DATE: June 24, 2022 COURT FILE No.: 0611-998-21-920 CCC 06-11-998-21-242 POA ONTARIO COURT OF JUSTICE Central West Region
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
evan becerra-taipe
Heard Before Mr. Justice Richard H.K. Schwarzl at Orangeville on June 2, 2022 Reasons released on June 24, 2022
Counsel: Ms. Barbara Bujnowski ........................................................................................ for the Crown Mr. Daniel Marcovitch..................................................................................... for the Defendant
SCHWARZL, J.:
REASONS FOR JUDGMENT
1.0: INTRODUCTION
[1] The Defendant, Mr. Evan Becerra-Taipe, stands trial on two offences: first, a provincial offence charge of careless driving, contrary to section 130 of the Highway Traffic Act of Ontario and second, a criminal charge of driving with excess blood alcohol concentration, contrary to section 320.14(1)(b) of the Criminal Code of Canada. On consent of the parties, the trials were heard concurrently. Three witnesses gave evidence for the prosecution. The defence did not lead any evidence.
[2] With respect to the charge of careless driving the only issue is whether the evidence proves the offence beyond a reasonable doubt. As for the criminal charge, two issues arose. The first issue is whether the investigating officer made a valid screening demand and if not whether the breath tests were unconstitutional which could lead to the suppression of the results. The second issue is whether the Certificate of a Qualified Breath Technician (the “Certificate”) was admissible.
2.0: FINDINGS OF FACT REGARDING BOTH OFFENCES
[3] On June 26, 2021, Mr. Ashik Rahman was driving to work northbound on Chinguacousy Road when he saw the defendant driving in front of him. The defendant came to a stop at a red light at the intersection of Mayfield Road and, after signalling, made a sudden right turn onto eastbound Mayfield. This sudden action caught the attention of Mr. Rahman, who followed because he was going in the same direction in any case. Mr. Rahman noticed that while going through a construction zone, the defendant had a hard time staying within his lane and grazed a pylon. At this point, Mr. Rahman was concerned the driver might be intoxicated, causing him to call 911. A short distance later, Mr. Rahman watched the defendant’s car bump into a vehicle in front of him at a red light on Mayfield at Hurontario Street. He saw the two drivers talking as he went past and proceeded to his destination.
[4] Mr. Lakhbir Sidhu was driving to work eastbound on Mayfield Road. While waiting at a red light on Hurontario Street the defendant’s car struck his vehicle from behind. He immediately got out, examined both cars, and took pictures. The defendant, whose voice was slow, demanded to know why Mr. Sidhu was there and where he was going. The defendant refused to provide insurance information because he said there was no damage. Mr. Sidhu agreed there was very little damage and decided to carry on his way. As he continued eastbound on Mayfield, he noticed the defendant following him. When Mr. Sidhu stopped at a red light at the intersection with Kennedy Road, the defendant struck Mr. Sidhu’s car from behind for a second time, but harder than the first collision. The impact caused a scratch on Mr. Sidhu’s bumper. Mr. Sidhu got out and tried to talk with the defendant who sat in his car. The defendant was aggressive and shouting when Mr. Sidhu took photos of the cars with his cellphone. The defendant tried, but failed, to take Mr. Sidhu’s phone. The defendant blamed Mr. Sidhu for the collision and told him to leave. Mr. Sidhu described the defendant’s behaviour as “different” given his aggressive and accusatory attitude. Mr. Sidhu never got close enough to the defendant to notice the smell of alcohol and he did not notice any slurring of words. While the defendant was shouting at Mr. Sidhu, a police officer arrived at the scene.
[5] P.C. Ka was on patrol when he received information about the first rear-end collision at Hurontario Street. While enroute he saw the parties stopped at Kennedy Road. He stopped behind the defendant’s vehicle as the cars were in a live lane and posing a danger to morning rush hour traffic. P.C. Ka then ran the defendant’s licence plate on his computer for information. While doing that, he saw the defendant get out of his car. The defendant was shoeless and took two unsteady steps. The defendant walked to the front of his car, appeared to examine the point of impact, and then returned to his seat all without difficulty.
[6] After finishing his records checks, P.C. Ka walked to the area of impact. On his way, he passed the defendant who was in the driver’s seat with the engine running. The defendant had his ownership, licence, and insurance in hand as the officer paused to speak with him. When the officer asked what happened, the defendant replied, “I barely hit him.” When speaking to the defendant, P.C. Ka observed that his speech was slightly slurred. He also noticed a slight delay in his cadence while speaking, similar to what Mr. Sidhu had observed. The officer did not notice the odour of alcohol.
