Court File and Parties

CITATION: R. v. Jennings, 2016 ONSC 7845

COURT FILE NO.: 14-2002

DATE: 20161213

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Jennings

BEFORE: J.C. Corkery

COUNSEL: Sam Humphrey, Counsel, for the Crown/Appellant

Anna, Brylewski, Counsel, for the Defendant/Respondent

HEARD: May 12, 2016

APPEAL ENDORSEMENT

[1] On June 16, 2015, Steven Jennings was acquitted by Beninger J. on one count of operating a motor vehicle with more than 80 milligrams of alcohol in 100 millilitres of blood. The Crown appeals this acquittal. The charge was dismissed after the court ruled that the police had violated Mr. Jennings' s. 8 rights, under the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 ("Charter"), by failing to follow the recommended procedures for operating the approved screening device. Beninger J. held that the evidence of the officer obtained from using the device must be excluded under s. 24(2) of the Charter.

[2] The issue at trial was whether the arresting officer, Constable Gray, was entitled to rely on the "fail" result of the approved screening device as the basis for forming reasonable and probable grounds for arrest. The determination of whether there were reasonable and probable grounds for arrest is subject to review on appeal for correctness.

[3] Beninger J. found that Constable Gray failed to follow three procedures set out in the training manual for the approved screening device. He did not perform a self-test on the device at the beginning of his shift. A procedure described in the manual as "imperative." He did not record any calibration particulars in his notebook. He did not do a self-test after he received a breath sample from the respondent, which is referred to in the manual as being mandatory for ensuring that the device is still working correctly.

[4] Constable Gray testified that he had been trained to use the approved screening device and was familiar with the training manual. He agreed that it is important to follow the recommendations contained in the manual so as to ensure that the device was used correctly and provided a reliable result. He also conceded that he failed to conduct a number of steps in the manual, which he agreed are an imperative part of operating the approved screening device and ensuring its proper functionality.

[5] Constable Gray testified that he understood that the approved screening device would not operate if it is not calibrated and the accuracy is not checked. However, the trial judge found that there was no evidence that the constable knew this at the time of the offence.

2

[6] The trial judge found that these failures constituted credible evidence to the contrary that the fail result could be relied upon by the officer in forming his grounds to arrest.

[7] The Crown argues that there was no evidence before the court that allowed the trial judge to call into question the accuracy of the approved screening device and that some evidence is necessary to establish "credible evidence to the contrary. "The burden is on the accused to establish that there is a "high degree of unreliability" in the results of the approved screening device: R. v. Ramsammy, 2013 ONSC 7374, [2013] O.J. No. 46, at para. 24.

[8] At trial, the Crown must establish on a balance of probabilities that an officer had reasonable and probable grounds to believe that a person has committed an offence in order to demand a breath sample. Establishing "reasonable and probable grounds" has both a subjective and objective component. The subjective component requires the Crown to establish that the officer honestly believes an offence has been committed. The objective component requires the Crown to establish that the officer's belief is supported by the objective facts known to the officer at the time. This component will be satisfied when a reasonable person in the position of the officer would be able to conclude that reasonable and probable grounds existed.

[9] I agree with the respondent that, on the record before the trial judge, it was not incorrect for him to conclude that Constable Gray's subjective belief that the "fail" result was a reliable result was not supported by the objective facts. The trial judge found that Constable Gray failed to perform steps that he understood were imperative or mandatory for ensuring that the device was working correctly. As well, there was no evidence that the constable knew at the time that the device would not work if not properly calibrated and checked.

[10] It was also open to the trial judge to conclude that the objective component had not been satisfied. It was not incorrect for him to conclude that the constable's failure to carry out the procedures outlined in the training manual was "credible evidence to the contrary" that the objective basis for his belief that reasonable and probable grounds existed. If imperative or mandatory instructions in the manual for the device are not followed, a reasonable person in the position of the constable would not be able to conclude that the device results were reliable. If the device results are not reliable then there is no objective basis for forming reasonable and probable grounds that an offence has occurred.

[11] In his s. 24(2) analysis, the trial judge correctly considered the factors articulated by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, 2 S.C.R. 353, at para 86. There is no error in his decision to exercise his discretion in excluding the evidence of Constable Gray.

[12] The appeal is dismissed.

J. C. Corkery, J.

Date: December 13, 2016