Ontario Court of Justice

Date: 2022 08 09 Court File No.: Scarborough 20-35004154

Between: Her Majesty the Queen

— And —

Olga Ajgirevitch

Before: Justice R. Wright

Heard on: June 22 and 23, 2022 Reasons for Judgment released on: August 9, 2022

Counsel: Katrina Sole Kahler, for the Crown Jonah Parkin, for the defendant Olga Ajgirevitch

R. WRIGHT J.:

[1] On August 21, 2020, Olga Ajgirevitch was investigated while sitting in the driver’s seat of her motor vehicle. She provided a sample of her breath into an Approved Screening Device (“ASD”), after which she was arrested and transported to 41 Division where breath samples were taken with an Approved Instrument (“AI”). She is charged with having a blood alcohol concentration (“BAC”) that is equal to or exceeds 80 mgs of alcohol in 100 mls of blood within two hours of ceasing to operate a conveyance, pursuant to s. 320.14(1) (b) of the Criminal Code.

[2] Ms. Ajgirevitch brought an application to exclude the evidence of the samples of her breath which were seized on August 21, 2020 on the basis of breaches of her Charter-protected rights pursuant to sections 8, 9 and 10(b) of the Charter. In the event that her samples of breath are admitted into evidence, it is her position that the Crown has not proven that the samples of her breath meet the necessary evidentiary requirements of ss. 320.31 or 320.32 and that the offence is therefore not proven beyond a reasonable doubt.

[3] The Crown submits that there are no breaches of Ms. Ajgirevitch's Charter-rights; in the alternative, that any breaches found should not result in the exclusion of her breath samples. Finally, the Crown submits that it has been proven beyond a reasonable doubt that Ms. Ajgirevitch was in care or control of a conveyance and that her BAC within two hours of ceasing to be in care or control was in excess of 80 mgs of alcohol in 100 mls of blood, and she should be found guilty as charged.

Evidence of PC Jean Bresse, Arresting Officer

[4] PC Bresse was working in a uniform capacity on August 21, 2020, and was operating a police cruiser that was equipped with an in-car camera. At approximately 2:00 PM he was dispatched to a call for service categorized as “impaired driver”.

[5] The information he received was that a 2004 Toyota Corolla was the involved vehicle. The driver might have been released from the hospital the night before and had been in hospital due to alcohol dependency. A second caller provided information that the driver had been drinking and taking Valium and Lorazepam. He was directed to a parking lot at 853 Milner Avenue, Toronto.

[6] PC Bresse attended 853 Milner Ave which is a commercial plaza with several restaurants and a sizable parking lot. He observed a dark green Toyota Corolla parked at the north end of the lot by itself. He made eye contact with the driver, who made a slow turn of her head toward him and just stared at him. He asked her how she was. He was concerned at this point about the possibility she was intoxicated.

[7] There was no one else in the vehicle. The engine was off. The driver-side window was all the way down. The keys were in the ignition. He requested that she provide him the keys, which she did.

[8] He observed the driver looked disheveled. She was sluggish in her interactions with him. There was some food on her clothes and possibly ketchup on her arms. He told her that he was concerned she might be intoxicated. He asked if she had been drinking. Her first response was that she had not been drinking, but then she added that she did drink the night prior. Her speech was slurred and her face was flushed.

[9] During this interaction he made efforts to identify the driver. She showed him a driver’s license image on her cell phone identifying her as Olga Ajgirevitch. He identified the accused before the court as the driver.

[10] PC Bresse formed a suspicion that Ms. Ajgirevitch was intoxicated and behind the wheel and as a result he made a demand for a breath sample. He read the demand at 2:15 PM and requested for an alcotest to be brought to his location. He read the demand from the back of his memobook. Initially in his testimony PC Bresse indicated he had read an ASD demand. However, when he was shown the in-car camera footage from his scout car, he corrected his evidence to indicated that he had accidentally read the wording for an AI demand.

