Court File and Parties

Court File No.: Brampton 18-5214 Date: September 12, 2019 Ontario Court of Justice

Between: Her Majesty the Queen — and — Christopher Pelaia

Before: Justice I. Jaffe

Heard on: January 30, 31, and July 26, 2019

Reasons for Judgment released on: September 12, 2019

Counsel:

• R. Morrow, counsel for the Crown
• I. Isenstein, counsel for the accused Christopher Pelaia

Judgment

Jaffe J.:

The ASD Test and P.C. Alszegi's Reliance on the Results

The Evidence

[1] On the night of April 23, 2018, P.C. Alszegi of the Peel Regional Police Service (PRPS) was manning a static RIDE check-point at the northbound exit of the Port Credit GO station. Stopping every car which drove up, P.C. Alszegi would have a brief conversation with each driver to check their sobriety. Christopher Pelaia was one of the drivers stopped. A failed ASD test led to his arrest on an over-80 charge and a demand that he provide samples of breath to a breath technician. Mr. Pelaia's breath samples revealed elevated blood alcohol concentrations.

[2] Mr. Pelaia now seeks to exclude the results of this breath tests on the basis that P.C. Alszegi's belief that Mr. Pelaia's BAC exceeded the legal limit – a belief almost entirely premised on his failed ASD test – was not objectively reasonable.

[3] The defence further contends that the breath samples were not taken "as soon as practicable" as required by the now repealed s. 258(1)(c) of the Code, and that the officer's non-compliance with s. 258(1)(c) of the Code, deprives the Crown from relying on the presumption of accuracy.

The Evidence

[4] At 11:10 p.m. Christopher Pelaia was stopped at the RIDE spot check, and as with all the other drivers, P.C. Alszegi engaged him in conversation. Specifically, the officer asked if Mr. Pelaia had consumed alcohol. He replied "I had some not too much." The officer testified that he noticed Mr. Pelaia's speech was slurred, his eyes were watery and he detected an odour of alcohol emanating from his breath.

[5] After their conversation, which the officer estimated to have lasted about 30 seconds, P.C. Alszegi directed Mr. Pelaia to pull over and exit his vehicle. The officer explained that his intention in having Mr. Pelaia exit the car was to see if he exhibited any further indications of alcohol consumption and to make an ASD demand. Though Mr. Pelaia exhibited no further indications of alcohol consumption, the officer read the ASD demand which Mr. Pelaia appeared to understand.

[6] Prior to administering the test, and concerned about the impact residual mouth alcohol could have on the accuracy of an ASD result, P.C. Alszegi asked Mr. Pelaia when he had his last alcoholic beverage. Mr. Pelaia replied that he had his last drink "an hour ago at the ACC."

[7] The officer testified that standard practice is to wait approximately 15 minutes after the last drink before administering the test. In this case, with no apparent reason to disbelieve Mr. Pelaia's explanation that he had not had a recent drink, the officer was satisfied that mouth alcohol was a non-issue, and the ASD test was administered. At 11:12 p.m., Mr. Pelaia provided a suitable sample which yielded a failed result and a minute later, Mr. Pelaia was arrested.

The Argument

[8] The defence takes no issue with P.C. Alszegi's decision to administer an ASD, rather it is the steps he took after the test which are the subject of challenge. Mr. Pelaia's Charter argument focuses on P.C. Alszegi's reliance on the ASD result as basis for his belief that Mr. Pelaia's blood alcohol level exceeded the legal limit. While the defence acknowledges that the officer had a subjective belief in this regard, his belief was not objectively reasonable for several reasons. One, the officer did not conduct a self-test after the administration of the ASD test as suggested in an Ontario Provincial Police (OPP) memo dated November 26, 2013.

[9] Two, the officer took inadequate measures to ensure the results of the ASD were not impacted by radio frequency interference from his police radio. And lastly, the officer at one point incorrectly testified that the ASD would display a "warn" if it detected a blood alcohol concentration between 50 and 100 milligrams of alcohol in 100 millilitres of blood when in fact the upper limit for a "warn" is 99. This inaccurate evidence displays a lack of essential knowledge.

