GUELPH FILE NO.: 127/12
DATE: 20140225
ONTARIO
SUPERIOR COURT OF JUSTICE
(Summary Conviction Appeal Court)
B E T W E E N:
HER MAJESTY THE QUEEN
MURRAY de VOS, for the Respondent Crown
Respondent
- and -
RYAN BEHARRIELL
DAVID BURKE, for the Appellant
Appellant
REASONS FOR JUDGMENT
[On appeal from the judgment of the Honourable Justice N.S. Douglas, dated July 16, 2012]
DURNO J.
[1] The appellant was stopped for speeding and pursuant to a roadside demand provided a breath sample into an approved screening device (ASD). His sample analyzed as a “fail,” he was arrested, and taken to the station where he provided Intoxilyzer breath samples that were analyzed and showed his blood alcohol level was over the legal limit.
[2] At his trial for driving having consumed excess alcohol, the arresting officer gave no evidence: regarding his testing the ASD before asking the appellant to provide a breath sample, when the instrument was calibrated, what steps he took to determine if the instrument was working properly or that he subjectively believed the instrument was working properly.
[3] The appellant applied to exclude the Intoxilyzer reading contending his s. 8 rights were violated because “the breath demand was made upon insufficient reasonable and probable grounds” as there was no evidence the officer “had either subjective or objectively reasonable grounds to believe that the[ASD] was in proper working order.” The Notice of Application addressed the fact the taking of the Intoxilyzer samples was a warrantless search and the onus was therefore on the Crown to establish the search was reasonable and s. 24(2). It did not mention the ASD or any issues related to its use.
[4] The trial judge dismissed the application finding that he could draw an inference that because the officer based his arrest on the ‘fail’ reading it was obvious that the officer subjectively believed the ASD was in proper working order. Objectively, there was no reason to doubt why the officer believed it was in proper working order.
[5] The appellant appeals contending the trial judge erred in failing to exclude the Intoxilyzer readings. For the following reasons, the appeal is dismissed.
The Trial Evidence
[6] The investigating officer, Acting Sergeant Pridham, had been employed by the Ontario Provincial Police for over five years and as a police officer for 19 years with the Peel Regional Police. He had been trained in the use of the ASD and involved in over ten drinking and driving investigations in the past. After stopping the appellant, the officer testified that he read the roadside demand and explained the “approved device,” a Dräeger Alcotest 7410, to the appellant. He told him and “somewhat showed him how to use the device,” put a new mouthpiece that was wrapped in plastic into the device, explained that he needed to take a deep breath, to make a tight seal with his lips on the mouthpiece, and to blow long and hard until he said to stop. The appellant did as he was instructed to do. The sample analyzed as a ‘fail,’ meaning his alcohol level was over 80 milligrams of alcohol in 100 millilitres of blood. At that point, the officer formed the opinion that the appellant was impaired by the consumption of alcohol and he was arrested for “over 80.”
[7] The officer agreed that while the ‘fail’ on the ASD was part of his investigation, the decision to arrest the appellant and make an Intoxilyzer demand would not have occurred without the ‘fail’ result. In cross-examination, he said that according to his knowledge and training of the ASD, the options other than a ‘fail’ were, “[u]p until point zero five, it will give you the actual reading. Once it hits point zero five, it will register an ‘A’ for alert, which would be equivalent to a three day suspension now, and then the next option, point zero five up to point one, would be --- if you’re over the point one would be an F for ‘fail.’
The Reasons for Judgment
[8] The trial judge initially considered the SCA judgment in R. v. Binelli[^1] 2010 ONSC 539, [2010] O.J. No. 241 (S.C.J.) and the Court of Appeal judgment in R. v., Topaltsis 2006 CanLII 26570 (ON CA), [2006] O.J. No. 3181. Based on those authorities, His Honour concluded the Crown was not required to prove the ASD was in good working order. Rather, the Crown was required to prove the officer objectively had reasonable grounds for believing that it was in working order.
[9] While the test for the officer was whether he had subjectively reasonable grounds, the test for the trial judge was, objectively, was there some evidence that the officer had reasonable grounds to believe: 1) that the ASD was in proper working order, and 2) that the ASD analysis resulted in the officer having reasonable and probable grounds to arrest the appellant.