[11] The in-car camera footage from PC Bresse’s cruiser became Exhibit 4. PC Bresse can be heard making the demand at 2:15 PM, in the wording of an AI demand. Ms. Ajgirevitch interrupts during this portion indicating that she wants to know who has called the police. PC Bresse testified that he was attempting to make an ASD demand and that this was not an intentional reading of the AI-demand wording.

[12] In relation to his grounds for an ASD demand, he said it was not a chance encounter, it was a call for service that someone had already indicated a person might be impaired. His initial interaction with the driver, in which her reactions were sluggish, and that she looked disheveled with some type of food leftovers or food staining, were factors he considered. He added that in the call for service there was information that the person had been in the hospital the night prior for alcohol consumption. He also included that he had asked if she was drinking, which she initially denied but then changed her answer to say she'd had some alcohol the night before.

[13] At 2:15 PM he requested an ASD be brought to his location. On the in-car camera he can be heard at 2:16 PM to caution that he is investigating Ms. Ajgirevitch for an over 80. At 2:18 PM he can be heard to demand her driver’s license. At 2:20 PM he can be heard to ask questions about when she had her last drink. He then asks some questions to confirm her identity, address and phone number. At 2:23 PM the ASD arrives on scene. At 2:25 PM the ASD is turned over to PC Bresse.

[14] A second in-car camera video from another responding cruiser became Exhibit 5. This video shows PC Bresse receiving the ASD. PC Bresse can be seen examining the device while the other officers are engaged in conversation. PC Bresse testified that during this portion of the video he satisfied himself that the ASD was in proper working order.

[15] At 2:26 PM Ms. Ajgirevitch is placed in the rear of his scout car. Starting at 2:26 PM and finishing at 2:27 PM PC Bresse administers a self test on the ASD, also demonstrating how it is used. Just before 2:30 PM the test is completed and the result is a fail. At 2:30 PM Ms. Ajgirevitch is placed under arrest. PC Bresse can then be heard on the in-car camera to read the AI demand a second time.

[16] Shortly after 2:31 PM PC Bresse continues discussions with Ms. Ajgirevitch. He advises she is being placed under arrest for care and control of a motor vehicle and she continues to ask who called police. He provides rights to counsel which she continues to interrupt wanting to know who called police. When he indicates that she has a right to a lawyer she says, “I do not care about what you are saying.” PC Bresse advises her of legal aid and asks if she understands, and she responds “yes, I do” and then goes on to ask about her car and cancelling her clients.

[17] In response to the AI demand, when asked “do you understand” she responds “no, I don't. I don't understand anything.” This video ends at 2:37 PM.

[18] Ms. Ajgirevitch was transported to 41 Division for breath samples. She was booked into the station at 3:45 PM. At 4:15 PM PC Bresse confirmed that she wanted to speak to duty counsel and arrangements were made. She was connected with duty counsel at 4:22 PM and the call was completed at 4:30 PM. Ms. Ajgirevitch was then turned over to the qualified breath technician to provide her first sample of breath.

[19] In cross-examination, PC Bresse agreed that he had acknowledged the call for service at 2:03 PM. He acknowledged that he had the information from two civilian calls to 911 (which had indicated an impaired driver).

[20] It was suggested to him that if he'd arrived and the driver had attempt to drive away, he would have stopped her; he agreed he would have made every attempt to stop her from driving away. It was suggested to him that her admission of alcohol consumption occurred after he had made his demand (and could therefore not have been part of his grounds), and he acknowledged that was possible.

[21] When asked why he had taken the driver's keys away very shortly after beginning his interaction with her, he indicated that he had concerns she was not fit for driving; despite that she was initially cooperative that could change and he had to ensure public safety and the safety of the driver, so he took the keys to remove the possibility that she could drive away.

