Court File and Parties

Date: May 19, 2021 Court File No.: 0611-998-20-162; POA 20-27 Ontario Court of Justice Central West Region

Between: Her Majesty the Queen

— And — Paul Dickson

Heard Before: Mr. Justice Richard H.K. Schwarzl at Orangeville on March 8 and April 15, 2021 Reasons Released: May 19, 2021

Counsel: Michelle Occhiogrosso, for the Crown Brian Starkman, for the Defendant

SCHWARZL, J.:

Reasons for Judgment

1.0: Introduction

[1] The Defendant, Mr. Paul Dickson, stands trial on one criminal offence and two provincial charges. The criminal charge is driving with excess blood alcohol contrary to section 320.14(1)(b) of the Criminal Code of Canada (the Code). The provincial charges are speeding and driving with two licences contrary to sections 128 and 35(1)(e), respectively, of the Highway Traffic Act of Ontario. On consent of the parties, the trials of the criminal and provincial offences were heard simultaneously.

[2] When the evidence was over, the Defendant did not contest the traffic violations and only made submissions regarding the criminal charge. Given the uncontested evidence of the police, I find the Defendant guilty of the two provincial offences.

[3] I am faced with two issues on the criminal charge.

[4] The first issue is whether the prosecution has proven that the roadside screening test was sufficient to establish grounds to make a breath demand. This issue is framed within an allegation that the police violated the Defendant’s right to be free of unreasonable searches and seizures as guaranteed by section 8 of the Canadian Charter of Rights and Freedoms (the Charter).

[5] The second issue is whether the evidence concerning the breath test procedures at the police station establish the blood alcohol concentration of the Defendant beyond a reasonable doubt. This issue was framed in terms of section 320.31(1) of the Code.

2.0: Was the Breath Demand Made by the Investigating Officer Valid?

2.1: Positions of the Parties

[6] The Defendant submits that the investigating officer, P.C. Schreyer, gave no reliable evidence that he used the screening device properly. They submit that this means the breath demand was invalid and the subsequent breath tests taken at the station were done in violation of the Defendant’s section 8, Charter rights. The Defendant also submits that there was no lawful breath demand because the officer said that he arrested the Defendant because “I believed he consumed alcohol.” The Defendant submits that due to this alleged violation of his rights, the breath test results ought to be excluded from the evidence.

[7] The position of the Crown is that the officer’s screening test of the Defendant was legitimate and done properly. They submit that the breath demand made after the screening test was valid. They argue that the breath demand was well founded and that there was no violation of the Defendant’s constitutional rights. In the alternative, the Crown submits that if there was a violation, I should not exclude the breath test results.

2.2: Analysis

[8] For reasons I will explain, I find that P.C. Schreyer’s conduct during and after the screening test was proper, and therefore there was no breach of section 8 of the Charter.

[9] In the summary conviction appeal of R. v. Bukin, [2021] O.J. No. 2413 (S.C.J), the Court at paragraphs 53 and 55 concisely summarized the law applying to this issue:

53 …. A police officer is entitled to rely on the result of an ASD test in order to form the requisite grounds for an arrest and subsequent breath demand in circumstances where the officer subjectively believes in the accuracy of the test result and where, in the circumstances, that belief is reasonable, see R. v. Jennings, 2018 ONCA 260 at paras. 9-11, R. v. Notaro, 2018 ONCA 449 at paras. 27-33 and R. v. Einarson, 70 O.R. (3d) 286 (C.A.). An officer is not entitled to rely on the screening device test result in cases where there is credible evidence that the result is unreliable.

55 In instances where reliance on the test result is challenged, the accused is required to demonstrate on a balance of probabilities "a high degree of unreliability" with respect to the device at the time it was used, see R. v. Bernshaw (1995), 95 C.C.C. (3d) 193 (S.C.C.) at p. 219, R. v. Paradisi (1998) and R. v. Beharriell, 2014 ONSC 1100, at para. 56.

2.2.1: Pre-Arrest

[10] In this case, there is no challenge to the officer’s evidence that (a) he stopped the Defendant for speeding at 10:22 p.m., (b) the officer smelled alcohol on the Defendant’s breath while speaking with him, (c) at 10:28 p.m. the officer made a screening demand to the Defendant, and (d) after two insufficient blows, the Defendant blew a fail on the third attempt.