[7] When P.C. Ka asked the defendant where his shoes were, the defendant gazed around including looking at his feet before finding his shoes on the floor behind the driver’s seat. All the while, the defendant kept repeating, “I barely touched him, I barely touched him.” When asked about drinking alcohol, the defendant denied consuming any. Despite both the denial and not smelling any alcohol, P.C. Ka found the behaviour of the defendant odd. P.C. Ka then spoke to Mr. Sidhu and learned that the defendant had rear-ended his car twice, not just at Kennedy Road, but also earlier at Hurontario Street.
[8] At 8:53 a.m., P.C. Ka suspected that the defendant was driving with alcohol in his body based on the totality of the following circumstances: the defendant was driving and caused two collisions in a short time, he was shoeless, he took two unsteady steps, he seemed unsure where he shoes were, he kept repeating himself, his speech was slightly slurred, and he had an odd cadence while talking. P.C. Ka was not sure the defendant was “fully impaired”, but he believed that there were signs that alcohol might be involved. The officer wanted to use the approved screening device to possibly rule out alcohol as a factor. As a result, P.C. made a screening demand on the defendant and escorted him to his police car to administer the test.
[9] On the way to the police car, P.C. Ka observed that the defendant’s gait was not affected by the absence of shoes. He noticed the defendant’s pants were soaking wet and asked the defendant what happened, who replied that he had gone into a pool. When the officer asked him what that meant, the defendant’s response was muffled. Prior to the screening test, the defendant appeared to have difficulty in handling the mouthpiece package.
[10] At 8:58 a.m., the defendant failed the screening test and was arrested for the criminal offence of driving with excess blood alcohol. As the officer placed the defendant into his car, the defendant kept repeating, “I was just on my way to work.” P.C. Ka then gave the defendant a caution, rights to counsel, and a breath demand. Shortly thereafter, he drove the defendant to the police station where breath tests were conducted by a qualified breath technician.
3.0: THE PROVINCIAL DRIVING CHARGE
[11] Section 130(1) of the Ontario Highway Traffic Act states,
Every person is guilty of the offence of driving carelessly who drives a vehicle or streetcar on a highway without due care and attention or without reasonable consideration for other persons using the highway.
[12] A finding of guilt will result where the prosecution has proven beyond a reasonable doubt that the voluntary acts of the defendant were such that but for carelessness the collision would not likely have occurred: R. v. Beauchamp, [1953] O.R. 422 (C.A.); R. v. McIver, [1965] 4 C.C.C. 182 (Ont. C.A.), aff’d , [1966] S.C.R. 254 (S.C.C.).
[13] In the case at bar, there were two rear-end collisions of the same car that were caused by the defendant on Mayfield Road within a short time of each other. The roads were in an adequate state, and atmospheric conditions were good. There were no obstacles in the road and only the defendant appears to have been having difficulties driving at the time. Prior to the first collision, he was observed by Mr. Rahman to have trouble navigating his way and had grazed a construction pylon. He was aggressive with Mr. Sidhu following each collision and somehow blamed the victim for being struck at two different red lights.
[14] The only rational conclusion to be reached on the totality of the evidence, even excluding the evidence of alcohol, is that the collisions were caused by the defendant driving without due care and attention. The prosecution has proven the provincial offence beyond a reasonable doubt.
4.0: THE CRIMINAL DRIVING CHARGE – THE SCREENING TEST DEMAND
4.1: Positions of the Parties
[15] The defendant submits that while P.C. Ka may have subjectively believed he had grounds to suspect that the defendant was driving with alcohol in his system, his suspicion was not objectively reasonable in the circumstances, especially since there was no direct evidence of alcohol consumption. The defence submits that the screening demand was invalid and the breath tests at the station were therefore a violation of the defendant’s right to be free from unreasonable searches and seizures as guaranteed by section 8 of the Canadian Charter of Rights and Freedoms (the “Charter”). As a remedy, he seeks to exclude the breath test results.
[16] The prosecution submits that when viewed objectively, the officer’s suspicion was reasonable and that his screening demand was therefore valid thus negating any alleged violation of the defendant’s rights when the breath tests were taken.
4.2: Applicable Legal Principles
[17] The relevant portions of section 320.27(1)(b) of the Criminal Code of Canada states,
320.27 (1) If a peace officer has reasonable grounds to suspect that a person has alcohol … in their body and that the person has, within the preceding three hours, operated a conveyance, the peace officer may, by demand, require the person to comply with the requirements of … paragraph… (b) …:
(b) to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved screening device and to accompany the peace officer for that purpose;
[18] The operative phrase in this case is “reasonable grounds to suspect that a person has alcohol in their body.”
