Court File and Parties

Ontario Court of Justice

Date: January 28, 2020

Court File No.: Kitchener Info # 19-342

Between:

Her Majesty the Queen

— and —

Jordan Botelho

Before: Justice Scott Latimer

Heard on: January 17, 2020

Reasons for Decision released on: January 28, 2020

Counsel:

• Arjun Rudra, counsel for the Crown
• Ryan Venables, counsel for Mr. Botelho

Decision

LATIMER J.:

I. Introduction

[1] This ruling concerns the orderly and efficient conduct of a trial. At the close of the Crown's case on an Over 80 allegation, the defence sought to raise an admissibility issue and argue that samples of his breath were unreasonably seized, pursuant to section 8 of the Charter. Specifically, he pointed to a peace officer's use of the word "breathalyzer" in testimony as rendering her post-arrest breath demand invalid. In my view, the interests of justice were not served by considering this issue at the close of the Crown's case, and I exercised my discretion to dismiss the defence request, with reasons to follow. These are those reasons.

II. Facts for the Purpose of This Decision

[2] Mr. Botelho was before the provincial court for twelve months prior to his January 17, 2020 trial date. During this time, a judicial pretrial and confirmation hearing were both held. At no point was the court advised that a Charter application was to be part of the trial proceeding, nor was any such comment made on the morning of trial, prior to viva voce evidence being adduced.

[3] The Crown's first (and ultimately only) witness was the arresting officer. Notwithstanding the absence of a Charter application, the Crown's examination-in-chief sought considerable detail regarding the officer's grounds and the particulars of the approved screening device used. At a certain point, I interrupted Mr. Rudra to make the following inquiry of both counsel:

"I am of the view that there only needs to be a limited exploration of grounds in the absence of a Charter application. Mr. Venables, am I missing something?"

Mr. Venables replied, "No, you're on point, Your Honour". Mr. Rudra continued to elicit a narrative of Mr. Botelho's arrest, transport to the station and ultimate provision of breath samples to a qualified breath technician.

[4] The facts of this case are largely unremarkable. Mr. Botelho was stopped by the police in the early morning while driving in a parking lot near a bar. He failed a screening device test and was arrested for driving with excess blood alcohol. A breath demand was subsequently made; as indicated, its precise language is relevant for present purposes. The officer stated, "At 2:15 a.m., I read him the demand to be used for a breathalyzer". Later, in examination-in-chief, she described it as "the breath demand". Mr. Botelho subsequently provided two breath samples into an Intoxilyzer device at the police station, registering readings of 120/120. Proof of this fact was established by the breath certificate, admitted on consent as exhibit #1. During this portion of her testimony, the officer referred to the device used to obtain the breath samples as the "Intoxilyzer".

[5] In cross-examination, Mr. Venables exclusively focused on three Charter-related areas. First, he questioned the officer about the provision of duty counsel at the station. Second, he inquired into her understanding of how an approved screening device works. Finally, he confirmed that "[she] read my client a breathalyzer demand, following the fail on the approved screening device".

[6] After cross-examination, no re-examination occurred, and the Crown closed its case. Mr. Venables proceeded to advise that "given the officer's evidence, it gives rise to a potential section 8 and 9 [issue] through the fact that there is no evidence before the court of a proper breath demand... my friend has closed his case, we have a breathalyzer demand, breathalyzer is no where mentioned in the Criminal Code". After hearing his submissions, I dismissed the application with reasons to follow.

III. Law & Analysis

[7] An objection related to admissibility should be made no later than the time the evidence is tendered. This principle applies both at common law and to exclusion of evidence under the Charter: see R. v. Kutynec (1992), 70 CCC (3d) 289 (Ont. C.A.), at 294-295. Additionally, the Criminal Rules of the Ontario Court of Justice require advance notice of such applications; ideally at the JPT but, failing that, no later than thirty days before trial, absent consent or an order of the court: see Rules 2.5, 3.1, and 4.2.

[8] Notice permits both the court and opposing party an adequate opportunity to prepare for trial. The opposing party, in this case the Crown, would have the opportunity to consider what evidence it may wish to call and what questions should properly be asked. Caselaw research may be required. In the absence of notice, the Crown should properly be able to rely on the fact that its obligation at trial is to prove the elements of the alleged offence, inclusive of any relevant evidentiary presumptions, and may tailor its presentation of evidence accordingly. In the impaired driving context, such an approach promotes efficient use of scarce court resources: R. v. Alex, 2017 SCC 37, [2017] 1 SCR 967, at para. 45.

