Court File and Parties

Date: March 22, 2021 Information No.: 4011-998-19-1865-00 Ontario Court of Justice

Her Majesty the Queen v. Maggie Hallikainen

Remotely Before: The Honourable Madam Justice H. Mendes On: March 22, 2021, at a SUDBURY, Ontario proceeding, Courtroom C

Appearances

M. Ansell, Ms., Counsel for the Provincial Crown/Respondent N. Stanford, Mr., Counsel for Maggie Hallikainen/Applicant

Reasons for Decision

MENDES J. (Orally):

[1] This matter was heard as a one-day blended trial on January 16, 2020 for half a day, and the closing submissions were made on December 15, 2020 for half a day.

[2] The defendant, Maggie Hallikainen, stands charged that, on or about the 12th day of May, 2019, in the City of Greater Sudbury, did, within two hours after ceasing to operate a conveyance, have a blood-alcohol concentration that was equal to or exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to section 320.13(1)(b) of the Criminal Code of Canada.

[3] And that, on or about the 12th day of May, 2019, in the City of Greater Sudbury, did operate a conveyance while her ability to operate it was impaired to any degree by alcohol, contrary to section 320.14(1)(a) of the Criminal Code of Canada.

[4] Ms. Hallikainen brought a Charter application, as she argues that her rights under section 8, 9, 10(a) and 10(b) of the Canadian Charter of Rights and Freedoms were breached. Ms. Hallikainen seeks an order excluding all evidence obtained subsequent to the breaches of her Charter rights.

[5] The following documents were made exhibits at trial.

• Exhibit 1: Certificate of a Qualified Technician, dated July 31, 2019.
• Exhibit 2: the Intoxilyzer printout.
• Exhibit 3: Certificate of an Analyst.
• Exhibit 4: Certificate of a Qualified Technician, dated May 12, 2019.

[6] By way of admissions, Ms. Hallikainen confirmed that jurisdiction, date, time, and identity were not an issue.

[7] The Court heard evidence from Constable Marc Bélanger from the Greater Sudbury Police Services. In the Crown’s closing submissions, the Crown advised that it was not proceeding with the impaired charge, namely Count 2. As such, Count 2 was dismissed by the Court on December 15, 2020.

[8] On May 12th, 2019, Ms. Hallikainen operated a conveyance, namely a motor vehicle, through the drive-thru at the McDonald’s restaurant located at 1740 Regent Street in Sudbury, Ontario. There was also a passenger in the vehicle with Ms. Hallikainen.

[9] The McDonald’s employee contacted the police regarding Ms. Hallikainen’s behaviour, and at 2:34 a.m., a broadcast over the police radio communication system was made by the dispatcher.

[10] Constable Bélanger of the GSPS took the call and attended at the McDonald’s by driving in the drive-thru exit so that his cruiser was facing the front of Ms. Hallikainen’s vehicle. Constable Belanger noted in his police-issued notebook that he commenced his investigation in the matter at 2:47 a.m. The officer exited the cruiser and approached Ms. Hallikainen’s vehicle on foot. Ms. Hallikainen’s vehicle was still at the drive-thru, and she attempted to maneuver her vehicle around the officer and the cruiser to leave the parking lot. The officer motioned and verbally told Ms. Hallikainen to stop and directed her to reverse back three or four feet to the vehicle’s original position.

[11] Upon engaging with Ms. Hallikainen, the officer detected an odour of alcohol emanating from the vehicle. More specifically, the officer noted the odour of alcohol emanating from Ms. Hallikainen’s breath when he asked for her licence, ownership, and insurance, and when Ms. Hallikainen made inquiries about the process and what was happening. As such, the officer formed a suspicion that Ms. Hallikainen had consumed alcohol.

[12] At 2:52 a.m., the officer made an approved screening device (ASD) demand, which he read verbatim from the rear of his police-issued notebook. The officer retrieved the device from the trunk of his cruiser. The officer confirmed that the device was tested by his original partner at the start of their shift that day. The ASD was deemed to be in proper functioning condition, and the last calibration and accuracy check was completed by the qualified technician on May 8th, 2019.

[13] The officer completed a self-test, as well as a demonstration on the ASD for Ms. Hallikainen. The officer’s test resulted in zero milligrams of alcohol in his system, which confirmed to the officer that the device was working properly. The officer’s evidence was that he took three samples from Ms. Hallikainen, all of which read “blow interruption”. After the first “blow interruption”, the officer changed the mouthpiece to ensure that the mouthpiece was not malfunctioning. The officer changed the mouthpiece before each breath sample was taken. After the third attempt, and “blow interruption”, the officer provided Ms. Hallikainen with a caution for refusing to provide a sample of her breath, which, again, was read from the rear of his police-issued notebook.

