ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 19/12
DATE: 20130108

BETWEEN:

HER MAJESTY THE QUEEN
Appellant

– and –

CECIL RAMSAMMY
Respondent

Jason Gorda, for the Appellant
Adam Little, for the Respondent

HEARD: December 17, 2012

McWatt J.

REASONS FOR JUDGMENT

[1] The Crown appeals the acquittal entered by Justice R.J. Otter on February 7, 2012 after he granted Mr. Ramsammy’s section 8 Charter application and excluded the breath sample readings derived from a “fail” registered on an Approved Screening Device (ASD).

[2] The Crown argues the following grounds of appeal:

(a) that the trial judge erred in applying the wrong test in determining whether the officer had reasonable and probable grounds to demand a breath sample;

(b) that the trial judge erred in finding a breach of the respondent’s rights under s. 8 of the Charter as a result of the officer’s lack of knowledge of the Approved Screening Device’s error codes; and

(c) that the trial judge erred in concluding that the breach, in the circumstances of this case, should result in the exclusion of evidence under section 24(2) of the Charter.

The Facts

[3] The case consisted of Crown evidence only.

[4] On October 10, 2010, P.C. Robert Dearborn stopped the respondent at approximately 5:38 p.m. after Mr. Ramsammy made a prohibited left turn. The officer noticed that the respondent had bloodshot eyes. The respondent told P.C. Dearborn he was on his way to pick up his wife. While he was speaking, the officer noticed a smell of alcohol on Mr. Ramsammy’s breath and questioned him about having consumed alcohol. The respondent admitted to have had one Budweiser then two of the beer, finishing the second one at 3:00 p.m.

[5] Officer Dearborn formed the suspicion that the respondent had alcohol in his body and requested that he accompany him to the police cruiser where, at 5:42 p.m., he read him the screening device demand.

[6] After explaining the device and the consequences of blowing or not blowing into it to Mr. Ramsammy, Officer Dearborn readied the device for the test. During the first test, the respondent sucked air in through the machine and into his mouth rather than blowing into it. The machine showed an “E-01” error on a digital printout on the device. The officer changed the mouthpiece and reset the device. The respondent registered a fail on his second attempt. The result provided the officer with reasonable grounds to arrest the respondent on an Over 80 charge at 5:54 p.m.

[7] During the Charter motion, Officer Dearborn testified he believed the screening device was in proper working order. He had confirmed prior to administering the test that it had last been calibrated on October 1, 2010 which was less than two weeks prior to the test he administered on Mr. Ramsammy. Had the calibration been done more than two weeks prior, he would not have used that ASD.

[8] The officer was cross-examined about his training on the use of the instrument. His Honour found that he had initially joined the Toronto Police Force 23 years ago and was instructed on the device 15 years ago with various updates since then. He was an officer of 11 years of extensive experience as a traffic officer who had conducted numerous drinking and driving investigations and used the ASD extensively.

[9] During the trial, Officer Dearborn was cross-examined about the cause of the error code he noted on the date of the alleged offences. He advised that the error code was a result of a problem with the sample, the air flow and what he had observed from the respondent. He was not aware of any other error codes.

[10] When shown page 16 of the Alcotest training manual, he agreed there was no error code as he had remembered as “E-O1”. The only error codes listed in the manual were EO and E1. He went on to acknowledge that he was aware there were multiple error codes, but that he would not know the appropriate steps to take if he saw the other codes as he only dealt with the “E-O1” code. The officer testified that he was familiar with the error code which registered on the ASD the day in question and, as a result, he shut the machine off and restarted it again because there was a problem with the instrument.

[11] P.C. Dearborn said the following in cross-examination:

Q: Okay. Officer, I’m going to suggest to you that without knowing what the error code was telling you, you wouldn’t be able to say if the instrument was working properly?

A: But I did do what the manufacturer suggests I do and that’s turn it off and then on again to reset it.

Q: I’m going to suggest to you that the instrument was indicating to you that there was a problem on that day?

A: Well, with the error code, there was a problem, yes.

