Court File and Parties
COURT FILE NO.: 1890/15 DATE: 20170725 CORRECTED DECISION RELEASED ON: 20170804 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Mathieu Pelletier
BEFORE: The Honourable Mr. Justice John S. Poupore
COUNSEL: Leonard Kim, counsel for the Crown Michael J. Venturi, counsel for the Accused
HEARD: June 29, 2017
Decision
Corrected decision: The text of the original decision was corrected on August 4, 2017 and the description of the correction is appended.
[1] The Crown appeals the respondent’s acquittal by Justice N. Glaude of the Ontario Court of Justice on the charge of having care and control of a motor vehicle with an alcohol concentration in excess of 80 mg in 100 ml of blood (s. 253(1)(b)) of the Criminal Code of Canada.
The Facts
[2] Mathieu Pelletier was stopped at a RIDE check. The parties agree that the police officer had reasonable grounds to believe that the respondent had been drinking.
[3] The investigating officer determined that his breath screening device was not operating properly. He testified that he called over a sergeant at the scene and asked if he had a screener with him. The officer asked if the device had been tested and was in good working order to which the sergeant replied, “it was and that it had.” The officer then powered up the device and turned it on. He noted particular details, including the date and time, and that it was five minutes fast. He also noted that the internal temperature was 17 degrees and that the next calibration date was in 22 days. The officer stated that he was satisfied the instrument was in proper working order.
[4] A sample was then provided by the respondent. It registered a fail. The respondent was then arrested.
[5] The respondent was given his rights to counsel, a caution, and a breath demand. The officer then left the scene and took a direct route to the police station. The respondent was paraded in front of the duty sergeant, was searched and a piece of evidence was retrieved. As well the respondent was given the right to speak to legal counsel. The respondent requested to speak to counsel. A telephone call was placed.
[6] The officer attended the breath technician room, advised the technician of his reasonable and probable grounds for the arrest, and conducted the hand over.
[7] The technician advised the officer that the breath instrument was ready after conducting the tests necessary to ensure it was operating properly. The technician took custody of the respondent after receiving pertinent information of the arrest.
[8] A demand for a breath sample was read to the respondent, primary and secondary cautions were given. The first test was conducted.
[9] The instrument was locked out for 17 minutes after the result of the first test was ready.
[10] The second sample procedure was started and concluded.
[11] Both breath samples indicated an alcohol concentration in excess of 80 mg in 100 ml of blood.
[12] The events occurred in the early morning hours of the 13th day of June 2015. The following are the times testified to:
| Time (a.m.) | Event |
|---|---|
| 12:27 | Pulled over accused’s vehicle. |
| 12:28 | Formed reasonable suspicion. |
| 12:30 | Accused placed in cruiser. |
| 12:33 | Approved screening device demand made. |
| 12:35 | Approved screening device registered an error. |
| 12:37 | Powered up another approved screening device. |
| 12:39 | Sample provided. Fail registered. |
| 12:40 | Arrest. |
| 12:46 | Right to counsel given. |
| 12:47 | Breath demand. Caution. |
| 12:49 | Left scene and arrived at station. |
| 1:08 | Paraded. Search incident to arrest. |
| 1:19 | Mr. Pelletier requests counsel of choice. |
| 1:20 | Call counsel of choice. |
| 1:26 | Call to counsel ends. |
| 1:27 | Officer provides grounds to breath technician. |
| 1:33 | Accused handed over to breath technician. |
| 1:34 | Breath technician reads breath demand and caution. (Note that the equipment was tested at 12:40) |
| 1:41 | First Reading (134). |
| 2:02 | Second Reading (129). |
| Total Time: 1 hour and 41 minutes |
Issues on Appeal
[13] The appellant raises the following issues on appeal:
i. The trial judge erred in law in concluding that the investigating officer’s failure to perform a self-test on the approved screening device meant the officer could not reasonably believe the Approved Screening Device was in proper working order; ii. The trial judge erred in concluding that the breath tests were not administered as soon as practicable; iii. The trial judge erred in concluding that the sample obtained by the approved screening device was in violation of section 8 of the Charter; iv. The trial judge erred in law in his analysis under section 24(2) of the Charter.
