Court File and Parties
Date: April 14, 2022 Court File No.: Brampton: 18-14965 Ontario Court of Justice
Between:
Her Majesty the Queen
— And —
Harvinder Maan
Before: Justice Paul F. Monahan
Heard on: January 27 and 28, February 3 and March 3, 2022
Judgment Released on: April 14, 2022
Counsel: Mr. R. Raeesi, for the Crown Mr. A. Little, for the defendant Harvinder Maan
MONAHAN J.:
Introduction and Overview
[1] Mr. Harvinder Maan is charged with impaired operation and over 80 contrary to s. 253(1)(a) and (b) respectively of the Criminal Code. The date of the alleged offences is December 2, 2018.
[2] Mr. Maan brought a Charter application at trial. The Charter application alleged violations of sections 7, 8, 9, 10(a), 10(b) and 11(d) of the Charter. The defence sought the exclusion of the breath samples and all observations by police of the defendant pursuant to section 24(2) of the Charter. The focus in final argument was on the alleged s. 10(a) and s. 10(b) breach. The defence also argued that the evidence obtained at the time of the alleged s. 10(a) violation should be excised and thereby give rise to a s. 8 violation for no reasonable and probably grounds for the arrest and a related s. 9 arbitrary detention violation. The s. 7 and 11(d) arguments were not pursued in final argument.
[3] The Charter application and the trial were held, on consent, on a blended basis.
[4] The Crown called five witnesses on the trial proper and on the Charter application: Mr. Raza Rizwan, a civilian witness; Acting Staff Sergeant Charan Singh who was the arresting officer; Officer Drew Pallett who attended on scene; Officer Nicholas Carniello who became the officer in charge and Officer Shawn Feasby, the breath technician. The defence called no evidence on the Charter application or on the trial proper.
[5] Considering the evidence and the argument it is apparent that there are eight issues in the case:
Issue 1 - Was there a section 10(a) Charter breach.
Issue 2 - Was there s. 10(b) Charter breach?
Issue 3 - In the event that the Court finds one or more Charter violations, should the breath sample evidence and observations of Mr. Maan by police be excluded pursuant to section 24 (2) of the Charter?
Issue 4 - Has the Crown proved beyond a reasonable doubt that both samples were received from Mr. Maan “directly into an…approved instrument” as required by s. 258(1)(c)(iii) of the Code?
Issue 5 - Has the Crown proved beyond a reasonable doubt that the system blank test produced a result that was “not more than 10 mg of alcohol in 100 ml of blood” as required by s. 320.31(1)(a) of the Code?
Issue 6 - Has the Crown proved beyond a reasonable doubt that the alcohol standard was “certified by an analyst” as required by s. 320.31(1)(a) of the Code?
Issue 7 - Has the Crown proved the impaired charge beyond a reasonable doubt?
Issue 8 - Has the Crown proved the over 80 charge beyond a reasonable doubt?
Overview of the evidence
[6] I will give a brief overview of the evidence and will expand upon parts of the evidence in the analysis of the issues. Mr. Rizwan was driving in the City of Brampton near Mavis Road and the 407 on December 2, 2018, and he observed the defendant operating his motor vehicle in an erratic fashion. Among other things, the defendant hit a pole with his vehicle and was speeding at times; he also remained stationary at a green light; and he hit a curb and then stopped his vehicle and got out of it. When Mr. Rizwan approached the defendant, the defendant asked Mr. Rizwan not to call the police. Mr. Rizwan thought the defendant was “drunk”. Mr. Rizwan did call the police and the partial chronology in this regard is as follows:
1:49 AM - Acting Staff Sergeant Singh received a call regarding a reported impaired driver. The information provided was that the vehicle had struck city property and there was extensive damage to the vehicle. The driver of the vehicle did not want the police to be called.
1:53 AM - Acting Staff Sergeant Singh arrives on scene. She notices parts of the defendant’s vehicle on the roadway. She speaks to Mr. Maan to see if he is alright medically and she determines that he is.
1:54 AM - Acting Staff Sergeant Singh does not initially smell alcohol on the defendant’s breath. By my estimation at about 1:54 AM or even shortly thereafter Officer Singh directs the defendant to do a brief walking test between the police cruiser and his vehicle. She immediately detects some unsteadiness on his feet, slurred speech and the smell of alcohol on Mr. Maan’s breath.