[14] The officer completed a further self-test, which resulted in zero milligrams of alcohol, and a new mouthpiece was provided to Ms. Hallikainen. She made her fourth attempt, which resulted in a suitable sample being provided, and the device indicated a “fail”.

[15] Once the “fail” registered on the ASD at 2:58 a.m., the officer formed reasonable and probable grounds to arrest Ms. Hallikainen for impaired operation of a motor vehicle.

[16] The officer asked Ms. Hallikainen to exit the vehicle in order to place her under arrest. There was some delay in Ms. Hallikainen exiting the vehicle as she was asking the officer questions. However, this was mainly due to the passenger of the vehicle interrupting the process and trying to interject.

[17] Ultimately, Ms. Hallikainen was read her rights to counsel by the officer at 3:06 a.m. She was read the caution by the officer at 3:07, and the breath demand was made at 3:08 a.m.

[18] In reply to her rights to counsel, Ms. Hallikainen indicated that she understood, and provided the name of a lawyer that she wished to contact.

[19] Further indicia of impairment were noted by the officer of Ms. Hallikainen, namely slurred speech when she was asking questions both while she was still in her vehicle and in his cruiser, that her eyes appeared glossier than he believed to be normal, and his cruiser began to have the smell of alcohol inside.

[20] The male passenger of Ms. Hallikainen’s vehicle continued to interrupt the officer while placing Ms. Hallikainen under arrest by knocking on the cruiser window and asking to get into the cruiser and come with them to the police station. A further police unit was requested by the officer to assist with the passenger given his behaviour. The delay caused by the passenger was believed by the officer to be about two to three minutes.

[21] The officer eventually left the scene with Ms. Hallikainen at 3:08 a.m., and arrived at police headquarters at 3:15 a.m. There was a delay at the station to commence the booking in process for Ms. Hallikainen as there was another person in the process of being booked in before the staff sergeant. Ms. Hallikainen remained handcuffed in the rear of the officer’s cruiser during this time. The booking process for Ms. Hallikainen eventually commenced at 3:23 a.m.

[22] Ms. Hallikainen’s counsel of choice was found through a Google search, and a call was made to her counsel of choice at 3:30 a.m. There was no answer, and so an email was sent to counsel of choice by the officer at 3:35 a.m. A second call was placed to counsel of choice at 3:38 a.m. Counsel of choice was not available, and so Ms. Hallikainen was reminded that she had the right to contact any counsel, and she chose one from the list of local lawyers to call. The second lawyer contacted was not available either, and a voicemail message was left for him at two different numbers. At this point, Ms. Hallikainen indicated that she wished to speak with Legal Aid, and so the 1-800 number was contacted at 3:42 a.m. Ms. Hallikainen spoke to Legal Aid counsel from 3:43 a.m. to 3:49 a.m. At 3:50 a.m., Ms. Hallikainen’s first counsel of choice called, and she was afforded an opportunity to speak with him from 3:50 a.m. to 4:05 a.m.

[23] At 4:05 a.m., Ms. Hallikanen was brought to the breath room with the Breath Technician Constable McDonald. Ms. Hallikainen provided her first sample of breath at 4:17 a.m., and her second sample at 4:40 a.m.

[24] Constable Bélanger next had contact with Ms. Hallikainen at 4:40 a.m., when the breath tests were completed by Constable McDonald. Upon obtaining the results from Constable McDonald, the grounds were formed to lay the additional charge of impaired operation of a motor vehicle, and Ms. Hallikainen was readvised of her rights, but declined to call counsel again.

[25] Ms. Hallikainen was released at 5:00 a.m. on a promise to appear, and she was provided with the Notice of Increased Penalty, Certificate of a Qualified Breath Technician, which was Exhibit 4, the Analysis Report, Exhibit 2, the tow information for her vehicle, and the administrative driver’s licence suspension.

[26] A Charter application was brought by Ms. Hallikainen, and she claims that her rights under section 8, 9, 10(a) and 10(b) were infringed upon and that any evidence yielded from the breath test results and statements ought to be excluded pursuant to section 24(2) as the admission of same would bring the administration of justice into disrepute. It is the applicant’s submission that,

1. the approved screening device test was not administered in compliance with section 320.27(1)(b) of the Code;
2. the intoxilyzer breath demand was not made in compliance with section 320.28(1)(a) of the Code;
3. the breath samples were not taken as soon as practicable;
4. the arresting officer detained and questioned the applicant and did not advise her of the reason for her detention;
5. the applicant was not advised of her rights to counsel immediately upon her arrest; and,
6. access to counsel was not facilitated at the first reasonably available opportunity.