Q: Yes, I’m going to suggest to you that without knowing all of the error codes, you’re not in a position to determine when the instrument is telling you if something is wrong?

A: I don’t have a copy of those error codes. Every time I get an, an “E” for an error code, I reset the machine. I shut it off and turn it back on.

Q: I’m going to suggest to you that when – that your belief is in the past and you’ve always got this E01 reading. Is that correct?

A: That’s the only one I am familiar with, yes.

Q: I’m going to suggest to you that it might be that you’ve had problems with the instrument in the past and not realized and attributed it to a flow error?

A: Well, that – the piece of paper does say that someone’s not blowing hard enough or evenly enough and that you ask them to blow harder. It – I’m kind of correct, I think, in doing what I’m doing because I reset the, the machine anyways just to – just so there’s, there’s no chance of maybe keeping that same error code on the screen. That’s all we’ve been trained to do. If the error code would keep coming up again or came up a second time, I wouldn’t use the machine again.

[12] P.C. Dearborn disagreed in cross-examination, that he had any concern about whether or not the ASD was working properly.

[13] There was no evidence called by the defence that put the workings of the ASD in question.

[14] After the arrest, the respondent was transported to 41 Division and arrived there at 6:25 p.m. He was paraded before the officer in charge of the station where additional signs of his impairment were noted, such as his being unsteady on his feet and slurring his words. The respondent was turned over to a qualified breath technician and provided two samples with readings of 268 and 259 milligrams of alcohol in 100 milliliters of blood.

The Judgment

[15] The trial judge found that, on a balance of probabilities, the respondent’s s. 8 Charter rights were breached due to the fact that Officer Dearborn could not rely on the “fail” reading from the ASD and he, therefore, could not have formed the reasonable and probable grounds to arrest the respondent for over 80. This, he concluded, was because the officer lacked knowledge about error code “E-01” in the manual.

[16] The evidence obtained as a result of the breach was then excluded. His Honour found the following:

(i) that officers administering the ASD should have a basic understanding of the error codes before proceeding with an arrest;

(ii) that police officers should be properly trained and then receive updated training on the use of ASDs and their error codes;

(iii) that this lack of understanding and training combined to constitute a serious breach;

(iv) that the lack of basic knowledge of the ASD in light of this officer’s 15 years of experience resulted in a serious breach;

(v) public confidence in the administration of justice is undermined if police do not adequately know how to use the device that forms the basis of an arrest.

Analysis

a) Did the trial judge apply the wrong test in determining whether the officer had reasonable and probable grounds to demand a breath sample?

[17] In R. v. Musurichan, 1990 11054 (QC CA), [1990] A.J. No. 418, at page 4, McClung J.J.A. set out the following about how reasonable and probable grounds are formed for a police officer to make a breathalyzer demand.

The important fact is not whether the peace officer’s belief, as a predicate of the demand, was accurate or not, it is whether it was reasonable. That it was drawn from hearsay, incomplete sources, or that it contains assumptions will not result in its legal rejection by resort to facts which emerged later. What must be measured are the facts as understood by the peace officer when the belief was formed. R. v. Hitchner (1989) 1989 ABCA 41, 92 A.R. 395 C.A.; R. v. Biron 1975 13 (SCC), [1976] 2 S.C.R. 56 (S.C.C.).

[18] In order to make a breath demand pursuant to s. 254(3) of the Criminal Code, an officer must believe on reasonable and probable grounds that a person has committed an offence under s. 253 of the Criminal Code: “Reasonable and probable grounds, in the context of a breath demand is not an onerous threshold.” It should not be inflated to the context of testing trial evidence.

[19] There is a subjective and an objective component to reasonable and probable grounds. At paragraph 17 of R. v. Storrey, 1990 125 (SCC), [1990] S.C.J. No. 12, the Supreme Court of Canada set out the following:

In summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base an 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.

[20] A “fail” test on an ASD is itself capable of providing both the subjective and objective grounds for the breathalyzer demand.