[10] I will deal with each of these alleged deficiencies separately and explain why none of them, neither individually nor collectively, detract from the objective reasonableness of P.C. Alszegi's beliefs that the ASD was in proper working order and that Mr. Pelaia's blood alcohol exceeded the legal limit.

The Second Self-Test

[11] In cross-examination of P.C. Alszegi, Defence counsel produced a memorandum authored by the OPP's deputy commissioner. The memo was dated November 26, 2013 and addressed ways to minimize inaccurate results of police self-breath tests on what was then the new Drager 6810 ASD. Attached to the memo were two other pages apparently also from an OPP policy manual which also addressed ways to minimize the impact of extraneous factors on an ASD result.

[12] It is apparent from these documents that at least in November 2013, OPP officers were directed to perform a self-breath test following a driver's failed ASD test to ensure that the screening device was working properly.

[13] Though P.C. Alszegi administered a self-test on the ASD at the outset of his shift and immediately prior to administering the test on Mr. Pelaia, he did not administer a self-test immediately afterwards. Mr. Isenstein argues that P.C. Alszegi's failure to conduct another self-test following Mr. Pelaia's ASD test impacted on his objective belief that the device was functioning properly.

[14] P.C. Alszegi admitted in cross-examination that he was not aware of this particular recommendation and while he could see the benefit of a final self-test, he did not agree that it was an important step to be followed by Peel Police.

[15] It is true that in some circumstances, an officer's failure to follow a police policy manual could impact on the objective reasonableness of his belief in the accuracy of the ASD results. However, non-compliance with a policy is by no means determinative of a "reasonableness" inquiry.

[16] In Jennings, 2018 ONCA 260, the central focus was on an OPP officer's reliance on the results of an ASD test which was not conducted in strict compliance with the OPP's policy manual. In fact, as in the case before me, the officer had not performed a second self-test following the ASD test on the appellant. Nonetheless the Court of Appeal concluded his failure to follow the directives, including the directive to perform a second breath test, did not undermine the objective reasonableness in his belief that the ASD was in proper working order.

[17] In Jennings the officer failed to comply with the policies of his own police service. Despite P.C. Alszegi's expressed respect for the OPP as a police service, I have not been persuaded that Peel Police must conduct themselves in accordance with the policies of a separate police service. There is no evidence in this case that Peel Regional Police Service directed its officers to perform a second self-test after administering the ASD test to a detained driver.

[18] Even if there was evidence of such a Peel Police directive, or even if it could be said that P.C. Alszegi was subject to the policy manual of a different police service, for the same reasons articulated by the Court in Jennings, P.C. Alszegi's failure to conduct a second self-test did not undermine the objective reasonableness of his belief in the working order of the ASD and his belief that Mr. Pelaia's BAC exceeded the legal limit.

Radio Frequency Interference

[19] Defence counsel produced another manual during the cross-examination of P.C. Alszegi, this one produced by the Toxicology Section of the Centre of Forensic Sciences in 2012. This 41-page manual provides guidance on the proper calibration of the three different approved screening devices. According to the manual, various environmental factors including radio frequency interference, could affect the performance of electronic equipment. It was therefore recommended that "radio and mobile transmissions during ASD use should be avoided."

[20] P.C. Alszegi acknowledged that he received training from the CFS on the operation of the ASD and he knew radio frequency could affect the result of an ASD test performed in close proximity to the police radio. However, P.C. Alszegi explained that his radio was on his hip and he estimated that the it would have been about 2 ½ feet from the screening device when it was being used on Mr. Pelaia. P.C. Alszegi admitted that he had no specific recollection of how exactly he stood when conducting the ASD test but was confident that his radio is always on his hip, and he always extends his arm out when administering test. The officer also explained that he made no broadcasts over his radio while administering the ASD test.

[21] In cross-examination, it was suggested to P.C. Alszegi that he should have either turned off his radio, or left it in his cruiser, to avoid interference. However, P.C. Alszegi explained that separating himself from his radio would never be an option as the radio is as important to officer safety as any other piece of equipment.

