ONTARIO COURT OF JUSTICE DATE: 2021 11 26 COURT FILE No.: Brampton 3111 998 19 13196
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
VARINDERPAL SINGH
Before: Justice G.P. Renwick Heard on: 24-25 November 2021 Reasons for Judgment released on: 26 November 2021
Counsel: N. Jaswal, counsel for the Crown B. Starkman, counsel for the Defendant Varinderpal Singh
RENWICK J.:
INTRODUCTION
[1] The Defendant faces once count of having an excess blood alcohol concentration within two hours of ceasing to operate a conveyance, contrary to s. 320.14(1)(b) of the Criminal Code. The Defendant requested and the court permitted him to have his trial by remote appearance.
[2] At the start of the trial the parties agreed that a voir dire to decide the Defendant’s Charter Application would run concurrently to the evidence taken on the trial proper.
[3] During the proceedings, I only heard from three police witnesses: Constable Scott Lamarre (the investigating officer), Constable Joseph Trauzzi (the arresting officer), and Constable Carmine Bonacci (the qualified technician).
[4] There were several issues raised during the Charter Application:
i. Was there a violation of the Defendant’s s. 8 right by requiring a roadside breath screening in the absence of a reasonable suspicion;
ii. Was there a violation of the Defendant’s ss. 8 or 9 rights when he was arrested in the absence of reasonable and probable grounds (the “ASD” arguments);
iii. Was there a violation of the Defendant’s s. 9 rights resulting from the “breath demand;” and
iv. If there were one or more Charter violations, should the breath readings be excluded from the Defendant’s trial.
[5] There was also a non-Charter issue raised concerning the admissibility and use of copies of the Certificate of Qualified Technician and Intoxilyzer Printouts (exhibits A and B, respectively).
[6] This brief trial, which occurred over two partial days, took less than four hours to complete. Reviewing the evidence (including playing back some of the digital audio recording of the trial), the submissions, and the cases referenced took considerably longer.
ANALYSIS
[7] I propose to deal with the Charter arguments first.
[8] An applicant seeking Charter relief has an onus to establish on a preponderance of evidence that a basis exists to exclude evidence or to grant another appropriate remedy. [1] However, where the prosecutor claims reliance upon statutory authority for a warrantless search, she has the onus to establish that the search was conducted pursuant to law, the law is reasonable, and the search was carried out reasonably. [2]
There Were Reasonable Grounds for the Roadside Screening
[9] In this case, it is alleged that the investigating officer lacked a reasonable suspicion that the Defendant had alcohol in his body while he was operating a motor vehicle. There are two bases for this argument: A reasonable suspicion could not have been formed on either an objective or subjective basis.
[10] The first argument is premised on the officer’s lack of memory or notes of any observation of an odour of alcohol coming directly from the Defendant’s breath. Without this information, it is argued that a key ingredient in the formation of an objectively reasonable suspicion was absent and the consequent breath screening was an unreasonable search and seizure.
[11] Constable (“P.C.”) Lamarre testified that when the Defendant rolled down his window he immediately detected the odour of alcohol coming from the car. The Defendant was the sole occupant and no open liquor was ever seen inside the vehicle. The officer was clear that he did not make a note of ever having smelled alcohol coming directly from the Defendant’s breath and he was also candid that he could not recall ever having made that observation.
[12] I find that P.C. Lamarre was an honest witness. In fact, during submissions, the Defendant conceded as much and submitted it would be “silly” to argue otherwise. The Defendant had concerns with the officer’s reliability given the passage of time and the lack of specificity in some of his notes. I do not share those concerns.
[13] On the basis of his uncontradicted evidence, I find that P.C. Lamarre was candid, careful, and conscientious. He struck me as someone aware of his role and the requirements of the law. I have no concerns about his credibility or reliability. Overall, respecting the latter, his memory was good and there were no internal or external inconsistencies in his evidence.
