Court File and Parties

Court File No.: St. Thomas 42/15 Date: July 14, 2017 Ontario Superior Court of Justice

Between: Her Majesty the Queen, Appellant And: Shane Vandendriessche, Respondent

Before: Mitrow J.

Counsel: Douglas Walker, for the appellant Anna Brylewski, for the respondent

Heard: February 27, 2017

Introduction

[1] The appellant appeals the respondent’s acquittal on a charge pursuant to s. 253(1)(b) (“over 80”) of the Criminal Code, R.S.C., 1985, c. C-46, after a trial before O’Dea J. in the Ontario Court of Justice on November 16, 2015.

[2] The respondent had served notice of an application pursuant to the Charter of Rights and Freedoms (“Charter”) alleging a breach of his rights pursuant to ss. 8 and 9 of the Charter; the trial judge embarked on what he described as the “traditional blended hearing” and the trial commenced with the voir dire in relation to the respondent’s Charter application.

[3] After hearing the evidence on the voir dire, the trial judge found a breach of the respondent’s Charter rights under ss. 8 and 9 and, pursuant to s. 24(2) of the Charter, the trial judge excluded the evidence contained in the Certificate of Qualified Technician (the “breath certificate”) as to the results of the respondent’s breath samples as analyzed by an Intoxilyzer.

[4] For reasons that follow, the appeal is allowed and a new trial is ordered.

Grounds of Appeal

[5] The appellant relies on four grounds of appeal that can be summarized as follows:

1. the trial judge misquoted the evidence when he found that the only ground articulated by the officer for making the breath demand was the fail on the ASD;
2. the trial judge erred by finding that the officer could not draw the conclusion that he did without evidence that he understood the calibration of the ASD and, at a minimum, that the calibration meant the person was over the legal limit;
3. the trial judge erred in finding a breach of the respondent’s Charter rights; and
4. the trial judge erred in his analysis of s. 24(2) of the Charter and erred in excluding the breath certificate as evidence.

The Facts

[6] Officer Laarman (“Laarman”) had been employed by the Ontario Provincial Police since 2001.

[7] At 10:03 p.m. on April 18, 2015, while on duty, Laarman was southbound in a fully-marked cruiser on Centennial in Central Elgin, when he observed a motor vehicle in his rear-view mirror that was rapidly catching up to Laarman’s cruiser. Laarman’s speed was 97 kilometres per hour, which Laarman determined by looking at his speedometer. Laarman testified that the posted speed limit was 80 kilometres per hour.

[8] Laarman had no radar system in his cruiser at the time, but he knew that his speedometer “is certified, calibrated.”

[9] While the vehicle was catching up to him, Laarman felt that it was exceeding the speed limit. The vehicle backed off considerably as it got close to Laarman’s cruiser.

[10] On approaching a stop sign, Laarman pulled over to the shoulder of the road to allow the vehicle to pass, at which time Laarman observed the vehicle to be an older-model pickup.

[11] Laarman then followed this vehicle and initiated his “traffic lights.” The vehicle stopped in the middle of the road. Laarman testified he had allowed the vehicle to pass him as it was his intention to pull the vehicle over and speak to the driver about his speed on Centennial. It was not Laarman’s intention to write the driver a ticket.

[12] Laarman found the fact that the vehicle stopped in the centre of the two-lane roadway to be “incredibly suspicious” and Laarman immediately called out to the communications centre. It was Laarman’s evidence that he was concerned because a month earlier he had been rammed by someone who had done a similar thing, namely being stopped in the middle of a highway.

[13] However, after Laarman used his loud hailer to direct the vehicle to pull over to the side of the road, the driver complied.

[14] Laarman approached the vehicle on the driver’s side and spoke with the driver. Laarman identified the respondent as being the driver.

[15] In checking the cabin of the vehicle, Laarman observed that there was a passenger and Laarman observed a beer bottle between the passenger’s leg and the center arm rest. Laarman could smell alcohol coming from the interior of the vehicle. Laarman assumed that the passenger was drinking because he was “intoxicated or appeared to be intoxicated” and because the open bottle of beer was next to the passenger.

[16] Laarman asked the respondent to exit the vehicle to isolate the respondent from the passenger.

[17] Laarman was able to smell alcohol from the respondent’s breath while Laarman was speaking to the respondent outside the vehicle.

[18] It was Laarman’s evidence that the respondent admitted to having “one beer” and Laarman believed that was in Sparta at the respondent’s friend’s place. Laarman testified further that the respondent was “pleading” with Laarman at that time about just getting his friend home and that he (the respondent) was “the most sober driver.”