[19] “Reasonable suspicion” means an objectively reasonable expectation by the officer that the subject is possibly engaged in some criminal activity: R. v. Kang-Brown, 2008 SCC 18, [2008] S.C.J. No. 18 (S.C.C.). Reasonable suspicion must be assessed in view of the totality of the circumstances. The reasonable suspicion standard addresses the possibility of uncovering criminality, not a probability of doing so. Exculpatory, neutral, or equivocal information cannot be disregarded when assessing all the circumstances. The inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience: R. v. Williams, 2010 ONSC 1698 (S.C.J.); R. v. Wang, 2010 ONCA 435, [2010] O.J. No. 2490 (C.A.); R. v. Chehil, 2013 SCC 49, [2013] S.C.J. No. 49 (S.C.C.); R. v. MacKenzie, 2013 SCC 50, [2013] S.C.J. No. 50 (S.C.C.).
[20] The reasonableness of an officer’s suspicion upon which to justify a screening demand may be established merely from either or both the smell of alcohol alone or the admission of drinking: R. v. Lindsay, [1999] O.J. No. 870 (C.A.); R. v. Schouten, 2016 ONCA 872. However, neither the smell of alcohol nor an admission of drinking, are required for the requisite suspicion to be reasonable: R. v. Zoravkocic, [1998] O.J. No. 2668 (C.A.); R. v. Hryniewicz, [2000] O.J. No. 436 (Ont. C.A.); R. v. Singh, [2006] O.J. No. 5133 (S.C.J.) at paragraphs 12 to 16.
4.3: Principles Applied
[21] The following circumstances known to P.C. Ka informed his suspicion that the defendant might have consumed alcohol and driven a car:
(a) the defendant caused two unexplained rear-end collisions in a short time during the morning rush hour, (b) he was shoeless, (c) he took two unsteady steps, (d) the way he looked around when asked where his shoes were, (e) he kept repeating himself, (f) his speech had a slight slur, and (g) his speech had an odd cadence.
[22] Looking at this constellation of circumstances objectively, I find that it was reasonable for P.C. Ka to believe that alcohol might have been involved despite the driver’s denial of drinking and the absence of the smell of alcohol. Indeed, Mr. Rahman had far less to go on but he, too, felt that the defendant might be intoxicated before the first collision happened. The fact that each individual circumstance might be explained by something other than alcohol consumption does not undermine the reasonableness of the officer’s suspicion: R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453 (C.A.) at para 54 to 56.
[23] The defendant’s muffled response to the officer on the way to the cruiser after the demand was made and his difficulties with handling the mouthpiece prior to the test only served to reinforce the reasonableness of the notion that the defendant could have been drinking and driving prior to administering the screening test.
[24] Having found that the officer’s suspicion that the defendant was driving after consuming alcohol was reasonable, I conclude that the screening demand was valid. Consequently, the breath tests were taken lawfully and not in violation of the defendant’s constitutional rights. His Charter application is therefore dismissed.
5.0: THE CRIMINAL DRIVING CHARGE – THE BREATH CERTIFICATE
5.1: Relevant Evidence on the Certificate
[25] P.C. Ka testified that after the qualified breath technician had completed the breath testing procedures, she gave him a Certificate of the test results. Crown counsel presented the officer with a document identified at trial as Exhibit A, which the officer described as a true copy of the Certificate and Notice of Intention to Produce he received.
[26] On examining the exhibit, I find that the Certificate is complete and regular on its face. Under the Notice heading, the following relevant information is found:
(a) It states, “You are hereby notified that it is intended to produce this Certificate at your trial”, (b) The defendant signed his name next to the statement, “I acknowledge receipt of a copy of this Certificate.”, and (c) P.C. Ka endorsed the document that he served it on the defendant at 1:50 p.m. on June 26, 2021.
[27] P.C. Ka testified that Exhibit A is a photocopy of the original document. The officer said he had possession of the original at the office but did not bring it to court. P.C. Ka stated that Exhibit A is a true copy of what was originally served on the defendant.
[28] In cross-examination, P.C. Ka agreed that he made no notes about serving the Certificate and had no present memory of giving it to the defendant. However, he was sure he served a copy on the defendant because of the information and signatures under the Notice heading.
[29] A relevant portion of the transcript of the cross-examination of P.C. Ka on this topic reads as follows:
Q: So you testified that you served the accused with the Certificate of Qualified Technician, is that right?
A: Yes, I gave it to him
Q: And did you serve an original on him or did you serve a copy?