[14] Constable Lamarre’s testimony of the smell of alcohol coming from the vehicle is the only direct evidence that the investigating officer ever smelled alcohol. There was evidence from P.C. Trauzzi that he was told by P.C. Lamarre that he had smelled alcohol on the driver’s breath, however, this hearsay evidence cannot be used to establish the point. Moreover, even accepting that P.C. Trauzzi was told this, it is unclear on the evidence exactly how P.C. Trauzzi came to this conclusion: Was it based on what he was told or did he draw any inferences (for example it is unknown whether P.C. Lamarre had said, “I smelled alcohol on the driver’s breath” versus “I smelled alcohol,” which he inferred must have come from the driver’s breath). There are significant reliability concerns respecting P.C. Trauzzi’s testimony about the reception of this information.
[15] The law is clear that the formation of reasonable grounds does not demand perfection or even perfect accuracy. Police officers embarking on an investigation are entitled to be wrong. As long as their grounds are objectively reasonable, rather than based on vague suspicions, intuitions, hunches, or worse, improper motives, the grounds need not ultimately be found to be correct.
[16] Officers must consider all information presented to them and they cannot disregard information unless it is inherently untrustworthy, unworthy of belief, or known to be false. The information must be reasonably believed. And, there is an objective component: The information must reasonably give rise to the stated belief.
[17] Generally, reasonable grounds relate to credibly-based probability. [3] However, at the stage of demanding a roadside screening, all that is required is credibly-based possibility: Is it reasonably possible that the driver has alcohol in her body. This is why a reasonable suspicion, rather than the higher standard of reasonable belief, suffices to require a motorist to perform a roadside screening pursuant to s. 320.27(1) of the Code.
[18] I find that there were objectively reasonable grounds to suspect that the Defendant had alcohol in his body based upon the following uncontested evidence:
i. The Defendant was driving below the speed limit;
ii. The Defendant’s car did not have its lights illuminated, despite the darkness and the time of day;
iii. The Defendant’s car was noticeably weaving and partially left its lane and almost sideswiped a Honda Civic travelling in an adjacent lane;
iv. The Defendant took an inordinate amount of time to pull over for the police; and
v. The Defendant was the sole occupant of his car and once he rolled down his window there was an odour of alcohol coming from inside the car.
[19] The second argument concerning the roadside screening was that P.C. Lamarre never reached the requisite threshold of suspicion. This argument was based on the lack of a note in the officer’s memo-book that he had formed a reasonable suspicion of alcohol in the Defendant’s body and the significant passage of time since the event until he claims to have recalled this suspicion.
[20] I reject this argument for several reasons.
[21] As indicated, P.C. Lamarre was an honest witness. He testified that he had formed a reasonable suspicion of alcohol in the Defendant’s body once he smelled alcohol coming from the car and in light of everything else he had observed until that point. He also testified that those grounds were the only reason for requiring a roadside screening. [4]
[22] Despite the cross-examination on this point, I am not satisfied on a balance of probabilities that P.C. Lamarre did not subjectively possess a reasonable suspicion that the Defendant had alcohol in his body. As stated, it was objectively reasonable for anyone in this officer’s place to have come to this opinion. It would be somewhat unusual if despite all of the objective indicia, the officer did not have a suspicion that the Defendant was possibly under the influence of alcohol, yet he chose to make a roadside screening demand, regardless.
[23] The officer candidly admitted that his notes were not an exemplar of memorialisation. However, I accept the officer’s testimony as true and accurate. To use the Defendant’s submission, “he did not guild the lily,” and I find that he was credible at all times.
[24] From the officer’s perspective, there was an abundance of evidence to be concerned about the Defendant’s ability to control his car. The smell of alcohol was an indicator of one possible reason (alcohol intoxication) for the Defendant’s inexplicably poor driving.