[22] The implicit suggestion in this line of questioning was that PC Bresse had formed his grounds earlier than he indicated, although I note that that direct suggestion was not put to him.

[23] When asked about his understanding of the timing requirements for giving rights to counsel to a detainee, he answered “as soon as practicable.” PC Bresse also acknowledged that he was aware at the time he was dealing with her that she had a cellular telephone with her.

Evidence of PC Ancile Mendez, Qualified Breath Technician

[24] PC Mendez testified that he was a qualified breath technician who had worked with traffic services for seven years. He had been designated as a qualified breath technician July 6, 2016. He had been a police officer for 17 years.

[25] On August 21, 2020, he was working the afternoon shift and was called out to be the qualified breath technician on this case. When he arrived at 41 division (where the AI was located), he completed a quality assurance check to ensure that the instrument was in proper working order. This check was finished at 4:07 PM. The instrument he was using was an Intoxilyzer 8000C, and he was fully trained on that AI. He identified the print-out of the test record of the tests he performed (Exhibit 8A). The certificate of analyst became Exhibit 8C, and PC Mendez testified that the alcohol standard referred to in Exhibit 8C was the alcohol standard used with the AI on that day.

[26] He received Ms. Ajgirevitch from PC Bresse at 4:37 PM. He conducted a self-test with the AI. He received a zero reading. The instrument completed diagnostic check, air blanks and a calibration check, and he had no concerns with the AI’s functioning. He took the first sample from Ms. Ajgirevitch at 4:41 PM. The result of the first sample of breath was 201 milligrams of alcohol in 100 milliliters of blood.

[27] Ms. Ajgirevitch was returned to him at 5:00 PM. He prepared the instrument for the second test, and the AI once again cycled through the diagnostic, air blank and calibration checks. His evidence was there were no issues with the operation of the AI. He took a second sample of breath from Ms. Ajgirevitch at 5:10 PM, the result of this being 185 milligrams of alcohol in 100 milliliters of blood.

[28] PC Mendez testified that during the provision of the second sample, Ms. Ajgirevitch made multiple attempts to blow but wasn't blowing hard enough. The AI timed out. PC Mendez testified that the instrument gives you five minutes to produce a sample and if a sample is not provided within that time, the AI will time out, reset, and go through the quality check again. He was asked if the instrument was still functioning, and he indicated yes. This process was recorded on video which became Exhibit 11. The breath room video depicts Ms. Ajgirevitch’s attempts to blow into the AI and eventual suitable sample.

[29] PC Mendez testified that the two tests were more than 15 minutes apart. The first sample rounded down is 200 milligrams of alcohol in 100 milliliters of blood, and the second sample 180 milligrams of alcohol in 100 milliliters of blood.

[30] PC Mendez testified that he completed a certificate of analysis of a qualified technician. He identified the document. The document was not signed, and he indicated it had been a chaotic afternoon and he missed the signature. He served the certificate on Ms. Ajgirevitch and she refused to sign it but a copy was turned over to the arresting officer to give to her. The certificate of qualified technician was admitted into evidence (Exhibit 9).

[31] In cross-examination, PC Mendez acknowledged he did not notice anything out of the ordinary with Ms. Ajgirevitch’s clothing or appearance.

[32] With respect to the operation of the AI, it was suggested to him that a diagnostic test needs to be done before a sample is taken and he agreed. It was then suggested that if the diagnostic test is not done before the sample, he could not be 100 percent sure of the sample. His response was that the AI would not allow him to take a sample without the diagnostic check being done. It was further suggested to him that the record of checks is important, and that if there was not a record of checks it would cause him concern. He answered that he wouldn't have a concern because the instrument would not allow him to proceed without those checks. He also confirmed that the target value of the calibration check is 100 mgs (and that the 10 percent variation that must be met would require that the calibration check fall between 90 and 110 mgs).

