ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-13-01 AP
DATE: 20131107
CORRECTED DECISION RELEASED: November 19, 2013
B E T W E E N:
HER MAJESTY THE QUEEN
Steven Scharger, for the Appellant
Appellant
- and -
LUKE COYLE
Douglas R. Lent, for the Respondent
Respondent
HEARD: September 19, 2013
C O R R E C T E D D E C I S I O N
On page 17 of the original decision dated November 7, 2013, paragraph [83] has been added as follows: “In addition, under s. 259(1) of the Criminal Code, the Respondent Luke Coyle is prohibited from operating a motor vehicle on any street, road, highway or other public place for a period of one year commencing November 7, 2013. He shall attend the Parry Sound Courthouse by December 6, 2013 to have the prohibition reviewed with him by a clerk of the court and to sign the necessary documents.”
WILCOX, J.
[1] INTRODUCTION
[2] The Respondent was charged with operating a motor vehicle having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 253(1)(b) of the Criminal Code (i.e. over 80). The defence brought a Charter application and a blended voir dire and a trial was held in front of Justice L. Duchesneau-McLaughlin, now Duchesneau-Ferris, in the Ontario Court of Justice. The trial judge found that the charge was proven. However, she also found that the Respondent had been held overly long in custody, and granted a stay of proceedings on the basis that that had contravened his rights under s. 9 of the Charter. She dismissed a defence application which contended that the Respondent’s rights under s. 8 of the Charter had been breached when police obtained a breath sample and, later, when they videotaped him in the holding cells.
[3] The Crown appealed, alleging that the trial judge had erred in:
- providing reasons so insufficient that they precluded meaningful appellate review, 2) erroneously finding that the Respondent’s s. 9 Charter rights had been infringed by the delay in releasing him, 3) erroneously finding that the appropriate remedy for the perceived breach was a stay of proceedings.
[4] Respondent’s counsel took the position that the trial judge had not erred as the Crown alleged. However, he alleged that the trial judge had erred in not concluding that the breath test had violated the Respondent’s s. 8 rights.
[5] THE FACTS
[6] The facts of the case are as follows, in outline. Shortly after midnight on June 17, 2012, OPP officers Brian Henry and Mike Dunlop of the West Parry Sound OPP detachment were on patrol in a marked OPP vehicle on the southbound exit from Highway 400 to Seguin Trail, a road in Seguin Township. The officers observed a southbound vehicle ahead of them with its passenger side tires over the white fog line. It was observed to stop and then turn left onto Seguin Trail where the driver’s side tires touched the yellow line. The emergency lights were then activated on the police vehicle for about six seconds, without response from the Respondent’s vehicle which drifted back between the lines. The police activated a siren or horn, at which point the Respondent’s vehicle pulled to the right and stopped. The police approached the vehicle which had two male occupants. The Respondent was the driver. Officer Henry dealt with him. A beer can was seen by Henry on the floor behind the driver. Henry noted that the driver had slurred speech and glossy eyes, and that his breath smelled of alcohol. A roadside screening device (RSD) demand was read, which the driver indicated he understood, and a breath sample was taken, registering a “fail”. The driver was read his rights to counsel for the offence of over 80, a caution and a breath demand, all of which he indicated he understood.
[7] Officer Dunlop searched the motor vehicle and found a beer case, one or more open cans of beer, and four empty beer cans.
[8] The Respondent was then taken to the West Parry Sound OPP Detachment and turned over to a breath technician who obtained two breath readings of 220 milligrams of alcohol in 100 millilitres of blood by about 1:33 a.m. when the driver was returned to Henry.
[9] The Respondent was given the opportunity to telephone his father and was lodged in a cell at about 1:40 a.m.
[10] Henry next dealt with the Respondent at 6:55 a.m., to serve documents and had no further dealings with him. The Respondent was released at about 9:15 a.m. by another officer.
[11] The Respondent had no criminal record and was described by Henry as polite and cooperative.
[12] GROUNDS FOR APPEAL
[13] 1) Did the trial judge err in providing reasons so insufficient that they precluded meaningful review?
[14] At the outset of the hearing, the trial judge indicated that she had read the cases filed in the Charter application and more. She then heard the evidence, followed by counsel’s submissions, and expressed particular concern for and invited the Crown counsel to focus her submissions on the alleged overholding in breach of s. 9.