[25] It must also be remembered that P.C. Lamarre was on his way to another call for service when the Defendant’s driving caught his attention. The officer was not looking for poor driving or drunk drivers. For no apparent reason, the Defendant’s vehicle almost caused a collision. It immediately stood out because of its unusual speed, its operation without lighting, and the poor driving. Once stopped, the Defendant appeared tired, which may well have sufficed to explain away all of the driving evidence, however, there was also a smell of alcohol coming from his car and he was the sole occupant.
[26] The Defendant suggests that the passage of time and the lack of a note in the officer’s memo-book ought to establish that the officer never formed the requisite suspicion to require a roadside screening and his testimony on this issue is unreliable. I do not accept this submission. I believe P.C. Lamarre when he testified from his memory that he had the requisite suspicion. I also accept his evidence that his notes indicated to him that he had the requisite suspicion.
[27] The lack of any other reason for the roadside screening, the veracity of the officer’s evidence on the point, and the immediacy of the screening demand support the finding that P.C. Lamarre reasonably suspected that the Defendant was driving with alcohol in his body.
Section 8 and 9 of the Charter were Violated by the Use of an “ASD”
[28] It was not entirely clear from the brief, rather generic, written Application, or the submissions, which sections of the Charter were implicated by the arguments about the approved screening device. Perhaps in the unique circumstances of this case, it matters not how one characterized the alleged failing because the evidence established two sides of the same coin. [5]
[29] The Defendant submitted that there were two problems with P.C. Trauzzi’s evidence respecting the use of an “ASD.” Firstly, the court cannot take judicial notice and there was no evidence respecting what was meant by the term, “ASD.” Secondly, there is a dearth of evidence to suggest that the device used was functional, it was operated properly, and it gave a meaningful result which could inform reasonable and probable grounds for an arrest and a demand for evidential breath sampling.
[30] For essentially the same reasons expressed by my colleague, Justice Duncan, in R. v. Ahmed, [2014] O.J. No. 569 (C.J.) at paras. 5-8, I am satisfied on a balance of probabilities that P.C. Trauzzi was operating an approved screening device, although neither he, nor the parties who examined him ever used those words. At all times, P.C. Trauzzi only ever described the device as an “ASD.”
[31] Unlike in Ahmed, P.C. Trauzzi’s testimony did not even contain an incomplete description of the device he used. However, it makes no sense that Peel Regional Police would equip a police officer with anything other than an approved screening device for the purpose of screening motorists for alcohol consumption.
[32] The more significant concern is the second one: was the ASD functioning properly, was it operated properly, and what did the “fail” indication represent. In order to rely upon a failed roadside screening, as support for the grounds to arrest and an evidential breath demand, there must be some evidence respecting the functionality (theoretical) and functioning (actual) of the ASD. Without such evidence, the reasonableness of the grounds for an arrest evaporate.
[33] Again, this is a warrantless search case. The prosecution must establish on a balance of probabilities that its reliance upon the statutory regime permitting breath sampling is reasonable, because the search was authorized by law and the search was carried out reasonably. [6]
[34] There was not even a scintilla of evidence that P.C. Trauzzi was ever trained to use the ASD, that he had tested it, that he knew it to be calibrated and functioning properly, that he knew what different results it could give and what they represented, or why a “fail” result could give him grounds to believe that the Defendant had probably committed a criminal offence.
[35] As an example, the following testimony was a part of P.C. Trauzzi’s direct examination:
Q: After you received the result of the second reading, what belief did you form as a result of your investigation?
A: I formed the opinion that the accused was operating his motor vehicle with over 80 mgs of alcohol in his system – so he was impaired.
[36] Perhaps it is trite to note that having over 80 mgs of alcohol in one’s body while driving is not a criminal offence. Having a blood alcohol concentration of 80 or more mgs of alcohol in 100 mL of blood is unlawful. This underscores the imprecision in the arresting officer’s testimony. As well, and contrary to the officer’s stated belief, even if the officer’s understanding is clear despite his poor phraseology, an excess blood alcohol concentration is not necessarily evidence of being “impaired.” [7]
[37] This brief excerpt of P.C. Trauzzi’s testimony established that it is not reasonable to infer that a “fail” result on the approved screening device provided P.C. Trauzzi with the necessary grounds to arrest the Defendant and demand samples of his breath. The other failings in the arresting officer’s testimony also cause me to question whether there were objectively reasonable grounds to arrest the Defendant.