[10] Since it was a warrantless search, the onus was on the Crown to show there were reasonable and probable grounds for the arrest and Intoxilyzer demand. While the appellant argued the officer never said he believed the ASD was in proper working order, the Crown argued that there were no magic words required to convey that information so long as there was evidence from which the belief could reasonably be inferred. The Crown argued the evidence in support of the inference was the officer was using an approved device, he explained how it worked, the appellant provided a sample that analyzed as a ‘fail,’ the officer said what that meant in law, and the officer formed the opinion the appellant was impaired and arrested the appellant for ‘over 80.’
[11] His Honour was “attracted” to the Crown’s argument. The officer was not cross-examined on his belief or the ASD’s calibration. The trial judge concluded that it was simply the officer’s evidence standing alone, “un-contradicted, unchallenged, and it was obvious to me that the officer formed the belief that the machine was in proper working order, or he would not have continued the investigation.”
[12] The trial judge continued:
In the result of this case, I am satisfied that the Crown, for the purpose of the voir dire, had proven that the officer subjectively (and it is apparent to me and I find that objectively that belief was reasonable) that the approved screening device which he was using was proper, in proper working order, and that the Crown has proven, for the purpose of the voir dire only now, that the officer had objectively reasonable grounds for believing the device was in proper working order and, accordingly, formed reasonable grounds to arrest the accused based on the ‘fail.’
[13] At the end of the trial, His Honour found the officer had reasonable and probable grounds to make the demand as an essential element of the offence. That finding is not the subject of the appeal.
The Positions of the Parties
The Appellant’s Position
[14] The appellant submits the trial judge erred in failing to exclude the Intoxilyzer readings because there was an insufficient basis for the demand as a result of the improper finding the ASD was in proper working order. While not framed as such, the effect of the appellant’s submission is that the trial judge’s conclusion that the officer objectively had reasonable grounds to believe the ASD was operating properly was an unreasonable finding.
[15] While conceding the Court of Appeal has held that the onus was on the accused to lead evidence there was a high degree of unreliability with regards to the ASD at the time it was administered, the appellant submits the reality is that the Crown is in the best position to know how and why a seizure took place. From that perspective, “it is sensible, then, to require the Crown to prove reasonableness, rather than the accused to prove the opposite.” The appellant contends that the appellate authority that there is an onus on the accused with regards to the high degree of unreliability, now must be read in light of R. v. Haas (2005), 2005 CanLII 26440 (ON CA), 200 C.C.C. (3d) 81 (Ont. C.A.) at paras. 36-7.
[16] Before there can be any onus on the accused, there must be a preliminary finding of fact that the officer had a reasonable belief the device was properly calibrated and in working order. As there is no statutory presumption the ASD is working properly and the information it provides is reliable, the Crown must bear the onus of proving whether a particular ASD reliably provided the information relied upon by the investigating officer. If there is no evidence of objective reasonableness, the Crown must, at least establish a prima facie bases before the onus on the accused is engaged.
[17] The appellant contends the officer was required as a “statutory obligation” to consider the timelines of the calibration. That is the most important factor available to him to indicate the machine was reliable and in proper working order. While it was not enough for an officer to rely only on a self-test and nothing more, here there was not even evidence of a self-test. Further, there was no evidence the arresting officer ever addressed his mind to self-testing the machine, when it was calibrated or whether it was in proper working order. Objective reasonableness is assessed on the facts known to the officer at the time he formed his belief. Here, there was no evidence upon which the trial judge could find the belief existed. In those circumstances, the conclusion that the officer had the requisite belief was unreasonable.
[18] His Honour’s inference the officer’s evidence surrounding his knowledge of the ASD testing was sufficient to establish he had the requisite grounds regarding the proper working of the ASD reflects a misapprehension of the evidence. There was a complete absence of evidence relating to the proper working order of the instrument he used.
[19] Finally, in relation to the s. 8 breach, the appellant submits that His Honour erred in inferring that because the officer knew how to take an ASD breath sample and what ‘fail’ meant, that there was evidence the machine was in proper working order. Knowledge of the possible ASD results and the testing procedure does not equate with a belief the instrument was operating properly.