[21] Whether an officer possessed the subjective belief necessary for a breath demand is a question of fact. And, while the trial judge’s findings of fact with respect to whether an officer had a subjective and objective basis for his belief are entitled to deference, the application of the wrong test in determining if reasonable and probable grounds exist based on those facts is a question of law. A trial judge’s ultimate ruling is subject to review for correctness. R. v. Shepherd, 2009 SCC 35, [2009] S.C.J. No. 35 (S.C.C.) at paras 18 to 20.

[22] There was no necessity for Officer Dearborn to know, nor testify about the intricacies of the ASD. It was sufficient that he reasonably believed the device was in proper working order to rely on it to form his grounds for a breath demand.

[23] The ASD is an investigative tool in the formation of reasonable and probable grounds and is not evidence upon which the trial judge is expected to rely on for proof of the offence.

[24] There was an onus in this case on the appellant to lead evidence at trial that the ASD was highly unreliable at the time of the test. And, even if there were trial evidence to establish the officer had a mistaken belief about the device’s reliability, absent evidence of a high degree of unreliability, the test result could have been relied upon to make a breath demand.

[25] The trial judge in this case did not properly address whether or not P.C. Dearborn had a subjective basis to make the breath demand and whether or not that basis was objectively reasonable.

[26] Although His Honour accepted that the officer had a subjective basis for his belief the screening device was working properly when he outlined the officer’s 11 years of “extensive experience as a traffic officer” who had conducted numerous driving investigations and had extensive use of the ASD, he made no reference thereafter to whether or not that belief was objectively reasonable.

[27] Instead, the trial judge went on to conclude that he officer’s lack of knowledge of the error codes and the lack of any “E-O1” error code in the manual meant Officer Dearborn did not have the requisite grounds to make a breath demand.

[28] The trial judge did recognize that the issue was whether or not the officer could rely on the “fail” despite the error message, but he did not then go on to assess whether or not the officer’s reliance on the ASD, in the circumstances, was supported by objective facts. Nor did he ask himself whether a reasonable person, in the circumstances Officer Dearborn found himself, would come to the same conclusion.

[29] The trial judge erred when he failed to assess the objective aspect of the test for reasonable and probable grounds in this case.

b) Did the trial judge err when he found the respondent’s rights under s. 8 of the Charter were breached as a result of the officer’s lack of knowledge of the ASD error codes?

[30] There was no evidence before the trial judge that there was anything wrong with the ASD. The fact that Officer Dearborn testified about an error code which does not exist, did not allow the trial judge to speculate that the machine was not working properly.

[31] The trial judge did not consider the fact that the Crown did not have to prove the ASD was working properly or that there was an onus, which was not met in this case, on the defence to show a high degree of unreliability with respect to the screening device at the time it was used on the respondent.

[32] The respondent relied on the cases of R. v. Shepherd, supra and R. v. Haas, 2005 26440 (ON CA), [2005] O.J. No. 3160 (Ont. C.A.) for the proposition that any onus is on the Crown to demonstrate that a warrantless seizure is reasonable in the context of a s. 8 Charter challenge and there is no onus on the defence to show the ASD was unreliable. The Haas case can be distinguished from this one. There, neither the Crown nor the accused led evidence on the reasonableness of the breath demand. The court simply held it was incumbent on the Crown to do so because it was in the best position to know how and why the seizure took place. The Shepherd case stands for, among other things, the principle that the Crown bears an onus to prove the officer has reasonable and probable grounds to make a demand. These cases in no way change the law as I have set it out in the two previous paragraphs.

[33] There was evidence in the trial of two actual error codes: EO or E1. Based on that evidence in the manual filed as an exhibit, even if Officer Dearborn mistook the code or was incorrect about how the error he saw was caused (from Mr. Ramsammy’s sucking rather than blowing), he still did what the manual required him to do, which was to reset it. The trial judge did not take this into consideration.

[34] The respondent has also relied on the cases of R. v. Narine, unreported decision of Chisvin, J., May 11, 2011 (O.C.J.); R. v. Costa, [2010] O.J. No. 1881 (O.C.J.) and R. v. Au-Yeung, 2010 ONSC 2292, [2010] O.J. No. 1579 (S.C.J.) to support Justice Otter’s findings at this trial. Mr. Ramsammy contends that the trial judge in his case was, in fact, assessing the objectivity of Officer Dearborn’s subjective reliance on the ASD and found, as in the cases above, P.C. Darborn simply could not have been said to have reasonably held his subjective belief because he did not understand the error codes.