[38] Given the lack of established reasonable and probable grounds for an arrest and breath sample demand, I am compelled to find that the eventual breath sampling was an unlawful, warrantless search. As a result, I find that there was a breach of the Defendant’s s. 8 Charter right. As well, in the circumstances, I find that the Defendant’s arrest and continued detention until he was released was arbitrary, and contrary to s. 9 of the Charter.
Section 9 of the Charter was not Violated by the Breath Demand
[39] The Defendant submits that the prosecution has failed to establish that a lawful demand was made by the arresting officer for breath sample testing. The Defendant further submits that where a driver has fulfilled the breath demand and does not allege a Charter violation, the wording of the demand is moot, however, in this case, compliance with an unlawful demand cannot cure an unlawful detention. [8]
[40] The Defendant produced no jurisprudence to support the proposition that in the absence of the wording used to demand breath sampling the court cannot find that a lawful demand was made.
[41] When a motorist is arrested on a reasonable belief that she has committed either or both drink-driving offences (impaired operation and/or excess blood alcohol concentration) the police are entitled to make a demand for an analysis of the driver’s breath to determine the concentration, if any, of alcohol in the driver’s blood and to accompany the officer for this purpose pursuant to s. 320.28(1) of the Code.
[42] I was provided with no authority respecting the content (wording) of the breath demand.
[43] The Defendant submits that there is an informational component of the breath demand with several requirements:
i. The motorist should be told why they are arrested;
ii. The motorist should be told that they are required to perform breath testing;
iii. The motorist should be told that they must accompany the police for this purpose; and
iv. The police must ensure that the motorist understands the demand and the consequences for refusing to comply.
[44] These arguments are cogent and compelling, and I accept them.
[45] Constable Trauzzi testified that he arrested the Defendant for having an excess blood alcohol concentration and he told the Defendant that he would need to come to the police station to provide more samples of his breath. He also testified that he read the breath demand from his “yellow notes.” There was no cross-examination of this witness on this part of his evidence.
[46] In the end, although P.C. Trauzzi was a weaker witness than P.C. Lamarre, in that he was less experienced, he was testifying for the first time, he was less definitive about his observations, and he required his notes to refresh his memory more frequently than the investigating officer, I accept his evidence that he read the demand for the Defendant’s breath samples from his pre-printed yellow notes.
[47] There was no evidence to contradict this officer’s testimony, or even to seriously contest the evidence that he read the breath demand from his notes. I find that the Defendant was told why he was under arrest and that he would have to go with the police to provide more samples of his breath.
[48] There is an absence of evidence to indicate that the Defendant did not understand either the content or the legal significance of the breath demand.
[49] Also, I note that the Defendant did receive legal advice for several minutes before he provided his breath samples, which satisfies me that he understood the breath demand and the consequences for refusing to comply.
[50] I accept the evidence of P.C. Trauzzi that he did provide the required information to the Defendant before taking the Defendant away from the scene. I am satisfied of this on a balance of probabilities given the failure to test this portion of the officer’s testimony, in light of how everyone acted and reacted to each other that early morning, and the absence of any conflicting evidence. Accordingly, I am not satisfied that the breath demand was insufficient such that there was a s. 9 Charter violation established.
Section 24(2) of the Charter Analysis
[51] Having dealt with the Applicant’s arguments concerning the violations of the Defendant’s s. 8 and 9 rights and the police conduct that led to this finding, I will now turn to whether or not the admissibility of the breath sample results in the Defendant’s trial would bring the administration of justice into disrepute.
