Court File and Parties

ONTARIO COURT OF JUSTICE DATE: December 12, 2023 COURT FILE No.: Halton Info # 12119982212101335

BETWEEN:

HIS MAJESTY THE KING

— AND —

RUSSELL COLLINS

Before: Justice Jennifer Campitelli

Heard on: December 1, 2023 Reasons for Judgment released on: December 12, 2023

Counsel: Ameen Al Rohani, counsel for the Crown Bruce Daley, counsel for the accused Mr. Russell Collins

CAMPITELLI J.:

Overview

[1] Mr. Collins is charged that he:

(1) On or about the 9th day of July in the year 2022 at the Town of Oakville in the said region, did, within two hours after ceasing to operate a conveyance, have a blood alcohol concentration that was equal to or exceeded 80mg of alcohol in 100ml of blood, contrary to section 320.14(b) of the Criminal Code of Canada.

[2] On July 9, 2022, Mr. Collins was operating a motor vehicle, which was investigated by OPP Officer Christopher Bedford. After speaking with Mr. Collins, Officer Bedford demanded that Mr. Collins provide a sample of his breath into an approved screening device. That device registered a fail, and Mr. Collins was placed under arrest for the charged offence. Ultimately, he provided two suitable samples of his breath into an Intoxilyzer 8000C, the readings were 180mg of alcohol in 100ml of blood and 170mg of alcohol in 100ml of blood respectively. None of this is in dispute between the parties.

[3] However, Mr. Collins has brought a challenge to Officer Bedford’s grounds to demand that he provide a sample of his breath pursuant to s. 320.27(1) of the Criminal Code of Canada. Mr. Collins argues the Officer’s subjective grounds to suspect that he had alcohol in his body and had operated his motor vehicle within the past three hours were not objectively reasonable. Therefore, Mr. Collins takes the position that his rights as protected by section 8 of the Canadian Charter of Rights and Freedoms were violated. He asks that I exclude the Certificate of the Qualified Technician pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms. In the alternative, should I find Officer Bedford’s subjective grounds to be objectively reasonable, Mr. Collins argues that due to a notation made by P.C. Singh on the Certificate of a Qualified Technician (Exhibit #1), the crown has not proven beyond a reasonable doubt that a system calibration test was conducted by reference to an alcohol standard certified by an analyst.

Were Officer Bedford’s subjective grounds to suspect that Mr. Collins had alcohol in his body and had operated his motor vehicle within the past three hours objectively reasonable?

Grounding Legal Principles

[4] While reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded in objective facts reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability of a crime: R. v. Chehil, 2013 SCC 49, [2013] S.C.J. No. 49 at para. 27.

[5] An Approved Screening Device (ASD) demand is based on reasonable possibilities, not probabilities. By definition, a possibility involves some element of doubt: R. v. Poel, [2018] O.J. No. 5609 at para. 24.

[6] Exculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors. The totality of the circumstances, including favourable and unfavourable factors, must be weighed in the course of arriving at any conclusion regarding reasonable suspicion. However, the obligation of the police to take all factors into account does not impose a duty to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations: R. v. Chehil, at para. 33-34.

[7] It is appropriate for an investigating officer to rely on an accused’s statement regarding timing of the last drink in determining when to administer the screening test: R. v. Novakoski, [2004] S.J. No. 703 at para. 16.

The Evidence of Officer Bedford

[8] Officer Bedford has been a police officer with the Ontario Provincial Police since 2017. Officer Bedford testified in a clear and straightforward manner. I found Officer Bedford to be a credible witness and his evidence to be reliable. He testified that on July 9, 2022 he was working in a uniform capacity when he received information about a complaint regarding a possible impaired driver. He was advised that a blue four door Camry was observed swerving heavily, straddling lanes and over-correcting. Officer Bedford was provided with an address on Seaton Drive in Oakville, where he attended and set up observation. Very shortly after his arrival he observed a blue Camry arrive and pull into the driveway. Mr. Collins was the sole occupant and was observed operating that motor vehicle. He was located in the driver’s seat.

[9] It was Officer Bedford’s evidence that he spoke with Mr. Collins and advised him of the complaint. Mr. Collins denied having any knowledge of why anyone would call the police with respect to his driving behaviour. Officer Bedford then testified that he detected an odour of an alcohol on Mr. Collins’ breath, and he could see an open case of beer in the trunk area of the motor vehicle. He recalled that he was able to see into the trunk area because the rear seat was down.

[10] Officer Bedford provided evidence with respect to a late entry in his notes related to when Mr. Collins had consumed his last drink. He testified that, prior to administering the Approved Screening Device, Mr. Collins initially told him he had consumed one beer while he was golfing; however, Mr. Collins then advised him he had actually consumed two beers, with the last beer being on the 13th hole. Given he understood Mr. Collins was golfing in Hamilton, which would have been more than fifteen minutes away from the residence in Oakville, Officer Bedford determined that he did not have to wait fifteen minutes to eliminate the possibility of “mouth alcohol”.

[11] While under cross examination, Officer Bedford was pressed on this late entry. He maintained that Mr. Collins had provided this information to him prior to when the Approved Screening Device was administered and not while the pair were back at the police detachment. Officer Bedford recalled that when he was preparing his notes using the “dash pad” that same night, he realized he had left out that detail, so he added it as a late entry. I accept Officer Bedford’s evidence on this point. He was unshaken when pressed under cross examination and I find his explanation to be logical and plausible.