[22] It was also suggested that the officer could have conducted the ASD in his police cruiser, however P.C. Alszegi pointed out that there is another radio in the cruiser and moreover his portable radio would have been in the same spot.

[23] On this last point, there is a "damned if he did, damned in if he didn't" element to the defence argument. An officer's decision to place a driver inside a police cruiser for the purpose of administering an ASD test, invites an argument that the driver's s. 9 Charter rights were breached. While not all backseat ASD tests will be found to have breached a driver's s. 9 rights – it will come down to the facts of each case – there is some jurisprudential support for that argument. See for instance R. v. Klotz, [2017] O.J. No. 4137 (C.J.), in which Botham J. determined that conducting the roadside screening test inside the police cruiser was not reasonably necessary and violated Ms. Klotz's s. 9 Charter rights.

[24] I have not been made aware of whether Peel Police have a policy relating to the radio frequency interference, and I cannot conclude that P.C. Alszegi was in non-compliance with a policy of his own police service, or any other service for that matter.

[25] While defence counsel did not direct the officer's attention to this portion of the OPP policies, I note that the OPP documents he produced addressed the issue of radio frequency interference on the second page. The OPP suggests that officers be at least 30 cm away from any transmitting radio equipment when conducting an ASD test. Without a doubt, P.C. Alszegi's radio was more than 30 cm away from the device when it was used on Mr. Pelaia.

[26] I am satisfied that P.C. Alszegi's radio was at least two feet away from the ASD when it was being used on Mr. Pelaia and with no use made of his radio during the administration of the ASD test, I am satisfied that radio frequency interference was likely a non-issue.

The Officer's Error

[27] In his examination-in-chief, P.C. Alszegi testified that the ASD would signal a "warn" if it detected a BAC from 50 to 100 milligrams of alcohol in 100 millilitres of blood. The officer corrected himself later in his examination-in-chief and clarified that the upper limit of a warn is 99 milligrams of alcohol. He explained in cross-examination that he simply erred in giving his initial evidence on this point.

[28] This minor testimonial error in no way erodes my confidence in P.C. Alszegi's abilities to use the ASD and interpret the test results nor does it detract from the objective reasonableness of the officer's belief that Mr. Pelaia's BAC exceeded the legal limit.

Conclusion on the Charter Argument

[29] I find that P.C. Alszegi reasonably relied on the ASD test result in forming his grounds to believe Mr. Pelaia was driving with excess alcohol in his system. His belief was objectively reasonable. I have not been persuaded otherwise. The Charter application is dismissed.

As Soon as Practicable

[30] Section 258(1)(c) of the Code which was in effect at the time of Mr. Pelaia's arrest, created the presumption of identity which in effect afforded the Crown a shortcut to proving an accused's BAC at the time of the offence. That section has since been repealed with the enactment of the new drinking and driving legislation in December 2018.

[31] In a previous and separate ruling of R. v. Brar, 2019 ONCJ 399, I explained why I have found that the presumption of identity in the now repealed s. 258(1)(c) of the Code remains available in transitional cases such as the case before me. Counsel for Mr. Pelaia has not attempted to argue otherwise.

[32] In order to rely on the presumption of identity, the Crown must establish beyond a reasonable doubt that the breath samples were taken "as soon as practicable" after the offence was alleged to have been committed with the first sample taken no later than two hours after that time. This requirement has been judicially interpreted as requiring the police to take the breath samples "within a reasonably prompt time under the circumstances:" R. v. Vanderbruggen (2006), 206 C.C.C. (3d) 489, (Ont. C.A.), at para. 12. The focus of the inquiry should be whether, in the circumstances, the police acted reasonably: Vanderbruggen, at para. 12.

[33] In R. v. Singh, 2014 ONCA 293, at para. 14, Juriansz J.A. urged trial courts to apply the "as soon as practicable" requirement with reason. Juriansz J.A. reminded us that the statutory presumption was enacted to expedite the trial process and its application should not depend on an exact accounting of the chronology from offence to the breath tests: Singh, at para. 15.