[52] The parties agree that the three-prong test from R. v. Grant [9] governs the exclusion of evidence under s. 24(2) of the Charter.
[53] Section 24(2) recognizes that if evidence gained by constitutional infringements is regularly admitted in criminal trials this may weaken public confidence and bring the administration of justice into disrepute. This subsection seeks to mitigate the negative effects of inappropriate state conduct by requiring a qualitative analysis of the long-term effect that admitting tainted evidence would have upon public confidence in the criminal justice system.
[54] To perform the balancing exercise required by s. 24(2) of the Charter, I must consider:
i. The seriousness of the Charter-infringing state conduct;
ii. The impact of the breaches on the Charter-protected interests of the Defendant; and
iii. Society’s interest in the adjudication of the case on its merits.
[55] The first two factors serve to mitigate the loss of civil liberties by requiring exclusion of evidence when the Charter-infringing conduct is serious and the impact upon Charter-protected interests is great. The third factor “pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown’s case.” [10]
Seriousness of the Charter-Infringing State Conduct
[56] This case involves a violation of two significant Charter rights that were breached by a single failure in the evidence. The evidence could not establish whether it was reasonable for the arresting officer to rely upon a “fail” result from an approved screening device. The finding was more the result of an absence of evidence rather than a positive finding that the police did something wrong. My finding was of an evidential shortfall, not a deliberate act that violated the Defendant’s constitutional interests.
[57] Moreover, it is possible that P.C. Trauzzi had been properly trained and he had properly employed a properly functioning ASD that morning, however, his evidence was incomplete. The prosecutor fairly admitted the shortcomings in the evidence and her role in leading the officer’s testimony.
[58] This was not a case where I made a finding that any of the involved officers acted inappropriately, exceeded their authority, or otherwise interfered with the Defendant’s autonomy or liberty interests without any justification. In the end, I find that the breaches in this case are of modest seriousness. This factor only slightly nudges toward the exclusion of evidence.
The Impact of the Breach Upon the Applicant’s Charter-Protected Interests
[59] In this case, the Charter violations arose from a singular failing. Contrary to the allegations made by the Defendant, the behaviour of the police did not establish a pattern of constitutional disregard. I find that the police were professional and acted respectfully toward the Defendant. The Charter breaches were found only because there are gaps in the evidence which made it difficult to ascertain the reasonableness of the reliance upon the breath screening.
[60] The breaches in this case are not trivial, but they may be more apparent than actual. It is difficult to see what, if any, impact the breaches had upon the Defendant’s constitutional interests. He had been drinking alcohol, he was driving. He was driving poorly. He almost caused a collision. He was barefoot and seemed to be exhibiting some effects of alcohol impairment (poor judgment, an inability to control his vehicle, and he was slow to respond to the traffic stop). It is at least arguable that the police could have arrested the Defendant for impaired driving, which would have yielded the same result.
[61] Even if P.C. Trauzzi was improperly operating an approved screening device he was unqualified to operate, it is beyond question that P.C. Lamarre had appropriate grounds to require the Defendant to perform a roadside screening.
[62] Situating the impact of the Charter violation also involves a consideration of the effect of the breach. In this case, the Defendant was required to submit to breath sampling for analysis. This process has repeatedly been found to be “minimally intrusive,” despite the attendant costs to the detainee’s liberty, security of the person, and psychological well-being. [11]
[63] I was unable to determine if P.C. Trauzzi failed to discharge his duty in a fundamental way due to his abbreviated testimony. The extent of the ss. 8 and 9 violations is not fully known because of deficiencies in the content of the prosecution’s case. These violations are likely the result of inexperience, both on the part of the witness as well as the examiner. The testimonial short-comings were not deliberate nor do they suggest an underlying institutional issue or bad faith. As a result, I find that this factor also only slightly favours exclusion of the breath testing results.
Society’s Interest in the Adjudication of the Case on its Merits
[64] In McGuffie, the Ontario Court of Appeal court spoke about the tension between the three considerations:
The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society's interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown's case.