[15] In the submissions, counsel agreed and advised the trial judge that the onus was on the defence to establish that the accused was arbitrarily detained contrary to s. 9. Crown counsel submitted that there is a high threshold in that the overholding has to be arbitrary, capricious and utterly without any rational explanation. Both counsel referred to various cases dealing with overholding and with the use of the s. 24(1) remedy of a stay. Of course, the defence sought a stay and the Crown opposed it, saying it was an exceptional remedy requiring some nexus between a Charter violation and the procuring of evidence.
[16] The trial judge gave her ruling orally at the end of the hearing. She considered the arguments both ways before determining there was an overholding in breach of s. 9. Her reasoning, in effect, was that the police should have explored more avenues for the accused’s earlier release.
[17] Having made that finding, the trial judge simply stated that, in view of it, she was prepared to enter a stay of proceedings. There was no explicit consideration of the appropriateness of that or any remedy, and no discussion of counsel’s submissions or the law on point.
[18] On appeal, Crown counsel submitted that the trial judge had erred in law by not giving sufficient reasons for finding a breach of s. 9 or for ordering the stay. He noted that there was no exploration of case law, no endorsement of counsel’s reasons, no explanation of how the perceived error of the police merited a stay, and no consideration of other remedies. This, he indicated, left him wondering and unable to assess how a stay was ordered.
[19] Defence counsel countered that the trial judge’s reasons were sufficient in view of the case law on the issue of the sufficiency of reasons. Her decision had been made with the benefit of the evidence, the submissions and the cases filed, not in a vacuum. With that background, it was not deficient, he submitted.
[20] LAW
[21] In R. v. R.E.M. 2008 SCC 51, [2008] S.C.J. No. 52, the Supreme Court of Canada dealt with the requirement for trial judges to give sufficient reasons. It found that there was a duty of procedural fairness that required the provision of reasons for decisions in certain circumstances such as criminal trials (paragraph 10). Such reasons, the court said, serve three functions: 1) Reasons tell the parties affected by the decision why the decision was made. 2) Reasons provide public accountability of the judicial decision. 3) Reasons permit effective appellate review (paragraph 11).
Reasons are sufficient if they show why the judge decided as he or she did (paragraph 17). However, quoting from Dougherty J.A. in R. v. Morrissey 1995 3498 (ON CA), [1995], 22 O.R. (3d) 514 (C.A.) at page 525, the court said, “(t)hey are not intended to be, and should not be read, as a verbalization of the entire process engaged in by the trial judge in reaching a verdict” (paragraph 18). It went on to say that the trial judge need not expound on matters of law and evidence that are well settled, uncontroversial or understood and accepted by the parties (paragraph 19). Reasons are of particular importance where “a trial judge is called upon to address troublesome principles of unsettled law, or to resolve confused and contradictory evidence on a key issue” (paragraph 29, quoting from R. v. Sheppard, 2002 SCC 26, [2002] 1 SCR 869 at paragraph 26). “There is no need to prove that the trial judge was alive to and considered all of the evidence, or answer (sic) each and every argument of counsel.” (paragraph 32 quoting from R. v. Denardo, 2008 SCC 24, [2008] 1 SCR 788 at paragraph 30).
[22] ANALYSIS
[23] Applying the test and explanations in R. v. R.E.M. to the case at hand, I find that the trial judge’s reasons for finding an overholding and therefore a breach of s. 9 are sufficient for a meaningful review. She had read the cases provided by counsel, she had heard the evidence and submissions and she explained her reasons. In explaining her decision on that issue, she explicitly considered the arguments both ways and obviously considered them and the evidence.
[24] The same cannot be said for the imposition of a stay, for which no reasons are given. Neither the parties or the public are told why the trial judge decided to do that. It is not a matter that is so uncontroversial or automatic that it goes without saying. Therefore, an articulation of the relevant facts and of an understanding of the relevant legal principles is necessary to permit effective appellate review to see if an error was made. Consequently, the appeal succeeds on this ground.
[25] GROUNDS FOR APPEAL
[26] 2) Did the trial judge err in finding that the accused’s s. 9 Charter rights had been infringed by the delay in releasing him?