[27] The Crown denies that there are any breaches to the applicant’s Charter rights.

[28] A reasonable suspicion was formed and an ASD demand was made.

[29] Upon the applicant failing the screening test, the officer formed reasonable grounds to believe that the applicant had operated a conveyance while her ability was impaired by alcohol and the breath demand was made as soon as practicable.

[30] The second breath demand was made by the qualified breath technician after receiving grounds for the arrest from the arresting officer.

[31] The applicant was provided a caution and her rights to counsel, and multiple attempts were made to the applicant’s first choice of counsel and second choice of counsel, as well as to Legal Aid at the applicant’s request. The applicant ultimately spoke to Legal Aid, as well as her first choice of counsel.

[32] In his examination in-chief, Officer Bélanger confirmed the facts previously stated.

[33] Under cross-examination, the officer confirmed that he had volunteered to take the call for this matter as he was having his lunch directly across the street behind another restaurant, the Deluxe Hamburgers, when he heard the broadcast.

[34] The officer further confirmed that he did not make any other notes or scratch notes other than the notes in his police-issued notebook.

[35] Under cross-examination, the officer was questioned as to why he took 13 minutes between hearing the broadcast at 2:34 a.m., cleaning up his lunch, which would have taken a few moments, volunteering to take the call, and travelling to McDonald’s, which was less than a minute or two away, before commencing the investigation at 2:47 a.m. The discrepancy in time could not be adequately explained by the officer.

[36] The officer’s evidence was that his suspicion was formed when he detected an odour of alcohol emanating from the vehicle, and, more specifically, emanating from Ms. Hallikainen’s breath when he asked for her documents.

[37] The officer also gave evidence that his indicia of impairment of Ms. Hallikainen included slurred speech and watery eyes.

[38] When reviewing his impaired driving offence notes of the accused at the scene, under cross-examination the officer confirmed that there were no other notes or aspects observed regarding Ms. Hallikainen’s eyes that he checked off, and regarding her speech, he checked off “good”.

[39] When cross-examined further about Ms. Hallikainen’s speech, the officer stated that his “selection of ‘good’ was made fresh in his memory after she had been released”, that her speech had improved drastically since the time of being at her vehicle, and “that the event of being arrested for an impaired-related offence caused her to speak more clearly.”

[40] When cross-examined about his notes and observations of Ms. Hallikainen at the scene, he confirmed that not including slurred speech in his notes was “an error in his judgment while filling those notes out after the fact.”

[41] The officer was also questioned under cross-examination about the ASD and his training regarding same. The officer confirmed that if any other message other than “insufficient volume” or “blow interruption” was displayed on the device, the device was to be taken out of service immediately as it would no longer be safe to rely on the results of the test of that device.

[42] The breath room video was played for the officer, which captured a conversation between the officer and the breath technician in the booking area. In the conversation, the officer indicates to the breath technician that Ms. Hallikainen gave “like three insufficient samples.” Then, “What she did, she was giving a good sample and then stopped too short, and it said something different. I can’t remember what it said.” The breath technician offered “invalid”, to which the officer replied, “Yeah, I think that’s what it was”, or, “Yeah, I think so.” The audio is not quite clear from the video played, but the officer agreed, under cross-examination, that what he replied was one of those two options.

[43] Upon further cross-examination, the officer agreed that he believed that the message he received on the ASD when administering the test was “invalid”, but now believed it to be “blow interruption”. When asked to clarify how the officer was certain that the error message he received was “blow interruption” and not something else, the officer testified that he took the same ASD used on Ms. Hallikainen that same day and re-administered the testing on himself to confirm what he believed had occurred by attempting to replicate how Ms. Hallikainen blew into the ASD. Neither the conversation with the breath technician nor the attempts to recreate Ms. Hallikainen’s ASD tests were in the officer’s notes.

[44] An officer using an approved screening device need only have a reasonable belief that the device is properly calibrated and in proper working condition before relying on a “fail” test result to confirm his or her suspicions that a motorist may have a blood-alcohol level above the legal limit. What is important about the officer’s belief is not its accuracy but its reasonableness, as quoted from paragraphs 13 and 14 in the decision of Regina v. Ram.