A: It comes, it comes in two, two sets. I’m not exactly sure if both are originals. I’m not a qualified technician. I’m not exactly sure of what their specific process is, but the document that I was given would’ve been an original that he [sic] would’ve signed and filled, and I would’ve given it to him, and I would’ve kept the same. He would’ve signed mine as well and….
Q: Okay, but copies would’ve been made, is that fair to say?
A: No, not necessarily because they get uploaded on the RMS database. The original gets scanned and then uploaded and then the original stays with the officer in charge.
Q: Okay. So you did not – all the documents that were printed here today or on the system, you didn’t produce those documents, right?
A: I do not have them on me today, no.
Q: But you’re not the one who filled them in or did any of that, is more what I am asking?
A: Oh, sorry. So the top part of it would’ve been filled by the technician themselves [sic] and then I just, upon service just sign at the bottom and then have the accused sign. That, that would be it.
Q: Okay. So again, do you remember what you served on him? Was it a copy or an original?
A: Again, I’m not exactly sure if it’s one original and then they make a copy of it and we, we get those signed, both of them, or if it’s two filled documents that one stays with the accused signed, and – by myself and him – and the other one is with me also. So I’m not exactly sure if both are copies or if one was the original and the other copied off of that.
Q: Okay. So you don’t know it was served to him exactly?
A: No, I know that it was a document that was an original for me myself that I gave him. Is that clear?
A: So it could be, what I’m saying is that it could be that the technician fills out two documents and hands me both. I sign the one and he signs it, and I give it to him, and he signs the other, and I sign it as well, and it stays with us. That is what, that’s what happened.
Q: Well, you’re not positive what happened here, though? You’re saying that could’ve been what happened?
A: No, I am positive that what I signed, and he signed would’ve been an original. I’m not sure if the technician themselves [sic] would’ve filled out this portion, the top portion and then made a copy of it and then handed me two, or if he [sic] would’ve, if it would’ve been two filled copies, the originals to sign at the bottom.
Q: Okay, so when you served that document on the accused, did you sort of compare it to another, maybe an original? I’m not, you don’t see to know exactly what was served, but did you compare two documents to make sure they were…
A: Yes, yes.
Q: You compared two documents line by line to make sure they were the exact same?
A: They are. I mean, a comparison has never been required before. It’s always the same information on both.
Q: Well, I’m going to suggest to you that the qualified technician handed you a document. You simply just served it on the accused, is that fair to say? That seems like the procedure.
A: Yeah, and I served it on him, yes.
Q: Okay. Now, you didn’t have any part in creating the document?
A: No, I did not.
Q: If there were copies made you certainly did not make them?
A: No.
Q: You don’t know how they would’ve been made if they were made?
A: No.
Q: Okay. So, based on all that, you cannot say with certainty that the document before the court or the one served on the accused is an absolutely true copy of the original, is that fair to say?
A: I believe it to be an absolute true copy of the original.
Q: But why, sir? You said you never compare copy to an original, correct?
A: Correct.
Q: You never made a copy?
A: Correct.
Q: What is before the court today, we’ve heard is a copy, right?
A: Correct.
Q: So how could you know that it’s a true copy if you didn’t see any of this happening?
A: I do not, I guess.
Q: Okay. I’m going to suggest you cannot say that, but you’re, I guess, you’re trusting the officer who handed it to you?
A: Yes.
5.2: Positions of the Parties
[30] The defence submits that while a photocopy of an original document may be received as the best evidence available, there is unreliable evidence in this case that Exhibit A is a true copy of the original. They further submit that there is insufficient evidence that the defendant was served with a true copy of the Certificate. In support of his position, the defendant relies on R. v. Singh, [2021] O.J. No 6727 (OCJ). In that case, the court declined to admit the photocopy of the Certificate because there was no evidence that the copy was an accurate copy of the original.
[31] The Crown argues that on the totality of the evidence, that Exhibit A is admissible. They further submit that they have established that the defendant was served with a true copy of the Certificate.
5.3: Applicable Legal Principles
[32] The applicable portion of section 320.32 of the Criminal Code states that:
320.32 (1) A certificate of [a] … qualified technician made under this Part is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person who signed the certificate.
(2) No certificate shall be received in evidence unless the party intending to produce it has, before the trial, given to the other party reasonable notice of their intention to produce it and a copy of the certificate.
[33] The prosecution is required to prove on balance of probabilities that prior to trial the defendant was given both notice of intention to produce the Certificate and a copy of it: R. v. MacKinnon, [2003] O.J. No. 3896 (C.A.).