[11] No one seriously argued that the officer did not have a subjective belief that the “fail” result of this screening test was accurate. The real issue is whether in the circumstances his belief was reasonable.

[12] P.C. Schreyer gave evidence that he had an approved screening device with him. He identified it as an Alco-Sensor FST. This device is listed as approved under the Criminal Code by section 2(h) of Approved Screening Devices Order, SI-85/200 as amended.

[13] The officer tested it on himself at the beginning of his shift and found it to be working properly. He did not remember when the device was last calibrated but recorded that fact in another duty notebook that was not available to him at the trial. He testified that he was not sure the device will accept a sample if not properly calibrated. He added that he used the device in accordance with his training.

[14] The Defendant submits that the officer’s evidence that he was not sure the device will accept a sample if not properly calibrated is a reason to find the screening test was flawed. I disagree because it is clear from the officer’s evidence that the device had been calibrated at some point and that when using it with the Defendant it was working properly. This was reasonable especially since he tested it on himself earlier and it worked as intended.

[15] P.C. Schreyer made notes of the error message that appeared on the device’s screen for both insufficient breath samples. In each instance it was the same message which he recorded as “INS FLO.” In cross-examination the witness was confronted with a copy of the operator’s manual for the Alco-Sensor FST. At page 11 of that manual, it states that among messages that may be displayed with inadequate samples of breath is “FLO INS”, which stands for “Breath Flow Insufficient”. The officer could not explain why he wrote “INS FLO” instead of “FLO INS.”

[16] The Defendant argued that there is no such error message as “INS FLO”. The Defendant argues that the unexplained discrepancy between the officer’s notes and the device manual shows either that the device was not approved or that, if approved, the officer failed to use it properly. I disagree. This is not a situation where the officer recorded an error message not even close to what was in the manual. Rather, it is obvious he simply transposed the sequence of the two-part error message. Either way, the officer noted the Defendant was not providing enough air. This mistake of transcription of the error message does not undermine the officer’s evidence that he was using an approved screening device or his belief that it was working properly: R. v. Gundy, 2008 ONCA 284, [2008] O.J. No. 1410 (C.A.) at paragraphs 44 to 48.

[17] I find that there was no evidence of any unreliability of the device or its operation. If there was, it was not of such a high degree as to render unreasonable the officer’s belief the “fail” result was accurate.

[18] In summary, I find that the officer subjectively believed the screening test result was accurate and that his belief was reasonable in all the circumstances.

2.2.2: Post-Arrest

[19] In response to the question posed by Crown counsel as to what he did after the Defendant failed the screening test, P.C. Schreyer stated, “I believed the Defendant consumed alcohol and I then arrested him for impaired/alcohol concentration 80 plus.”

[20] The Defendant submits that it is not legal to arrest a citizen just because they consumed alcohol. He submits that the reason given by the officer to arrest him was not lawful. I disagree. The police are not required to incant any particular words when describing the grounds for an arrest or the basis for a breath demand. The impugned portion of the officer’s evidence must be considered in light of all of the circumstances known to P.C. Schreyer at the time. These include (a) the Defendant was driving on a public road while (b) speeding and when stopped he (c) smelled of alcohol then (d) failed a reliable screening test. In these circumstances it was clear the officer honestly believed not only that the Defendant was drinking alcohol and driving but given the fail of the screening test, he had done so contrary to the criminal law. The officer’s belief was entirely reasonable: R. v. Canary, 2018 ONCA 304, [2018] O.J. No. 1786 (C.A.) at paragraphs 21 to 23.

2.2.3: Conclusion re Validity of Breath Demand

[21] For these reasons, I find that there was no breach of the Defendant’s Charter rights and that the breath demand made by P.C. Schreyer was constitutionally valid, as was the breath testing procedure that followed.

[22] If there was a violation of section 8 of the Charter, I would not exclude the breath test results on this basis. The reasons of the Ontario Court of Appeal case of R. v. Jennings, 2018 ONCA 260, [2018] O.J. No. 1460 for not excluding the breath test results are dispositive because the situation there was very similar to the one here; that is the officer was well trained on the use of the approved screening device, acted in good faith at all times, did a self-test earlier to ensure it was working properly, and honestly believed the result was accurate. Assuming a breach, giving relief under section 24(2) of the Charter is not warranted in this case.

