NEWMARKET COURT FILE NO.: CR-12-8479

DATE: 20140829

CORRECTED: 20150807

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

TIM HO

Respondent

B. Juriansz, for the Crown

P. Lindsay, for the Respondent

HEARD: June 27, 2014

CORRECTED DECISION: The text of the original Decision
was corrected on _August 7, 2015 and the description of the
correction is appended

ON APPEAL FROM THE DECISION OF THE HON. JUSTICE
J.F. KENKEL DATED MAY 27, 2013

McISAAC J.

[1] This is a Crown appeal against an acquittal on a charge of “over 80” entered on May 27, 2013 by The Honourable Justice J.F. Kenkel. The respondent had been the operator of a motor vehicle that was stopped in a “RIDE” program in the early morning hours of October 1, 2012. After failing roadside testing, he was arrested and, pursuant to a formal breath demand, provided two breath samples that were well in excess of the legal limit. These results were excluded at trial on the basis of findings that Mr. Ho’s s.8 and s.9 Charter rights were infringed to such an extent that they engaged the remedial power of s.24(2).

[2] The Crown submits that the trial judge erred in finding that there were any Charter breaches and in his interpretation of the elements that trigger exclusion of such reliable evidence. In the result, Mr. Juriansz asks that the acquittal be reversed and that a conviction be entered in its place. On the other hand, the respondent supports the legal and factual findings made at trial and asks that the acquittal herein be affirmed.

BACKGROUND

[3] On the night in question, P.C. Gutierrez of the York Regional Police was participating in a formal “RIDE” program in the City of Markham. At approximately 12:45 a.m. the Respondent was stopped for a sobriety check. The officer noted that his eyes were bloodshot, that the smell of alcohol was emanating from the vehicle of which he was the sole occupant and he admitted to having consumed three “drinks”, the last of which was at midnight. As a result of these factors, P.C. Gutierrez formed a reasonable suspicion that the respondent had consumed alcohol within the three previous hours. Having made that determination, the officer then made a demand for roadside testing which resulted in a “fail”. He used an approved screening device which he confirmed had been calibrated one week previously. This was well within the two week period dictated by force guidelines.

[4] There were two approved roadside devices deployed for this specific “RIDE” initiative, one of which he had “tested” at the beginning of his shift. However, he did not specifically test the other device which he used for Mr. Ho as he assumed that it had been done by another officer in the same manner as he had done. The device that had been provided to him to assess the respondent came from a “rookie” officer who was being trained by another senior officer. Based upon his understanding of “standard practice”, that is, the testing by all officers issued an approved device at the beginning of their shifts, he believed that the one he received was “functioning well” at the time he made the roadside demand of the driver. When the testing registered a “fail”, Mr. Ho was arrested for “over 80” as that result provided the officer with reasonable grounds to do so. Subsequent formal testing back at the detachment disclosed readings of 132 and 133.

[5] In cross-examination, P.C. Gutierrez confirmed that he did not independently “test” the roadside device that had been provided to him by the “rookie”; he simply assumed that it would have been done at the beginning of the shift in the manner that he had done as a matter of “standard practice”. In addition, he conceded that it would have been better if he personally tested the device and that, in the absence of having done so, he could not confirm that it was working properly. He went so far as to admit that testing is an “essential” aspect of making sure that the device is working properly and that the results are reliable. However, he did recall that he only had to have the respondent submit one sample from which he received a “fail” result. There was no need for multiple tests to be administered.

REASONS OF THE TRIAL JUDGE

[6] The trial judge stated as follows at pp. 1-2 of his brief reasons for judgment:

The arresting officer testified in cross-examination that a self-test prior to the subject test is an essential procedure to ensure that an approved screening device is functioning properly. The officer did not do a self-test on the ASD he used nor did he ensure that the officer who gave the ASD to him performed that test. He thought the officer would have followed that procedure, but he also stated that the second officer was in training at the time and he didn’t know if the officer had been trained on the use of screening devices. In cross-examination the officer agreed that at the time of the accused’s test, he had no way to know whether or not the ASD was working properly.

While it is likely good practice to conduct a self-test of an ASD, this Court has never heard before that it is an essential step as described by the officer. That is the evidence in this case though and on this record the whole of the officer’s evidence indicates that he viewed a particular procedure as essential to the reliability of the test results. He did not do that procedure and he did not ensure that anyone else did. Although he subjectively did not know whether or not the ASD results were reliable, he chose to arrest the accused in any event.