[20] The appellant submits that having clearly established a s. 8 breach, the s. 24(2) analysis results in the exclusion of the evidence. The experienced officer should have known how to satisfy himself regarding the proper working order of the ASD. His conduct bordered on wilful blindness. At best his actions were negligent. The breach was serious as the appellant was arrested and an Intoxilyzer demand made without reasonable and probable grounds. He was subjected to a temporary loss of liberty, a 90 day administrative license suspension and a relatively minor intrusion of his bodily integrity. While the evidence is reliable, the requirement of the Criminal Code are also important. On balance, the evidence should be excluded.
The Respondent’s/Crown’s Positions
[21] The Crown submits that in the absence of evidence the officer believed the ASD was not working properly, an officer using an ASD can reasonably and honestly rely on its accuracy. Further, there is no onus on the Crown to prove the officer knew the ASD’s calibration, when it was last calibrated or that the ASD was in proper working order. What is required is that the officer reasonably believes the device is calibrated and working properly.
[22] The purpose of the ASD is to provide officers with a means of obtaining further evidence to assist them in determining whether reasonable and probable grounds exist to make an Intoxilyzer demand. Because the result is not determinative of the driver’s blood alcohol concentration, it is only necessary that the officer reasonably believes the information obtained from the ASD.
[23] When dealing with an ASD, there is an onus on the accused to lead evidence there is a “high degree of unreliability with respect to the screening device” at the time it was used. For it to be open to a court to find that both the subjective and objective components of the requisite reasonable grounds for an Intoxilyzer demand have been made out, the court need only be satisfied of the following: the officer took steps to use the ASD for its intended purpose; conducted the test properly and interpreted the ‘fail’ result to indicate an offence had been committed. That evidence was available to the trial judge.
[24] In addition, this ASD was being used with other objectively discernible evidence known to the officer including the odour of alcohol on the appellant’s breath, his red eyes, his admission to previous consumption of alcohol and his somewhat unusual attire for the middle of the winter. The officer explained how the device was used, including the reading at which it was calibrated to indicate a ‘fail’, and that after obtaining the fail, he had grounds to arrest the appellant.
[25] While submitting there was no s. 8 violation, the Crown contends that applying the Grant s. 24(2) analysis, the evidence should be admitted in any event. On the seriousness of the violation branch, this was not a serious breach. There is no evidence of bad faith. The appellant was legitimately stopped. There were objectively discernible facts that resulted in a reasonable suspicion for the officer to make the ASD demand. If there was any breach, it was in the officer not testifying specifically that he had information regarding the calibration and working order of the ASD. The breach, if it existed, was minor and technical in nature.
[26] On the impact branch of the s. 24(2) analysis, the test was minimally intrusive and is accepted by the courts and society as essential to control the greater societal harm associated with drinking and driving offences.
[27] Finally, on the societal interest branch, the evidence is highly reliable, it forms the entirety of the Crown’s case, so that the truth seeking function of the criminal trial process would be better served by the admission of the evidence.
[28] Balancing the three branches, the Crown argues the evidence should be admitted.
Did the trial judge err in finding there was no s. 8 breach?
The Standard of Review
[29] While a trial judge’s conclusion that an officer had reasonable and probable grounds is a finding of fact and entitled to deference on appeal, whether the facts as found by the trial judge amount at law to reasonable and probable grounds is a question of law. As such, the ultimate ruling that reasonable and probable grounds existed is subject to review on the correctness standard. R. v. Shepherd ,2009 SCC 35, [2009] S.C.J. 35.
The Test where it is alleged a finding of fact was unreasonable
[30] It is not the role on an appellate court to re-try the case and substitute its view of the evidence if it differs from that of the trial judge. Rather, the appellate court examines the evidence and determines whether there was evidence upon which the trial judge could reach the conclusion he or she did. R. v. Corbett (1973), 1973 CanLII 199 (SCC), 14 C.C.C. (2d) 385 (S.C.C.). That another judge or the appellate court might have or would have reached a different conclusion is not the test.
