Ontario Court of Justice

Court File No.: Central East - Newmarket 4911-998-16-03375 Date: 2019-12-19

Between:

Her Majesty the Queen

— AND —

Gerardo Troiano

Before: Justice P.N. Bourque

Reasons for Judgment

Released on December 19, 2019

Counsel:

• L. O'Neill / B. Juriansz for the Crown
• B. Daley / S. Khan for the Defendant

BOURQUE J.:

Overview

[1] The defendant was stopped at a RIDE check on a dark and rainy spring night on April 21, 2016. It was near a licensed establishment. When he left the area (in the back of a police cruiser), he had been charged with driving with excess alcohol.

Wade Nethercott

[2] …is a York Regional Police officer of 20 years experience and is a qualified breath technician.

[3] That evening he checked the ASD device before he went on shift and did a self test. He noted a sticker on the device which showed it had been checked by a technician on April 10, 2018.

[4] He drove the RIDE truck himself and went to an area near several bars, one of which was called Wendel's which he said was 800 metres away. He set up and the following is his timeline of events.

Time	Event
21:07	The officer set up the RIDE truck.
22:36	The officer began to stop cars as part of the RIDE program.
23:16	The officer stopped the defendant's car. He spoke to the driver (the defendant). He explained his presence and role and asked if he had anything to drink and defendant denied consuming alcohol. The officer smelt an odour of alcohol. The defendant was alone in his Audi and he did not notice any open or spilled alcohol in the car. He asked the defendant where he was coming from and the defendant said Wendel's. The officer formed the suspicion that the defendant had alcohol in his body. He explained to the defendant that he wanted to take him inside the RIDE truck to do a breath test and he explained he wanted to go inside as it was raining and dark and he was the only officer there and it would be safer to do this in the truck.
23:19	After getting into the RIDE truck, the officer read him the ASD demand from the back of his book. The officer asked him about the time of his last drink and the defendant said, "I just had a drink at Wendel's and I just left". The officer (because Wendel's was 800 metres from the RIDE truck) decided to wait 15 minutes for the mouth alcohol issues. While the officer waited the 15 minutes, he had another recently attending officer retrieve the defendant's cell phone. In cross-examination, it was suggested that perhaps he should have waited 17 minutes.
23:32	The officer did a self-test (which resulted in 0) to demonstrate the ASD to the defendant. The defendant then provided two samples which were not suitable and on the third try provided a sample which resulted in a fail.
23:35	The officer arrested the defendant, read the rights to counsel, caution and the breath demand. The officer facilitated rights to counsel and called the defendant's lawyer.
23:36	The officer called the defendant's lawyer and the call was returned at 23:57 and the call was finished at 00:01.
00:04	The officer read the breath demand as a breath technician and gave a secondary caution. The defendant made at least 4 attempts to provide a suitable sample before providing the first suitable sample. (page 84, lines 3-5)
00:17	The defendant provided a suitable sample into the Intoxilyzer 8000C and the result was 168 milligrams of alcohol in 100 millilitres of blood.
00:41	The defendant provided a second suitable sample which had a reading of 145 milligrams of alcohol in 100 millilitres of blood.

[5] In between taking the above noted samples, the defendant provided another sample which the officer decided was not suitable. He did not make a note of why it was not suitable but indicated that it is usually a situation where (as a result of his training) he did not get a deep air sample. He agreed that it could also have been a situation where the reading was more than a 20 milligram discrepancy from the first sample. He also said that such a situation had happened many times before in other cases and he never made a note of why he rejected the sample. I set out his evidence from page 85 LL 15-32:

A. It prompts you, Your Honour. The instrument does, whether it's suitable yes or no.

Q. Right.

A. So in that case I pressed no.

Q. All right. So, in other words, from the Intoxilyzer's point of view on the second breath test sequence you rejected its acceptance of a sample, correct?

A. Correct.

Q. And I'm going to suggest that you have and if you do, you can point it out to me, you have no evidence as to what that sample was?