The arresting officer’s evidence overall does not show that he had subjectively reasonable grounds for the arrest and on this evidence even if he did, those grounds would not be objectively reasonable.

I find there is a Section 8 breach.

The breach here is serious given the apparent disregard for a procedure the officer viewed as essential and the willingness to arrest on that basis. This was a R.I.D.E. check stop program specifically set up to screen drivers for alcohol or drug use, so the failure to follow basic procedure is even harder to understand. On the evidence, I find the breach to be a very serious one.

[7] In his s.24(2) analysis, the trial judge found that the officer’s failure to self-test the device constituted an “apparent disregard for a procedure [he] viewed as essential” before initiating this arrest and that this was a default of “basic procedure” of such a magnitude as to constitute a “very serious” breach of s.8 of the Charter. In his assessment of the impact of the breach on the respondent’s Charter-protected rights, the trial judge focused in on the fact that, despite the minimally intrusive nature of the breath testing, it was conducted under the auspices of an arbitrary arrest which included handcuffing, placement in the rear of a police cruiser and return to a police detachment for formal breath testing and detention in the cells: see R. v. Au-Yeung, 2010 ONSC 2292 at paras. 57-62. Although Kenkel J. found that society’s interest in the adjudication of the case on its merits favoured inclusion of the breath test results, he found, on balance, that the seriousness of the breach coupled with the significant impact on the respondent’s Charter-protected rights would bring the administration of justice into disrepute. Accordingly, he ordered the evidence excluded despite its patent reliability.

POSITIONS OF THE PARTIES

[8] The Crown suggests that the trial judge erred in coming to the conclusion that there was a s.8 Charter breach because of the officer’s failure to self-test the roadside device before having Mr. Ho provide a sample. Mr. Juriansz also argues that Kenkel J. misapplied the analysis in R. v. Grant, 2009 SCC 32 in excluding the formal breath test results.

[9] The respondent suggests that there were no errors, let alone palpable and overriding errors, in the fact-finding process undertaken by the trial judge; in particular, in that the Crown had failed to meet the onus of establishing reasonable grounds for this arrest and formal breath demand. In addition, given the fact the officer conceded that self-testing was “essential” before one could be satisfied the roadside test result was reliable, the trial judge did not err in finding there were no reasonable grounds for the arrest and formal breath demand. Finally, Mr. Ho submits that the trial judge’s Grant analysis should be shown considerable deference and that he did not err in following R. v. Au-Yeung, supra, by excluding evidence of the breath tests under s.24(2) of the Charter.

ANALYSIS

Alleged Charter Breaches

[10] The trial judge found that s.8 had been breached in particular and that s.9 had also been breached as a corollary. He found that, as a result of the officer’s failure to self-test the device, he had no way of determining whether it was functioning properly and whether the test result would be reliable. In the result, he had no subjective belief that the respondent was over the legal limit nor that, even if he did, that belief would have been objectively reasonable.

[11] In my view, the critical point in time in which to assess the officer’s state of belief is at the time he made the formal breath demand on October 1, 2012, not the state of his belief at the time he was cross-examined by defence counsel, that is, February 21, 2013. P.C. Gutierrez testified that at the time he made the formal breath demand on the original date, he believed the roadside device that he had received from the “rookie” was operating properly and that someone in this “RIDE” initiative would have tested it before it would have been allowed to be deployed.

[12] This evidence remained unchallenged at trial despite the officer’s concession that, at the time of trial, his view had mutated considerably as to the need for self-testing. Nor, in my view, did the concession at trial undermine the reasonableness of his belief at the roadside based upon the “fail” result from an apparently well-functioning device that had been properly calibrated and that the officer assumed had been tested by someone before it was deployed for the “RIDE” program that night. This is sufficient to ground the officer’s belief as reasonable: see R. v. Bernshaw 1995 150 (SCC), [1995] 1 SCR 254 at para. 49. There was absolutely nothing beyond bare conjecture to suggest that there would be “a high degree of unreliability with respect to the screening device” employed on this occasion: see R. v. Bernshaw, supra, at para. 59.

[13] I am sensitive to the fact that I should treat the trial judge’s factual findings with considerable deference. However, the legal conclusions based upon such findings are subject to appellate review for correctness and are not subject to this insulation: see R. v. Shepherd, 2009 SCC 35 at para. 20. In the result, the Crown has persuaded me that the trial judge’s conclusion on the issue of Charter breaches is flawed and that there was no basis to find that either s.8 or s.9 had been breached. Although the officer at trial may have conceded that there was a “best practices” necessity to self-test the device before use, this is not and never has been a requirement in law: see R. v. Beech (1993) 44 MVR (2d) 273 (Ont. C.A.); R. v. Coutts (1999) 1999 3742 (ON CA), 43 MVR (3d) 28 (Ont. C.A.) at pp. 19-20.