[31] As the Court of Appeal held in R. v. Willock (2006), 2006 CanLII 20679 (ON CA), 210 C.C.C. (3d) 60:
Section 686(1)(a)(i) of the Criminal Code mandates appellate review of the sufficiency of the evidence said to justify the conviction. The review is a limited one. An appellate court must determine whether a properly instructed trier of fact, acting judicially, that is reasonably, could have convicted the accused on the totality of the evidence. In performing this task, the appellate court must view the entirety of the evidence through “the lens of judicial experience”: see R. v. Biniaris (2000), 2000 SCC 15, 143 C.C.C. (3d) 1 at para. 40 (S.C.C.).
In exercising its power to review the reasonableness of the verdict, the appellate court cannot simply substitute its view as to the appropriate verdict. Nor is it sufficient for the appellate court to have a “lurking doubt” or some other vague discomfort as to the correctness of the verdict. As Arbour J. said in Biniaris at para. 42, in describing the function of appellate review for reasonableness:
To the extent that it has a subjective component, it is the subjective assessment of an assessor with judicial training and experience that must be brought to bear on the exercise of reviewing the evidence upon which an allegedly unreasonable conviction rests. That, in turn, requires the reviewing judge to import his or her knowledge of the law and the expertise of the courts, gained through the judicial process over the years, not simply his or her own personal experience and insight. It also requires that the reviewing court articulate as explicitly and precisely as possible the grounds for its intervention. I wish to stress the importance of explicitness in the articulation of the reasons that support a finding that a verdict is unreasonable or cannot be supported by the evidence. [emphasis added]
Where the verdict is reached by a judge alone, the reasons of the trial judge can provide valuable insight into the reasonableness of the verdict. However, errors in the reasons are not a pre-condition to a finding that a verdict is unreasonable, and errors do not compel a finding that the verdict is unreasonable: R. v. Biniaris, supra, at para. 37.
The Onus
[32] Because the taking of the appellant’s Intoxilyzer samples was a warrantless search, the onus was on the Crown to establish the seizure was reasonable on a balance of probabilities. R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at para. 22. Section 254(3) authorizes an officer to make an Intoxilyzer breath sample demand if he or she has reasonable grounds to believe that a person is committing or has committed at any time within the preceding three hours the offence of impaired operation or driving having consumed excess alcohol. When the demand is made the officer must subjectively have an honest belief in reasonable and probable grounds. In addition, that belief must be objectively reasonable on the bases of the information known to the officer at the time of the demand. R. v. Bernshaw, 1995 CanLII 150 (SCC), [1994] S.C.J. No. 87; R. v. Bush, (2010) 2010 ONCA 554, 101 O.R. (3d) 641 (C.A.)
Was the finding the officer’s subjective belief was objectively reasonable, unreasonable?
[33] Appellate courts have examined the use of ASDs for several decades. In R. v. Beech (1993), 44 M.V.R. (2d) 273, the Court of Appeal for Ontario held that there was no requirement for the officer to do a calibration check on the ASD in order to have reasonable and probable grounds for arrest relying on the ‘fail’ reading.
[34] In R. v. Bernshaw, (1995), 1995 CanLII 150 (SCC), 95 C.C.C. (3d) 193, the Supreme Court of Canada held that “[w]here the particular screening device used has been approved under the statutory scheme, the officer is entitled to rely on its accuracy unless there is credible evidence to the contrary.” Further, the Court noted at para. 80:
If the scientific evidence establishes a high degree of unreliability with respect to the screening device when certain conditions prevail, and if a police officer knows, for example based on his or her training, that the resultant screening device will provide inaccurate results where a suspect has consumed alcohol within the 15 minutes prior to administering the test, how can the police officer testify that he or she had an honest belief of impairment, absent other indicia? Surely the knowledge that the screening test is unreliable would vitiate any subjective belief that an officer may have regarding reasonable and probable grounds of the commission of an offence under s. 253 of the Code. A police officer will have difficulty in concluding that such a flawed test upgrades one's mere suspicion into reasonable and probable grounds. If the police officer is to give an honest answer as to his belief, I cannot see how, as a matter of law, we can tell the officer that the answer is wrong.
[35] While Bernshaw was not a Charter case, Sopinka J. found the criteria to be examined under s. 254(3) and s. 8 of the Charter were the same. R. v. Mastromartino (2004), 2004 CanLII 28770 (ON SC), 70 O.R. (3d) 540 (S.C.J.) at paras. 14-16.