In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence. [12]
[65] The breath testing results are reliable and necessary to prove the single count before the court. This militates in favour of admitting the results of the breath analysis.
[66] The failure to properly recount the use of the ASD and its significance in determining reasonable grounds is likely inadvertent and the result of inexperience. The failure is somewhat magnified when its extent is indeterminate (it will never be known whether P.C. Trauzzi properly employed a properly working ASD and reasonably relied upon the “fail” result). It is impossible on the record before the court to know whether or not the police had reasonable grounds to believe that the Defendant had an excess blood alcohol concentration while driving.
[67] I have assessed this combined Charter breach as moderately serious with attendant impact upon the Defendant. While it was not intended, it was preventable.
[68] Lastly, there is no evidence that the failure of P.C. Trauzzi portends a greater institutional problem or widespread failing.
[69] I conclude that a driver who was clearly over the legal limit was properly apprehended before he harmed himself or other motorists. I do not find that the long-term effect of admitting the breath readings in the circumstances of this case would bring the administration of justice into disrepute. To the contrary, the exclusion of reliable, crucial evidence that was ultimately discoverable, admissible but for evidential shortcomings, and unrelated to the violation of the Defendant’s Charter rights, would undermine confidence in the justice system.
The Use of Photocopies Are Not Presumptively Inadmissible
[70] The Defendant submits that the Certificate of Qualified Technician and the underlying Intoxilyzer Printouts are inadmissible because they are photocopies rather than the originals.
[71] The Defendant relied upon ss. 320.32 and 320.33 of the Code to support its position that the original Certificate and printout, rather than copies of these documents are admissible at trial. The Defendant produced several cases from decades past of coordinate jurisdiction. I did not find these authorities helpful or persuasive.
[72] The prosecutor also provided a recent case where the use of photocopied documents was considered: R. v. Delorme, [2021] O.J. No. 6384.
[73] I find Justice Maund’s reasoning in Delorme, powerful and persuasive. However, the key distinction between that case and this one is the evidence.
[74] The Qualified Technician testified briefly before me. [13] P.C. Bonacci testified that he was the qualified technician who took the Defendant’s breath samples and he served a copy of the Certificate of Qualified Technician upon the Defendant. The officer testified during his cross-examination as follows:
Q: [while showing exhibit A, the Certificate of Qualified Technician, to the witness] So officer, you can see that; the bottom, the notice portion?
A: I can.
Q: All right. I just…I wanna clarify the sequence of events when it comes to providing the document to the Defendant. So, there’s a signature that purports to be from him that says, “I acknowledge receipt of a copy of this certificate.” So, when does he sign, like how do you make a copy of the certificate? Do you just print it off the instrument, an extra, do you print multiple copies off the instrument or do you use a photocopier, or what do you do?
A: Well they’re not actually printed from the Instrument, they’re printed from the computer. The Instrument doesn’t print these new Certificates, the old Certificates went out the window, when the new legislation came in, we didn’t update the programming to reflect such in the Instrument. So, these are typed out on the computer that’s in the breath room, and then printed from an external printer that’s also in the breath room. And I just print two copies, right then and there.
Q: Alright, so. Do you provide him with a copy first and then have him sign the document that is exhibit A or does he sign both of them or what’s the sequence, how does that work?
A: So, the way I serve documents in the breath room is I provide the subject with the copy of whatever I’m serving, whether it be the breath test [sic] Certificate, or the Notice of Increased Penalty, or the ADLS form, the Administrative Driver’s Licence Suspension. I explain the form to him, as I’m explaining it, I walk them through each part of it and then I provide them two copies, and one to sign, which I give to them, and one which is signed and handed off to the officer in charge.
[75] The witness further testified that the fact that each document seemed slightly askew and each contained a similar shaded line at the top were likely artefacts of photocopying the original documents.
[76] There was an absence of evidence who photocopied the Certificate (and printout) or why.