[45] The following principles can be drawn upon where a police officer uses an ASD to confirm his or her suspicions a driver was operating their motor vehicle while impaired or having consumed excess alcohol and a section 8 Charter breach is alleged, as quoted in the case of Regina v. Beharriell as follows, i. the determination is made on a case-specific basis; ii. breath samples taken pursuant to an Intoxilyzer demand, amount to a warrantless search and the onus is on the Crown to establish, on a balance of probabilities, that the search was reasonable; iii. police officers may, but are not required to, rely on ‘fail’ readings obtained on an ASD as the basis or one of the bases upon which they conclude they have reasonable and probable grounds to make an Intoxilyzer breath demand; iv. police officers using an ASD are entitled to rely on its accuracy unless there is credible evidence to the contrary; v. in doing so, the officer must have a reasonable belief the ASD was calibrated properly and in working order before relying on the ‘fail’ reading as a component of their reasonable and probable grounds to make an Intoxilyzer demand; vi. a relevant consideration is whether the record discloses that because of his or her training the officer knows that in the circumstances in which the ASD is being used the results will be unreliable; vii. whether an officer had that reasonable belief can be established by direct or circumstantial evidence; viii. there is no requirement that the Crown prove the instrument’s calibration or that the ASD was working properly; and ix. there is a heavy onus on the accused to establish a high degree of unreliability in the specific facts of the case. That evidence may arise in the Crown’s case or through defence expert evidence.

[46] In the case at hand, we have an officer who administered an ASD to Ms. Hallikainen. The officer reasonably believed that the ASD was in proper working order as it was checked by the breath technician that day at the commencement of his shift. After administering the ASD to Ms. Hallikainen, the officer’s notes indicate that there were three attempts that resulted in “blow interruption” before a fourth attempt, which resulted in a “fail”.

[47] During cross-examination, it was confirmed that the officer made his notes regarding the investigation at various points in time, some at the scene while speaking with Ms. Hallikainen, some in his cruiser at the scene, and others at the station. His notes regarding the three attempts by Ms. Hallikainen were that of “blow interruption”. However, upon review of the audio of the breath room in the booking area, there was a discussion between the officer and the breath technician about one of the test results providing a different reading, perhaps “invalid” and not that of “blow interruption” as the officer’s notes indicate.

[48] When trying to assess how the officer was certain that the results of the first three tests registered “blow interruption” and not something else, the officer stated in his evidence that after Ms. Hallikainen was released, he took the same ASD and attempted to recreate how she was blowing to result in the “blow interruption”, and it was after his recreation tests that he became certain that was the message on the ASD and not something else.

[49] Although the officer, in his evidence, stated that a check of the ASD was done that day by the breath technician at the beginning of his shift and that he completed a self-test on the ASD to determine that the device was working prior to having Ms. Hallikainen give a sample, the working condition of the device is directly in question given that the officer had a discussion with the breath technician at the station about an unusual code he received on the ASD. Further, the officer took it upon himself to try and attempt to recreate the unusual code by self-testing on the same ASD later that shift. Neither the conversation nor the recreation attempts were included in the officer’s notes.

[50] The officer confirmed that, in his training, he was aware that if there was any other message on the ASD other than “blow interruption” or “insufficient volume”, that the ASD was to be taken out of service immediately because it would no longer be safe to rely on that test result, and the officer did not do so in this case.

[51] I reject the officer’s evidence in this case. I do not accept that the officer’s evidence or his notes are credible or reliable given the numerous discrepancies in his notes regarding time, alleged missing indicia of impairment, conflicting evidence in the notes completed by the officer regarding the indicia of impairment, as well as events that are missing from his notes, such as the attempted recreation of the ASD to confirm the error message. As such, in these specific circumstances, the Crown has not established that the officer’s belief, which led to the seizure of Ms. Hallikainen’s breath, was objectively reasonable.

[52] Section 24(1) states that anyone whose rights or freedoms have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

[53] Subsection (2) states that, Where in proceedings under subsection (1) a court concludes that the evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed, the evidence shall be excluded if it is established that, having regard to all of the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[54] Having found a violation of Ms. Hallikainen’s section 8 Charter rights, I must now determine the appropriate remedy.

[55] In looking at the three-prong test as set out in Regina v. Grant, first, with respect to the seriousness of the Charter-infringing police or state conduct, I find the officer’s conduct and his lack of detail and attention to completing his notes in this investigation, as well as missing particulars of the investigation, specifically the recreation of the ASD breath sample purportedly given by Ms. Hallikainen, is an egregious breach.