[27] As previously indicated, the Respondent was turned back over to Officer Henry by the breath technician at about 1:33 a.m., but was not released until about 9:15 a.m., nearly eight hours later.
[28] Henry testified as follows. The Respondent was given an opportunity to telephone his father at 1:34 a.m. He was returned to the cell at 1:40 a.m. Henry’s next dealings with him were to serve papers on him at 6:55 a.m. Henry did not think that it was reasonable to release him earlier due to his high levels of alcohol.
[29] Henry said at some points that he knew that the Respondent had spoken to his father at about 1:30 a.m., but could not recall if Henry had spoken to the father as well or if there were arrangements for the father to get him. Later, he said that he could not recall any discussion with the Respondent about whether he had actually spoken to his father.
[30] Henry would have released the Respondent to a responsible adult, but did not recall telling him that.
[31] Henry was not asked if he had told the Respondent that he had only one telephone call, nor did he offer any evidence on that point.
[32] Henry was concerned for any decisions the Respondent would make if released, that is, for the Respondent’s safety. The Respondent was not from the area. Henry’s recollection was that the Respondent was staying in a cottage or trailer in the Otter Lake area with an unknown number of other people, including the passenger. Otter Lake was said to be a 10 to 20 minute drive from the OPP station.
[33] Henry himself had gone off duty at 7:00 a.m. and did not know who picked the Respondent up. He knew that the Respondent’s car was impounded for seven days and that his driver’s licence was automatically suspended.
[34] Notably, he had not charged the Respondent with impaired driving because he did not have reasonable and probable grounds to do so.
[35] Constable Dunlop had testified that he and Henry had left the station and gone on patrol at 2:00 a.m., had returned at some time, and left again from about 4:00 a.m. to 5:45 a.m. and from 6:00 to 6:50 a.m. He left at 7:00 a.m. at the end of his shift. He had no input with respect to the release of the Respondent, and had not advised the Respondent that, if he had a responsible adult who could get him, the police could try to contact them.
[36] The breath technician, Officer Mathew Roberts, testified that the Respondent had alcohol on his breath, watery, glassy, bloodshot eyes, and a flushed and red face. In coordination tests, the Respondent exhibited some swaying, hesitation and unsteadiness. His speech was “fair”, not slurred or worse. This officer had never heard another officer ask nor did he ask the Respondent if there was a responsible adult who could pick him up if he was released.
[37] The Respondent testified that he lived in Orangeville with his parents, but was staying with his friend, the passenger, Jessie Watts, at the latter’s cottage on Otter Lake Road. Jessie’s mother, Kim Watts, and her boyfriend, Wayne Logan, were staying there also. He did not want to stay in a cell overnight. His preference would have been to return to the cottage at Otter Lake. He said that he was told that he could make one telephone call. He called his father rather than the people at the cottage because he felt embarrassed. It was his father’s car that had been impounded and he felt obligated to call him first. However, he did not reach his father, but only left a voice message. He thought that the police realized that, and did not tell them nor ask to call anyone else. He had no contact with Jessie Watts after the police took the Respondent out of the car. Subsequently, he was not told he could call someone else to get him. If he had been, he would have called Kim Watts or Wayne Logan. If he recalled correctly, he said, he asked an officer on two occasions while he was in the cell when he would be released, but was denied release because he was still drunk.
[38] No further sobriety-related tests were done before he was eventually released.
[39] Wayne Logan picked him up and returned him to the cottage.
[40] Wayne Logan testified that he would have picked the Respondent up if he had been called to do so. He had been asleep when Jessie returned to the cottage, and did not hear of the Respondent’s situation until about 9:00 or 10:00 a.m., he said.
[41] Kimberly Watts recalled that she learned that the Respondent was in trouble for “an impaired” when Jessie returned in the middle of the night. She found out later that Jessie was dropped off by police. She would have picked the Respondent up if she had been called to do so. However, Jessie was upset when he returned and she decided to deal with it in the morning. When she called in the morning, she had difficulty getting through the OPP system to find where the Respondent was.
[42] SUBMISSIONS
[43] The submissions of counsel and the trial judge’s reasons for finding that there had been an overholding in breach of s. 9 were reviewed under the previous ground for appeal and will not be repeated here.
