ONTARIO COURT OF JUSTICE DATE: 2022 08 12 COURT FILE No.: Brampton 3111 998 21 3813

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

JOHN ZDICHAVSKY

Before: Justice G.P. Renwick

Heard on: 18 March and 09 August 2022 Reasons for Judgment released on: 12 August 2022

Counsel: N. Sohail, counsel for the Crown D. Lent, counsel for the defendant John Zdichavsky

REASONS FOR JUDGMENT

RENWICK J.:

INTRODUCTION

[1] The Defendant is charged with having an excess blood alcohol concentration within two hours of operating a conveyance, contrary to s. 320.14(1) b) of the Criminal Code.

[2] On consent of the parties, the trial evidence proceeded alongside a Charter Application to exclude the results of the analysis of the Defendant’s breath samples made by an approved instrument. The Defendant took no issue that If the breath sample test results were admitted, they would clearly prove the offence.

[3] Only one witness testified: Peel Regional Police Constable Michael Babore. This officer was both the investigating officer and the qualified technician who took samples of the Defendant’s breath.

[4] The Defendant initially alleged violations of his ss. 8, 9, 10(a), and 10(b) rights under the Charter. During the trial, the allegations relating to s. 10 Charter violations were abandoned.

[5] The Charter application is dispositive of the trial result. The Defendant did not call any evidence nor make any submissions on the trial proper.

ANALYSIS AND FINDINGS

[6] Though the Defendant generally has the onus to establish violations of the Charter on a balance of probabilities, R. v. Collins, [1987] 1 SCR 265, at para 21 where there is a warrantless search, as in this case, the prosecutor must establish that the search was conducted reasonably and pursuant to some lawful authority. Collins, supra, at para 23 Thus, both parties have an onus: the Defendant must prosecute his s. 9 claim that he had been arbitrarily detained and/or his arrest was arbitrary; and the prosecutor has to establish that the seizure of the evidential breath samples were lawfully taken pursuant to the statutory regime.

The Initial Detention and Arrest Were Lawful

[7] In this case, it is alleged that the investigating officer lacked any lawful basis to initially stop the Defendant’s Jeep. It is alleged that the stop was arbitrary and contrary to s. 9 of the Charter. Further, the continued detention and eventual arrest and breath demand were inappropriate because the officer did not have a subjective belief that the Defendant was operating a conveyance with an excess blood alcohol concentration, nor if he did, it is submitted that there was no objective basis to believe that such an offence had been committed.

[8] I reject the argument that the initial traffic stop of the Defendant’s vehicle was unconstitutional. The officer testified that he was stopping cars coming out of that plaza to check driver sobriety given that the plaza included a liquor store. The officer readily admitted that he did not actually see if the Defendant had come from any of the businesses in the plaza. Nonetheless, he did not stop the Defendant’s vehicle for any improper purpose or any purpose unrelated to highway safety. The officer was aware that there was a liquor store not far from where he observed the Defendant’s vehicle, when he saw it reverse out of its parking spot. This stated purpose was confirmed during cross-examination:

Q: Your intent is to watch people exit the LCBO and randomly stop them, correct?

A: Correct.

[9] Constable Babore was a credible witness. He did not guess, he used his notes appropriately to refresh his memory, and he was candid in the areas where he had mis-recorded the date of the investigation or the time of the first breath analysis. He also admitted when his notes undermined his recollection respecting where he had been parked when he first saw the Defendant’s vehicle. Though he was not a perfect witness, there was no challenge to the officer’s stated purpose, “checking driver sobriety.” I accept this evidence. I find that the Defendant was stopped initially, randomly, for a valid purpose connected with highway safety. That is a lawful reason to briefly stop motorists. See R. v. Gardner, 2018 ONCA 584 at paras. 21-22. There was no arbitrary detention in stopping the Defendant to investigate his sobriety.

