ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-13-00008699-00AP

DATE: 20140818
CORRECTED DATE: 20141009

BETWEEN:

HER MAJESTY THE QUEEN
Appellant

– and –

BAO FU HUANG
Respondent

B. Jurianz, for the Appellant/Crown

T. Hicks, for the Respondent

HEARD: June 24, 2014

Corrected decision: The text of the original decision was
corrected on October 9, 2014 - the description of the correction
is appended

On Appeal from the Judgment of The Honourable Mr. Justice H. Chisvin
dated April 24, 2013

McISAAC J.

[1] This is a Crown appeal from an order acquitting the respondent on a charge of “over 80” entered by the Honourable Justice H. Chisvin on April 24, 2013 at Newmarket, Ontario. In particular, the appellant suggests that the trial judge erred in the finding that the investigating officer did not have reasonable grounds to make a breath demand under s.254(3)(a)(i) of the Criminal Code thereby breaching s.8 of the Charter: see R. v. Shepherd 2009 SCC 35, 2009, S.C.C. 35 at para. 20. In addition, the Crown argues that the test results should not have been excluded under s.24(2) thereof.

BACKGROUND

[2] The respondent was stopped at approximately 3:00 a.m. on September 22, 2011 for failing to stop at a red light. A roadside demand was made of him because he showed signs of impairment and because he had admitted to having consumed alcohol that evening. This resulted in a failure following which he was arrested for this offence and a demand under s.254(3)(a)(i) of the Criminal Code was made to him. He provided two samples of his breath pursuant to this demand of 120 and 130 milligrams of alcohol in 100 millilitres of blood.

[3] The trial judge found two separate breaches of s.8 of the Charter. First, he found that the investigating officer was required to provide evidence as to up-to-date calibration of the roadside device before he could rely on the results obtained therefrom as a basis for objective reasonable grounds for the subsequent demand. Second, the investigating officer never articulated that he had reasonable grounds for the subsequent demand because he believed that this offence had been committed. The evidence of the two breath tests was excluded by the trial judge “given the number of issues that have arisen in this particular matter”: see p. 45 of the transcript of the trial proceedings.

ANALYSIS

1. Alleged Charter Breaches

(i) Calibration

[4] As far back as R. v. Beech (1993), 44 MVR (2d) 273 the Ontario Court of Appeal has held that there is no need for the police to confirm calibration of the roadside device in order to have reasonable grounds for the subsequent demand following a failure on the first device. This proposition has been often repeated: see R. v. Coutts (1999), 1999 3742 (ON CA), 43 MVR (3d) 28 (Ont. C.A.) at para 20; R. v. Topaltis (2006), 2006 26570 (ON CA), 34 MVR (5th) 27 (Ont. C.A.) at para. 9; R. v. Beharriell, 2014 ONSC 1100 at para. 59. In my view, the trial judge asked the wrong question. Rather than concentrating on the issue as to whether the roadside device was operating properly, the question he should have asked was whether the investigating officer could reasonably conclude from the failure on the roadside testing whether he was over the legal limit. In the absence of any evidence one way or the other on the issue of calibration, this factor could not have any negative impact on the objective basis of the officer’s belief.

[5] Accordingly, I am satisfied that the conclusion by the trial judge on this issue was unreasonable and cannot stand.

(ii) Failure to Articulate Reasonable Belief

[6] I agree with the Crown that the trial judge either misapprehended the evidence of the investigating officer in this regard or has made a palpable and overriding error in coming to the conclusion that the officer never said that he had reasonable grounds to believe that the respondent was operating his vehicle with excess alcohol. As I read the transcript, the officer affirmed this fact either directly or indirectly on five separate occasions:

• p. 15, ll. 23-28

Q: Okay, I’m going to stop you there. First of all I’m going to ask you in terms of “F” indicating fail, what does a fail mean?

A: That means he was operating a motor vehicle with more than 80 milligrams of alcohol in 100 millilitres of blood.

• p. 16, ll. 1-4:

The Court: Could you repeat it please?

A: That means the driver was operating a motor vehicle with more than 80 milligrams of alcohol in 100 millilitres of blood.

• p. 16, ll. 16-21:

Q: And what time was this sample received? This third sample or you indicated the suitable sample.