[44] Crown counsel argued at the appeal that the crux of the trial judge’s decision that s. 9 was breached was that the police who dropped off the passenger, Jessie, could have inquired about a ride for the Respondent or, knowing where the Respondent was staying, could have let him take a cab, came up for the first time in her ruling, was not raised at trial and therefore was fundamentally unfair. He responded that, if the police had done as the trial judge suggested:
- it might have violated the Respondent’s privacy rights; 2) it is not clear that the effort would have been successful; 3) getting the Respondent a cab was fraught with liability for the police, both for handling the Respondent’s money or credit cards, or in terms of his safety; 4) the Respondent might not understand or keep his release documents if released in an intoxicated state.
[45] The Respondent’s counsel referred to the evidence and to numerous cases and the factors they considered. With reference to this, he submitted that it “dovetailed” with the trial judge’s reasons.
[46] LAW
[47] In R. v. Price 2010 ONSC 1898, [2010] O.J. No. 1587, Durno J. dealt with a defence appeal of a matter in which the Appellant had been convicted of an impaired driving offence. One of the Appellant’s arguments was that his overholding, amounting to a breach of his s. 9 rights against arbitrary detention, should have resulted in a stay. Durno J. reviewed the cases with respect to overholding and summarized in paragraph 93 as follows:
While Iseler is open to the interpretation that as long as there is an assessment made of the specific accused, there is no breach of s. 9, in the absence of a clear statement from the Court of Appeal, I am inclined to agree with the trial judge that permitting the blood alcohol level to be the sole determinant results in too narrow a focus. The officer-in-charge must have consideration to all of the circumstances. A non-exhaustive list of those considerations would include: the accused’s blood alcohol level, whether the accused was charged with impaired operation, his or her level of comprehension, that the accused is prohibited by statute from driving a motor vehicle (the administrative license suspension), that the accused’s vehicle would have been impounded, whether there was a responsible person available to pick up the accused although the officer-in-charge has no authority to bind the responsible person as a surety would be bound, whether the accused had a criminal record and if so, its contents, whether the accused had outstanding charges, his or her attitude and that by drinking and driving the accused has recently exhibited poor judgment. It is only after an objective analysis of these factors and any other deemed relevant, that the officer-in-charge can make an informed decision on release. Being guided only by the blood alcohol level results in too narrow a focus. I agree with the trial judge that if after a consideration of all the factors, the officer determines that the blood alcohol level should be given primary weight in the context of all the considerations, a breach may not be established.
[48] ANALYSIS
[49] Looking at the transcript of the hearing, it appears that the trial judge heard evidence on most if not all of the considerations listed by Durno J. In her reasons, she reviewed the evidence, addressing some of the considerations explicitly. In particular, she reviewed the efforts of the police to see if arrangements could be made for the Respondent’s release and finds them wanting in the circumstances. That conclusion was open to her. I find no appealable error in this regard.
[50] GROUNDS FOR APPEAL
[51] 3) Did the trial judge err in finding that the appropriate remedy for a breach of the accused’s s. 9 Charter rights was a stay of proceedings?
[52] As previously indicated, having found that the evidence was clear that the Respondent was driving while the alcohol in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood as charged, the trial judge also found that there was an overholding of the Respondent in breach of his s. 9 Charter rights and entered a stay of proceedings without giving any reasons for choosing that particular remedy. At trial, defence counsel had argued for a stay, or at least an exclusion of the breathalyzer results, based on the case law and three alleged breaches of the Charter. In two of those, under s. 8 of the Charter, the trial judge found no breach. Crown counsel, as previously noted, argued against a stay, saying it was an exceptional remedy requiring a nexus between the breach and the procuring of evidence.
[53] LAW
[54] In R. v. Zarinchang 2010 ONCA 286, [2010] O.J. No. 1548, the Ontario Court of Appeal reviewed the Supreme Court of Canada cases on point and summarized the legal principles emerging from them as follows in paragraphs 57 through 61:
57 - From the above cases on the Supreme Court, the following principles emerge:
(1) There are two categories of cases that may attract a stay of proceedings. The first category implicates the fairness of an individual’s trial resulting from state misconduct. The second involves a residual category unrelated to the fairness of the trial, but involves state conduct that contravenes fundamental notions of justice, which undermines the integrity of the judicial process.