[33] In re-examination, he was asked about the testing procedures that appear after the deficient sample. He testified that the deficient sample didn't impact functionality. It is a timing issue. Once you start it over again it continues in the same test in the same testing procedure with the checks having been completed.

[34] For ease of understanding, I include a copy of this section of the test record, Exhibit 8A, here:

Positions of the Parties

[35] The Crown submits that the evidence of PCs Bresse and Mendez should be accepted, and that it proves beyond a reasonable doubt that Ms. Ajgirevitch was in care or control of a motor vehicle, that her breath was seized pursuant to lawful demand, that there were no Charter violations, and that the samples conclusively prove her BAC at the time when she was found in care or control were over the legal limit.

[36] The Defence submits that there are issues with the evidence of PC Bresse that should cause me to reject portions of it. In particular, that I should not accept his evidence as to the time he formed grounds for the ASD demand (that it was several minutes earlier), and that I should doubt his evidence as to forming those grounds during his interaction with Ms. Ajgirevitch because PC Mendez’s evidence contradicted some PC Bresse’s grounds (Ms. Ajgirevitch did not appear disheveled to him, he did not note food or food staining on her clothes or person, and she wasn’t particularly sluggish or slurring). If PC Bresse formed his grounds earlier and then delayed making the ASD demand, this would amount to an arbitrary detention. It would also increase the period of time that Ms. Ajgirevitch was detained before the ASD arrived. The Defence argues that PC Bresse had sufficient time at the roadside after detaining Ms. Ajgirevitch to provide her with rights to counsel and to facilitate contact with counsel. The Defence argues that his failure to do so is a serious breach of s. 10(b) and that it should result in exclusion of the samples of breath. Finally, the Defence argues that the evidence of the samples is flawed, and that the evidence of the test record and PC Mendez surrounding the insufficient sample/timing out of the AI should cause sufficient doubt about the proper operation of the AI that I should not accept the readings.

Analysis and Findings of Fact

[37] The burden of proof rests upon the Crown to satisfy me beyond a reasonable doubt that each of the essential elements of the offences alleged has been proven (and that the seizure of Ms. Ajgirevitch’s breath was compliant with s. 8 of the Charter on the Charter Application). On the Charter Application, the burden rests upon Ms. Ajgirevitch to satisfy me that it is more likely than not that her s. 9 and 10(b) rights were infringed.

[38] In assessing witnesses’ testimony, I must consider the credibility and reliability of the account provided. Credibility relates to the veracity of the witness. Reliability relates to the account’s accuracy and whether the witness is mistaken in their narrative. In assessing the testimonial accounts of PCs Bresse and Mendez, I have considered the following factors:

(1) whether the account is inherently logical, having regard to common sense and human experience;

(2) whether the account is internally consistent and coherent;

(3) whether the account is consistent with reliable evidence that exists exclusive of any witness’s account, e.g., the exhibits entered;

(4) the significance of any inconsistency in the witness’s account, e.g., is it in relation to a key or peripheral point, and to what extent does the evidence otherwise reveal a plausible explanation for it that serves to rehabilitate the account;

(5) whether the witness has an interest in the outcome of the case;

(6) whether the witness has engaged in discreditable conduct that reflects poorly on his or her credibility or reliability;

(7) whether the reliability of the account is undermined by:

(a) the circumstances, including those specific to the observer and those specific to what is being observed, under which the observations that ground the account were made;

(b) a bona fide diminished recollection of the events over time;

(c) intentional and/or unintentional tainting by other sources of information; and

(d) the witness’s apparent level of sophistication and life experience, particularly as it relates to pre-testimonial contact, in any capacity, with the criminal justice system; and, to a lesser degree

(8) the witness’s testimonial demeanour, being mindful that testimonial demeanour is of particularly limited value because it can be affected by factors entirely unrelated to a witness’s truthfulness and/or reliability, or lack thereof.

[39] As I assess a testimonial account, I am mindful that I may accept some, none, or all of that account.

