped in a live lane of traffic. Once the car moved, he followed it and then stopped it to check for sobriety. As a result of the entire interaction that morning, the defendant is charged with driving with excess alcohol on January 13, 2018.

Evidence

Joseph Amato-Gauci

[2] …is a York Regional Police sergeant and was operating a marked cruiser when he saw the defendant car stopped on the road in Vaughan at 03:13 on January 13, 2018. The officer gave his evidence viva voce and used the in-car camera video which was played in the course of his testimony.

[3] His actions, observations and timelines are as follows:

Timeline

Time	Event
03:13	The officer noticed a vehicle stopped in a moving lane ramp and he went over to investigate. Another vehicle honked and the defendant vehicle began to move. The officer decided to investigate and follow the car – he activated the in-car camera system.
03:14	The defendant car stopped in the left live lane of traffic (passing lane) and the officer stopped behind.
03:15	The officer goes up to the window of the driver's side and engages the defendant in conversation. He asks him where he is going and he says he is going to Brampton. He asks him if he has had anything to drink and the defendant replies, "I did not drink much…I did not drink anything". The officer only puts the first part of the response in his notes as he explained that he believed that the first response, in his experience to a simple question is the correct one. The officer at this point testifies that there do not seem to be any barriers to communicating with the defendant. I can judge for myself that the defendant, although speaking with a strong accent, is able to understand what is said, make appropriate responses and is able to follow directions.
03:17	The officer asks him for documents and the officer takes them and returns to his vehicle to check them and see the availability of an ASD and he did not have one in his vehicle. He stated that the nature of the driving, including the initial observation and the stopping in the left lane of traffic, the nearness to bars, the time of early morning and the fact that his first response to the question about drinking suggested that he had been drinking, led him to have a suspicion that he had alcohol in his body. He decided to not make the ASD demand until he had gone to his car and determined that an ASD was available shortly, or at least within 5 minutes as he did not feel he wanted to make the demand and have the defendant waiting for a long period of time.
03:18	The officer gets into his vehicle and moves it slightly to allow traffic backed up behind to move around them in the right lane. Officer Organ attends and they speak. This officer tells Organ that he cannot smell alcohol on the breath of the defendant but he relates the driving issues and the fact that he believes there is an issue of alcohol consumption. They speak about the ASD that Organ has brought to the scene and she tells him it is working properly as she has just used it. The officer proceeds to continue the investigation and is given the details of the calibration of the ASD later in the morning. The officer describes it as a Draeger Alcotest 6810. In cross-examination, the officer admitted that if had taken the ASD on the road he would have checked the calibration particulars and would have done a self-test at the beginning of his shift. He testified that he relied upon Officer Organ's assertion that she had used the device recently, had tested it at 18:22 that evening and stated it was operating properly.
03:20	The officer asks the defendant out of the car and they stand behind the defendant's car and the procedure to do the test commences. Both officers are standing together and talking to the defendant. The defendant tries three times and does not give a sample. The officers encourage him and tell him of the ramifications if he does not complete giving the sample. They all talk of the very cold weather. Organ asks at first if the defendant wishes to go into the police cruiser but he says initially he is okay. The officer at one point demonstrates the device. The defendant asserts that he has been trying and then states that "I am so cold, so cold". The officer then suggests going into the police cruiser and they go to the cruiser.
03:24:04	(now using the video from cruiser operated by P.C. Organ) – the officer stands outside the cruiser at the open passenger door and after allowing the defendant to sit on his hands in the back seat of the cruiser to warm them up, (and after Officer Organ has warned the defendant about the ramifications of not providing a sample into the ASD) the defendant provides a sample. When there is a reading the officer shows the device to the defendant.
03:28:10	The defendant after reading the device says that it is a "Fail". The defendant is arrested and handcuffed and searched. This officer goes to deal with the other persons in the defendant's car and Officer Organ continues with the defendant.

[4] The officer was extensively cross-examined about his use of the device. He agreed that the calibration of the device should be noted and a self-test of the device had been done. He believed from his conversation with P.C. Organ and his knowledge of her proficiency that he believed that she had done these things. The video shows that she does tell him that it is ready to go and that she had performed a breath test that evening. I also note that she was beside him for all of the breath tests and she too interacted with the defendant.