(2) In considering whether to grant a stay of proceedings under either of the above categories, the following criteria must be satisfied:
(i) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; it must be directed at prospective prejudice, not to redress past prejudice; and (ii) no other remedy is reasonably capable of removing that prejudice.
- In cases in either of the above categories where there remains some uncertainty as to whether the abuse is sufficiently serious to create the prejudice to warrant a stay, there is a third criterion that the court may consider – the balancing of the interests in granting a stay against society’s interest in having a trial on the merits.
58 - Where the residual category is engaged, a court will generally find it necessary to perform the balancing exercise referred to in the third criterion. When a stay is sought for a case on the basis of the residual category, there will not be a concern about continuing prejudice to the applicant by proceeding with the prosecution. Rather, the concern is for the integrity of the justice system.
59 - When the problem giving rise to the stay application is systemic in nature, the reason a stay is ordered is to address the prejudice to the justice system from allowing the prosecution to proceed at the same time as the systemic problem, to which the accused was subjected, continues. In effect, a stay of the charge against an accused in the residual category of cases is the price the system pays to protect its integrity.
60 - However, the “residual category” is not an opened-ended means for courts to address ongoing systemic problems. In some sense, an accused who is granted a stay under the residual category realized a windfall. Thus, it is important to consider if the price of the stay of a charge against a particular accused is worth the gain. Does the advantage of staying the charges against this accused outweigh the interest in having the case decided on the merits? In answering that question, a court will almost inevitably have to engage in the type of balancing exercise that is referred to in the third criterion. It seems to us that a court will be required to look at the particulars of the case, the circumstances of the accused, the nature of the charges he or she faces, the interest of the victim and the broader interest of the community in having the particular charges disposed of on the merits.
61 - Thus, in our view, a strong case can be made that courts should engage in the balancing exercise set out in the third criterion in most cases coming within the residual category.
[55] In R. v. Iseler, 2004 34583 (ON CA), [2004] O.J. No 4332, the Ontario Court of Appeal found that the accused’s s. 9 rights were breached when he was held in a cell for 11 hours after being charged with impaired care and control of a motor vehicle. However, in holding and a stay was not the appropriate remedy, the court said at paragraph 31:
While the police conduct in failing to monitor the accused was inexcusable, it is important to note that the breach of the appellant’s s. 9 Charter rights occurred post-offence. The breach had nothing to do with the investigation and the gathering of evidence against him. It did not impact on trial fairness. As Morden A.C.J.O. said in Sapusak, “[t]here was no temporal or causal connection between the breach and the obtaining of the evidence”. I am accordingly satisfied that this is not “the clearest of cases" warranting the grant of a stay of proceedings.
[56] In R. v. Price, 2010 ONSC 1898, [2010] O.J. No. 1587, Durno J. reviewed the case law also with respect to stays in overholding situations, with particular attention to cases decided by the Ontario Court of Appeal, such as R. v. Iseler, above. In Price, the accused was found to have had his s. 9 rights breached when he was held for over seven hours after giving breath samples when someone was available to pick him up. However, a stay was not imposed as it was found to be inappropriate in the circumstances of the case which revealed no aggravating features. The trial judge said it would be an “overcompensation for a minor wrong”. Instead, he viewed the appropriate remedy as a break in sentencing. He imposed a sentence of time served, being the time spent in the overholding, instead of the minimum fine of $600.
[57] On appeal, Durno J. did not disturb the finding of a s. 9 breach. He then went on to agree that it was open to the trial judge to conclude as he did that there should not be a stay, and he found no error in the remedy imposed.
[58] ANALYSIS
[59] R. v. Price and the present case each have their own unique facts, but they are broadly similar.
[60] The present case falls within the residual category. The breach of s. 9 occurred post-offence, had nothing to do with the investigations nor the gathering of evidence, and did not impact on trial fairness. Rather, it involved state conduct that “undermines the integrity of the judicial process” (R. v. Zarinchang, paragraph 57). There is no prospective prejudice to the accused that a stay would address. Nor was there any evidence of nor argument that there is any systemic problem affecting others in the overholding that requires a response in this case.
