Ontario Court of Justice

Date: 2024·10·25 Newmarket

Between: His Majesty the King — And — Poonam Teja

Judgment

Evidence and Submissions Heard: October 7, 8 2024 Delivered: October 25, 2024

Counsel: Ms. Roxana Jahani-Geran, counsel for the Crown Mr. Edwin Boeve, counsel for the defendant

KENKEL J.:

Introduction

[1] Ms. Teja is charged with having a blood alcohol level in excess of the legal limit within 2 hours of ceasing to operate a conveyance – the offence commonly referred to as “80+”.

[2] The police received a call from witnesses at a Boston Pizza restaurant about a patron who appeared to be impaired. The police were told that the staff had tried to prevent the person from driving. When the patron went to her car, they called police and provided a description of the vehicle and the plate information. Two officers arrived and found Ms. Teja in the Lexus with the engine running and the lights on. They boxed-in her vehicle so she couldn’t leave. An investigation led to an approved screening device (ASD) test. The failure of that test led to the arrest of Ms. Teja for approved instrument (AI) testing at the station. The results of those tests led to the charge before the court.

[3] The defence admitted that the Crown’s evidence proves the charge alleged beyond a reasonable doubt. The defence case is focused solely on an application to exclude the breath test readings as a remedy for alleged breaches of the Charter. The defence notice of application alleged breaches of Charter sections 7, 8, 9 and 10(b). The ss 7 and 10(b) arguments were not pursued at trial.

[4] The final submissions of both parties identified three section 8 Charter issues, two of which also engage s 9:

• ASD – If a person is stopped after leaving a restaurant or bar, must the police delay the approved screening device test for 15 minutes?
• Reasonable Grounds – Has the Crown proved that the officer had reasonable grounds for the arrest and approved instrument demand where there was no direct testimony that the officer believed the ASD was in good working order?
• Cell Privacy – What about the cell window and door?

[5] I have found that the Crown has failed to prove that the officer who administered the ASD test considered whether he had an objective basis for the belief that led to the arrest and approved instrument demand.

[6] The application of the s 24(2) remedy in this case involves consideration of an unusual circumstance – the Crown has proved something they weren’t required to prove, (that the ASD used was in fact properly calibrated and in good working order), but they failed to prove something they were required to prove, (that the officer making the demand formed a belief as to the reliability of the device prior to arrest).

Charter s 8 – 15 Minute Wait for the ASD?

[7] The defence submits [^1] that the officer should have waited 15 minutes to administer the approved screening device test. The fact that Ms. Teja had recently left a restaurant and admitted drinking, gave rise to a possibility that she might have continued drinking right up to the moments before she left. If that happened, and if the ASD test was within 15 minutes of her last drink, it’s possible that some residual alcohol may have remained in her mouth. If that happened, it might affect the accuracy of the test result. The officer could not reasonably have confidence in the accuracy of the test results without an inquiry into the timing of her drinking. The arrest and approved instrument tests breached sections 8 and 9 of the Charter.

[8] Like the drivers in the R. v. Einarson [^2], R. v. Mastromartino [^3] and R. v. Notaro, 2018 ONCA 449 [^4] cases cited by the defence, Ms. Teja had just left a bar or restaurant and there was evidence she had been drinking. Those cases explain that an officer is not obliged to ask the driver about the timing of consumption. The failure to do so does not deprive the officer of reasonable grounds based on a failed ASD test.

[9] There are a few factors which may affect the accuracy of ASD test results. Officers may make inquiries where circumstances warrant. However, an officer is not constitutionally required to delay the ASD test to conduct an inquiry to eliminate all possible issues. On the contrary, the mandate in s 320.27(1)(b) is plain – an immediate test. [^5]

Charter ss 8,9 – Reasonable Grounds for the Arrest and AI Demand

[10] Constable Deol administered the ASD test, but he was handed the device by PC Mihajlovic. They both had ASDs in their cars, but with the box-in of the accused’s vehicle PC Mihajlovic’s device was easier to get to.

[11] The defence submits that PC Deol did not know at the time he administered the test whether the device was properly calibrated and in working order. He could not reasonably have relied on the ASD test failure as grounds for the arrest and approved instrument demand.

[12] The Crown must prove that the officer subjectively believed the driver had committed the 80+ offence, and that there were objective grounds that reasonably informed that belief. The officer’s belief can be established by direct or circumstantial evidence.

[13] Constable Deol’s evidence shows that he used an approved screening device to conduct the roadside breath test. He used the Fail result as the basis for the arrest and approved instrument test demand. His evidence shows that he had a subjective belief that Ms. Teja committed the 80+ offence.

[14] The Crown submits that direct and circumstantial evidence shows the officer’s belief was objectively reasonable:

• an approved screening device was used;
• he understood that York Regional Police generally calibrate ASDs every two weeks;
• the device was given to him by another officer;
• he had his own ASD in his vehicle so he could have used that if he had any concerns about whether PC Mihajlovic’s device was in working order.