Exclusion under s.24(2) of the Charter

[14] Although this determination is sufficient to resolve this appeal, in case I am found later to be in error, I will go on to consider the issue of Charter exclusion.

(i) Seriousness of the Violation

[15] Kenkel J. found that the breach of s.8 to be “a very serious one” because: (a) there was an “apparent disregard for a procedure the officer viewed as essential”; and (b), because there was “the failure to follow basic procedure” of a “RIDE” program. The first part of this assessment is clearly wrong because the officer never conceded that he viewed the self-test was essential while he dealt with the respondent at the roadside. He was prepared to proceed on the basis of his assumption that someone else had tested this device before the team deployed to the “RIDE” location. His view of the matter, of course, went through a significant adjustment as the result of cross-examination but that does not elevate his conduct on October 1, 2012 beyond a simple error of judgment.

[16] The second part of the assessment is simply a “variation on the theme” of the first; it adds nothing to the equation. There was nothing severe or deliberate on the part of P.C. Gutierrez from which the court must dissociate itself in order to preserve public confidence; the error here was, at most, an inadvertent and minor violation of the Charter which would scarcely undermine public respect for the administration of justice. In my view, there was simply no basis in the record for the finding that the officer’s default constituted a serious violation of Mr. Ho’s s.8 Charter rights.

(ii) Impact on the Charter-Protected Interests of the Accused

[17] While the trial judge conceded the minimally intrusive nature of the breath testing herein and its minor impact on the respondent’s s.8 Charter interests, he was more impressed with the resulting arrest of Mr. Ho, his transportation to the police station and his detention for formal breath tests. In doing so, he made specific reference to the ruling in R. v. Au-Leung, supra. In that case, Ducharme J. emphasized the synergistic effect of the minor s.8 Charter breach triggering a much more serious breach of s.9 by way of arrest, handcuffing, placement in the rear of a police cruiser for a trip to the police station and a period of significant detention in the cells for formal breath tests and processing: see para. 61.

[18] Without in anyway wishing to be seen as callous, I must note that this same argument was made and rejected in R. v. Shepherd, supra, at para. 14 where the court observed:

Mr. Shepherd argues that the officer lacked the requisite grounds to make a Breathalyzer demand and that as such, his breath samples were obtained in violation of ss.8 and 9 of the Charter. The courts below did not refer explicitly to s.9 and, in our view, based on the facts of this case, nothing would be added by an analysis under s.9. Accordingly, our analysis will proceed solely under s.8. (my emphasis added)

[19] That case is a companion case to R. v. Grant, supra, having been argued and released on the same day. In my view, the s.9 Charter “spin” adds nothing to the debate, especially when one sees absolutely no reference to it in the Grant analysis by the Supreme Court of Canada: see para. 111. I seriously doubt that the highest court of this land spoke per incuriam on this important issue. One could reasonably conclude that the Supreme Court of Canada did not wish to construct yet another form of automatic exclusion of breath test results because the formal demand is inevitably accompanied by an arrest due to the danger posed to the travelling public.

[20] In the result, we are left with a minimal intrusion on the respondent’s s.8 Charter rights.

(iii) Society’s Interest in an Adjudication on the Merits

[21] No one suggests that the evidence should be excluded on this basis given the community’s expectations that drinking and driving will be consistently denounced by its courts.

(iv) Conclusion on s.24(2)

[22] Having re-calibrated the Grant factors in the above fashion, there is none of them that suggest that these two readings should have been excluded. Given the above-noted clear errors, I am entitled to come to my own conclusion on admissibility: see R. v. Grant, supra, at para. 129. The evidence will be admitted for the reasons already articulated.

CONCLUSION

[23] For all of these reasons, the appeal is allowed. Since the respondent called no evidence at trial and placed total reliance on his Charter motion, the appropriate disposition is for me to enter a conviction and remit the matter to the trial judge to impose the appropriate sentence and ancillary order or orders: see R. v. Labadie, 2011 ONCA 227 at para. 65. It is so ordered.

McISAAC J.

Released: August 7, 2015

CORRECTION

1. Page 6, para. 19, second line now reads: …the same day.