1:55 AM - Acting Staff Sergeant Singh tells Mr. Maan that he is under arrest for operating a motor vehicle while impaired by alcohol.
1:55 to 1:57 AM - Acting Staff Sergeant Singh handcuffs Mr. Maan, frisk searches him and escorts him to her cruiser where he is seated in the back seat.
1:58 to 1:59 AM - Officer Singh is an acting Staff Sergeant and it is apparent that she prefers to have one of her frontline officers take custody of the defendant and deal with the follow-up steps required including rights to counsel. Officer Drew Pallett arrives on scene at 1:58 AM and takes custody of Mr. Maan at 1:59 AM. There was some evidence to suggest that another officer (Gooderham) took custody of Mr. Maan before Officer Pallett did, but I do not think this is accurate. I am satisfied that Officer Pallett took custody of Mr. Maan directly from Acting Staff Sergeant Singh. Officer Pallett searches Mr. Maan.
1:59 AM - Officer Carniello is an officer in training. He arrives on the scene at 1:58 AM and takes custody of Mr. Maan from Officer Pallett at 1:59 AM. The reason for the change is so that Officer Carniello could receive experience in dealing with potential impaired driving cases.
Although Officer Pallett only has custody of Mr. Maan for one minute, Officer Pallett almost immediately detects the smell of alcohol; swaying when he is walking, slurred speech and bloodshot eyes. In addition, Officer Pallett provided a sketch in his evidence whereby he showed the court how he could tell from the defendant’s tire tracks that the defendant’s vehicle left the roadway and hit at least one sign and drove on the grass on the side of the road before re-entering the roadway.
1:59 to 2:02 AM - having taken custody of Mr. Maan at 1:59 AM, Officer Carniello searches Mr. Maan and takes him to his cruiser and places him in the back. Mr. Maan is unsteady on his feet and not entirely compliant. He becomes agitated when Officer Carniello searches his pockets. Officer Carniello detects numerous signs of impairment.
2:03 AM to 2:06 AM – Officer Carniellio gives the defendant rights to counsel beginning at 2:03 AM. Mr. Maan is unresponsive and incoherent in response to the rights to counsel given.
2:07 AM - a primary caution is given and an approved instrument breath demand is made.
2:22 AM - Officer Carniello clears the scene with the defendant. The delay was due to the fact that he was waiting to be directed by dispatch as to where the breath tests would take place.
3:00 AM - the breath technician Officer Feasby takes custody at this time. He gives rights to counsel at 3:01 AM and makes a breath demand at 3:08 AM. At no time does Mr. Maan ever exercise his right to counsel by asking to speak to private counsel or duty counsel although he is given the opportunity to do so.
3:22 AM - the first breath sample is provided into the approved instrument and registers 163 mg of alcohol in 100 mL of blood.
3:48 AM - a second sample is provided and registers 160 mg of alcohol in 100 mL of blood.
Issue 1 - Was there a section 10(a) Charter breach.
[7] The Crown concedes a section 10(a) breach apparently because the arresting officer failed to tell Mr. Maan the reason for his detention prior to his arrest.
[8] I consider the Crown’s concession that there was a section 10(a) breach somewhat questionable for two reasons. First, the defence submits that the request to do the walking test was voluntary and was not a legal requirement. I accept this point. However, the voluntariness of the walking test suggests that Mr. Maan may well not have been detained at that time. This case bears some similarity to The Queen v. Roberts 2018 ONCA 411, at para. 66 where the court found that a direction to accompany an officer to their cruiser in that case was a voluntary request and that the defendant in that case did not believe they were detained.
[9] Second, the Ontario Court of Appeal has now settled the debate in the case law about whether a defendant’s knowledge of the reasons for his detention avoids a 10(a) breach. In R. v. Gardner 2018 ONCA 584, at para 26, the Court of Appeal stated that “what I see from the record is that almost immediately upon stopping the respondent’s vehicle Constable Lieverse advised the respondent that he was looking for an impaired driver. He then proceeded to ask questions of the respondent that were directed to that purpose. There cannot have been any doubt in the respondent’s mind as to why his vehicle was stopped. Consequently, there is no basis for finding that either the temporal or informational elements of the respondents 10(a) rights were violated .” (my emphasis).