A: Shortly after 3:01 a.m., which was approximately around 03:08 hours, 3:08 a.m. because that’s when he was arrested for 80 milligrams of alcohol in 100 millilitres of blood.

• p. 16, ll. 26-30

Q: Okay. So [I] asked you about the time and then you said – you talked about 3:01 and then you indicated 3:08 a.m.?

A: 3:08 he was arrested for 80 milligrams of alcohol in 100 millilitres of blood.

• p. 16, l. 31 to p. 17, l. 7:

Q: Now how is it that you came to arrest him after the sample?

A: My suspicion was confirmed obviously because he was operating a motor vehicle and that his alcohol level was above the legal limit which is 80 milligrams of alcohol in 100 millilitres of blood within the proceeding three hours as a result commit an offence under Section 253(1)(b) of the Criminal Code.

[7] To say that, in these circumstances, the officer failed to articulate that he had reasonable grounds to believe that this offence had been committed is, in my opinion, an exercise in rank sophistry and constitutes another unreasonable conclusion of a s.8 Charter breach.

2. Section 24(2) Charter Exclusion

[8] The trial judge’s reasons for excluding the breath tests are very brief comprising some 11 lines of transcript at p. 45, ll. 17-27:

Having reached those conclusion I am satisfied that the Accused has, on the balance of probabilities, satisfied me that there has been a Section 8 violation and that given the number of issues that have arisen in this particular matter that while not always, and perhaps not even usually will that such evidence be excluded under Section 24(2) of the Charter, given the test as set out in Grant, when I use that three pronged test I am satisfied in all the circumstances the evidence should be excluded.

[9] Despite the able submission of Mr. Hicks to the contrary, I am satisfied that these reasons are woefully insufficient to undertake appellate review of the foundation that motivated the trial judge to exclude this evidence. Although he alluded to the leading authority on the issue, R. v. Grant, 2009 SCC 32, 2009 S.C.C. 32, he failed to assess the three factors of seriousness of the violation, impact on the Charter-protected interests of the respondent and society’s interest in the adjudication of the case on its merits. Most importantly, he failed to balance the factors after considering them separately. Accordingly, I am satisfied that this failure constituted legal error which I am entitled to correct by undertaking my own assessment using the Grant template.

[10] The officer’s failure to articulate the status of the calibration on the roadside device and to parrot the mantra of having reasonable grounds to arrest the respondent were, at best, minor and inadvertent breaches of his s. 8 Charter rights. In no way can this conduct be described as severe, deliberate, willful, reckless or flagrant which would tend to have a negative effect on the public confidence in the rule of law. Nor would it risk bringing the administration of justice into disrepute.

[11] Turning to the impact on the respondent’s Charter rights protected by s.8, it is patently clear that the collection of his breath samples involved a minimally intrusive procedure that did not reveal jealously-protected biographical information. It has been suggested that the respondent’s s.9 rights to be free of arbitrary detention were also breached because he was arrested, handcuffed and held in custody for several hours before release. However, this approach has been rejected in R. v. Shepherd, supra, at para. 14 which, in my view, makes it clear that the impact factor is to be analyzed under s.8 alone. It is for that reason I find myself unable to adopt the approach articulated by my brother, T. Ducharme, J. in R. v. Au-Yeung, 2010 ONSC 2292 at paras. 57-62.

[12] Given the death and devastation caused by drinking drivers across this country and the patent reliability of formal breath tests, the third Grant factor strongly favours admission: see R. v. Grant, supra, at para. 111.

[13] Turning to the balancing of these factors, neither the first or second factor favours exclusion given the minor nature of the breaches and the minimal impact on the respondent’s s.8 Charter interests. The third factor strongly favours admissibility. Having undertaken the analysis and balancing mandated by the Supreme Court of Canada, I am of the view that that exercise strongly suggests the application to exclude should have been dismissed by the trial judge.

CONCLUSION

[14] In the result, the appeal is allowed. Since the respondent elected to call no evidence at the trial, I am entering a conviction and remitting this matter to the trial judge to impose a sentence that is warranted in law: see s.686(4)(b)(ii). I remind the respondent that his driver’s licence is now suspended by operation of s.41 of the Highway Traffic Act.

McISAAC J.

Released: October 9, 2014

Para. 11, last line now reads: “Ducharme, J. in …..”