[36] In R. v. Paradis 1998 CanLII 1989 (ON CA), [1998], O.J. No. 2336 (C.A.), a defence expert testified about the frequency of testing that was appropriate and expressed concerns regarding the reliability of the readings in the case. The Court of Appeal held the defence had not met the high onus on the accused where the instrument had been tested three days later and found to be operating properly.
[37] In R. v. Coutts (1999), 1999 CanLII 3742 (ON CA), 45 O.R. (3d) 288, the Court of Appeal examined whether a ‘fail’ result on an ASD could be used by the Crown against an “evidence to the contrary” defence to an “over 80” charge. Moldaver J.A. noted that there was no evidence in that case that the ASD was calibrated for a ‘fail’ reading when the driver’s blood alcohol level was 100 or more milligrams of alcohol in 100 millilitres of blood, when the ASD was last calibrated or whether it was in proper working order. He continued:
Manifestly, where a roadside test is being used solely for the purpose of confirming or rejecting a police officer’s suspicion that a motorist might be impaired or over the legal limit, none of these facts need be proved. It is sufficient if the administering officer reasonably believes them to be true. Where, however, the test result is being offered for the truth of its contents, these facts must be proved by admissible evidence.
[38] The appellant places particular reliance on the Court of Appeal’s judgment in R. v. Haas (2005), 2005 CanLII 26440 (ON CA), 76 O.R. (3d) 737, in support of his position that the Intoxilyzer readings should be excluded because objectively the officer’s belief was unreasonable and that there was an onus on the Crown to lead calibration evidence and evidence the ASD was working properly. The issue in Haas was whether the Crown or defence bore the onus where the accused alleged a breach of s. 8 in the course of a warrantless search. Collins v. The Queen, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265 held in the early days of the Charter that where the accused establishes that a search was warrantless, the onus of proving reasonableness was on the Crown.
[39] In Haas, the accused filed an affidavit establishing that the police obtained breath samples from him as a result of a warrantless search. Neither party led evidence on the issue of whether the officer had reasonable and probable grounds for demanding the Intoxilyzer sample. The trial judge excluded the readings as the Crown had not discharged its burden of proving reasonableness. The Summary Conviction Appeal (SCA) judge reversed that finding, concluding that since the accused led no evidence the seizure was unreasonable, there was no s. 8 violation.
[40] The Court of Appeal agreed with the trial judge and acquitted the accused, finding the Crown had the burden of proof to show that the warrantless search was reasonable. Where, as in Haas, the Crown led no evidence in relation to the officer’s reasonable and probable grounds for making the Intoxilyzer demand, the taking of the breath sample must be deemed unreasonable.
[41] The appellant submits that following Haas, the onus is on the Crown to prove the ASD was properly calibrated and working properly in order to establish the search was reasonable. I disagree. The appellant is conflating two issues. In Haas, the issue was the burden of proof of reasonableness where the search was warrantless. The Court did not comment on what evidence the Crown was required to lead to establish reasonableness. There was no evidence regarding the officer’s reasonable and probable grounds. The issue here is the nature of the evidence to be called by the Crown. The officer here said he had reasonable and probable grounds after the ‘fail.’ It is not the same factual situation as Haas. Since the Supreme Court of Canada had placed the onus in terms of the reliability of the ASD on the accused in Bernshaw and that finding had been reiterated by the Court of Appeal for Ontario in Coutts, I am not persuaded Haas overruled Bernshaw and Coutts when the issues were different.
[42] Since the Court of Appeal has held in Coutts that there is no onus on the Crown to prove the ASD is working properly, I am unable to find that after Haas there is now an onus on the Crown to prove the calibration, that the ASD was properly calibrated or that the ASD was in proper working order when the evidence is being introduced to confirm or reject the officer’s suspicions the accused was operating the motor vehicle while impaired or was driving having consumed excess alcohol.