[10] In this case, I think it should have been obvious to Mr. Maan the reason why the police were investigating him and why the officer asked him to do the brief walking test. He likely knew that it was a sobriety test and that he was being investigated for possible impaired driving. What other possible reason could there be for asking someone in the circumstances of Mr. Maan to do a walking test? However, Mr. Maan did ask Acting Staff Sergeant Singh why she was having him do the walking test. He may not have understood why she was asking him to do it or he may have understood and he was simply trying to deflect the officer’s attention from him and suggest to her that he was fine. In any event, Mr. Maan learned very quickly why he was being detained when he was placed under arrest less than a minute after he was asked to do the walking test. The arrest was at 1:55 AM at which time he was told he was being arrested for impaired operation.
[11] Notwithstanding the concerns I have mentioned above regarding the Crown’s concession of the s. 10(a) violation, I raised no issue about this concession when the I was advised of it in final argument. In the circumstances, notwithstanding the concerns I raised above, I accept that there was a section 10(a) breach which occurred somewhere between 1:54 AM and 1:55 AM because the officer did not tell Mr. Maan why he was detained.
Issue 2 - Was there s. 10(b) Charter breach?
[12] It is clear that the right to counsel was suspended in this case while Officer Singh was investigating the accident and making roadside safety inquiries of Mr. Maan (R. v. Orbanski 2005 SCC 37, at para 60). The right to counsel was required to be given immediately upon Mr. Maan’s arrest at 1:55 AM.
[13] The defendant submits that there was a section 10(b) violation associated with the eight minute delay in providing Mr. Maan’s with rights to counsel after he was arrested at 1:55 AM and the time that rights to counsel was provided. I agree that there was a s. 10(b) violation although in my view it was only for six minutes. I consider that the police were justified in waiting to give rights to counsel until Mr. Maan had been handcuffed, searched and put in a cruiser. This took two minutes.
[14] To be clear, the defence’s only submission with respect to a section 10(b) breach is in respect of the delay in providing the informational component. While defence counsel had some concerns about the implementation of the rights to counsel those concerns were ultimately abandoned in final argument.
Issue 3 - In the event that the Court finds one or more Charter violations, should the breath sample evidence and observations of Mr. Maan by police be excluded pursuant to section 24 (2) of the Charter?
[15] I have concluded that Mr. Maan’s Charter rights were violated in two respects: there was about a 45 second delay in telling Mr. Maan why he was detained (a breach of s. 10(a)). This occurred from sometime shortly after 1:54 AM until 1:55 AM when he was arrested and told why he was being detained and arrested.
[16] The section 10 (b) violation relates to the eight minute delay (which I view as a six minute delay for the reasons explained below) from 1:55 AM when he was arrested until 2:03 AM when he was given rights to counsel.
[17] The defence submits that I should excise the evidence obtained pursuant to the walking test when Mr. Maan was detained but not told the reasons why contrary to section 10(a). The argument for excision then leads to the argument that there is a section 8 violation because there would be no reasonable and probable grounds without Mr. Maan’s failure on the walking test. This then leads to a section 9 breach as well submits the defence. The defence relies on, among other cases, the approach taken by Justice Parry in R. v. Wolochyshyn 2017 ONCJ 5144.
[18] In my view, the correct approach is to do a section 24(2) analysis to determine what evidence should be excluded, if any, rather than simply excise the evidence associated with a Charter breach. To be clear, the defence submits that the breath sample evidence and all observations of Mr. Maan by the police should be excluded whether pursuant to the Wolochyshyn approach or a straight conventional s. 24(2) analysis.
[19] The Charter breaches in this case engage section 24(2) of the Charter which provides as follows:
Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute
[20] Section 24(2) of the Charter requires a consideration of the analytical framework laid down by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. The test is well known and involves a consideration of three factors: (i) the seriousness of the Charter infringing conduct; (ii) the impact of the breach on the Charter protected rights of Mr. Maan; and (iii) society’s interest in adjudication on the merits. The Court must balance an assessment of each one of these factors in order to determine whether, considering all the circumstances, the admission of the evidence would bring the administration of justice into disrepute.