Discussion and Analysis
(i) Properly working Approved Screening Device (“A.S.D.”)
[14] The Crown is not required to prove in every case that the device was in proper working order. The test is whether, on an objective basis, the officer had reasonable grounds for believing that the A.S.D. was in good working order. R. v. Topaltsis, 70 W.C.B. (2d) 574.
[15] The Crown must establish that the officer reasonably believed the A.S.D. was working properly, not necessarily prove that he ran a successful self-test. R. v. Ho, 2014 ONSC 5034, 116 W.C.B. (2d) 230, at para. 13. Where the A.S.D. has been approved under the statutory scheme, the officer is entitled to rely on its accuracy unless there is credible evidence to the contrary. It is reasonable to believe the A.S.D. brought to a RIDE program is reliable even if it is brought by another officer. R. v. Merritt, 2010 ONSC 2239, 87 W.C.B. (2d) 538, at para. 17.
[16] The Crown must present some evidence of the officer’s belief.
[17] What the trial judge failed to consider in his decision was that the sergeant who brought the instrument to this RIDE check testified that he tested the A.S.D. and was satisfied that it was in proper working order. Further, the investigating officer spoke to the sergeant: “I ensured when I spoke to him. I asked him if it had been tested prior to and that if it was in good working order, and he replied that it was and it had.”
[18] The trial judge found that the officer did not properly satisfy himself that the A.S.D. was working properly because he did not conduct a self-test on this instrument as he would normally do with one he would bring to a RIDE program.
[19] The trial judge erred in requiring the police officer to carry out the test himself to form reasonable grounds. Based on his conversation with the sergeant, he had reasonable and probable grounds on an objective basis to believe that the A.S.D. was in good working order.
(ii) Breath Test not Administered as Soon as Practicable
[20] The Criminal Code provides for an outside limit of two hours from the time of the offence to the taking of the first test and at least 15 minutes between samples. The police must be reasonably prompt but there is no need for a detailed minute-by-minute accounting of the time taken. R. v. Vanderbruggen, 69 W.C.B. (2d) 161, para. 13.
[21] In his decision, the trial judge concentrated on an 11-minute delay between 1:08 a.m. and 1:19 a.m. He stated: “the only comment we have was that he was paraded before the staff sergeant without an explanation of the amount of time used.”
[22] The evidence at trial was that the accused was paraded before the on-duty staff sergeant, a search incident to arrest was conducted, a piece of evidence was noted and the accused was afforded the opportunity to speak to legal counsel.
[23] There are other times referred to by the trial judge but he does not seem to rely on them for his decision. The trial judge stated: “I find that the Crown has not given me sufficient evidence upon which I could find that it had been done, all had been done as soon as practicable. I look at the 11 minutes, as Mr. Keaney has indicated, and I find that it has not been explained and cannot be just explained by being paraded before the staff sergeant.”
[24] I am satisfied that the trial judge materially misapprehended the evidence on this crucial point. The evidence disclosed more than just being paraded before the staff sergeant.
[25] The trial judge’s minute-by-minute dissection of the investigating officer’s actions in this case derogated from the principle that the tests should be administered within a reasonably prompt time in the overall circumstances. R. v. Singh, 2014 ONCA 293, 120 O.R. (3d) 76, at para. 14.
(iii) Violation of Section 8 of the Charter
[26] As a result of the above, I find that the trial judge did not have a basis to conclude there was a Charter breach in this case.
(iv) Section 24(2) Analysis
[27] I am satisfied that the trial judge’s s. 24(2) analysis falls far short of what was required in this case.
Conclusion
[28] For these reasons, the Crown’s appeal is allowed, the acquittal is set aside and a new trial is ordered.
Correction as noted: The amount in paragraph [11] of 90 mg was replaced by 80 mg.