[43] In R. v. Topaltis (2006), 2006 CanLII 26570 (ON CA), 34 M.V.R. (5th) 27, (Ont. C.A.) the officer noticed the ASD had not been calibrated within the police service policy guidelines. However, he had spoken to someone from the manufacturer who said that the police service’s policy required more frequent calibration than was necessary and all that was required was calibration every six months. That officer had self-tested the instrument and found it to be working properly. The Court of Appeal found that rather than “simply assessing whether, on an objective basis, the officer had reasonable grounds for believing the instrument was in good working order, the trial judge embarked on a consideration of whether the evidence established the device was in good working order.” The trial judge’s conclusion that the officer did not have reasonable and probable grounds on an objective basis was a finding of fact, relying on R. v. M.A.L. [2003] O.J. No. 1050 (C.A.). The Court of Appeal allowed the Crown appeal and ordered a new trial.
[44] In R. v. Gundy (2008), 2008 ONCA 284, 231 C.C.C. (3d) 26, (Ont. C.A.) the officer made a proper demand for a breath sample into an approved screening device and obtained a ‘fail’ reading. The Court of Appeal noted that the test was whether a reasonable person with the same knowledge as the officer would have concluded there were reasonable and probable grounds to make an Intoxilyzer demand. If the ASD was not an approved instrument, the “objective component may or may not be made out, it would depend on whether the officer could reasonably believe that the device he or she was using was an approved device.” The trial judge could rely on direct of circumstantial evidence in determining whether the Crown had shown the officer had reasonable and probable grounds.
[45] The appellant relies on two SCA decisions and one trial judgment in support of his position that the Crown was required to establish the ASD was working properly or, at the very least, lead evidence that the officer addressed his or her mind to the calibration of the ASD and whether it was working properly.
[46] In R. v. Binelli[^1], 2010 ONSC 539, referenced by the trial judge here, Forrestell J., sitting as a SCA judge, reviewed a case in which neither the administering nor delivering officer testified that the ASD was in working order, tested the ASD or said that they believed it to be in working order. There was evidence that the ASD had been calibrated two weeks earlier from one of the officers. The SCA judge addressed whether the trial judge erred in finding there was no evidence the ASD was in working order, in light of the evidence it was calibrated less than two weeks earlier and the administering officer had received it from another officer minutes before it was used. Her Honour found the trial judge considered the calibration evidence but did not find that was sufficient evidence that the ASD was in working order and concluded that was a finding that was open to the trial judge.
[47] When examining whether the trial judge erred in “effectively holding that there can be no reasonable and probable grounds to make a breath demand unless there is proof that the approved screening device is in proper working order,” Her Honour found that the trial judge had not found the ‘fail’ on the ASD was “essential in in all cases to the formulation of reasonable and probable grounds for the breathalyzer demand but that it was essential in this case.” [emphasis added]
[48] I do not read the SCA judgment as holding that in every case where an ASD is used to confirm the officer’s suspicions the Crown is required to lead calibration evidence or evidence that the ASD was in working order. To the extent that the trial judge held it was an “essential element” of establishing an objective basis for finding the ‘fail’ reading was a legitimate failure, the finding is inconsistent with binding authorities from the Court of Appeal. All that is required is that the administering officer reasonable believed the ASD was appropriately calibrated and was operating properly. What the SCA judge held was that the findings made were open to the trial judge to make.
[49] If I am wrong in my reading of the SCA judgment and it holds that the Crown is required to prove the ASD’s calibration, the calibration date and that the device was in working order when relied upon by the investigating officer to confirm his or her suspicions, the judgment is inconsistent with the Court of Appeal judgment in Coutts.
[50] Next, the appellant relies on R. v. Persaud (2011), 2011 ONSC 1233, 12 M.V.R. (6th) 102 (Ont. C.A.) where Goodman J. dealt with a Crown appeal from an acquittal following the exclusion of breath samples. There, the administering officer’s escort assured him the ASD was working properly as the escort had done a self-test and the reading was zero. Neither officer checked the calibration. In fact, the ASD had not been calibrated in three months when police service’s guidelines established that calibration was required every 14 days. Her Honour dismissed the Crown’s appeal.
[51] However, whether the ASD was working properly arose in the course of the evidence. When that occurs it can lead to a trial judge finding the officer lacked reasonable grounds to believe the ASD was working properly when used in the specific case. The calibration and/or working condition of the ASD were “on the table” as there was evidence the officers did not check the calibration and there was evidence it had not been calibrated as noted. That is a very different case than this one where the evidence was silent in regards to calibration.