[10] The Defendant submits that there was a further s. 9 Charter violation when the officer relied on the “fail” result of the approved screening device (ASD) in the circumstances. In cross-examination, many suggestions were put to the witness about the operation of the ASD.

[11] Given the alleged frailties in the manner in which the officer used the ASD, it was submitted that he lacked a subjective basis to believe that an offence had actually been committed. It was also argued that if the officer reasonably held a subjective basis to believe that the Defendant was operating his Jeep with an impermissible blood alcohol concentration (BAC), there was no objective basis for that belief. I will endeavour to unpack all of the criticisms of P.C. Babore’s investigation and explain why s. 9 of the Charter was not implicated.

[12] It was argued that the officer never explained why the “fail” on the ASD gave him grounds to believe that a drink-driving offence had been committed. While I agree that the officer never explicitly stated his belief, I inferred from his testimony that he was satisfied that there were reasonable grounds to believe an offence had been committed.

[13] In cross-examination, P.C. Babore made it known that he had no grounds to arrest the Defendant or to make a breath analysis demand until he received the “fail” result. To be clear, the officer’s cross-examination included the following exchange:

Q: It was not until you got the “fail” on the roadside screening device that you felt you had the grounds to go further and make a demand for the intoxilizer at the police station and to arrest him, correct?

A: That’s correct. I had a suspicion until I used the roadside screening device and that gave me the grounds to believe. Then he was under arrest.

[14] It must be remembered that P.C. Babore was extremely experienced when he stopped the Defendant on 22 January 2021. He testified, and I accept, that up until he dealt with the Defendant he had been involved in over 100 drink-driving investigations. Moreover, he is a qualified breath technician. Neither of these experiential chevrons were challenged.

[15] I infer from this evidence that the officer knew the difference between a reasonable suspicion and reasonable grounds to believe. At each stage of the investigation, it appeared that the officer understood his authority and the requirements of the law.

[16] Moreover, these foundational concepts are not difficult to understand. I would also add that it was never suggested that the officer did not know what the “fail” result represented. It is somewhat unusual to fault the officer for failing to articulate something that was not directly asked of him.

[17] Though it was not raised by the Defendant, I have also considered the constable’s poor phraseology during his testimony. In his evidence in chief, P.C. Babore referenced “impaired” operation no less than four times. He testified that he had told the Defendant that he may be charged with “operation while impaired” when he gave the rights to counsel before the breath testing procedure. However, in fairness, this testimony was not entirely accurate.

[18] Exhibit 2 was the breath sampling procedure video. The video establishes that during the rights to counsel, the officer actually told the Defendant, “you may be charged with impaired operation blood alcohol concentration.” Further on, toward the end of the breath sampling procedure, the video confirms that the Defendant was told, “you will be charged with alcohol impaired blood alcohol concentration.”

[19] Constable Babore struck me as earnest. The video evidence demonstrated that he was cordial (he gave the Defendant permission to call him by his first name), respectful, and professional in every way. If he misspoke in describing the actual offence alleged, it is unfortunate. However, there can be no doubt that P.C. Babore had not even an inkling that the Defendant was impaired in his ability to operate a motor vehicle.

[20] The only signs of alcohol consumption the officer noted were a flushed face, slightly red-rimmed eyes, and a strong smell of alcohol on the Defendant’s breath. These indicators were coupled with the Defendant’s admission of prior alcohol consumption. The Defendant did not sway, exhibit poor motor functioning, slurred speech, or any other indicia of alcohol consumption, let alone alcohol impairment. According to the officer, the Defendant’s driving was unremarkable in every respect. The effects of alcohol were even noted by the officer as “slight.” There can be no credible suggestion that P.C. Babore thought that the Defendant was impaired by alcohol in his ability to drive.

[21] In the end, I am satisfied that the Defendant was arrested and taken back to the police station for breath analysis because P.C. Babore believed that the Defendant may be driving with an impermissible BAC. That was a reasonable basis to arrest and continue to detain the Defendant and to take him for a breath analysis.