Identity and Care or Control

[40] PC Bresse identified Ms. Ajgirevitch before the court as the driver he dealt with that day. She was identified with a photograph of her driver’s license, and was recorded on the in-car camera and the breath room videos. The Crown has proven beyond a reasonable doubt that Ms. Ajgirevitch was the person in the driver’s seat of the vehicle.

[41] The Crown has also proven that she was operating a conveyance, by being in care or control of a conveyance at 2:12 PM on August 21, 2020. She was in the driver’s seat of the motor vehicle. The keys were in the ignition. There is no evidence to rebut the presumption of care or control, as was conceded by counsel in submissions.

Grounds and Arbitrary Detention

[42] Most of the interaction between PC Bresse and Ms. Ajgirevitch was captured on the in-car camera. His evidence about the time of his arrival, the questions he asked of her prior to making the first demand, the timing of the first demand, the discussion that occurred while waiting for the ASD, the self-test and taking of the ASD sample from Ms. Ajgirevitch, the time of arrest, rights to counsel, and the second demand, are all substantially confirmed by the in-car camera.

[43] The video from the rear of the cruiser also confirms some of his evidence about how Ms. Ajgirevitch appeared that day. I have had the benefit of being able to hear Ms. Ajgirevitch speak on the video. The video confirms PC Bresse’s evidence that her speech was sluggish. I appreciate that her speech did not appear sluggish later, at the station, in her dealings with PC Mendez or on the breath room video. However, that interaction was two hours later; it does not cause me to doubt that she appeared sluggish to PC Bresse.

[44] The video does not show the state of Ms. Ajgirevitch’s clothing. On this point, it was put to PC Mendez that he did not observe anything unusual about Ms. Ajgirevitch’s appearance or clothing when he dealt with her at the station. But what PC Bresse described was not actually contradicted by PC Mendez’s evidence. PC Bresse saw some type of food leftovers on her person, and what he thought was ketchup on her arms. She was wearing short sleeves. He did not describe stains or staining that would have necessarily remained until the time PC Mendez was dealing with her. In my view, there is no inconsistency in her later appearance with PC Bresse’s evidence as to how she appeared when he dealt with her at the car.

[45] I accept the evidence of PC Bresse that he observed food leftovers on her and that she was speaking sluggishly. There is no dispute that he had received information before attending that the call was for an impaired driver, that she had been in Hospital for alcohol the night before, and that she had consumed Valium and Lorazepam. He arrived at 2:12 PM. He began conversation with her. He told her he wanted to make sure she was ok. He told her she was being recorded. He asked her for the keys. He communicated his status to dispatch. He told her he was worried she was drinking. He asked if she had been drinking and she said no. He told her he could test her. She demanded to know who had called police. He made a formal demand, using the AI demand wording, at 2:15 PM.

[46] I accept the evidence of PC Bresse that he was forming his suspicion that she had alcohol in her body while in care or control of the vehicle during this period of time. That evidence makes sense in the context of the conversation between the two of them. It accords with the in-car camera. Different persons may have formed this suspicion more quickly. But that does not cause me to doubt PC Bresse’s evidence on this point.

[47] While PC Bresse agreed he would not have let Ms. Ajgirevitch drive away in those three minutes, the request that she provide her keys was shortly before he formed his grounds and while he was still determining if there were grounds to reasonably suspect she had alcohol in her body. She was not detained until PC Bresse formed a reasonable suspicion and made the ASD demand. There was no evidence to show that she was psychologically detained before this point. Even if the request for the keys and the subsequent questions asked were a brief detention, there was a permissible brief suspension of Ms. Ajgirevitch’s s. 10(b) rights: R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3; R. v. Thomsen, [1988] 1 S.C.R. 640. The court in Orbanski held that such a suspension is a necessary implication of the section authorizing the breath demand.