3.0: Has the Crown Proven the Elements of Section 320.31(1), CCC?

[23] Section 320.14(1)(b) of the Code makes it an offence for a person to have a blood alcohol concentration equal to or exceeding 80 mg of alcohol in 100 mL of blood (emphasis added) within two hours of ceasing to drive a conveyance, including a motor vehicle, subject to exceptions that do not apply to this case. Blood alcohol concentration is expressed in the Code as a ratio between the weight of alcohol (mg) and a volume (mL) of blood.

[24] Section 320.31 of the Code sets out several evidentiary matters concerning driving offences. Of relevance to this case is subsection (1) which states:

320.31 (1) If samples of a person’s breath have been received into an approved instrument operated by a qualified technician, the results of the analyses of the samples are conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made if the results of the analyses are the same — or, if the results of the analyses are different, the lowest of the results is conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made — if

(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;

(b) there was an interval of at least 15 minutes between the times when the samples were taken; and

(c) the results of the analyses, rounded down to the nearest multiple of 10 mg, did not differ by more than 20 mg of alcohol in 100 mL of blood.

(emphasis added)

3.1: Positions of the Parties

[25] The Defendant submits that in this case there are discrepancies between the Certificate of Qualified Technician (the Certificate), filed, and the testimony of the qualified technician, P.C. Dent, regarding the system blank and calibration checks. They submit the discrepancies show that the Crown has not met its evidentiary burden under section 320.31(1)(a) of the Code. They also submit that the Crown failed to show the alcohol standard solution used in this case was certified by an analyst. As such I am asked to find a reasonable doubt that the breath test results are reliable.

[26] The Crown acknowledges the discrepancies but submits that the Certificate is conclusive proof of the breath test results and that the differences between it and the evidence of P.C. Dent do not raise a reasonable doubt.

3.2: Analysis

3.2.1: Proof of the Alcohol Standard Solution

[27] The certificate of the analyst who certified the target value of the alcohol standard solution was not placed into evidence [1]. As such, the Defendant submits there is no reliable evidence of that target value. I disagree. The Certificate of Qualified Technician states the value and, absent evidence to the contrary, is reliable evidence of the target value. For reasons I will explain later, the evidence of P.C. Dent did not amount to evidence to the contrary in this case. Furthermore, P.C. Dent testified that he read the analyst’s certificate and affirmed the target value. Lastly, P.C. Dent said he operated the approved instrument in accordance with his instructions, which would necessarily include using a suitable alcohol standard solution. Accordingly, I find there is reliable evidence that the alcohol standard solution used in this case was certified by an analyst: R. v. Yip-Chuck, [2019] O.J. No. 2773 (O.C.J.); R. v. Cousins-Tremblay, [2020] O.J. No. 817 (O.C.J.). Having said this, I will address the alcohol standard solution later when reviewing discrepancies between the Certificate and the trial evidence of P.C. Dent.

[28] The discrepancies between the Certificate and the testimony of P.C. Dent involve the language used in s. 320.31(1) of the Code versus the language used by the officer in court. I will begin by identifying the incongruities between the Certificate and the oral evidence, after which I shall make my findings.

3.2.2: Discrepancy in Describing the Target Value of the Alcohol Standard Solution

[29] In this case, there is a divergence between the Certificate and what the officer stated about the target value of the alcohol standard solution. The Certificate states the target value was 100 mg of alcohol in 100 mL of blood. When asked in chief what the target value of the solution was, P.C. Dent said, “100 mL of alcohol per 100 mL of blood, plus or minus 10%.” Whereas the Certificate and the Code express the concentration of alcohol in milligrams, the officer expressed it in milliliters. (emphasis added).

3.2.3: Discrepancies in Describing the Blank and Calibration Checks

[30] With respect to the first breath test of this case, the Certificate states the blank test result was zero mg of alcohol in 100 mL of blood. When P.C. Dent testified, he said the same thing, so there is no discrepancy about this. However, the Certificate states the result of the calibration check prior to the first sample was “101, which is within 10% of the target value of the alcohol standard that was certified by an analyst” whereas P.C. Dent testified the calibration check result was “101 mL of alcohol in 100 mL of blood.” Once more P.C. Dent described the concentration of alcohol as volume and not weight as required by the statute. (emphasis added).