[22] For these reasons, the s. 9 Application fails.

The Seizure of the Defendant’s Breath Samples Was Lawful

[23] The Defendant did not articulate which of the apparent frailties in the officer’s testimony evidenced a lack of an honestly held subjective belief that the Defendant had broken the law versus the lack of objectively reasonable grounds to so believe. I will consider all of the Defendant’s arguments as applicable to both prerequisites for the Defendant’s arrest and subsequent breath analysis demand.

[24] It was argued that because the investigating officer did not perform a self-test on the ASD before and after using it to sample the Defendant’s breath, it was not reasonable to rely on the “fail” result.

[25] This argument was premised on an interpretation of an email apparently sent to another qualified technician, Glen Leonardo. Over the prosecutor’s objections, the email became exhibit 4. The email was entitled, “Road Safety Services Operational Issues Related to Approved Screening Devices.”

[26] Constable Babore was not familiar with the email. It was “sent” in 2014, before this officer was sworn in. It was suggested in cross-examination that the email was a “directive” of the Peel Regional Police (PRP). This suggestion was never adopted by the witness. To the contrary, the witness believed that all PRP directives had an assigned number, which the memo clearly did not. There was no other evidence to authenticate the email or its contents. It was admitted into evidence, but it deserves little weight.

[27] Constable Babore did not adopt much of the contents of the email. He specifically rejected the suggestion, put to him several times, that an officer is required to self-test the ASD before and/or after each roadside use. His evidence stands unrebutted.

[28] I agree with that part of the officer’s evidence that the memo does not specifically state what it was introduced to prove. While the memo requires, “officers should always conduct a self-breath test by blowing into the device…” it does not require that this take place before and/or after each subject sampling, as counsel for the Defendant suggested.

[29] I would also note that the memo indicates that “The introduction of large numbers of new ASD’s across Ontario has revealed a number of operational issues.” It is hard to know what this means in relation to the ASD used in the Defendant’s case. Without any other evidence, I am unable to draw any inferences from this memo about the ASD used in the matter before me.

[30] In the end, I am satisfied that P.C. Babore used the ASD appropriately (in terms of his training) and according to law. It was not inappropriate for the officer to rely on the “fail” simply because he had only self-tested his ASD approximately five hours before it was used in this case. I am not troubled by the possibility that the device had possibly been used in relation to other motorists before it was given to the Defendant. The officer’s unchallenged and unrebutted evidence, which is accepted, proves that the ASD he operated has a failsafe mechanism which prevented residual alcohol from remaining in the device over an extended period of time.

[31] The Defendant also challenged the officer’s reliance upon the device in the absence of any applicable waiting periods to avoid false “fail” readings caused by residual mouth alcohol or very recent food consumption. Constable Babore did adopt this part of exhibit 4. He was aware that recent alcohol consumption and very recent food consumption could affect the reliability of the ASD. That said, there was simply no basis upon which to infer or speculate that the Defendant had recently consumed anything. There were no drinks or foodstuffs observed, the Defendant was not seen to be drinking or eating, and in respect of the latter, four minutes had elapsed from when the officer first observed the Defendant’s vehicle until the “fail” result was registered.

[32] In all the circumstances, I accept that P.C. Babore was aware of the limitations of the device he used to sample the Defendant’s breath, he operated the device according to his training, he had appropriately self-tested the ASD and found it to be working (at least in so far as it satisfied him with respect to his own result), and there was no reason for him to doubt the functioning or reliability of the device.

[33] Even the memo (exhibit 4), upon which great reliance is placed by the Defendant, reads, “False positive results due to food and non-alcoholic beverages are rare, transient and small in nature” and “ Where there is reason to suspect the subject has [recently] consumed alcohol-containing substances…”. These potential problems were truly non-issues in this case. The officer did not have any reason to suspect that the Defendant had recently consumed anything. There was no evidence to suggest the contrary.