[5] The officer was shown a document (Marked as Exhibit "A") which was prepared by the Toronto Police on the use of the Alcotest 6810. The document explicitly states that these items are not mandatory. It provides various items about the use of the device. The officer agreed with most of these things. He did not make note of all of the readings on the device and sounds that it made through all of the attempts. It was his evidence after all of this that he accepted the statement of Officer Organ that the device was functioning properly and he was satisfied with the result and felt he could rely upon it.

[6] The officer was also questioned about the time it took from the obtaining of a sufficient sample to the getting of a reading. It was between 60 and 65 seconds. The Toronto Police Document says that the result should come in about 25 seconds. The officer believed that it could have been a result of the very cold weather that it took that long. He resisted the suggestions from the defence that such a delay could have been an indication that the device was not functioning properly.

Terrilyn Organ

[7] …is a York Regional Police officer and at 03:15:56, got a dispatch request from Sergeant Amato-Gauci and went to the scene. The following is her timeline as per her viva voce evidence and the video from her cruiser.

Timeline

Time	Event
03:17:27	Stops behind the other police cruiser at the scene. She speaks to the sergeant and he speaks to her. When asked about an ASD she says that she has one and has used it earlier that evening. She states that when she started her shift, she noted the calibration particulars of the device and she did a self-test and satisfied herself that it was in working order. She told the sergeant that "it is good", in response to his inquiries. I also note that she was present beside the sergeant during all the interactions with this defendant for the tests. I also note that she was taking an active part which included speaking to the defendant, giving him warnings if he should not provide a sample. The officer was asked about the scene in the cruiser and she stated that it was very, very cold that night and that is why they went into her cruiser to complete the breath test. She confirmed telling him that he would be charged with a criminal offence if he failed to provide a suitable sample. The defendant inquired about doing the test in his own car and the sergeant responded that "the camera is here".
03:29	The defendant was arrested for over 80. The sergeant turned the matter over to P.C. Organ. The defendant was cuffed and searched before being put back in the cruiser. The officer gathered her notes and then contacted dispatch to find out where she should take the defendant for his breath test.
03:33	She begins to give him the rights to counsel by saying "Just give me a sec…" but is interrupted by the defendant who is tearful and upset. After some back and forth she says, "Let me read this first", and he says "No, no, no". It is not until a minute later that she is allowed to begin to give the rights to counsel. She is interrupted many times. She eventually over the next 5 to 10 minutes gives him the rights to counsel at least one more time and also explains it to him in simple language. She finally able to do the breath demand at 03:37. She drives the defendant to the Ride truck located at the OPP parking lot at Bloomington and Yonge Street. The defendant in the course of the drive is crying and pleading with the officer but agrees to talk to duty counsel.
04:12	She calls the duty counsel who returns the call at 04:47 and speaks to the defendant until 04:51. The officer then turns him over to the breath technician.
05:30	The officer receives the defendant back from the breath technician and then proceeds to prepare and serve him documents and ultimately releases him on a promise to appear.

Jason Rajpaulsingh

[8] …is the breath technician. He described his dealings with the defendant in detail and filed as exhibits the breath cards setting out the various self-checks done by the Intoxilyzer 8000C and the readings of the defendant which were 140 at 05:01 and 130 at 05:27.

[9] The officer also filed as an exhibit a letter from CFS setting out the sufficiency of the alcohol standard solution. As part of his evidence, the officer stated that the target value of the solution is 100 mgs of alcohol in 100 mls of blood. The officer confirmed that the test performed with this solution was also 100 mgs of alcohol in 100 mls of blood.

Analysis

[10] The defendant states that the crown's case is proven except that:

(1) The presumption of Identity has been repealed and this applies to the transition cases and therefore I cannot extrapolate backwards the readings taken at the breath truck to the time of driving;

(2) The new presumption of accuracy requires that further proof is required beyond the suitability of the sample namely that there should be a "target value" in the calibration procedure;

(3) The defendant states that I should exclude the breath results from the evidence that I can consider at the trial because the defendant charter rights were breached in several respects and to thus admit the breath test evidence would put into disrepute the administration of justice.

Has the presumption of identity survived the repeal of the presumption for cases tried after December 18, 2018?

[11] The defence relies upon the case of R. v. Shaikh, 2019 ONCJ 157, and states that the presumption of identity no longer applies to transitional cases.