[31] With respect to the second breath test in this case, the Certificate states that the blank test result was zero mg of alcohol in 100 mL of blood. However, when asked in court what the blank test result was prior to the second test, P.C. Dent answered, “100 mg of alcohol per 100 mL of blood.” (emphasis added). Given that section 320.31 allows for the blank test result to be up to 10 mg of alcohol per 100 mL of blood, the officer’s answer was over the limit by a whopping 90 mg. With respect to the second calibration check, the officer’s evidence was identical to the Certificate, namely 100 mg of alcohol in 100 mL of blood.

[32] Thus, there are three areas of discrepancies between the Certificate and the officer’s evidence. First, he described the target value of the alcohol standard solution in mL instead of mg. Second, he described the first pre-sample calibration test in mL instead of mg. Third, he said the second pre-sample blank test result as 100 mg, versus zero in the Certificate, far exceeding the maximum allowable of 10 mg. Therefore, on two occasions the officer expressed blood alcohol concentration as a ratio of volume to volume instead of weight to volume, and on another occasion described a result vastly exceeding the tolerable amount. All these occasions were prior to, and not during, the actual breath tests.

[33] I observed that on at least two occasions when expressing alcohol concentrations, P.C. Dent began by using the weight as mL then corrected himself to say milligrams. In addition, the officer used the correct language when describing the first sample air blank test, the second sample calibration check, and both breath test results which he described as 120 and 130 mg of alcohol in 100 mL of blood, respectively.

3.2.4: Applicable Legal Principles

[34] In the Ontario Court of Appeal decision of R. v. Nyman, [1998] O.J. No. 4064 the prosecution did not tender the Certificate of Qualified Technician, relying solely on the oral testimony of the qualified technician who described the test results in “grams percent.” The Court found the phrase used to be non-sensical. In acquitting the appellate, the Court noted the language used by the witness did not conform with the statute. The court observed at paragraph 11, “While such evidence need not parrot the language of the section, it must make clear beyond a reasonable doubt that the test results measure this ratio.” In Nyman, the Court of Appeal added that while the officer may have just made a mistake, the Crown led no evidence to correct it and that it would be an error for the court to take judicial notice or simply infer the correct meaning to the officer’s words. The Court concluded that where there is no evidence of blood alcohol concentration expressed in clear language related to the statute, there can be no conviction.

[35] In the recent summary conviction appeal of R. v. Meheje, [2020] O.J. No. 4681 (S.C.J.) the court allowed an appeal from conviction by applying the principles set out in Nyman, above. Unlike Nyman, the Certificate of Qualified Technician was filed and relied upon by the trial judge. However, the court noted that the language used by the officer and the manner in which the blood alcohol concentration was recorded on the Certificate did not conform with the statutory language.

[36] In the summary conviction appeal of R. v. Huard, [1992] O.J. No. 357 (Ont. Ct. G.D.) the Certificate of Qualified Technician was filed in evidence. In setting the conviction aside, the court found that the wrong language used by the qualified technician in his evidence to describe the blood alcohol concentration was evidence to the contrary insofar as the language of the officer tended to show an inaccuracy in the operation of the approved instrument such that is could raise a reasonable doubt that the blood alcohol concentration of the person was over the allowable maximum.

[37] In R. v. Bobal, 2007 ONCJ 4210, [2007] O.J. No. 4210 (S.C.J.) the summary conviction appeal court set aside the conviction because when describing the blood alcohol concentration of the appellate the police officer:

…used none of the terms of the legal threshold specified. She uses a number expressed to the third decimal point with no unit of measurement. With respect, I think the answers given by her were as devoid of effective meaning as were the answers given in Nyman. She did not mention blood, alcohol, grams, milligrams or millilitres. I don't think that the trial judge was entitled to make the inference he did any more than the trial judge in Nyman was permitted to infer what was meant. If I am correct in that, then given the prosecutor's express disclaimer of reliance on the s. 258 Certificate, a disclaimer relied upon by counsel in his conduct of the defence, there was no evidence expressly indicating the proportion of alcohol in Mr. Bobal's blood at the time of his driving. The Intoxilyzer print-outs provide the same information as that given by Constable Sparling, namely, the tri-numerals 108 and 107, each preceded by a decimal point. For lack of proof of a blood/alcohol content in excess of the specified legal limit, the charge under s. 253(b) was not made out.