[34] The last issue raised was the officer’s failure to record when the ASD had last been calibrated or checked for it’s accuracy. Constable Babore was entirely candid that he had not recorded these dates. However, the officer testified that if the device was not appropriately calibrated, “the ASD doesn’t work.” I took this to mean it would not permit a sample to be taken. The fact that it permitted the officer to self-test and then it received the Defendant’s breath sample is some evidence suggesting calibration was a non-issue.

[35] Counsel for the Defendant also suggested that in the absence of evidence respecting the date when the ASD was last calibrated or checked for accuracy it was inappropriate to provide an objective basis for reasonable grounds. I cannot accept this argument. In the end, the absence of evidence only suggests that the officer cannot now recall when the ASD was last calibrated or checked for accuracy. To be clear, it is unknown on the evidence whether or not the officer had been aware of these issues on the day in question. Given that I found this witness to be conscientious in every other respect, the absence of evidence did not cause me to draw any negative inferences about the ASD’s reliability.

[36] I would also note that there was absolutely no evidence to suggest that the ASD was not working properly. The Defendant did not even ask the serial number or the model of ASD that was used. It simply cannot be suggested in the absence of any credible evidence establishing the fact that the device was not functioning reliably that day.

[37] It may be helpful to recall that the standard of reasonable grounds is credibly-based probability. Canada (Director of Investigation and Research, Combines Investigation Act) v. Southam Inc., [1984] 2 SCR 145 Alternative explanations for investigative leads do not undermine reasonable grounds unless the officer unreasonably discounted information of which she was aware but failed to consider.

[38] Reasonable grounds to believe an offence has been committed must be articulable, subjectively held by the officer, and objectively reasonable. R. v. Storrey, [1990] 1 SCR 241, at para 17 The officer is entitled to rely on information from other sources, unless she has a reason to doubt the truth of the information.

[39] Lastly, reasonable grounds are not proof on a balance of probabilities, but they involve being satisfied of the probability of a state of affairs. The officer can be mistaken in the belief, as long as her belief is reasonable and there was no reason for her to doubt the information she believed.

[40] In the end, I am satisfied that P.C. Babore had no reason to suspect that the ASD he was using was not operating properly, nor is there a requirement to prove that it was. What is required are reasonable grounds to believe that an offence had been committed.

[41] From the officer’s perspective, the Defendant was driving a conveyance, coming from a plaza where alcohol is sold, he was concerned about road safety and the sobriety of motorists, the Defendant had alcohol on his breath, the effects of alcohol upon him were observed to be slight, the Defendant had admitted that he had consumed alcohol the night before, and a device which appeared to be operating properly (it had not created an unreliable reading when used by the officer to sample his own breath) confirmed that the Defendant may be driving with an excess BAC.

[42] The reasonable grounds standard does not demand perfection. Reasonable grounds may derive from “ information which is often less than exact or complete.” R. v. Golub, [1997] O.J. No. 3097 (C.A.) The issue is whether it was unreasonable for the officer to rely upon the result provided by the ASD not whether the device conclusively proves the suspicion it confirms. Unless there is any reason to suggest that the officer knew or ought to have known that he should not rely upon the ASD, supplied by the PRP for that very purpose, it was entirely appropriate upon receipt of the “fail” to arrest the Defendant, demand his breath for analysis, and take him to the police station for that purpose.

[43] I am not satisfied that it is proven that there was an unlawful search or seizure in this case. Constable Babore followed his training, the indicators presented by his investigation, and the result of an apparently functioning ASD. He had the authority to continue the Defendant’s detention, to arrest him for the probable BAC offence, and to demand the Defendant’s participation in further investigative steps. The resultant search and seizure was constitutionally compliant and pursuant to statutory authority.

Section 24(2) of the Charter

[44] The results of the Defendant’s breath analysis is the only evidence sought to be excluded from his trial.