[61] Dealing with the matter on the merits is in the public interest. On the other hand, the effect of the s. 9 breach on the Respondent in the circumstances is minimal. On balance, I cannot see that a stay of proceedings was justified at law in this case. As previously indicated, the trial judge did not articulate any reasons for the decision to order a stay. Therefore, I find that the appeal also succeeds on this ground.
[62] ADDITIONAL ISSUES
[63] Appellant’s counsel raised an additional issue, being whether the trial judge erred in accepting the evidence of the roadside screening device (RSD), thereby breaching the Respondent’s s. 8 Charter rights to be secure against unreasonable search and seizure. Consideration of this issue was contingent on the Crown’s appeal on the s. 9 issue being allowed. That being the case, this additional issue will be considered.
[64] Henry testified that he was trained to use the roadside screening device. He believed that the RSD was operating properly when he used it, based on his observations which were consistent with the readings. He said that the instrument is to be calibrated every 14 days to ensure an accurate reading. This one was last calibrated 20 days prior to its use on the Respondent. Henry did not believe he knew that until later, back at the station, after he had used it. In any event, it was not until the Respondent registered a “fail” on the RSD that Henry felt that he had grounds to make the demand for breath tests at the police station. The trial judge heard defence counsel’s arguments, relying on cases that he referred to, that this amounted to a warrantless search, putting the onus on the Crown to show that the police had reasonable grounds to obtain the breath samples. She heard the beginning of Crown counsel’s submissions on point, with respect to there being sufficient grounds for the breath demand even without the RSD fail, and with respect to the applicable test, before having the Crown move on to arguments regarding s. 9.
[65] In her ruling, the trial judge referred generally to the evidence and submissions on point before dealing with them in more detail. She noted that Henry did not realize at the time that the RSD had not been calibrated within 14 days, so had a subjective belief based on the “fail” which, coupled with the other signs of driving over 80, caused her to find no breach of s. 8 as a result of the roadside test. There was no mention of an objective view of the evidence.
[66] The Respondent’s counsel’s argument on appeal followed that made at trial. He submitted that taking the breath samples was a warrantless search and the Crown had the onus to show that the police had reasonable grounds. There is a two prong test for that, arising from the Supreme Court of Canada’s decision in R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241, at paragraph 17:
In summary then, the Criminal Code requires that an arresting officer must subjectively have … reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest.
[67] Here, neither prong of the test could be met because the RSD had not been calibrated within 14 days, he said.
[68] Respondent’s counsel relied on the case of R. v. Dempster, [2000] O.J. No. 4437 S.C.J. The facts in it were as follows. Dempster was stopped while driving by police who had received a complaint. She exhibited signs of having consumed alcohol, and failed the RSD. She was arrested, taken for a breath test, and charged with “over 80”. The officer testified that he would not have arrested her but for the fail in the RSD. Nothing in the officer’s evidence suggested that it was not working properly. The trial judge found that the breath tests violated Dempster’s s. 8 rights because there was no objective evidence that the RSD results were accurate, and therefore no reasonable and probable grounds to arrest her and obtain breath samples.
[69] On appeal, the court found that there was no statutory presumption that the RSD was working properly and providing reliable information; it was for the Crown to prove that. However, the specifics of calibration need not be proved. The court held that, on the evidence, it was open to the trial judge to find that the Crown failed to lead acceptable evidence of the objective reasonableness of the police officer’s belief that the RSD test was reliable, and dismissed the appeal.
[70] The Crown submitted two cases, R. v. Morton, [2009] O.J. 4370 and R. v. Mason, [2009] O.J. No. 4468. Both are decisions of G. M. Mulligan J. of the Ontario Superior Court of Justice sitting on appeals from the Ontario Court of Justice.
[71] In the former case, Morton had failed the RSD, been arrested and failed the breath test. At trial, the officer could not recall when the RSD was last calibrated, although his normal routine was to check that before using it, but without making a note of that. He was not sure how often they had to be calibrated, but thought it was done every week or two. He had no reason to believe it was not working properly. Expert evidence established that the acceptable standard for recalibration of RSDs is every 14 days, to prevent them from becoming unreliable. The trial judge concluded on the evidence that the police lacked objectively reasonable grounds for the subsequent breath test, excluded the results, and dismissed the charge.