(i) The Seriousness of the Charter Infringing State Conduct
[21] Concerning the seriousness of the Charter infringing state conduct, the question is whether the admission of the evidence would bring the administration of justice into disrepute by suggesting that the courts will condone breaches of the Charter and the need for the courts to dissociate themselves from unlawful conduct. This factor involves an examination of the conduct of the police. The more severe or deliberate the state or police conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from the conduct so as to preserve public confidence in the rule of law: see also R. v. Orlandis-Habsburgo 2017 ONCA 649, at para. 130.
[22] As concerns the s. 10(a) breach associated with initially failing to tell Mr. Maan the reason that he was detained, I find the breach to be of minor seriousness. The defence submits that it was a serious violation because if Mr. Maan knew why he was being investigated, namely to determine whether he was impaired, he might have declined to do the walking test which ultimately contributed to the grounds for his arrest. This arguably goes to the impact of the breach rather than the seriousness of the breach but there is some overlap here.
[23] In my view, it is highly doubtful that if Mr. Maan had been told why he was being investigated namely for impaired driving that he would have acted any differently. There is no evidence to support this assertion. Even if Mr. Maan he had acted differently and declined to the walking test, I am of the view that the grounds for his arrest for impaired driving would have become obvious to police and Mr. Maan would have been arrested in any event for the same charge. Mr. Maan had nowhere to go and the signs of his impairment were many and obvious. His vehicle was damaged so he was unlikely to drive off (although I am not saying it was inoperable). He was standing outside of his vehicle and he was going to have to walk around and talk to the police who were arriving on scene and who were properly investigating an accident. His unsteadiness on his feet, his incoherent talking and the alcohol on his breath were soon going to become obvious to anyone dealing with him and the police already knew of reports of his erratic driving leading to a collision with a pole. The civilian Mr. Rizwan thought he was impaired and it took each of Officers Pallett, Carniello and Feasby less than a minute after dealing with Mr. Maan to figure out that Mr. Maan was impaired due to variously, among other things, reports of his erratic driving leading to a collision with a pole, his unsteadiness on his feet, his lack of coherence and alcohol on his breath. Accordingly, even if Mr. Maan had declined to do the walking test on learning the reasons for his detention which I think it highly doubtful, his continued presence at the accident scene was going to make it obvious that that there were grounds to arrest him for impaired operation of a motor vehicle.
[24] Let me summarize on the section 10 (a) point as concerns the seriousness of the breach. The failure to tell Mr. Maan the reasons for his detention namely that he was being investigated for impaired operation of a motor vehicle lasted for about 45 seconds and was of low seriousness. There is a very high likelihood that Mr. Maan would have done the walking test anyway even if he had been advised that he was being investigated for impaired driving. Further, even if he declined to do the walking test which would be highly unlikely in my view, the evidence that was obtained during those 45 seconds which arose out of the walking test would soon have become obvious to the various officers who were arriving on the scene. The bottom line is that I find the section 10(a) breach to be minor in nature.
[25] The section 10(b) breach of an eight minute delay in giving rights to counsel was more serious than the s. 10(a) breach but still only of low to moderate seriousness in my view. I accept that two minutes of the eight minute delay in giving rights to counsel was related to handcuffing, frisking and escorting the defendant to Officer Singh’s cruiser and that this was an appropriate delay as it was related to, and was appropriate for, officer safety. Nevertheless, there was a six minute delay which was mostly due to the officers on scene wanting to help a new officer get training in an impaired driving investigation.
[26] The defence objects to the deduction of two minutes for handcuffing, frisking and placing the defendant in the backseat of a cruiser before giving rights to counsel. The defence submits that Peel Regional Police have received “bad training” on how to arrest and provide rights to counsel to detainees.
[27] The practice which defence counsel submits reflects “bad training” is that, generally speaking, in any arrest by a Peel Regional Police officer, the officer is trained to tell the detainee why they are under arrest, they handcuff the person, they search the person incident to arrest and then they place the person in the back of a police cruiser and give them rights to counsel at that time and note the responses given to the rights to counsel. The defence submits that this approach improperly delays rights to counsel where there is no case specific safety reason.