[15] The evidence cited by the Crown does not show that the officer turned his mind to the issue of device reliability or formed a belief in that regard. PC Deol had his own approved screening device with him, but he was never asked whether he checked the device at the start of his shift. He wasn’t asked whether there was a standard force policy in that regard that he relied upon. He was not asked, nor did he state whether he believed the ASD he used was in good working order. Use of an approved screening device is important, but reasonable grounds requires evidence of a belief in the reliability of the particular device, not just the general class of the device.

[16] The Crown has failed to prove that the officer had an objective basis for his belief based on the information known to him at the time. The arrest and further demand in those circumstances breached sections 8 and 9 of the Charter.

Charter s 8 – Cell Toilet Privacy

[17] Ms. Teja was held in a small, private cell. The cell door has a small window that can be accessed by an officer sliding back a cover. Ms. Teja testified on the Charter voir dire that she was advised of video surveillance in the cell and that the toilet area would be blocked from the video view.

[18] This application raises a new issue – does the fact that the police may open the cell door window to communicate with the accused require that they do more to ensure toilet privacy such as issue blankets in addition to the video blocking?

[19] The cell video shows that just after midnight Ms. Teja stood up and went into the blacked out sink and toilet area. She had just got up from that area three minutes later when PC Deol slid open the cell door window to speak with her. She testified on the Charter voir dire that the officer looked at her, then looked away, then later looked back. The video shows the officer waited for 14 seconds before opening the door. PC Deol testified that for this reason he typically knocks on the door before opening the cell window, but he didn’t knock in this case.

[20] Ms. Teja testified that if the officer had opened the window earlier, he would have seen her using the toilet. By the time he did open the window she was standing up and her pants were up, but she was not finished fastening them. She said she felt “shocked” and “violated” at the time.

[21] The police are tasked with monitoring holding cells to ensure prisoner safety. As Justice Boswell explained in R. v. Mok, 2014 ONSC 64, leave refused R. v. Mok, 2015 ONCA 608, the police duty to monitor does not preclude some minimal level of privacy for the person detained. The York Regional Police responded to the court’s instruction in Mok by creating a privacy zone on the cell video which blacks out the area immediately adjacent to the toilet and sink. This cell video shows that the virtual box was sufficient to protect the privacy of the prisoner in that area.

[22] This case does not involve an intrusive privacy breach as was discussed in Mok. [^6] I find the video and direct evidence shows at most a potential inadvertent breach that was luckily avoided. This also identifies a best practice – officers should knock prior to opening a cell window or door.

Charter s 24(2) – Exclusion of Evidence

[23] To determine whether the admission of the breath test evidence in this case would bring the administration of justice into disrepute, the three-part test set by the Supreme Court in R. v. Grant, 2009 SCC 32 applies.

[24] The seriousness of the state conduct is assessed in the first branch. State conduct which violates the Charter ranges on a spectrum from inadvertent or minor breaches to the wilful undermining of Charter interests. Of course, there are many points in between those extremes.

[25] There is no evidence that the officer turned his mind to the requirement that his subjective reasonable grounds must also be objectively reasonable. That’s not a minor breach nor is it a wilful one. The objective component of the reasonable grounds test is an important safeguard and I find the breach here falls midway on the spectrum. That circumstance tends to favour the exclusion of the evidence.

[26] The second branch of the test focuses on the impact of the Charter breach on the Charter- protected interests of the accused. The trial court must evaluate the extent to which the breach actually undermined the accused’s protected interests. [^7]

[27] This is an unusual case in that there was no impact. The evidence of Constable Mihajlovic established that the approved screening device used by PC Deol was in good working order. He confirmed the device had been recently calibrated days earlier. He conducted a self-test and received a correct zero result.

[28] Even though Constable Deol didn’t turn his mind to the objective component of reasonable grounds, he did in fact base the arrest and approved instrument demand on a test that was proved reliable by other evidence. There was a sufficient objective basis for the arrest and demand and no impact on Ms. Teja’s Charter- protected interests.

[29] “Society generally expects that a criminal allegation will be adjudicated on its merits”. [^8] The reliability of the breath test evidence at issue is conceded and it is central to the Crown’s case. The third branch of the test in this case favours admission.

[30] Considering all of the circumstances, I find that the admission of the breath test evidence would not bring the administration of justice into disrepute. The application must be dismissed.

Conclusion

[31] It was conceded that the Crown has otherwise proved the charge alleged beyond a reasonable doubt. There will be a finding of guilt.

Delivered: 25 October, 2024. Justice Joseph F. Kenkel

Footnotes

[^1]: Defence Notice of Application issues 2-4 [^2]: R v Einarson , [2004] OJ No 852 (CA) [^3]: R v Mastromartino , [2004] OJ No 1435 (SCJ) [^4]: R v Notaro, 2018 ONCA 449 at para 24 [^5]: R v Breault, 2023 SCC 9 [^6]: The privacy breach in Mok involved exposed genitalia – para 49 [^7]: R v Grant at para 76 [^8]: R v Grant at para 79