[48] PC Bresse’s suspicion is objectively reasonable. The information he had received, mixed with his observations of Ms. Ajgirevitch in the less than three minutes before he made the demand, are more than sufficient to support a suspicion of alcohol in her body and operation of the motor vehicle within the proceeding 3 hours. The use of the wrong wording does not invalidate the lawfulness of his demand. There are no “magic words” required. What had to be communicated to her was that she had to provide a suitable sample and that she would have to accompany PC Bresse for that purpose. That was communicated to her. It was made clear to her that a device was being brought to their location and that she would have to wait for it to arrive.

[49] It was the fail result on the ASD that provided grounds for the subsequent AI demand (and it was not contested that PC Bresse had sufficient reasonable and probable grounds for that demand). I am satisfied beyond a reasonable doubt that PC Bresse’s demand for the ASD sample was authorized by s. 320.27(1) and there is no breach of s. 8 of the Charter. I am not satisfied that there was a breach of s. 9 of the Charter.

Opportunity to Consult Counsel Before Compliance

[50] PC Bresse did not have an ASD with him. He made his demand for a sample at 2:15 PM and radioed for an ASD at the same time. The ASD arrived on scene at 2:23 PM and was provided to him at 2:25 PM. It is this 8-10 minutes while waiting for the ASD that is the subject of the s. 10(b) Application.

[51] The Courts have long held that the right to counsel is suspended during compliance with the screening demand: see Thomsen, supra.; R. v. Seo (1986), 54 O.R. (2d) 293 (C.A.). Where the officer is not in a position to require immediate provision of a sample, the question is whether or not there was a realistic opportunity to consult with counsel: R. v. Quansah, 2012 ONCA 123. The following factors are to be considered, at paras. 45-49:

(1) The context;

(2) The immediacy requirement which commences at the stage of reasonable suspicion and must take into account all of the circumstances;

(3) The time from the formation of reasonable suspicion to the making of the demand to the detainee’s response to the demand by refusing or providing a sample. This must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2) (now 320.27); and,

(4) Consideration of whether the police could realistically have fulfilled their obligation to implement the detainee’s s. 10(b) rights before requiring the sample.

[52] In R. v. Torsney, 2007 ONCA 67, 217 C.C.C. (3d) 571, the Court held, at para. 9:

In R. v. Latour, supra, this court held that in deciding whether, in any particular case, there was a realistic opportunity to consult with counsel, all the circumstances must be considered, including the time which in fact elapsed between the demand and the taking of the breath sample. In so concluding, at p. 287 Charron J.A. rejected the proposition that “unless the peace officer reasonably believes that he or she can ‘make the demand good’ at the time it is made, the demand is not valid even if the sample is, in actual fact, received into an approved screening device a few moments later.” Rather, as she explained at p. 288:

If, as the events actually unfold, the peace officer is in a position to require the person to provide the sample before there is any realistic opportunity to consult counsel, the statutory requirements are met. The detained person has no cause for complaint as the events will have unfolded in accordance with the legislative scheme and within its constitutional boundaries. I see no sound policy reason for requiring that the statutory requirements be met by design rather than by chance. Compliance is compliance whether fortuitous or otherwise.

[53] The realistic opportunity to consult with counsel includes the time required to call and have counsel respond and the time to receive legal advice.

[54] I am not satisfied that there is a breach of s. 10(b) on the facts of this case. I find that there was not a realistic opportunity for Ms. Ajgirevitch to consult with counsel prior to compliance with the demand.

[55] While waiting for the ASD, PC Bresse was engaged in cautioning Ms. Ajgirevitch that she was under investigation, making a demand for her driver’s license and satisfying himself of her identification, and attempting to determine when her last drink had been consumed. All of this was necessary prior to the use of an ASD and would have occurred even if PC Bresse had an ASD with him. And Ms. Ajgirevitch asked a lot of questions as PC Bresse proceeded through these steps, resulting in the steps taking almost the full time before the arrival of the ASD.