[12] I choose not to follow the reasoning of the Shaikh decision but I do choose to follow the reasoning of the decisions in R. v. Porchetta, 2019 ONCJ 244, R. v. Sivalingam, 2019 ONCJ 239, and other cases. I will not, in this decision, go into the very thorough and comprehensive analysis of both of my brother judges.

[13] I will say however that what is foremost in my mind is the fact that I believe that the argument can largely be decided by the decision in R. v. Dineley, 2012 SCC 58. Therefore Parliament intended that they continue to apply to charges laid before the repeal, even though they are not tried until after. I am also mindful of the clearly "absurd" result which would happen if Parliament intended that the presumption not apply to the transition cases. Parliament was looking to simplify, not complicate, the prosecution of these offences. The enactment of 320.31 (referred to further below) is an example of this. It is not an answer that the charge can still be proven if the crown takes further steps to get a toxicologist "read back" opinion in all of these cases and then have the toxicologist ready to testify if the defence requests it.

[14] I adopt the words of Latimer J. in R. v. McAlorum, 2019 ONCJ 259:

[18] In conclusion, we either learn from history or are doomed to repeat it. Each time these provisions have been amended, interpretive challenges and arguments have followed, consuming considerable court resources at every level of court. Each time, in the end, an appellate court has applied the statutory law to transitional cases in a sensible manner – adapting the old to fit with the new – in order to avoid absurd results. In my view, requiring expert toxicological evidence in every transitional case meets the legal definition of absurdity, and is not mandated by an application of the relevant statutory instruments.

Does the presumption of accuracy require further proof of the concentration of the alcohol standard such that the calibration check be within 10 per cent of the known alcohol standard?

[15] The defendant agrees that the Crown has submitted a letter from the CFS (Exhibit 3) setting out that the alcohol standard solution used by the breath tech in this case was "suitable for use with the said approved instruments (Intoxilyzer 8000C), but states that it lacks the further new requirement of section 320.31(a) which states:

(a) before each sample was taken, the qualified technician conducted a system blank test the result of which is not more than 10 mg of alcohol in 100 mL of blood and a system calibration check the result of which is within 10% of the target value of an alcohol standard that is certified by an analyst;

[16] There was no evidence led that any changes to the legislation led to any changes in the test procedure.

[17] That is, the Intoxilyzer 8000C still utilizes the same standard solution and the "target value of the alcohol standard" has not changed. As stated in R. v. Flores-Vigil, 2019 ONCJ 192:

35 …In my view, future Certificates of Analyst should not only declare the standard to be suitable for use with a particular device, they should also declare the concentration of the standard. In doing so, the certificates will declare the "target value" in the calibration procedure. Only then with the results of the calibration test be capable of triggering the presumption found in section 320.31.

[18] In my view such evidence is not necessary. The breath tech in this case was satisfied that the solution used was one that was certified as being "suitable for use with the Intoxilyzer 8000C. The officer testified that the tests run put it within 10% of the target of 100 mg of alcohol in 100 ml of blood. Justice De Filippis in R. v. Does, 2019 ONCJ 233, had a very similar fact situation and was dealing with the same argument. He relied upon the viva voce evidence that the alcohol standard was suitable. I choose to do the same thing.

[19] I repeat again the comments of Latimer J. quoted above.

Did the officer have reasonable and probable grounds to arrest the defendant and make a breath demand?

[20] The answer to this question involves answering some other questions.

Did the officer have a reasonable suspicion to conduct an ASD demand?

[21] The defence argues that while the officer may have had subjectively felt that he had a reasonable suspicion that the defendant had alcohol in his body while operating a motor vehicle, was this subjective belief, objectively reasonable? The officer's evidence about the factors that were known to him in the formation of his belief are as follows:

(i) the defendant was stopped in a live lane of traffic;

(ii) it was in the early morning hours;

(iii) in response to the emergency lights of the officer's car, the defendant stopped his vehicle in the passing lane of highway #7, rather than pull over to the right side of the road;

(iv) the defendant, in response to the officer's question as to whether he had been drinking, the defendant stated: "I did not drink much, ….I did not drink anything".

[22] The defendant points to the factors that may point away from this conclusion namely:

(i) there was no smell of alcohol;

(ii) the defendant, after saying he didn't drink much then insisted he did not drink at all, and stated several other times during the investigation that he had not been drinking.