[34] In this case, Mr. Pelaia was arrested following his failed ASD test at 11:18 p.m. After making the breath demand and briefly searching Mr. Pelaia, P.C. Alszegi placed Mr. Pelaia in the rear of his cruiser and provided him with rights to counsel. When asked "do you wish to call a lawyer now?" Mr. Pelaia replied, "no I guess."

[35] Concerned that Mr. Pelaia might have been uncertain about his options, the officer explained that if he knows a lawyer the police could contact him, otherwise they could call duty counsel for him. The officer explained that once they arrive at the station, Mr. Pelaia can decide what he wished to do.

[36] P.C. Alszegi waited at the scene until a second officer arrived who would oversee the towing of Mr. Pelaia's car. P.C. Alszegi explained that for obvious reasons (namely it could get stolen), it was not an option to simply leave Mr. Pelaia's car at the roadside, unattended and unlocked with the keys inside. Moreover there was a need to maintain continuity over the car.

[37] While waiting for the arrival of the second officer, P.C. Alszegi made up his notes, filling in some tombstone information, and conducting some computer checks. In cross-examination, the officer defended his decision to write his notes during this time period by explaining that it was information he was required to provide to the officer in charge of the station when lodging Mr. Pelaia.

[38] P.C. Alszegi and Mr. Pelaia left the scene at 11:27 p.m. (nine minutes after his arrest) and arrived at the station at 11:44 p.m. At 11:49 p.m. P.C. Alszegi placed a call to duty counsel who called back 10 minutes later at 11:59 p.m. Mr. Pelaia consulted with counsel in private for about five minutes, ending his call with duty counsel at 12:04 a.m. Mr. Pelaia was taken to the breath room a minute later where P.C. Alszegi, who also happened to be the certified breath technician, performed the breathalyzer tests.

[39] At 12:19 a.m., one hour and one minute following his arrest, Mr. Pelaia provided the first of two suitable samples of his breath, which resulted in a reading of 151 milligrams of alcohol in 100 millilitres of blood. The second breath sample revealed a BAC of 157.

[40] The focus of the "as soon as practicable" argument is on the time the officer spent at the roadside. Specifically, the nine minutes during which the arresting officer sat at the roadside waiting for another officer to arrive on scene.

[41] I agree with the Crown that leaving a detainee's car unattended and unlocked at the roadside invites serious continuity issues and leaves the vehicle vulnerable to theft. It may be that in some cases, a decision to delay departure from the scene until relieved by another officer could result in an undue delay in the administration of the breath tests, which could deprive the Crown from relying on the presumption of identity.

[42] However, that is not the case here. The delay of nine minutes was reasonable under the circumstances. P.C. Alszegi impressed me as a conscientious officer who was aware of his responsibilities. In discharging his obligation to maintain security and continuity of Mr. Pelaia's car, it only made sense for the officer to use the time to make up notes.

[43] This is another situation where the officer was damned if he did, and damned if he didn't. Had he not maintained security and continuity over the car, and headed straight to the station without making notes, he could have been criticized at trial for leaving the car vulnerable, and for failing to take contemporaneous notes.

[44] Considering as I must the entire chain of events, and bearing in mind the two-hour period permitted in s. 258(1)(c)(ii) of the Criminal Code, I find that the samples were taken "as soon as practicable," thereby allowing the Crown to rely on the statutory presumption of identity.

The Presumption of Accuracy

[45] Unlike the former presumption of identity in s. 258(1)(c) of the Criminal Code, Bill C-46 expressly provides that the new presumption of accuracy in s. 320.31(1) applies to transitional cases such as the one before me. In short, the breath results are presumed to accurately prove an accused's BAC provided the Crown has established the statutory preconditions in s. 320.31(1).

[46] The defence argument concerning the presumption of accuracy in this case is twofold. Mr. Isenstein argues that s. 320.31(1)(a) required the qualified technician to conduct both a system blank test and a system calibration check on the approved instrument before each breath sample was taken, whereas it is clear in this case it was the instrument itself which conducted the tests, not P.C. Alszegi.

[47] Quite apart from that argument, Mr. Isenstein also urges me to rely on the reasoning in Flores-Vigil, 2019 ONCJ 192, and find that the Crown is disentitled to the presumption because it has failed to prove the concentration of the alcohol standard used in the approved instrument, and failed to prove that the alcohol standard was certified by an analyst.