[56] It is helpful, if not determinative, to consider what happened later with rights to counsel. When Ms. Ajgirevitch was arrested and provided her rights, she told PC Bresse she didn’t care about what he was saying. She did not immediately assert her right to a lawyer. When she did, later, at the station, it was a call to duty counsel. That call was placed at 4:15 PM, it was 4:22 PM before duty counsel had called back and she had been placed on the phone, and it was 4:30 PM before the call was completed. A full 15 minutes to implement; five minutes more than the longest view of the 8-10 minutes at the roadside. Ms. Ajgirevitch had a cell phone with her, but, given that she eventually asked for duty counsel, I have no evidence she would have had a specific lawyer to call.

[57] Examining the total time which in fact elapsed between the demand and the taking of the breath sample, and considering the length of time it took to consult duty counsel once Ms. Ajgirevitch asserted her right to counsel, I find that there was no realistic opportunity to consult counsel prior to PC Bresse requiring compliance with his demand. Ms. Ajgirevitch has not satisfied me that it is more likely than not that her rights pursuant to s. 10(b) of the Charter were infringed, and the Charter Application is dismissed.

[58] If I am wrong and her right to counsel was violated, I would not exclude the breath test readings in this case pursuant to s. 24(2) of the Charter. Balancing the various factors described by the Supreme Court in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, I find that the exclusion of reliable breath sample evidence needed to establish the serious offence with which Ms. Ajgirevitch is charged will do more harm than good to the administration of justice and that the reputation of the justice system would suffer if the breath sample evidence were excluded.

[59] First, if there was a breach, it is serious. The delay of the right to counsel, which is to be implemented immediately, is significant. The discussion that continued in this period of time was in the nature of necessary steps to fulfill the demand, rather than “investigative” questioning that would suggest a failure to hold off, and PC Bresse acted to minimize the period of time Ms. Ajgirevitch was detained while awaiting the ASD, but the cross-examination demonstrated he was incorrect in his understanding of the timing of rights to counsel. This cannot be said to be completely “good faith”. Further, I am mindful that other officers were on scene and can be heard on the in-car camera to be laughing. I have reviewed the audio recordings; I am not prepared to find that they were laughing at Ms. Ajgirevitch’s request for a phone call at the scene, but I do agree that they do not seem at all concerned with facilitating her Charter-protected rights. This branch favours exclusion.

[60] Second, the impact on Ms. Ajgirevitch’s Charter-protected rights was minimal thereby favouring inclusion of the evidence. She had a legal obligation to comply with the valid breath demand made by the officer. The breath test procedure was minimally intrusive to her privacy, bodily integrity, and basic dignity of the person: R. v. Jennings, 2018 ONCA 260, [2018] O.J. No. 1460 (C.A.) at para 27 - 32.

[61] Third, and finally, there is a compelling societal interest in dealing with drinking and driving offences on their merits: R. v. Alex, 2017 SCC 37. Evidence of breath testing is highly reliable and necessary as part of the prosecution's case. In R. v. McGuffie, 2016 ONCA 365., at para. 63, Doherty J.A. described the practical impact of the third Grant inquiry as follows:

...the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence.

[62] This factor militates strongly in favour of inclusion.

[63] In balancing the three branches, I find that exclusion of the breath test results would be inappropriate in the circumstances of this case.

Proof of BAC/Accuracy of the AI

[64] PC Mendez testified that Ms. Ajgirevitch provided two samples into an AI. He was a qualified breath technician who operated the instrument when it accepted her samples. Those samples were more than 15 minutes apart, and they were within 20 milligrams or “good agreement” of each other. Before each sample was taken, he conducted a system blank test, the result of which was 0 mg of alcohol in 100 mL of blood, and a system calibration check, the result of which was within 10% of the target value of an alcohol standard certified by an analyst. This evidence is confirmed by the documentary evidence showing him to be a qualified technician, showing the alcohol standard, and showing the test results from the AI. These are the factors required by s. 320.31(1) of the Code.