[9] Advance notice also assists a judicial officer in conducting a fair and efficient fact-finding process. In Kutynec, the Court of Appeal wrote at page 295 that "the ex post facto exclusion of evidence, during the trial, would render the trial process unwieldy at a minimum." In the present case, at the time the officer testified, the precise wording of her breath demand was not in issue. A subsequent recalling, to address answers previously given, but this time in the Charter context, impedes the fact-finding process and, arguably, does an unfairness to the witness. A trial should not be run as a discovery in aid of an eleventh-hour application to exclude.[1]

[10] Further, a trial judge is entitled to focus a trial on matters that are truly in dispute. In this case, in the absence of a section 8 Charter application, the lawfulness of the breath demand was immaterial to the issues that had to be decided. In the circumstances, as the record in this case demonstrates, I addressed this exact point during the Crown's examination-in-chief and received a response from the defence deterring continued scrutiny of the officer's basis for making a breath demand. I note (although candidly it was not on my mind at the time of my interruption) that the officer's reference to a breathalyzer preceded my inquiry. Having explicitly disavowed reliance on the Charter at this point in the proceeding, in my view it would be unjust to nevertheless permit the defendant to do so after the Crown's case was closed.[2]

[11] Notwithstanding the result in this case, I readily accept that there will be many situations in criminal litigation where the interests of justice will require a court to consider, either with late notice or no notice at all, Charter implications related to already-admitted evidence: see R. v. Gundy, 2008 ONCA 284, at paras. 22-23. The need to run efficient, focused trials cannot outweigh the need to do justice in an individual case, and trial judges "generally should be reluctant to foreclose inquiry into an alleged Charter violation: R. v. Tash, [2008] OJ No. 200 (S.C.J.), at para. 15; Gundy, para. 24. But a modern reality is that the provincial courts are very busy, with many serious criminal cases requiring access to scarce judicial resources. Recent criminal amendments may very likely aggravate this situation, as indictable matters that formerly took a day for a preliminary inquiry may now require – in the event of a defence election for trial in the provincial court – several days to weeks to try. The Criminal Rules exist for a reason – to promote efficient case management and trial scheduling. All parties – Crown and defence – must do their part to try and ensure that trials are completed in the time scheduled.[3] If a defendant in the impaired driving context wishes to challenge the warrantless seizure of his breath, he is obligated to file a section 8 Charter application to do so: Alex, at paras. 42-43. Upon so doing, the Crown will then bear the burden of establishing that the seizure was lawful: R. v. Haas (2005), 76 OR (3d) 737 (C.A.). Such applications are not onerous and permit adequate notice to both the opposing party and the court. In exercising my discretion in the instant case, I have weighed all these considerations alongside Mr. Botelho's right to full answer and defence.

IV. Disposition

[12] The application to raise a Charter issue at the close of the Crown's case is dismissed.

Released: January 28, 2020

Justice Scott Latimer

Footnotes

[1] I would note that Mr. Venables' cross-examination in this case focused entirely on areas of Charter relevance.

[2] For the sake of completeness, I do not believe much turns on the officer's use of the word "breathalyzer" in describing her post-arrest direction that the defendant provide samples of his breath. The demand was lawful; no particular words are necessary to recite. As Justice Hill adopted in R. v. Ghebretatiyos, [2000] O.J. No. 4982 (S.C.J.), at para. 19: "The demand, if made in popular language or in the words of the section, or in any other words that are such that convey to the person that the demand is made pursuant to the section, is a lawful demand". A review of caselaw demonstrates that "breathalyzer" and "intoxilyzer" are terms that are often used interchangeably by judges of all levels of Court: see, for example, Alex, supra at paragraph 68 (Rowe J.); R. v. Domanska, 2019 ONCA 893, at para. 3; R. v. Devries, 2009 ONCA 477, at para. 32 (Doherty J.A.); R. v. Hamel, 2019 ONSC 1752, at para. 2 (Harris J); R. v. Vandermeer, 2019 ONCJ 256, at paras. 7, 23 (Pringle J.). If the officer in this case misspoke, she is certainly in good company.

[3] I note that Rule 2.5(b) also requires the Crown to give notice when it seeks to admit presumptively inadmissible evidence, such as hearsay and statements to persons in authority. Late or absent notice of Crown evidentiary applications equally threatens trial scheduling and management, and equally risks those applications not being heard on their merits.