[28] Acting Staff Sgt.Singh was cross-examined on her practice with respect to providing rights to counsel of taking about 2 minutes to handcuff, frisk search and place a detainee in the back of a cruiser, as were a number of other officers. She made it clear that the reason for this approach is to protect the safety of the officer and the detainee. She explained that an officer does not know what a person will do upon arrest and when they are provided with rights to counsel.
[29] The defence submits that the error in the approach taken Peel Regional Police is clear based on case law over the last 30 years from the Supreme Court of Canada. In particular, the defence relies, among other cases, on the majority’s judgment in R. v. Debot, [1989] 2 S.C.R. 1140, at para 3 where the majority (per Lamer J. as he then was) said as follows:
The right to search incident to arrest derives from the fact of arrest or detention of the person. The right to retain and instruct counsel derives from the arrest or detention, not from the fact of being searched. Therefore immediately upon detention, the detainee does have the right to be informed of the right to retain and instruct counsel. However, the police are not obligated to suspend the search incident to arrest until the detainee has the opportunity to retain counsel.
[30] The concurring judgment of Justice Wilson does suggest that rights to counsel need to be given prior to the police getting “matters under control” but she makes it clear that police are not expected to go ahead “with undue risk to their own lives or safety”.
[31] I reject the proposition that taking about 2 minutes (or perhaps slightly longer depending on the circumstances) to handcuff and search a suspect and place them in the back of a cruiser for non-specific officer safety reasons amounts to a violation of the immediacy requirement of the right to counsel under s. 10(b).
[32] If there was ever any doubt that police can delay rights to counsel for officer safety reasons, the Supreme Court made in clear in R. v. Suberu, [2009] 2 S.C.R. 600, at para 42 where the court stated:
In our view, the words “without delay” mean “immediately” for the purposes of s. 10 (b). Subject to concerns for officer or public safety , and such limitations as prescribed by law and justified under s. 1 of the Charter , the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention. (my emphasis)
[33] I note that Justice Jamal (as he then was) for the Ontario Court of Appeal in R. v. Thompson 2020 ONCA 264, at para 71 expressly declined to decide whether the seven minute delay in that case in providing rights to counsel which delay arose because of a 5 minute pat down search and then escorting a detainee to a police car (2 minutes) was contrary to s. 10(b). The defence made the same argument in that case that is made here namely that there were no “concrete and specific” officer safety concerns, only “generalized” concerns. I would have thought that if the law on this point was as clear as the defence submits it is and the Supreme Court had already decided this point 30 years ago, the Ontario Court of Appeal in Thompson would have said so.
[34] Police are called upon to arrest people in all kinds of circumstances including in the middle of the night by roadways and other locations. Generally, police do not know the people they arrest. I see no error in the training of Peel Police that requires that an officer take somewhere in the order of two minutes or perhaps slightly more to tell a suspect that they under arrest, handcuff them, search them and place them in the back of a cruiser (if available) where they are then provided rights to counsel immediately. I note that Peel Police ask after each component of the right to counsel whether the person understands what they have been told. It becomes critically important for the police to have a record of what they are told by a suspect when they give rights to counsel and receive responses to the multiple times they ask “do you understand?”. This approach supports the proposition that rights to counsel have to be given in an orderly way.
[35] The argument is made by the defendant here that where there are no case safety concerns, there can be no delay in rights to counsel for general safety concerns. They point to the decision of Justice Hill in R. v. Gordon 2018 ONSC 1297 where Justice Hill does make this point. With respect, I am not bound by this decision nor am I persuaded by it on this point. In the absence of clear evidence of a case specific safety concern, I am not sure how any officer would know that there was no danger with respect to arresting a person they only met perhaps 30 seconds to two minutes beforehand. In my view, when police follow their training and for reasons related to general safety concerns which are not case specific, they take a short time to tell a detainee why they are being detained, to handcuff them and escort them to a cruiser (if it is available) where rights to counsel can be given and the officer can note the responses given in an orderly way, they are not violating the immediacy requirement of s. 10(b) of the Charter.
[36] Let me return to the section 24(2) seriousness analysis by expressing my view that the remaining 6 minute delay in providing rights to counsel in this case was of low to moderate seriousness.