A. No, sorry.

Q. All right. So is it as likely as not that that sample was less than 80 milligrams of alcohol per 100 millilitres of blood?

A. I don't know. In 265 tests that I've done with the 5000 and 8000 I've never recorded what the reading is when I decline it.

Analysis

[6] The defendant has several written Charter challenges under section 8 which I summarily reject below.

[7] The defendant asserts in a s. 8 Charter challenge that the officer did not have a reasonable and probable grounds to arrest the defendant. He says that the officer cannot rely upon the "Fail" in the Alcotest 6810 because he did not operate it correctly. He states that he did not operate it correctly because he did not write down the information about the calibration of the ASD which appeared on the screen. He simply relied upon the sticker affixed to the device from the breath technician who gave the date of the last calibration.

[8] I do not accept that argument. A huge amount of trial and appellate authority stands for the proposition that "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". [1]

[9] Failure to follow policy or practice manual directions does not automatically render reliance on test results unreasonable.

[10] In this case, I cannot see how this could make any difference to the reasonableness of the officer's stated evidence that he believed that the ASD device was in proper working order and he could rely on the results.

[11] I reject this submission.

[12] The defendant further submits that the officer did not make the ASD demand forthwith, as he took the step of asking the defendant into the RIDE truck before issuing the formal demand and as this took some three minutes, then the forthwith requirement has not been met.

[13] I disagree.

[14] First, on the evidence, the officer told the defendant that he was asking him into the RIDE van to perform a breath test, and further he gave his reasons that to attempt to do it in the dark and the rain would be a discomfort to the defendant and also put them in a position of reduced safety. Taking into account that the demand need not be in any specific words, I believe that the words used by the officer were sufficient to indicate to him that a demand was being made of him that he provide a breath sample and it was made within seconds of the officer forming his "reasonable suspicion".

[15] Secondly, I believe the forthwith requirement must be read contextually and in the circumstances of this case, the delay to get into the safe and warm RIDE truck before the formal demand was read does not offend the forthwith requirement.

[16] The defendant has also objected to the fact that the officer made the decision to wait 15 minutes before administering the ASD. The defendant submits that in waiting that period of time, (unreasonably) in counsel's submission, the breath tests were not taken as soon as practicable. For several reasons, I reject this argument.

[17] First, I find that the officer had ample reason to delay the test. When the defendant was asked (after his initial denial of drinking at all) when he last consumed an alcoholic beverage, he responded, "I just had a drink at Wendel's, I just left Wendel's".

[18] That in my opinion was a response which could indicate to anyone that he had a drink just before he left. As the bar was some two minutes drive from his location, I believe that this is appropriate to wait.

[19] In any event, the waiting of 15 minutes for this purpose, even if he was incorrect in his assessment, was a reasonable explanation for this delay. In other words, this was his stated reason, and all he had to be was reasonable, he did not have to be correct.

[20] In any event, by virtue of the test in [R. v. Vanderbruggen][2] (and many other cases), the test is not to count every minute and the test is not one of whether it is the soonest possible time, but as soon as practicable. Even if the officer was incorrect in this, I find that it did not convert a time which was well within the two-hour statutory requirement into a test that was not taken as soon as practicable.

Can I be satisfied beyond a reasonable doubt about the accuracy of the breath samples?

[21] The principal argument of the defence arose because the officer rejected the sample taken between the first and third samples.

[22] The defendant asserts that in the course of the breath tests, the officer was not satisfied that the second sample was "suitable" and therefore had the defendant perform a third sample. The truncated reading of the third sample was within 20 milligrams of the first sample and the taking of the samples was complete.

[23] The defendant states that we do not know the reason to reject the second sample and therefore the breath results should be excluded from evidence, or a judicial stay should result as a breach of the defendant's s.7 rights or I should have a reasonable doubt about the accuracy of the breath results.

[24] The defendant has produced the case of [R. v. Ellinas][3], where the presiding judge found a s.8 breach where an officer rejected a second sample, without recording the reasons for so doing. The judge in that case had the benefit of two expert opinions. This case has not been considered directly by any appellate authority but only two provincial court cases have reviewed it, once for a different issue, and on another occasion ([R. v. Persichetti][4]) it was distinguished.