[23] In R. v. Williams, 2013 ONCA 772, the court defined a "reasonable suspicion" as follows:

23 A reasonable suspicion entails more than a sincerely held subjective belief, for that is mere suspicion: MacKenzie, at para. 41; Kang-Brown, at para. 75. A reasonable suspicion is a suspicion grounded in "objectively discernible facts, which could then be subjected to independent judicial scrutiny": Chehil, at para. 26; MacKenzie, at para. 41.

24 To determine whether the reasonable suspicion standard has been met, a reviewing court must examine the totality of the relevant circumstances. This examination is not some scientific or metaphysical exercise. Common sense, flexibility, and practical everyday experience are to be applied through the eyes of a reasonable person equipped with the knowledge, training, and experience of the investigating officer: MacKenzie, at para. 73. The standard of reasonable suspicion is not frustrated simply because the factors urged in support may also give rise to an innocent explanation. In the end, if the facts objectively indicate the possibility of criminal behaviour in light of the totality of the circumstances, the objective component of the reasonable suspicion standard has been satisfied: MacKenzie, at para. 72; Chehil, at para. 31.

[24] While the above case was not a case of a drinking and driving investigation, I believe the principles are the same. Do the factors which lead away from the existence of alcohol in the defendant's body outweigh the factors which the police officer relied on: I do not think that they do.

[25] As stated by the officer, he was of the view that the first answer to a simple question is more often the correct one. I can think of no reason why that is not a reasonable conclusion to come to.

[26] Defence counsel has referred me to the case of R. v. Moradi, [2016] O.J. No. 6989, where an answer to a question of drinking is "No, just one beer", that did not give the officer the requisite "reasonable suspicion". With all due respect, I do not think I would have reached the same conclusion of the judge in that case, and in any event, in our case the officer also had two instances of questionable driving decisions. In assessing whether the "reasonable suspicion" in this case was objectively reasonable, I would have to come to the conclusion that it was.

[27] In my opinion, all of the factors and especially the initial statement by the defendant that he "had not drunk that much", is clearly an admission of drinking that evening or early morning. Even without any instance of questionable driving decisions, this would be sufficient to invest the officer with the necessary objective grounds.

Could the officer rely upon the readings of the ASD device?

[28] The defence also argues that the officer lacked grounds to rely upon the results of the ASD because, according to the defence, he did not perform necessary actions in the testing of the device and in its operation.

[29] Firstly, the question is whether the fact that the officer did not personally check the calibration particulars of the device, nor did he personally do a self-test of the device, does that rob him of his ability to rely upon the result. I do not think that is germane to the issue. The officer received the device from another officer who told him that the device was okay and had been used earlier in her shift. The officer specifically knew the officer and knew that she was a "coach" officer. The officer ultimately stated that he believed he could rely on the result. I am not sure anything else is required. I note as well that the officer who delivered the device had indeed performed a self-test at the beginning of her shift and did note all of the calibration particulars.

[30] In a similar vein, the defence took the officer through a document (not proven in any fashion) which purported to be a procedural guide for the ASD as published by the Toronto Police. It referred to calibration checks (the officer said that the directive was not correct in requiring a calibration at 30 days rather than at 14 days) and spoke of how the machine made certain sounds when things were happening. The officer did not say that these lights were not on (or off) only that where the sample was not sufficient that was indicated by the device, and when it was sufficient (on the 4th try, and after more than one warning to the defendant) the LED display on the device indicated a "Fail".

[31] As stated in R. v. Jennings, 2018 ONCA 260:

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.

[32] In our case, I cannot even go that far. The document that the officer had was, not a manufacturer's manual, and it was not even a directive from his police force. It was not satisfactorily proven as having any authority on any of these issues.

[33] The defence also argues that the officer could not rely on the ASD results as it took upwards of 60 to 65 seconds to produce a result. The defence speculates that this was due to the extreme cold. Perhaps, but there was no expert evidence on any of this. Again just because the Toronto Police Document referred to above states that a result should come in about 25 seconds does nothing to inform me as to whether there was any deficiency in the device or its operation. Both officers did not think this was any difficulty. I have no reason to doubt this assertion.

[34] As a result I find that the officer could rely upon the results of the ASD and thus the "Fail" on the ASD then invested him with reasonable and probable grounds to arrest the defendant for driving with excess alcohol and make the breath demand.