[37] What happened here is that acting staff Sgt. Singh arrested the defendant at 1:55 AM and then took two minutes to advise him of the charge, to frisk him and to escort him to her police cruiser. It is apparent to me that acting staff Sgt. Singh did not want to take on the responsibility for dealing with rights to counsel and other obligations on the arresting officer as she had other responsibilities as a staff Sgt. She waited a minute and then handed custody to Officer Pallet who then almost immediately handed custody of Mr. Maan to Officer Carniello who was being trained that night. Each of Officer Pallet and Officer Carniello ended up searching the defendant. It also took Officer Carniello a little time to escort the defendant to his cruiser as the defendant was unsteady on his feet.
[38] In my view, Acting staff Sgt. Singh should have given rights to counsel herself at 1:57 AM. Instead, rights to counsel were delayed six minutes until 2:03 AM.
[39] My further concern here is that the Ontario Court of Appeal, among other courts, has observed that there is a systemic problem with Peel Regional Police delaying the giving of rights to counsel and not understanding the immediacy requirement (see R. v. Thompson, supra). While I do see the six minute delay here as being associated with that systemic problem I do note that all of the officers in this case knew that the defendant was entitled to be told “immediately” of his rights to counsel. In other words, the officers here knew their obligation but they failed to properly execute it. This is not a situation where the officers took significant time to attend to other routine matters at the scene instead of giving rights to counsel like was the case in R. v. Sandhu 2017 ONCJ 226. The six minute delay here is nothing to be praised but it was not a particularly long time. It would appear that the delay here was largely driven by a desire to give training to a new officer. While the desire to give training to a new officer is a reasonable objective it should not have taken precedence over the need to provide the defendant with his rights to counsel as required by section 10(b) of the Charter.
[40] Taking all of the above points into account, I consider that the s. 10(a) and 10(b) breaches taken together to be of low to moderate seriousness.
(ii) The Impact of the Breach on the Charter Protected Interests of the Accused
[41] In my view, the impact on the Charter protected rights of the defendant was low. As concerns the s. 10(b) breach, it is somewhat serious to be under arrest and not be told your rights to counsel for 6 minutes. However, there was no attempt by the police in this case to obtain information from Mr. Maan after he was under arrest but before he received his rights to counsel. This is a relevant factor under the s. 10(b) impact analysis: see Thompson, supra, at para. 100. Further, I note that there was no violation of the implementation component of the right to counsel. Mr. Maan never exercised his right to counsel even though he was given the opportunity to do so.
[42] I have explained above under the seriousness analysis why the breach of section 10 (a) was not serious. Similar reasoning applies as to why there was little impact caused by the breach. As I’ve explained, I am of the view that even if Mr. Maan was told why he was being detained he would very likely have done the walking test anyway. Even if this is incorrect, I am of the view that the other police officers coming on the scene would soon have detected a basis for an arrest for impaired driving. The signs of Mr. Maan’s impairment were many and obvious. In my view, there was little impact of the breach on Mr. Maan’s Charter protected rights.
[43] In summary, I consider that the impact of the breach on Mr. Maan’s Charter rights was low.
(iii) Society’s Interest in Adjudication on the Merits
[44] Under this heading, the Court considers whether the truth seeking function of the Court process would be better served by admission of the evidence or by its exclusion. The reliability of the evidence and the importance of it to the Crown’s case are to be considered. In this case, the breath samples are highly reliable and critical to the Crown’s case on the over 80 charge.
[45] Overall, this factor clearly favours inclusion of the evidence.
(iv) Balancing
[46] The seriousness of the Charter infringing state conduct and its impact on the Charter protected rights of Mr. Maan was of low to moderate seriousness. Society’s interest in adjudication on the merits favours inclusion of the evidence.
[47] Summarizing and balancing all three of the Grant factors, I consider that the long-term interests of justice and the reputation of our justice system would not be damaged by the admission of the breath sample evidence. The same is true of the observations made by the police before and after Mr. Maan’s arrest. No evidence should be excluded in this case pursuant to s. 24(2).