[45] The parties made no submissions respecting s. 24(2) of the Charter. However, it is well-settled that the three-prong test from R. v. Grant, 2009 SCC 32 governs the exclusion of evidence under s. 24(2) of the Charter.

[46] Section 24(2) recognizes that if evidence gained by constitutional infringements is regularly admitted in criminal trials this may weaken public confidence and bring the administration of justice into disrepute. This subsection seeks to mitigate the negative effects of inappropriate state conduct by requiring a qualitative analysis of the long-term effect tainted evidence has upon public confidence in the criminal justice system.

[47] To perform the balancing exercise required by s. 24(2) of the Charter, I must consider:

i. The seriousness of the Charter-infringing state conduct; ii. The impact of the breach(es) on the Charter-protected interests of the Applicant; and iii. Society’s interest in the adjudication of the case on its merits.

[48] The first two factors serve to mitigate the loss of civil liberties by requiring exclusion of evidence when the Charter-infringing conduct is serious and the impact upon Charter-protected interests is great. The third factor “pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown’s case.” R. v. McGuffie, 2016 ONCA 365, at para 62

Seriousness of the Charter-Infringing State Conduct

[49] This case involves alleged violations of two distinct Charter rights that bookend the police interactions with the Defendant. For the purpose of this analysis, I will assume that I am in error in finding that no Charter violations took place in this case. I will premise this analysis on a s. 9 violation respecting reliance on the ASD result and the consequent seizure of the Defendant’s breath.

[50] Though I do not conclude that the violations of the Defendant’s rights were deliberate, as a trained qualified breath technician, P.C. Babore of all people ought to know when it is appropriate to arrest someone for a drink-driving offence, to continue their detention, and to demand and take their breath samples for analysis under threat of criminal law sanction. The violations are notable and they are related. If such a miscalculation on the officer’s part is a Charter violation, given that there is no mala fides (P.C. Babore was pleasant and professional in his dealings with the Defendant), this factor only marginally pulls in favour of excluding the breath testing results. This conclusion may be overly generous toward the Defendant in light of a contrary finding on the first prong for similar faults in R. v. Jennings, 2018 ONCA 260, at para 26.

The Impact of the Breaches Upon the Defendant’s Charter-Protected Interests

[51] If there were Charter violations they were avoidable. However, it bears observing that our Court of Appeal and the Supreme Court have held that breath testing is a “paradigmatic example of a minimally intrusive search.” See Jennings, supra, at paras. 27-32. For this reason, under the second prong of the Grant analysis, I find that the breath testing results are admissible.

Society’s Interest in the Adjudication of the Case on its Merits

[52] In McGuffie, the Ontario Court of Appeal court spoke about the tension between the three considerations:

The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society's interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown's case.

In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence. McGuffie, supra, at paras. 62-63

[53] The breath testing results are reliable and necessary to prove the sole allegation before the court. This militates in favour of admitting the breath analysis.

[54] There is no evidence that the failures of P.C. Babore, if there were any, are long-standing, widespread, or systemic within the PRP. Accordingly, I tend to the view that mere disapprobation of this behaviour by the court is commensurate with the misbehaviour occasioned.

[55] After careful consideration, I find that the long-term effect of admitting the breath readings into evidence in the circumstances of this case would not bring the administration of justice into disrepute, whereas exclusion of this reliable evidence would have the opposite effect.

CONCLUSION

[56] I am not satisfied that it is established on a balance of probabilities that any of the Defendant’s Charter rights were violated on 22 January 2021 when he was stopped, investigated, arrested, and compelled to participate in his own investigation. The results of his breath testing are admissible evidence in the Defendant’s trial.

[57] The Charter Applications are dismissed.

[58] There was no challenge to the prosecution’s case on the trial proper.

[59] I am satisfied beyond a reasonable doubt that the Defendant had an excessive BAC within two hours of operating his conveyance. Accordingly, I find John Zdichavsky guilty as charged.

Released: 12 August 2022 Justice G. Paul Renwick