ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12-07410

DATE: 20140806

BETWEEN:

DALIANG XUAN
Appellant

– and –

HER MAJESTY THE QUEEN
Respondent

Peter Lindsay, for the Appellant

Bradley Juriansz, for the Respondent

HEARD: July 29, 2014

REASONS FOR SUMMARY CONVICTION APPEAL

EDWARDS j.:

The Issues

[1] This is an appeal by Daliang Xuan against his conviction by the Honourable Justice H. Chisvin of the Ontario Court of Justice on July 18, 2013. The appellant was convicted of “Drive Over 80”, contrary to section 253(1)(b) of the Criminal Code.

[2] Both counsel agreed that the essential issue for this court to determine is whether the arresting officer, P.C. Steven Zhang, had a reasonable basis to rely on the ASD fail result. The essence of the appellant’s argument amounts to the suggestion that the evidence before the learned trial judge established that the ASD was not functioning properly and there was; therefore, no valid basis in law to require the appellant to attend the police station to give two breath samples. The evidence with respect to the ASD not functioning flows from the evidence of the arresting officer P.C. Zhang’s knowledge, or lack thereof, with respect to the first four results obtained from the appellant, which in the submission of appellant’s counsel clearly established that the ASD was not working and therefore the fail result could not be relied upon.

The Facts

[3] On August 27, 2012 P.C. Zhang observed the appellant’s vehicle driving in a fashion that caused the officer to activate his roof lights and pull over the appellant’s vehicle. P.C. Zhang detected a very strong odour of an alcoholic beverage on the appellant’s breath and noticed that his face was “flushed”. The appellant admitted that he had consumed one beer approximately one and a half hours previously. As a result, P.C. Zhang suspected that the appellant had alcohol in his blood system, and therefore requested the appellant to get out of his vehicle and to follow him in order to do a roadside test. A formal roadside demand was made at 1:36 a.m.

[4] P.C. Zhang used an “Alcotest 7410 ALG” (the “ASD” referred to in paragraph two above), which had been last calibrated on August 26, 2012. P.C. Zhang testified that he had tested the device before he had commenced his shift and it was in good working order.

[5] The appellant made five attempts to provide a sample into the ASD. It was only on the fifth attempt that a fail or “F” appeared on the screen. The first four attempts resulted in an error message. As a result of the fail the appellant was arrested and taken to the police station, and at 3:30 a.m. and 3:57 a.m. breath samples were provided into an Intoxilyzer which resulted in readings of 120 and 110 mgs. of alcohol per 100 mgs. of blood.

[6] The entirety of the appellant’s appeal is dependent on the initial four attempts made by the appellant to provide a breath sample into the ASD, and the arresting officer’s knowledge or lack thereof with respect to the implications of the corresponding error messages registered. I reproduce below the most relevant part of P.C. Zhang’s evidence with respect to the error messages:

Mr. Lindsay: Q. Thank you very much Your Honour. With respect to ‘ERR’, what messages are possible with ‘ERR’, or any combination of numbers?

A. Since the machine didn’t have a reading...

Q. All right, yeah, let me break it down. I’ll go at it that way. If you don’t get a reading, then what you get is some kind of error message, fair?

A. That’s right.

Q. All right. So, in respect of the four attempts where you don’t get a reading, you get some kind of error message, fair?

A. That’s....

Q. All right.

A. That’s fair.

Q. As to what the specific error message was, you’ve already said that you don’t know with respect to those four, correct?

A. I don’t recall if it showed a ‘E’ or a ‘ERR’ on the screen that time.

Q. Right. And in general terms, you’ve mentioned ‘ERR’, you’ve mentioned ‘E’, and you’ve mentioned numbers. What error messages are possible on the machine with ‘ERR’?

A. The sample is too short.

THE COURT: I don’t think your understanding the question, sir. The question is – it’s pretty simple. When you look at the screen and there’s an ‘ERR’, is that all you’d see, or do you see some numbers or something else? What are – what are – what’s possible with the ‘ERR’? Not what it means, but what’s possible to visually see on the machine?

A. I believe just ‘ERR’ on the screen. Is show ‘ERR’.

MR. LINDSAY: Q. Okay. So, that – that’s the only ‘ERR’ message? It just ‘ERR’ on the screen, right?

A. That’s what I believe, sir.

[7] The evidence of P.C. Zhang with respect to the meaning of the “E” or “ERR” messages can be contrasted with the evidence of the breath technician, P.C. Hawthorne, who testified about the possible error codes on the ASD. P.C. Hawthorne confirmed, and it was conceded by the Crown at trial, there was no such thing as an error code “ERR” on the ASD. P.C. Hawthorne further testified that if there had been an error message registered once or twice, that the ASD should not be used further because it was not working properly.