[65] He also testified that he served the certificate of qualified technician on Ms. Ajgirevitch. He testified that it was his certificate, even though he had forgotten to sign it. Defence conceded notice had been provided. The certificate was admitted into evidence after PC Mendez identified it in testimony (due to the lack of signature, he was required to testify to identify the document). The certificate duplicates his in-Court testimony to satisfy s. 320.31(1) of the Code.

[66] Ms. Ajgirevitch submits that the test records cast doubt on the evidence of PC Mendez and the certificate because there is not another calibration check conducted after the deficient sample/time out on the second test (as noted on the test record). It is submitted that the evidence of PC Mendez was that a further diagnostic check was required for accuracy, and that it was put to him that the instrument would conduct "those checks" again after the time out. He agreed with that suggestion, but the test record shows only a further system air blank test. Ms. Ajgirevitch submits there is therefore a doubt about the accuracy of the instrument or a failure to comply with the section.

[67] The Crown submits that the conditions set out in paragraphs 320.31(1)(a) to (c) of the Code have been met, namely:

(1) the results of the system blank tests are 0;

(2) the result of the system calibration check was within 10% of the target value of the alcohol standard;

(3) the error or exception message produced by the approved instrument at the time the samples were taken for the timeout/insufficient sample are explained in his evidence;

(4) the results of the analysis of the accused’s breath samples are in agreement; and

(5) the certificate of an analyst stating that the sample of the alcohol standard that is identified in the certificate is suitable for use with an approved instrument was tendered into evidence.

[68] In the alternative, the Crown submits that the certificate meets the requirements of s. 320.32 of the Code.

[69] The AI’s diagnostic check (which was the focus of most of the cross-examination questions) is not a condition set out in s. 320.31. The test record shows that two diagnostic tests were conducted before the deficient sample/time-out of the AI, but there is not a further diagnostic test after the deficient sample. I note there is also a calibration check before the deficient sample/time-out, but there is no further calibration check after the deficient sample/time-out of the AI. There is a further system air blank test.

[70] In re-examination PC Mendez was asked to explain this. His evidence was that the AI does not begin a new test process after the deficient sample/time-out -- the deficient sample does not impact the functionality of the AI; it is still in the same test or testing procedure. This is also what the test record itself shows. The evidence of PC Mendez explaining the test record makes sense. It also accords with what is shown on the breath room video where it is very clear that Ms. Ajgirevitch provides a deficient sample, and the steps PC Mendez takes after that.

[71] I accept PC Mendez’s evidence that the AI was still in the second test procedure, as shown on the print-out. The print-out shows the air blank tests were all 0 and that the calibration check was 98 (within 10 percent of 100 mgs). I accept PC Mendez’s evidence that he used the alcohol standard noted, which is confirmed by the certificate of analyst. I accept (and the test record again reflects) that the samples were more than 15 minutes apart, and it is quite clear that the two readings do not differ by more than 20 mgs. This evidence satisfies s. 320.31 of the Code. The Certificate similarly satisfies the Code requirements. Through either route, there is conclusive proof that the BAC of Ms. Ajgirevitch was 180 mgs of alcohol in 100 mls of blood at the time when the analyses were made.

[72] By operation of s. 320.31(4) of the Code, the BAC at the time when PC Bresse found Ms. Ajgirevitch in care or control is 185 mgs of alcohol in 100 mls of blood. I am satisfied beyond a reasonable doubt on the basis of the evidence and the operation of these sections of the Criminal Code that Ms. Ajgirevitch’s BAC exceeded 80 mgs of alcohol in 100 mls of blood.

[73] The Crown has proven each of the essential elements beyond a reasonable doubt and I find Ms. Ajgirevitch guilty as charged.

Released: August 9, 2022 Signed: Justice Robert Wright