Were the section 8 and 9 rights of the defendant breached because the officer waited until the ASD arrived before making the ASD demand?

[35] The defendant was detained at the roadside at approximately 03:16 when the officer felt he had formed a reasonable suspicion that the defendant had alcohol in his body. The officer at that point asked for his documents and went to his cruiser to check the documents and make a request for an officer with an ASD to attend at the scene. He made the decision that he would not make the ASD demand unless an ASD was readily available. As it turned out, an ASD and officer were nearby and they came to the scene within 2 minutes of the dispatch. The sergeant then briefed the attending officer and once satisfied the ASD was present, he attended at the defendant's vehicle and made the ASD demand at 03:20. The greatest possible delay in this scenario is 4 minutes. The sample could have been provided within the next minute but for the difficulty the defendant was having (I make no finding of malfeasance on his part) in providing a sample.

[36] I find that this was not a long time to wait for the officer to check the documents of the defendant (to find out what he was dealing with) and to ascertain the location of an ASD device before he then formally made the demand. I do not think that any of the vital principles of R. v. Quansah, 2012 ONCA 123, have been violated.

[37] As stated at para. 52:

…articulation of the precise linguistic equivalent for "forthwith" is less important than a careful consideration of all of the circumstances of the particular case. The legal context for this consideration is the objective that "forthwith" sets out namely, a prompt demand and an immediate response, ultimately taking no more time reasonably necessary for the prompt performance of the steps contemplated by s. 254 (2).

[38] I note in that case that after reviewing all the steps taken by the officer a 17-minute delay was "reasonably necessary for the officer to properly perform his task". In my opinion, a 4-minute delay was reasonably necessary in this situation for the officer to properly perform his task.

Were the section 9 Charter rights of the defendant breached because he sat in the back of the police cruiser to perform the ASD tests?

[39] It was freezing cold outside. The defendant was not providing a sample of his breath which was adequate. He was beginning to complain a lot about the cold. It was at least 10 degrees below zero centigrade. The officers suggested that that they adjourn to the back seat of the police cruiser. The officers remained outside of the cruiser and the door was left open. The officer told the defendant that he was not under arrest. What was wrong with this? The simple answer is "nothing".

[40] The defence argues that the defendant should have been allowed to sit in his own car, in the only available seat, "the driver's seat".

[41] Even discounting the potential issue of a man who may have tried to drive away, if the police allowed that, then if he registered a fail, they would be potential parties to a criminal offence, via care and control of a motor vehicle with excess alcohol. The other alternative one supposes is to have the police order all the other people out of the car into the cold and then done it in the defendant's back seat. The alternatives become more bizarre the more one thinks about it.

[42] The defence cites the decision of R. v. Klotz, 2017 ONCJ 543, where the court was not prepared to accept that an officer performing the ASD test in his cruiser for safety reasons was "reasonably necessary". She was entitled to make that decision. I note that she later stated that she didn't think that the detention would allow her to exclude the evidence as it was "brief" and there was a reasonable excuse for her detention. I am not sure that I would make the same decision in those circumstances. I am certain that I am not going to make such a finding in the circumstances of this case.

Were the Charter rights of the defendant infringed by the fact that the rights to counsel did not commence until between 3 and 4 minutes after arrest?

[43] The simple answer to this Charter challenge is also, "No".

[44] The defendant was arrested, he was cuffed and searched, he was then re-inserted into the back seat of the police cruiser. The officer got into the front seat and got herself organized and called dispatch to find out where to go to perform the breath test. She then tried to start the sequence of reading the defendant his rights and make the breath demand. He would not let her finish and complained and whimpered. She was polite but persisted and eventually, notwithstanding his best efforts to thwart this exercise, she was able to get him to understand his rights.

Conclusion

[45] I have rejected the many and varied Charter challenges. I have ruled that the presumption of identity applies, and the requirements of s. 320.31 have been met.

[46] The trial of this investigation is now complete. I can now consider the evidence of guilt or innocence and I find that the Crown has proven the charge against the defendant beyond a reasonable doubt.

[47] I find the defendant guilty of operating a motor vehicle on January 13, 2018 with a blood alcohol level of 130 mgs of alcohol in 100 mls of blood.

Released: June 10, 2019

Signed: "Justice P.N. Bourque"