[8] With respect to the trial judge’s reasons as it relates to the reliance on the ASD by P.C. Zhang, the learned trial judge stated:

Counsel provided the Court with a number of cases with respect to the Section 8 argument. I reviewed these cases very carefully and make the following comments: First, I have no expert evidence with respect to what the various codes might mean and the consequences of not knowing these codes as was the situation in some of the cases provided by counsel.

While I appreciate the breath technician was cross-examined with respect to this area, his ability to provide evidence in this area is limited as he was never qualified as an expert with respect to the meaning of the codes.

In any event, I am satisfied that the officers understood that an “F” meant that Mr. Xuan’s breath readings were over 80 and as such, had grounds to arrest him.

[9] As to the reliability of the evidence of P.C. Zhang the learned trial judge stated:

When I do that here, I cannot conclude that Constable Zhang was unreliable in giving his evidence. There is no question that he had language difficulties, but I do not find that made him unreliable. In the end, I am satisfied therefore that objectively and subjectively, Constable Zhang had the necessary grounds to make the ASD demand and as such, there was no Section 8 Charter Violation.

The Position of the Appellant

[10] Counsel for the appellant submits that the learned trial judge erred in law in dismissing the appellant’s Charter application to exclude the evidence of the breath tests, pursuant to Sections 8, 9 and 24(2) of the Charter of Rights and Freedoms. Dealing with the fundamental issue with respect to the reliance on the ASD failure, counsel for the appellant referred the court to a number of cases in which various courts have found that the Crown had failed to show reasonable and probable grounds for an Intoxilyzer breath demand based on problems with the set-up, testing and/or the use of the approved screening device, and thus found breaches of Section 8 and 9 of the Charter. In that regard, reliance was placed on the following cases: R. v. Jeremias, [2010] O.J. No. 6052 at paras 79-86, 97-99 (O.C.J.), R. v. Persaud, [2011] O.J. No. 1559 at para 36 (Sup. Ct.), R. v. Nairn, [2014] O.J. No. 1892 at paras 56-62 (O.C.J.), R. v. Dignum, [2012] O.J. No. 5074 at paras 48-52 (O.C.J.), and R. v. Liu, [2014] O.J. No. 2304 paras 51-52 (O.C.J.).

[11] Essentially, counsel for the appellant argues that the Crown had the onus of proving that an officer conducting an approved screening device test must reasonably believe that the approved screening device was properly calibrated and in proper working order. Counsel for the appellant argues that the learned trial judge misapprehended the evidence, particularly with respect to the evidence of the Intoxilyzer technician that the arresting officer’s evidence, P.C. Zhang, of seeing error messages of “ERR” on the screening device was simply wrong as there is no such error message. This was specifically conceded by the Crown at trial.

[12] Counsel for the appellant submits that it would be inconsistent, illogical and wrong to allow an officer using the ASD to testify, as did P.C. Zhang that he tested the device and found it was in proper working order, without equally considering the evidence of P.C. Zhang of seeing non-existent error messages, and the evidence of the Intoxilyzer technician that with three error messages the ASD was not working properly and should not be used further.

The Position of the Respondent

[13] Counsel for the Crown argues in reliance on comments made by the Supreme Court of Canada in R. v. Burnshaw, 1995 150 (SCC), [1994] S.C.J. No. 87 at para 92, that a roadside screening device is a “rough and ready investigative tool” to screen motorists quickly and conveniently. Counsel for the Crown correctly acknowledges that an officer who administers an ASD must reasonably believe that the ASD is working properly, so as to rely on the failure result, to supply the requisite grounds to make an arrest and thereafter to make a breath demand. To speculate as to whether or not the test was in fact accurate, it is argued, does not vitiate the arresting officer’s reasonably held belief.

[14] Unlike the breathalyzer technician the officer administering the ASD at the roadside is not required, nor is he expected to be familiar, with the intricate details of the workings of the ASD. In this case P.C. Zhang provided evidence that the ASD had been calibrated the day previously, and had been tested by him at the commencement of his shift and was in good working order. Essentially, counsel for the Crown argues that there was no evidence before the learned trial judge that the ASD was not working properly when it was used to test the appellant’s blood alcohol concentration, and as such the trial judge was entitled and was correct to find that P.C. Zhang properly relied on the ASD fail result to provide the necessary grounds to make an arrest, and thereafter to make a demand for the appellant’s breath sample.

[15] With respect to the appellant’s argument that the trial judge misapprehended the evidence in relation to the reliability of the evidence of P.C. Zhang and his reliance on the ASD fail result, counsel for the Crown argues that this was a finding of fact made by the trial judge, and that the evidence supported a finding that P.C. Zhang had sufficient grounds based on the failure registered on the ASD such as to make an arrest and breath demand. This evidence was accepted by the trial judge, and as such there was no misapprehension of the evidence.