[38] Section 25 of the Interpretation Act states that where an enactment provides that a document is evidence of a fact without anything in the context to indicate the document is conclusive evidence, then in any judicial proceedings, the document is admissible in evidence and the fact is deemed to be established in the absence of any evidence to the contrary.

[39] I would summarize the law on this issue as follows:

• Where a qualified technician testifies and uses language outside the statute to describe blood alcohol concentration, this may raise a reasonable doubt about the breath test results.
• The more disconnected the words are to the statute, the more likely it is that such language will be evidence to the contrary and raise a reasonable doubt about the blood alcohol concentration.
• The court cannot take judicial notice of what the officer meant by the language used, nor can it infer the correct meaning of the officer’s words without other admissible evidence.
• The presence, or absence, of other evidence including a Certificate of Qualified Technician, Certificate of Analyst, or instrument printouts is relevant, but not determinative, when assessing if the officer’s words raise a reasonable doubt.

3.2.5: Legal Principles Applied

[40] In this case, I find that when considering the evidence as a whole, the language used by P.C. Dent and the discrepancies between his evidence and the Certificate do not raise a reasonable doubt nor do they tend to show an inaccuracy of how the approved instrument was operated.

[41] First, it cannot be said that the language used by P.C. Dent was either nonsensical or devoid of connection to the language used in the Code. He did not use phrases or concepts foreign to the statute as was the situation in all of the cases referred to, above. At all times he used words found in and related to the statute, although on the three occasions described above he used them in the wrong way.

[42] Second, in approaching this issue, I do not take judicial notice of what he meant nor do I assume that his incorrect use of statutory terms was simply a mistake.

[43] Third, I take into account other relevant evidence including (a) that he used the correct terminology at least as often as he did not, (b) that he expressed the breath test results in the language of the statute, and (c) the Certificate expresses all checks and tests in the verbiage of the statute. I also consider that neither the Certificate of Analyst (re the target value of the alcohol standard solution) nor the instrument read outs were filed.

[44] Fourth, it is axiomatic that when assessing the evidence, a judge is required to consider all the admissible evidence in totality and not piecemeal. Further, the court may believe all, some, or none of the evidence of a witness having considered all the other evidence.

[45] In light of the foregoing, where there is a difference between the highly reliable Certificate and P.C. Dent, I prefer the evidence contained in the Certificate. In other words, I do not believe the officer when he twice expressed the amount of alcohol as volume, not weight. With respect to his evidence that the air blank check prior to the second breath sample was 100 mg of alcohol per 100 mL of blood, I do not believe him for the following reasons. First, I accept the Certificate which stated the result of the second air blank check was zero. Second, I believe the officer when he testified that the tolerance of the air blank test is 10 mg and he said that he operated the instrument properly at all times. This contradicts his testimony about the second air blank being 100 mg in 100 mL of blood, but is entirely inconsistent with the Certificate and the other evidence which I believe.

3.2.6: Conclusions re Proof of Section 320.31(1) of the Code

[46] In the circumstances, while the testimony of P.C. Dent was capable of being evidence to the contrary and capable raising a reasonable doubt, I find that when considering all of the evidence his discrepancies do not create any reasonable doubt in my mind that the prosecution has proven all the elements of section 320.31(1) of the Code beyond a reasonable doubt. I am satisfied on the criminal standard of proof that the blood alcohol concentration of the Defendant was over the legal limit.

4.0: Conclusion

[47] For these reasons, a finding of guilt will be recorded on the criminal charge of driving with excess blood alcohol, together with verdicts of guilty on the two provincial offences.

Richard H.K. Schwarzl, Justice of the Ontario Court of Justice

[1] I would note that while there is no legal obligation on the prosecution to file the Certificate of Analyst, doing so would go a long way to reducing the frequency with which this particular issue arises.