[77] The Defendant submits that there is no evidence that the photocopy is an accurate copy of the original signed document, in either case. This is a distinguishing feature from the evidence accepted by Justice Maund in Delorme.
[78] Respecting admissibility, I find that there is no apparent statutory bar to the reception of a photocopy of a Certificate of Qualified Technician into evidence.
[79] To the contrary, s. 320.12 of the Code represents the significance of drink-driving interdiction and the general reliability of approved instruments. There is no principled reason why a genuine photocopy of an admissible document cannot also become admissible in place of the original document.
[80] I have the viva voce evidence of P.C. Bonacci that he performed the breath testing at issue, which is apparently recorded and signed by him in the case of each prospective exhibit. I found P.C. Bonacci to be a credible and reliable witness and his evidence was not challenged in cross-examination.
[81] However, I have an apparent photocopy of a Certificate that was never authenticated by the qualified technician. He was never asked to make a comparison of the information on the apparent photocopy to determine if it accurately reproduced the contents of the original Certificate. [14]
[82] Like most people in this community, I know what a photocopier is and generally what they do. It would be incredibly rare, if not impossible, for a photocopier to remove information from or to add information to the reproduction of an original document while leaving signatures at the bottom intact. However, I do not know if a photocopier was actually used to reproduce the documents referred to as exhibits A and B.
[83] By the slimmest of margins, and owing to the lack of evidence respecting how the copies introduced were made, and in light of the brevity of P.C. Bonacci’s evidence, and the lack of any corroboration of the significant portions of exhibit A in his testimony (and absolutely no reference to the content of exhibit B), I am not satisfied on a balance of probabilities that the copies sought to become full exhibits are genuine reproductions of the originals.
[84] To be clear, exhibits A and B are not admitted into evidence in this trial.
CONCLUSION
[85] Although I accept the evidence of the qualified technician that his testing of the Defendant’s breath revealed blood alcohol concentration readings in excess of the legal limit, I am not satisfied beyond a reasonable doubt that he operated an approved instrument appropriately, that it functioned properly, and that the required checks and tests were performed to enable the court to safely rely upon the qualified technician’s evidence.
[86] As a result, I have a reasonable doubt about the Defendant’s blood alcohol concentration within two hours of ceasing to operate his vehicle.
[87] Accordingly, Varinderpal Singh is acquitted of the sole charge before the court.
Released: 26 November 2021 Justice G. Paul Renwick
Footnotes:
[1] R. v. Collins, [1987] S.C.J. No. 15 at para. 21.
[2] Collins, supra, at para. 23.
[3] Canada (Director of Investigation and Research, Combines Investigation Act) v. Southam Inc., [1984] S.C.J. No. 36.
[4] P.C. Lamarre was clear that he was not relying upon the new provisions of the Code that enable a roadside screening in the absence of a reasonable suspicion (s. 320.27(2)).
[5] See my findings at paragraph 38, below.
[6] For the purposes of these reasons, given the lack of any argument to the contrary, it is taken as a given that the statutory regime for warrantless breath sampling is a reasonable law.
[7] I would also note that P.C. Trauzzi used the word “instrument” when he described having shown the device to the Defendant prior to the screening. This adds further confusion to the officer’s testimony and whether he reasonably believed that the Defendant had committed an offence.
[8] Although, given my findings below, I am not strictly required to decide the point, I am inclined to this view.
[9] R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32.
[10] R. v. McGuffie, 2016 ONCA 365 at para. 62.
[11] For a list of authorities, see R. v. Jennings, 2018 ONCA 260 at paras. 27-32.
[12] McGuffie, supra, at paras. 62-63.
[13] The officer testified in chief from 2:43 pm until 2:52 pm and then under cross-examination until 2:59 pm.
[14] While the same can be said of the approved instrument’s printouts (exhibit B), their admissibility, where the prosecutor primarily relied upon the Certificate to prove the allegation, is less significant.