[16] With respect to the appellant’s argument that the trial judge failed to provide sufficient reasons for the existence of reasonable and probable grounds to make an arrest and breath demand, counsel for the Crown argues that there was evidence from P.C. Zhang, which if accepted, grounded a finding that he was entitled to rely on the ASD fail result and make an arrest and breath demand. This evidence, it is argued, was accepted by the trial judge and his reasons make clear that he specifically considered the reliability and credibility of the evidence of P.C. Zhang, and was alive to the importance of making a finding as to his credibility in relation to the ultimate reliance made by P.C. Zhang on the failure registered on the ASD. In that regard, the learned trial judge stated:

When I do that here, I cannot conclude that Constable Zhang was unreliable in giving his evidence. There is no question that he had language difficulties, but I do not find that made him unreliable. In the end, I am satisfied therefore that objectively and subjectively, Constable Zhang had the necessary grounds to make the ASD demand and as such, there was no Section 8 Charter violation.

Discussion

[17] Counsel for the appellant relies heavily on the decision of P. Kowalyshyn J. in R. v. Jeremias in support of his position that P.C. Zhang could not reasonably rely on the fail result which he obtained on the fifth try. In Jeremias, Kowalyshyn J. had before him the evidence of an expert to the effect that with four of the five possible error messages that could have been displayed on the ASD, it would be necessary to remove the device from service and to send it in for repairs. In coming to the ultimate disposition that he did, Kowalyshyn J. stated:

In my view, I find that Constable Lauzon for whatever reason, really had no idea other than a very limited one as to how the device worked or how to use it. He therefore could not be said to have known how to use it properly.

Therefore, applying the “litmus of reasonableness” enunciated in Regina vs. Einarson, it cannot be said that Constable Lauzon could reasonably rely on the “fail” result which he obtained on the fifth try.

[18] Counsel for the appellant argues that the facts before this court are similar to, if not identical to the facts in Jeremias, in that P.C. Zhang’s evidence with respect to the first four error results that he obtained in administering the ASD to the appellant, and his lack of knowledge with respect to the implications of those results, fundamentally undermines the reliance that he could place on the “Fail” result which he obtained also on the fifth try.

[19] The difficulty with this argument, in my view, flows from the fundamental different findings that were made by Kowalyshyn J. concerning the reliability of the evidence of Constable Lauzon in Jeremias versus the fundamental finding with respect to the reliability of P.C. Zhang’s evidence as found by Justice Chisvin on the facts before him. Justice Chisvin, unlike Justice Kowalyshyn, found the evidence of P.C. Zhang reliable and the argument of the appellant before this court fundamentally is an attack on a finding of fact made by the trial judge.

[20] The Court of Appeal has made it quite clear that the Crown is not required to prove that the ASD was in working order. Rather, the Crown has an obligation to establish that the arresting officer had reasonable grounds for believing that the device was in working order, and that the officer’s belief was objectively reasonable even if the arresting officer had an honest but mistaken belief that the device was properly calibrated and in proper working order, see R. v. Topaltsis.

[21] Further support for this proposition can be found in a decision of F.E. McWatt J. in R. v. Ramsammy, where at paragraph 22 Justice McWatt stated:

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.

[22] As in the case before this court there was some suggestion that the ASD was not properly working given an error code. In that regard, Justice McWatt stated at paragraph 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.

[23] There was no evidence called by the appellant to suggest that the ASD was not in proper working order, other than the evidence of the breathalyzer technician that with the errors registered on the first four attempts by the appellant, this would have been sufficient for that breathalyzer technician to have removed the ASD from the field and not to rely on the results of the ASD.

[24] Unlike the facts in R. v. Au-Yeung where Ducharme J. excluded the appellant’s breath samples because of numerous errors committed by the officer administering the ASD, which seriously undermined the arresting officer’s reasonable probable grounds to rely on any result it rendered, these are not the facts before this court and which were before Chisvin J. While this appellate court may have come to a different conclusion with respect to the credibility and reliability of P.C. Zhang, such is not the role of this appellate court.

[25] The central issue before Justice Chisvin was whether P.C. Zhang’s belief that the device was functioning properly was in all of the circumstances reasonable. The learned trial judge on the evidence before him was entitled to make the findings of fact as to the reliability and credibility of P.C. Zhang. Those findings are entitled to deference by this appellate court. I am not satisfied that the appellant has satisfied the necessary requirements of Section 686 of the Criminal Code, and as such the appeal is dismissed.

Justice M.L. Edwards

Released: August 6, 2014