[34] Section 320.32 does not require that the original Certificate be filed. Where the original is not filed, the prosecution is required to prove that the document tendered is probably an accurate and complete copy of the original: R. v. Delorme, [2021] O.J. No. 6384 (OCJ) at para. 44 and 45. A copy may be admissible in place of the original provided the copy is an accurate and genuine reproduction of the original: R. v. Singh, supra, at para. 79 and 80.
[35] The use of a photocopier does not affect the authenticity of document being tendered in place of the original: R. v. Alexandre, [2022] O.J. No. 1449 (OCJ) at para 11 and 12; R v Hamzehi, 2015 ONCJ 95, [2015] OJ No 907 (OCJ) at para 12 to 14.
[36] Where a purported copy is adduced, the court may examine the document to decide whether it is the result of an exact copy replication process such as photocopying, Xeroxing, or carbon-paper: R. v. Munshi, [2002] O.J. No. 4281 (SCJ). Where there is evidence that an exact copy replication of the original Certificate has been given to the defendant, there is no need for the officer to have first compared the copy to the original: R. v. Munshi, supra; R. v. Naidu, [2004] O.J. No. 2471 (SCJ); R. v. MacKinnon, supra, at par 3 and 4.; R. v. Chung, [2009] O.J. No. 1546 (SCJ) at para 19.
[37] Evidence that a copy of the Certificate has been served is prima facie evidence that the copy was an accurate and true copy: R. v. MacMillan, [1980] N.S.J. No. 594 (C.A.) at para 8; R. v. Chung, supra, at para 19.
[38] Service of a true copy of the Certificate may be established where the defendant has signed their name and acknowledged receipt of a copy of it: R. v. Sayewell, [1997] O.J. No. 1656 (SCJ) at para 12; R. v. El Boury, [2016] O.J. No. 4063 (SCJ) at para 8.
5.4: Principles Applied
[39] The evidence of P.C. Ka about the Certificate in cross-examination was sometimes meandering and convoluted. Having reviewed his testimony several times, I find that his only confusion was whether the breath technician gave him two original Certificates or one original Certificate plus a photocopy. He was certain that the breath technician had filled in everything above the Notice section either twice by hand or once by hand and then photocopied it. In cross examination the officer said he did not compare what he received because there was no need to since they contained the same information. P.C. Ka agreed with the suggestion that since he did not make the copy, he could not be sure it was a true copy of the original.
[40] Upon examination of Exhibit A, it is clear to me that the document is an “exact copy replication” of the original Certificate by means of a photocopy. This is consistent with P.C. Ka’s evidence that the exhibit is a photocopy of the original Certificate. Being a photocopy, I accept the document is an authentic and accurate reproduction of the original. Since P.C. Ka did not make any copies but received the papers directly from the breath technician, it is more likely than not that the breath technician made and gave him at least one original and a photocopy. I therefore find that Exhibit A is true copy of the original Certificate.
[41] Given this finding, it is irrelevant that P.C. Ka said that because he did not make the copy, he could not be sure it was a true copy. He did not have to make a copy and was entitled, as he did, to rely on the technician making one. Furthermore, given his evidence of what the technician handed him, there was no legal duty on P.C. Ka to compare them. Appellate court precedents, modern methods of document creation and reproduction, as well as common sense demonstrate that P.C. Ka was probably given at least one true copy of the Certificate for service on the defendant.
[42] In the Singh case, supra, relied upon by the defendant, the learned trial judge rejected the “apparent photocopy” of the Certificate because it was never authenticated in that there was no evidence that it was compared to the original, nor was the judge sure that a photocopier was used to reproduce the original. Considering the jurisprudence cited above and my findings in this case, I am satisfied that that the Singh decision does not assist the defendant in the matter before me.
[43] Given the foregoing plus the evidence of P.C. Ka that he gave a copy to the defendant as well as the defendant’s signature acknowledging he received a copy of the Certificate, I am satisfied on the applicable legal standard that the prosecution has complied with section 320.32 of the Criminal Code. Exhibit A will therefore be admitted into evidence and marked as Exhibit 1. The Certificate proves beyond a reasonable doubt that the blood alcohol concentration of the Defendant was 180 milligrams of alcohol per one hundred milliliters of blood.
[44] Given (a) that the defendant was subject to a lawful screening demand, and (b) the Certificate of the Qualified Technician is admissible, I find that the prosecution has proven its case against the defendant on the criminal charge beyond a reasonable doubt.
6.0: CONCLUSION
[45] For these reasons, guilty verdicts will be registered for both the provincial and criminal driving offences.
Richard H.K. Schwarzl, Justice of the Ontario Court of Justice