[56] Second, in looking at the impact of the breach on the Charter-protected rights of the applicant, I find that this is not a trivial breach. Officers are specifically trained on how to take notes and the importance of taking detailed notes, and including all parts of the investigation in their notes, and he clearly failed to do so in this matter on multiple occasions. This significantly impacts the breach of the Charter-protected rights.

[57] I find that this sort of police conduct is entirely unacceptable and unreasonable, and the Court cannot condone unacceptable police performance in the execution of their duties. I find that this is bad faith on the part of the officer.

[58] Third, looking at society’s interest in the adjudication of the case on its merits, despite the societal importance of the prosecution of impaired or over 80 charges, the Court cannot disregard the infringement of such fundamental Charter rights of an individual. Having found a violation of Ms. Hallikainen’s section 8 Charter rights at the serious end of the spectrum, and in considering the above factors and balancing same, I find that to admit the evidence gathered in the violation of the Charter rights goes to the core of our society’s rights and freedoms and would bring the administration of justice into disrepute. As such, the evidence is excluded.

[59] Given my findings with respect to section 8 of the Charter application and the ASD, it is unnecessary to address the balance of the Charter breaches.

[60] Given the decision regarding the Charter application and the exclusion of the evidence, the Crown cannot make its case. Even had I not found the Charter breach, the Crown would still not be in a position to prove its case beyond a reasonable doubt given the conflicting evidence the Court is left with regarding the two Certificates of a Qualified Technician filed as Exhibits 1 and 4. At trial, the Crown only introduced the Certificate dated July 31st, 2019 as Exhibit 1, and simply left it to the defence to submit the Certificate of May 12th, 2019, as Exhibit 4.

[61] Exhibit 4 is the Certificate of a Qualified Technician dated May 12th, 2019, and states that the system blank test resulted in 106 milligrams of alcohol in 100 millilitres of blood, and the second states that the system blank test resulted in 109 milligrams of alcohol in 100 millilitres of blood.

[62] Exhibit 1 is the Certificate of a Qualified Technician dated July 31st, 2019, and it states that the system blank test for both tests were zero. It is the Court’s view that the Crown should have submitted both Certificates at trial and addressed the issue of the conflicting information. No evidence was called by the Crown to address the conflicting evidence regarding the system blank test, and both Certificates have the notice in accordance with section 320.32(2) of the Code, that the Crown intended to produce this Certificate at Ms. Hallikainen’s trial. Both Certificates are signed.

[63] The May 12th, 2019 Certificate appears to be facially invalid due to the readings being inserted into the system blank results, and it appears that the July 31st, 2019 Certificate was created to correct the deficiencies of the May 12th, 2019 Certificate. However, since there was no evidence in this regard, it is mere speculation as to why the second Certificate was created. As such, the Court is unable to resolve this discrepancy. The Court cannot simply choose to disregard the error on the Certificate and look to the printouts without interpretation by a witness.

[64] The onus is not on the defence to clarify the issue, but, rather, the onus is on the Crown to resolve the discrepancy. The Crown could have made the decision to call the qualified technician before closing its case to resolve the issue, but failed to do so. The case at hand is for the Crown to prove beyond a reasonable doubt, and in this instance, I am left with a reasonable doubt arising from the conflicting evidence.

[65] As such, the charge against Ms. Hallikainen, that within two hours after ceasing to operate a conveyance, did have a blood-alcohol concentration that was equal to or exceeded 80 milligrams of alcohol in 100 millilitres of blood contrary to section 320.14(1)(b) of the Criminal Code is dismissed.

Electronic Certificate of Transcript

FORM 3

ELECTRONIC CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2) Evidence Act)

I, JUDITH SMITH, certify that this document is a true and accurate transcript of the recording of R. v. Maggie Hallikainen, in the Ontario Court of Justice, held remotely at 159 Cedar Street, SUDBURY, Ontario, taken from recording 4031_CrtRmC_20210322_090448__6_MENDESHE, which has been certified in Form 1.

(Date) (Electronic Signature of Authorized Person) ___________ 5339834698 __________________ (Authorized court transcriptionists ID) ____________ Ontario ___________, Canada (Province of Signing)

A certificate in Form 3 is admissible in evidence and is proof, in the absence of evidence to the contrary, that the transcript is a transcript of the certified recording of evidence and proceedings in the proceeding that is identified in the certificate.

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