[48] Both arguments can be quickly addressed. First, it is clear that as required by the section, it was P.C. Alszegi, the qualified technician, who conducted the tests on the approved instrument.

[49] He testified that in conducting the tests, he inputted some information into the instrument, such as some of Mr. Pelaia's "tombstone" data and the simulator temperature. The officer was present while the tests were being conducted and signed a printout of the test results. This test record, which was filed as an exhibit, is evidence of the facts alleged in the record pursuant to s. 320.33 of the Code and confirms that the requisite tests were conducted and passed.

[50] Officer Alszegi was not a mere passive observer in the performance of the tests. By inputting information, operating the instrument and overseeing the tests, P.C. Alszegi was essential to the conduct of those tests. In short, those tests could not have been performed without him. I reject the argument that s. 320.31(1) requires the breath technician to do more than properly operate the instrument while the instrument's internal mechanisms analyze the data. In my view, nothing more is required. In this case, I find that it was P.C. Alszegi, the qualified breath technician, who conducted the tests in accordance with the statutory requirements.

[51] With respect to what I will call the "Flores Vigil" argument, P.C. Alszegi testified in great detail about the steps he took to prepare the Intoxilyzer to receive breath samples. Prior to the breath test and while Mr. Pelaia was exercising his right to counsel, P.C. Alszegi conducted both a calibration check and a diagnostic check on the instrument. The officer explained the calibration check involves a simulator which is attached to the instrument and which simulates a breath sample.

[52] The simulated breath sample in this case was from a solution made by Atlas Inc. Laboratories and was from lot #75 IH. The expiry date on the solution was September 30, 2019. P.C. Alszegi testified that the particular solution had been certified by the Center of Forensic Sciences as suitable for use in the approved instrument. A copy of the certificate by which analysist Inger Bugyra certified the alcohol standard was suitable for use in the Intoxilyzer, was filed as an exhibit.

[53] P.C. Alszegi testified that while the certificate is silent regarding the "target" value of the standard solution, he learned through training that the target value was 100 milligrams of alcohol in 100 millilitres of blood. If the standard solution was outside the target value, the instrument would give a noticeable error message.

[54] The result of the calibration check was 97 milligrams of alcohol in 100 millilitres of blood which the officer explained was in the acceptable range of 100 milligrams plus or minus 10 milligrams of alcohol in 100 millilitres of blood. This complied with the statutory requirement that the result of the system calibration check be within 10% of the target value of an alcohol standard that is certified by an analyst.

[55] The officer further testified that an air blank test (the term used in the test record) and a system air blank test (the words used in s. 320.32(1)(a)) are one and the same. He described this test as a type of purging which ensures that the instrument's chambers are clear from anything that could interfere with the results. Numerous air blank tests were conducted before and during the breath tests and, as the test record indicates, the results were always zero (within the statutorily acceptable range). A copy of the test record was admitted as an exhibit.

[56] The weight of authority from this Court since Flores-Vigil, has held that the Crown may establish the pre-conditions to the presumption set out in s. 320.31 of the Criminal Code through viva voce evidence and as with any fact, the preconditions to the presumption can be proven through direct or circumstantial evidence: See for instance R. v. Does, 2019 ONCJ 233; R. v. Chuck, 2019 ONCJ 367; R. v. Porchetta, 2019 ONCJ 244.

[57] In this case, a combination of P.C. Alszegi's viva voce evidence and the documents admitted as evidence, establish beyond a reasonable doubt that the statutory preconditions to the presumption of accuracy were met.

Conclusion

[58] According to P.C. Alszegi and his Certificate of a Qualified Breath Technician filed as an exhibit, both of Mr. Pelaia's breath samples revealed truncated blood alcohol concentrations of 150 milligrams of alcohol in 100 millilitres of blood. With both the presumption of accuracy and identity available to the Crown, I find that on April 23, 2018, Mr. Pelaia was operating his car with a blood alcohol concentration that exceeded the legal limit. I find him guilty.

Released: September 12, 2019

Signed: Justice I. Jaffe