[35] In R. v. Narine, Justie Chisvin found that while officers making roadside demands need not be familiar with the intricacies of the ASD, the officer must have a reasonable belief the device is properly calibrated and in working order before relying on a failed result to confirm his suspicion the driver may be impaired or over the legal limit. The case before me is not about the calibration of the ASD. There was no issue in this case that the device was not calibrated properly. Officer Dearborn testified that the device was working properly.

[36] In R. v. Costa, Pringle J. found that the arresting officer’s lack of knowledge about the ASD he used on the accused undermined the reliability of his understanding of the device and influenced his subjective belief it was working. The facts of that case differ from this one. First, there were two fails registered on that ASD. Second, the officer’s knowledge of and experience with the ASD was less, on Her Honour’s findings, than those of Officer Dearborn. Third, the officer in the Costa case was unaware of six or seven possible error codes. In the present case, it appears Officer Dearborn was unaware of one. In Costa, there was a potential, on the evidence, that the ASD error code meant the machine was inoperable and ought to have been returned to the manufacturer. There was no such evidence before Justice Otter. Finally, unlike this case, the officer in the Costa matter provided no evidence whether Mr. Costa was creating a problem by, for example, blowing into the device too lightly or without a seal. Officer Dearborn testified Mr. Ramsammy was sucking air into his mouth rather than blowing into the device before it registered a fail.

[37] Finally, in the case of R. v. Au-Yeung, T. Ducharme J. of this court, excluded the appellant’s breath samples based on numerous errors committed by the officer administering the ASD which seriously undermined his reasonable and probable grounds to rely on any result it rendered – including the officer’s admission that he wasn’t sure he used the device properly. That case has no bearing on Mr. Ramsammy’s case. The facts are entirely distinguishable.

[38] The trial judge should not have concluded that there was a breach of Mr. Ramsammy’s s. 8 Charter rights.

c) Did the trial judge err in excluding the evidence under s. 24(2) of the Charter?

[39] Since I have already found that His Honour applied the wrong test in finding the respondent’s section 8 Charter rights were breached, I need not consider this ground. If I am wrong about this finding, I offer the following with respect to the issue of a section 24(2) exclusion.

[40] I find that the trial judge erred in excluding the breath sample from the evidence on the basis of the principles set out in R. v. Grant (2009), 2009 SCC 32, 245 C.C.C. (3d) 1 (S.C.C.).

[41] First, His Honour relied on the case of Au-Yeung, the facts of which are vastly different from this case. He characterized the breach as serious when the evidence showed that Officer Dearborn was acting in good faith – believing he had appropriately dealt with the error code according to his training and experience. I also agree with the Crown’s submission that Officer Dearborn’s mistake about the error being an “E-O1” coupled with the trial judge’s finding, (without evidence to support it) that the error code could actually have been an error code the officer was not familiar with, is not a serious breach which would favour exclusion of the evidence.

[42] Second, the trial judge found that the impact of the breach on the respondent was serious in that he was arrested, handcuffed and taken in custody to the police station for the breath tests. As set out in R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32 at paras 76 – 78, 111, the interests engaged in the context of a s. 8 challenge are the right to “privacy, and more broadly, human dignity”. In the context of seized breath samples, this is not a significant intrusion upon the body. Consequently, admission of breath sample evidence may be admitted.

[43] Finally, the trial judge correctly found that the third set of Grant factors argued in favour of admissibility. I agree.

[44] I would admit the evidence.

Conclusion

[45] The Crown’s appeal is granted. The matter shall be returned to the Provincial Court for a new trial.

McWatt J.

Released: January 8, 2013

COURT FILE NO.: 19/12
DATE: 20130108

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN
Appellant

– and –

CECIL RAMSAMMY
Respondent

REASONS FOR JUDGMENT

McWatt J.

Released: January 8, 2013