[52] Next, in R. v. Johnston (2007), 2007 ONCJ 45, 44 M.V.R. (5th) 251, (Ont.C.J.), Feldman J. granted an application to exclude Intoxilyzer readings because the arresting officer lacked reasonable and probable grounds to make an Intoxilyzer demand or arrest the accused. In that case, there was no evidence regarding the ASD’s calibration. The officer had instructions for one morning on its use including that the instrument should be calibrated every two weeks or its results could not be relied upon. The officer testified that he did not check the calibration sticker before testing the accused, nor did he advert to the ASD calibration.
[53] That accused called an expert who gave evidence about the workings of the ASD and the need for calibration at least bi-weekly. Again, the issue of the ASD’s calibration was “on the table.” The record was not silent as here. In those circumstances, the Crown had the burden of proving on a balance of probabilities that the search was reasonable but the accused bore the heavy onus of proving a high degree of unreliability in that ASD. As Feldman J. held at para. 44, it would tend to diminish respect for Charter values were evidence excluded as a result of an officer’s inadvertence or honest mistake about calibration in the absence of specific proof of the instrument’s unreliability. On that basis, I am not persuaded Johnson is of any assistance to the appellant.
[54] The Crown relies on the judgment in R. v. Williams [2013] A.J. No. 497 (Prov.Ct.) where MacDonald J. summarized his findings from Bernshaw including, “In the absence of evidence concerning the officer’s training on the proper and accurate use [of the screening device], or in the absence of evidence in the case which calls into question the circumstances under which the screening device was used or the samples taken, the officer’s belief in the fail constituting reasonable and probable grounds for a breath demand will be subjectively and objectively reasonable.”
[55] Applying the quoted excerpt, the officer here testified that he was trained on the use of the ASD. It is reasonable to infer that training would have included the proper use of the ASD to ensure a reliable reading. There was no evidence such as was led in Johnston, that called into question the circumstances under which the ASD was used or the samples taken.
[56] Based on the caselaw, the following principles can be derived where a police officer uses an ASD to confirm his or her suspicions a driver has driven while impaired or having consumed excess alcohol and the accused alleges his or her s. 8 Charter rights were infringed:
i) the determination is made on a case-specific basis;
ii) breath samples taken pursuant to an Intoxilyzer demand, involve a warrantless search and the onus is on the Crown to establish, on a balance of probabilities, that the search was reasonable;
iii) police officers may, but are not required to, rely on ‘fail’ readings obtained on an ASD as the basis or one of the bases upon which they conclude they have reasonable and probable grounds to make an Intoxilyzer breath demand;
iv) police officers using an ASD are entitled to rely on its accuracy unless there is credible evidence to the contrary;
v) in doing so, the officer must have a reasonable belief the ASD was calibrated properly and in working order before relying on the ‘fail’ reading as a component of their reasonable and probable grounds to make an Intoxilyzer demand;
vi) a relevant consideration is whether the record discloses that because of his or her training the officer knows that in the circumstances in which the ASD is being used the results will be unreliable;
vii) whether an officer had that reasonable belief can be established by direct or circumstantial evidence;
viii) there is no requirement that the Crown prove the instrument’s calibration or that the ASD was working properly; and
ix) there is a heavy onus on the accused to establish a high degree of unreliability in the specific facts of the case. That evidence may arise in the Crown’s case or through defence expert evidence.
[57] Applying those criteria, the issue here is whether the circumstantial evidence was such that His Honour could conclude the officer believed the ‘fail’ reading was reliable and that his belief was objectively reasonable. Were His Honour’s findings of reasonable and probable grounds to make an Intoxilyzer demand and that objectively the administering officer reasonably believed the ASD provided a reliable result unreasonable? The test is not whether another judge would have reached the same conclusion or whether this Court would have found the criteria met. Rather, it is whether there was evidence upon which the trial judge could reasonable reach the conclusions he did.
[58] While the evidence was slim, I am not persuaded the findings were unreasonable as defined earlier. His Honour could draw the inferences he did on this record. Neither, am I persuaded that the trial judge misapprehended the evidence. Nor am I persuaded His Honour erred referencing the need for “some evidence” the officer had a reasonable belief when considering the objective consideration. As I read the judgment, the trial judge was considering the defence position that there was no evidence on the issues. His Honour found that in this case the issue was whether there was some evidence from which he could draw the inferences. He found that there was and he drew the inference open to him.