[12] Officer Bedford was also pressed on his observation of the open case of beer in the trunk area of Mr. Collins’ motor vehicle. More specifically, why, given he noticed the open case of alcohol in the trunk area, he had not waited fifteen minutes before administering the Approved Screening Device. Again, to eliminate the possibility of “mouth alcohol” influencing the result. Officer Bedford testified that he relied on Mr. Collins’ statements to him regarding his last drink. At the time of the investigation, he observed golf clubs in the vehicle, which corroborated the information being provided to him, and he did not believe that the alcohol in the trunk area was within reach of Mr. Collins as the driver. I found his evidence on this particular point to be fair and reasonable.

[13] Officer Bedford had observed Mr. Collins operating the motor vehicle and testified that he formed reasonable suspicion to believe he had alcohol in his body. His evidence was that he formed his grounds based on the following factors in particular:

(1) The information received from the complaint – that the blue Camry was swerving heavily, straddling lanes and over-correcting; (2) His observation of the vehicle travelling on Seaton Drive in Oakville and Mr. Collins being in the driver’s seat and operating the motor vehicle; (3) The odour of alcohol he detected emanating from Mr. Collins’ breath; (4) The presence of an open case of alcohol within the trunk of the motor vehicle.

Analysis

[14] I find Officer Bedford’s subjective grounds to suspect Mr. Collins had alcohol in his body and had operated his motor vehicle within the past three hours were objectively reasonable. I must consider his belief against the totality of the circumstances.

[15] Officer Bedford had information from a complainant that the driver of the blue Camry he observed Mr. Collins operating a very short time later was swerving heavily, straddling lanes and over-correcting. When he spoke with Mr. Collins, he detected an odour of alcohol emanating from his breath and he observed an open case of alcohol in his motor vehicle. I find it was reasonable in the circumstances for Officer Bedford to rely on the information provided by Mr. Collins with respect to when he had his last drink, which I previously concluded was provided prior to Officer Bedford administering the approved screening device demand. Finally, I do not find Officer Bedford’s observation of the open case of beer in the trunk created an obligation for him to wait fifteen minutes in order to rule out the presence of “mouth alcohol”. Again, I find Officer Bedford acted reasonably having regard to the information he had in his possession at the time of the investigation. In addition, I find he was able to rely on the information provided to him by Mr. Collins related to when he consumed his last drink, which also informed how he proceeded with his investigation.

[16] On my assessment, I find Officer Bedford’s subjective belief was supported by objective facts. It was objectively reasonable for him to suspect that Mr. Collins, who he observed operating the Camry, had alcohol in his body. As such, the requirements of s. 320.27(1) of the Criminal Code of Canada have been satisfied.

[17] Carrying my analysis forward, there was no breach of Mr. Collins’ rights as protected by s. 8 of the Canadian Charter of Rights and Freedoms and his application to this end is dismissed.

Has the Crown proven beyond a reasonable doubt that a system calibration test was conducted by reference to an alcohol standard certified by an analyst?

Analysis

[18] The Crown must prove beyond a reasonable doubt that before each subject breath test, a system calibration test was conducted by reference to an alcohol standard certified by an analyst: Criminal Code, R.S.C. 1985, C-46, s. 320.31.

[19] With a view to the evidentiary record placed before me, the crown has sought to satisfy its burden to this end by tendering the following documentary evidence. The defence does not contest the admissibility of any of these documents:

(1) Certificate of a Qualified Technician (Exhibit #1); (2) Certificate of an Analyst (Exhibit #3); (3) Intoxiilyzer Printout (Exhibit #3).

[20] P.C. Singh, the qualified breath technician, was not called as a witness on these proceedings. The defence points to a notation by the officer, with reference to the alcohol standard lot number, which is reflected on the Certificate of a Qualified Technician (Exhibit #1). P.C. Singh notes the alcohol standard lot number as “77N” and then he uses a straight line absent any serifs to illustrate the final character. The crown takes the position his notation reflects an “I”, which is consistent with the alcohol standard lot number reflected on the Certificate of the Analyst and the Intoxilyzer printout. The crown stresses that I must look at the totality of the evidentiary record, which has been placed before me in arriving at my ultimate conclusion on this issue. Alternatively, the defence argues P.C. Singh’s notation could reflect the number 1. This lack of clarity should leave me in doubt with respect to whether the crown has proven beyond a reasonable doubt that s. 320.31 of the Criminal Code of Canada has been complied with. The defence points to P.C.’s Singh’s use of serifs when he noted “Inc” on Exhibit #1 as well as his notation of the number “1”, when he noted the time 15:01. This numeric notation appeared consistent with his use of a straight line absent any serifs.

[21] After considering the totality of the evidentiary record, which has been placed before me, I am satisfied the crown has proven beyond a reasonable doubt that a system calibration test was conducted by reference to an alcohol standard certified by an analyst. More specifically, I find the crown has proven beyond a reasonable doubt that Laboratoire Atlas Inc. Ethyl Alcohol Standard Lot Number 77NI was the solution used. Therefore, s. 320.31 of the Criminal Code of Canada has been complied with. I have come to my conclusion on this issue for the following reasons in particular:

(1) The appearance of 77NI as noted on the Certificate of a Qualified Technician by P.C. Singh (Exhibit #1) is consistent with the appearance of 77NI as noted on the certificate of an analyst (Exhibit #3); (2) The alcohol standard lot number, as indicated on the Intoxilyzer printout, which contains Mr. Collins’ name and the occurrence date of July 9, 2022 (Exhibit #3) is noted as 77NI.

Conclusion

[22] In the result, Mr. Collins is guilty as charged.

Released: December 12, 2023 Justice Jennifer Campitelli