[25] It would appear from a careful reading of that case that the issue was that the officer rejected the sample because it was outside the 20-milligram differential, and not that it was "unsuitable". I agree with the Crown that the case could be distinguished on that basis alone.

[26] In the officer's testimony, he said that he had rejected many samples before, and indeed this judge has heard that evidence from many other breath technicians in many other cases. The defendant has called no expert evidence which would in some way show either that the evidence could lead to an inference that the device was either being operated improperly or that the device was malfunctioning in some respect.

[27] However, the defendant states that the failure of the officer to make any notation of the reasons for the refusal, and assuming that an officer should have some factual basis upon which his decision can be objectively considered, then I should have a reasonable doubt about the two results which have been tendered in evidence in this matter.

[28] The Crown argues that there is no jurisprudence which imposes such a standard on the officer's ultimate discretion to refuse a sample. As stated in [R. v. Melville][5]:

In this case the qualified technician made the assessment based on her training that the second sample provided by the appellant was not suitable for analysis. Whether she was ultimately, as a matter of science, right or wrong in that assessment is irrelevant. Under the statutory scheme, she was entitled to make that assessment in good faith. Her good faith was not challenged in this proceeding.

[29] The Crown also states that the case of [R. v. Dobrowolski][6] also stands for this proposition.

[30] The defence argues that in Dobrowolski, the summary conviction appeal judge referred to the words "credible evidence" (para 33). I do not take that as meaning that the decision of the breath technician as to the unsuitability of the sample must have some further credible evidence backing it up. The officer's opinion can in and of itself be "credible evidence" of the unsuitability of the sample. I believe that it also ties into whether the officer was acting in good faith. An officer not acting in good faith would clearly not be able to give "credible evidence" on this point.

[31] There was no facts or argument made in this matter that the officer was somehow acting in bad faith.

[32] The defence argues in the alternative that the taking of the final sample was a breach of his s.8 rights to be protected from an illegal search and seizure. Without some evidence that the taking of this sample was in some way improper, I do not think that I can find that the taking of the final sample was illegal. I am supported in this by the fact that the officer was adhering to a statutory scheme for the investigation of drinking and driving offences and the breath technician has an obligation to accept only samples that he deems to be suitable.

[33] The defence argues in the further alternative that I have a residual discretion to stay the charges against the defendant on the basis that he was not able to make full answer and defence as a result of the fact that the officer did not note any issues surrounding his refusal and more particularly the nature of the sample provided and his reasons for rejecting it. The defence argues that I should make a finding that his s.7 rights have been infringed as a result.

[34] There is no binding authority that I am aware of in similar circumstances. While many police stations now make a video record of the actions in the breath room, there is no video record in this case. There is no evidence that there ever was one, and no evidence that it was somehow lost or destroyed. I find that I cannot be satisfied that the failure to note the reasons for the rejection of the sample constitute a failure of disclosure and which would deprive the defendant the opportunity to make full answer and defence. An officer's opinion of the sufficiency or otherwise of the sample is not something that I could not review in any event. Even if he was incorrect in rejecting the sample, I do not believe that deprives the officer the right to seek a further sample. I cannot find a breach of any Charter protected rights of this defendant either under s.8 or 9.

Conclusion

[35] As a result, I find that I am not left in a reasonable doubt as to the accuracy of the breath test record in this case, and having considered it, I find that on April 21, 2016, the defendant was operating a motor vehicle with a blood alcohol level of 140 milligrams of alcohol in 100 millilitres of blood.

Released: December 19, 2019

Signed: "Justice P.N. Bourque"

Footnotes

[1] R. v. Jennings, 2018 ONCA 260, at para. 17.

[2] , [2006] O.J. No. 1138.

[3] [2003] O.J. No. 4260.

[4] [2004] O.J. No. 3344.

[5] 2007 ONCA 520, at para. 4.

[6] [2004] O.J. No. 4275 and [2005] O.J. No. 2576.