[72] On appeal, the court reviewed the case law and found, in summary:
- Although the trial judge’s factual findings are entitled to deference, the trial judge’s ultimate ruling is subject to review for “correctness”. (paragraph 17). 2) Roadside screening devices are simply investigative tools to assist in the formation of reasonable grounds and a “fail” is not by itself evidence for use at trial. (paragraph 18) 3) An officer using an RSD need only have reasonable belief that the device is properly calibrated and in working order before relying on a “fail” result to confirm his or her suspicions that a driver may be impaired or over the legal limit. There is no requirement the officer knew the calibration setting of the device, when it was last calibrated, or whether the device was in fact working properly. (paragraph 19). 4) Where an officer had some basis to believe that the RSD was reliable, he was entitled to take it into account. (paragraph 20) 5) It is not necessary to prove whether an RSD was in proper working order or when it was last calibrated. It is enough if the officer reasonably believes that it was in proper working order. (paragraph 21). 6) The onus is on the accused to prove a “high degree of unreliability” of the RSD when the issue of unreliability is raised. (paragraphs 22 and 23).
[73] Applying this to the evidence, the court found that the police had reasonable and probable grounds to request a breath sample and allowed the appeal, set aside the acquittal and registered a conviction.
[74] In R. v. Mason, the accused failed the RSD test, was arrested and failed the subsequent breath test. The officer had tested the RSD without any indication it was not working properly. He thought it was in proper working order. However, he had not checked the calibration date; he was not sure that, at the time of using the RSD, he was aware of the requirement for calibration each 14 days. He only found out later that the RSD had not been calibrated for 28 days. He said he would not rely on one that was calibrated outside the 14 day timeframe.
[75] The trial judge found that from an objective point of view, the reliability of the RSD’s results was in question and therefore s. 8 was breached. The decision was, said the appeal court, “grounded on the fact that the officer ultimately learned that the device had not been calibrated within the 14 day period”. However, the evidence was admitted and the accused was convicted.
[76] The accused appealed the conviction. The issue for the appeal court was whether the officer had reasonable grounds to request a breath sample. The court reviewed the cases and determined the following, among other points:
It is important that the officer’s belief in making a demand for a breath test was reasonable, not that it was necessarily accurate.
The court, when applying the objective test, must consider only the information available to the officer when he formed his opinion.
[77] In the end, the appeal court found the officer had reasonable and probable grounds to request a breath sample and there was no breach of the Appellant’s s. 8 rights.
[78] ANALYSIS
[79] In the present case, the officer had a subjective belief that the RSD was operating properly. By the standard of R. v. Dempster, however, the Respondent’s s. 8 rights in the present case would be found to have been infringed. The Dempster case was even more favourable to the Crown in that, in it, unlike the present case, the officer had tested the device. Dempster is not cited in either the Morton nor the Mason cases. By the standards of those cases, based on a review of the case law, it appears that the information available to the officer at the time would have been sufficient to ground both his subjective and an objective belief that the RSD was working properly. There was no evidence that it was unreliable, which the Respondent had the onus to prove. That it was later learned that it had not been calibrated within 14 days does not change that.
[80] On the facts, and in view of the conflicting case law, I find that the officer had reasonable and probable grounds to request a breath sample. Therefore, the Respondent’s appeal on this point fails. Even if I am wrong in arriving at this conclusion, I find that the breath sample evidence would be admissible anyway on the basis of a Grant analysis.
[81] CONCLUSION
[82] In the result, I would set aside the stay and enter a conviction under Criminal Code s. 253(1)(b). However, as a result of the s. 9 breach, I would reduce the fine from the minimum of $1,000 to $500.
[83] In addition, under s. 259(1) of the Criminal Code, the Respondent Luke Coyle is prohibited from operating a motor vehicle on any street, road, highway or other public place for a period of one year commencing November 7, 2013. He shall attend the Parry Sound Courthouse by December 6, 2013 to have the prohibition reviewed with him by a clerk of the court and to sign the necessary documents.
Justice J. A. S. Wilcox
Released: November 19, 2013