[59] This was not a refusal to provide an ASD breath sample. Nor was it case in which the working condition of the ASD was “on the table.” There was no evidence led by the appellant regarding the unreliability of the ASD used by an officer trained on its use in these circumstances. Here, what was required was evidence upon which the trial judge could reasonably conclude the investigating officer reasonably believed the ‘fail’ result was reliable and objectively would a reasonable person with the same knowledge as the officer conclude the ‘fail’ was a reliable result.
[60] The trial judge reasoned that because the officer relied upon the ‘fail’ that was sufficient evidence that he must have believed the ASD was properly calibrated and working properly. In addition, the officer used and approved screening device and, pursuant to BernshawI, was entitled to rely on its accuracy unless there was evidence to the contrary, he had been trained on the use of ASDs, he explained its workings to the appellant, he had some experience in its use in other cases, albeit surprisingly limited experience given his years of police service, and he said that once he obtained the ‘fail’ result he had reasonable and probable grounds to believe the appellant had driven having consumed excess alcohol. Considering the comments in Bernshaw that if the scientific evidence establishes a high degree of unreliability for the ASD in certain circumstances and the officers knows that based on his training that the results would be inaccurate, on this record the trial judge also properly considered that there was nothing on this record from which he could infer the officer had any concerns about the ASD’s unreliability in these circumstances.
[61] On this record, I cannot conclude that it was unreasonable, as it has been defined by higher courts, for the trial judge to draw the inference that the officer reasonably believed the ‘fail’ was a reliable result obtained from a properly working ASD. While not every judge would have concluded that the officer would not have relied on the result had he not believed it was a reliable result, it was open to His Honour to do so. In addition, the reasonable person with the officer’s knowledge at the time the ASD was administered also would have no reason to doubt the reliability of the result. The person with the same knowledge would be one who was also trained on the proper use of an ASD so that the result is reliable.
[62] The use of circumstantial evidence to show the officer reasonably believed the ASD was appropriately calibrated and working properly was a route open to the trial judge in assessing whether the officer had reasonable and probable grounds to make an Intoxilyzer demand. It can be inferred that the officer had reasonably believed the ASD was operating properly and that on a balance of probabilities the officer had reasonable and probable grounds to arrest and make an Intoxilyzer breath demand. The officer is not required to say any particular words to express his belief in the machine’s reliability when used. A reasonable inference can be drawn that the officer had that belief. R. v. Hall (1995), 1995 CanLII 647 (ON CA), 22 O.R. (3d) 289 (C.A.) In addition, the trial judge was entitled to draw the inference that a reasonable person in the officer’s shoes would have relied on the ASD result as reliable.
[58] In terms of the reasonable and probable grounds to make the Intoxilyzer demand, while without the ‘fail’ there would have been no Intoxilyzer demand, the officer also had evidence the appellant had the odour of alcohol on his breath, he admitted to having one drink, he was driving in December without shoes and was wearing a Playboy bunny outfit, including a blouse with a push-up blouse and bow tie. The appellant said he had taken up his friend’s dare to drive from Mississauga to Arthur in women’s clothing.
[59] While the evidence on the ASD issues were thin, I am not persuaded the trial judge erred in drawing the inferences he did. While the prudent course for Crowns may very well be to address the issues with the officer, it is not essential. The trial judge’s findings were based on available and reasonable inference on this record.
Conclusion
[60] The appeal is dismissed.
DURNO J.
Released: February 25, 2014
COURT FILE NO.: 127/12
DATE: 20140225
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
RYAN BEHARRIELL
Appellant
COUNSEL:
MURRAY de VOS, for the Respondent DAVID BURKE, for the Appellant
REASONS FOR JUDGMENT
[On appeal from the judgment of the Honourable Justice N.S. Douglas, dated July 16, 2012.]
DURNO, J.
Released: February 25, 2014
[^1]: It appears that Binelli was not a Charter case as the trial judge on her own motion invited a directed verdict application. at para. 5