Issue 4 - Has the Crown proved beyond a reasonable doubt that both samples were received from Mr. Maan “directly into an … approved instrument”
[48] This is a transitional case in that the underlying facts occurred prior to the December 18, 2018 amendments to the Code affecting driving charges but the case was prosecuted after the amendments were brought in force. As I understand it, in a transitional case the presumption of identity requirements in section 258(1)(c) continue and must be proved beyond a reasonable doubt by the Crown if that section is relied upon: see R. v. Persaud 2020 ONSC 3413, at para 44. The defence submits and I accept that the Crown must also prove the requirements of s. 320.31 of the Code. This is the presumption of accuracy.
[49] The only issue raised by defence on s. 258(1)(c) provision is the defence’s submission that the Crown has failed to establish that “each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician” as required by s. 258(1)(c)(iii).
[50] The Queen v. Mulroney 2009 ONCA 766 is a leading case in this area. The Court in that case noted that “judicial notice” can’t be taken that all breath samples are received directly into an approved instrument (see para 20). This is not surprising. The doctrine of judicial notice provides that Courts can only take judicial notice of facts where the facts are generally known and accepted in the community: see Paciocco and Stuesser, The Law of Evidence (7 th edition) at p. 506.
[51] The fact that judicial notice cannot to used to prove the requirements of section 258(1)(c)(iii) is of no moment. This limitation does not in any way limit the court’s ability to receive direct evidence on the point or to infer facts from circumstantial evidence. Indeed, the Court in Mulroney noted that circumstantial evidence could be used to prove that the sample was received directly into the approved instrument in that case. In Mulroney, the Court of Appeal restored the decision of the trial judge to the effect that the samples had been received directly into an approved instrument. To support the inference that this had occurred in that case, the Court of Appeal pointed to the evidence in that case that the instrument was designed to receive and analyse breath samples; that it appeared to be working properly and that the respondent blew into a mouthpiece as instructed and that suitable samples were provided.
[52] In the case at bar I am satisfied that the Crown has proved beyond a reasonable doubt that both samples were provided directly into the approved instrument and that the requirements of s. 258(1)(c) have been met. I infer this based on the following evidence:
(i) Officer Feasby is a qualified breath technician;
(ii) Officer Feasby indicated that he used the Intoxilyzer 8000 C, which is an approved instrument;
(iii) Officer Feasby said he conducted three quality assurance checks and all of them were passed;
(iv) Officer Feasby provided a self-test “of my own breath directly into the instrument ” and it provided a zero result which made sense as he had not been drinking (my emphasis);
(v) Officer Feasby was of the view that the instrument was in proper working order;
(vi) Officer Feasby instructed Mr. Maan “to provide… a tight seal around the mouthpiece and you provide a smooth, steady breath directly into the instrument until I tell you to stop” (my emphasis);
(vii) the first attempt to provide a sample by Mr. Maan led to a deficient sample which caused the breath technician to provide further instructions on how to provide a sample; and
(viii) Mr. Maan provided two samples. The first was described as “suitable” and the second sample was described as providing an “accurate value” in good agreement with the first sample.
Issue 5 - Has the Crown proved beyond a reasonable doubt that the system blank test produced a result that was “not more than 10 mg of alcohol in 100 ml of blood” as required by s. 320.31(1)(a) of the Code?
[53] One of the requirements of s. 320.31 is that the breath technician must conduct a system blank test before each sample the result of which is “not more than 10 mg of alcohol in 100 mL of blood”. Defence counsel argues that other than in answering a question from the Court concerning his evidence on a different point, the breath technician Officer Feasby described the result of the system blank check as being “zero” or “zero milligram percent” without reference to milligrams of alcohol in 100 mL of blood as provided for in section 320.31(1)(a). The defence submits, therefore, that the requirements of s. 320.31(1)(a) have not been met.
[54] I disagree for the following reasons. Officer Feasby did explain in response to a question by the court about the alcohol solution (not the system blank test) that when he used “milligram percent” throughout his testimony he meant “milligrams of alcohol in 100 ml of blood”. Defence counsel appeared to argue that because Officer Feasby gave this evidence in response to a question from the Court that it should somehow be disregarded. I disagree. The court can rely on evidence given in response to a question from the Court.
[55] Further, Officer Feasby testified that the system blank checks gave results within the acceptable range. He explained that the system blank check is a test under the Criminal Code and that based on his tests he believed the machine was in proper working order. So even without his explanation to the Court of what he meant by “milligram percent” the Court would have found compliance with the system blank test requirement of section 320.31(1)(a).
[56] For these reasons, I am satisfied that the Crown has proved the system blank test component of section 320.31(1)(a) beyond a reasonable doubt.
Issue 6 - Has the Crown proved beyond a reasonable doubt that the alcohol standard was “certified by an analyst” as required by s. 320.31(1)(a) of the Code?
[57] I gave a mid-trial ruling on February 3, 2022 that the “certificate of an analyst” referred to in s. 320.32 relating to the alcohol standard used in the Intoxilyzer was not admissible because notice had not been given by the Crown under s. 320.32(2). However, I also ruled that the Crown could prove the content of the certificate of analyst through viva voce evidence from the breath technician. In arriving at this conclusion, I relied upon, among other things, R. v. Bahman 2020 ONSC 638 and R. v. Porchetta 2021 ONSC 1084.
[58] It is a requirement of s. 320.31(1)(a) that the alcohol standard used be “certified by an analyst”. The defence submits that while Officer Feasby referred to having reviewed and relied upon the certificate of an analyst he never used the words “certified by an analyst” and that therefore the requirements of s. 320.31(1)(a) have not been satisfied. I disagree with this conclusion and will explain why.
[59] Officer Feasby testified to several different points concerning the alcohol solution used. First, he said that the “solution is certified of a known concentration” (page 112 of the January 28, 2022 transcript). He said that he reviewed the certificate of analyst for the alcohol solution and that it told him that the “solution had been checked by an analyst” who he knew to be a toxicologist at the Centre for Forensic Sciences. He said that the toxicologist had indicated that the solution was “suitable” for use with the Intoxilyzer and that she had “tested the solution and it is as it says on the bottle, the proper concentrations of alcohol” (page 122 of the January 28, 2022 transcript). Officer Feasby also said that he relied on information on the bottle which he said was in the breath room, a point I accept. He said that he was familiar with the certificate but that he did not review it until after the tests which the defence also argued was not in compliance with section 320.31(1)(a).
[60] Accordingly, Officer Feasby did use the word “certified” in relation to the alcohol standard as explained above and he also referred to the certificate of an analyst. The word “certificate” means “a document containing a certified statement” (see the Merriam Webster online dictionary). While it is true that Officer Feasby did not use the precise words “certified by an analyst” I find and accept that that was the substance of his evidence. Further, in my view it does not matter that he did not look at the certificate before the test. He indicated that he was familiar with that lot of alcohol solution prior to the test. In any event, it is not a requirement that the officer look at the certificate before the test is done. All that is required is that the solution used was in fact “certified by analyst”. For the reasons set out above, I am satisfied that this requirement was met in this case.
[61] Accordingly, in my view the Crown has proved the requirements of section 320.31(1) beyond a reasonable doubt.
Issue 7 - Has the Crown proved the impaired charge beyond a reasonable doubt?
[62] The defence concedes that if it did not succeed on the Charter argument such that the evidence of the observations of impairment seen by the police officers, including Officers Carniello and Feasby, was not excluded, then it is acknowledged by the defence that the impaired charge would be proved beyond a reasonable doubt by the evidence of the officers and the civilian witness Mr. Rizwan. This is a reasonable concession and I accept it. I have not excluded any evidence for the reasons explained above. There will be a finding of guilt on the impaired charge under s. 253(1)(a) of the Criminal Code.
Issue 8 - Has the Crown proved the over 80 charge beyond a reasonable doubt?
[63] The breath sample evidence of two truncated readings of 160 mg of alcohol in 100 ml of blood has not been excluded. The provisions of s. 258(1)(c) have been proved for the reasons explained and therefore the Crown can rely on the presumption of identity. The provisions of s. 320.31(1) have also been proved and therefore the crown can rely on the presumption of accuracy. Accordingly, there will be a finding of guilt on the over 80 charge contrary to s. 253(1)(b) of the Criminal Code.
Summary
[64] For the reasons set out above, there will be a conviction on both the impaired and over 80 charges.
Released: April 14, 2022 Justice Paul F. Monahan