[19] Laarman told the respondent that he was being escorted to the cruiser to do an approved screening device (“ASD”) demand. The respondent was placed in the rear of the cruiser. In terms of timing, Laarman testified that the respondent was in the cruiser at 10:07 p.m. and that the ASD demand had been completed at 10:10 p.m.

[20] Defence counsel admitted that there was no issue with the demand and accordingly Laarman was not asked to give evidence as to the ASD demand that he read to the respondent.

[21] In relation to any conversation with the respondent about the speed of the respondent’s vehicle, Laarman told the respondent that he had stopped him for his speed. Laarman’s investigation then turned from the speeding to the alcohol.

[22] Laarman read the ASD demand to the respondent several times and, when asked whether he understood, the respondent replied that he did.

[23] Laarman described the ASD as an Alcotest 6810. At 10:13 p.m., Laarman demonstrated the use of the ASD by blowing into it until the tone stopped, following which the ASD gave an indication of zero, as a result of which Laarman was satisfied that it was working properly and that it was accurate.

[24] Laarman explained that zero meant that there was no alcohol in Laarman’s system. At 10:15 p.m., the respondent blew into the Alcotest and it registered a fail. When asked to explain what does that mean, Laarman replied:

To me – To me it means that he has over 80 milligrams of alcohol in 100 millilitres of blood. (transcript p. 12)

[25] It was Laarman’s evidence that he was satisfied that the ASD was working properly when he administered the ASD to the respondent.

[26] After the fail, Laarman told the respondent that he was under arrest for “over 80.” The respondent was handcuffed and was read his rights to counsel at 10:19 p.m. When asked if he understood, it was Laarman’s evidence that the respondent replied “yes.”

[27] At 10:21 p.m., Laarman read the breath demand for the Intoxilyzer to the respondent.

[28] Laarman and the respondent arrived at the detachment at 10:25 p.m. The respondent was lodged in the cells. Laarman spoke to the respondent about lawyers.

[29] After being provided with a list of lawyers, it was Laarman’s evidence that the respondent decided on duty counsel; at 10:43 p.m., duty counsel returned a call and, between 10:45 p.m. and 10:50 p.m., the respondent was in the phone booth and had a private conversation with duty counsel.

[30] P.C. Sterling (“Sterling”) was the on-duty breath technician.

[31] When asked as to what grounds he provided to Sterling, Laarman testified that the grounds were the smell or odour of alcohol on the respondent’s breath and the fail on the ASD.

[32] Laarman testified in cross-examination that he had observed no open container of alcohol in the vehicle, other than the beer bottle that was in the passenger’s possession.

[33] Laarman confirmed during cross-examination that he had received training on the Alcotest 6810.

[34] During cross-examination, Laarman acknowledged that residual alcohol in a person’s mouth would require 15 minutes to allow the residual alcohol “to go away” before administering the ASD. Laarman then was referred to the open container of alcohol in the vehicle and Laarman was asked whether, as a result of that fact, he considered “mouth alcohol” prior to “giving” the respondent the ASD.

[35] It was Laarman’s evidence that he had no reason to believe that the respondent had any residual mouth alcohol because of his belief that the open beer bottle belonged to the passenger.

[36] In relation to Sterling, the respondent admitted that Sterling was a qualified breath technician.

[37] Sterling testified that the respondent provided two suitable samples directly into an approved instrument. The readings, expressed as milligrams of alcohol in 100 millilitres of blood, were 158 and 141.

Discussion

[38] The first two grounds of appeal are related and can be considered together. In his reasons on the voir dire, the trial judge reviewed the evidence in relation to the officer’s demand for the ASD. Subsection 254(2)(b) of the Criminal Code is the relevant statutory provision:

Testing for presence of alcohol or a drug

(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:

(b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

[39] The trial judge referred to the odour of alcohol on the respondent’s breath and the respondent’s admission that he had been drinking. The trial judge was satisfied that those facts gave the officer the requisite reasonable grounds to suspect the respondent had alcohol in his body, which in turn gave the officer the right to make a breath demand for the ASD.

[40] On the issue of the mouth alcohol, the trial judge was satisfied that the officer was not obliged to wait in order to allow any mouth alcohol to clear. The trial judge was satisfied that the officer considered waiting and determined that waiting was not necessary, and the trial judge found that the evidence objectively supported that conclusion.

[41] No issue was taken at trial, or on appeal, with respect to the trial judge’s findings in relation to the officer’s right to make the ASD demand.

[42] The second stage of the investigative process in the case at bar involves the making of a demand for the respondent to provide a breath sample for analysis by an Intoxilyzer. This process engages s. 254(3) of the Criminal Code:

Samples of breath or blood

(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person

(a) to provide, as soon as practicable,

(i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood, … and

(b) if necessary, to accompany the peace officer for that purpose.

[43] It is the trial judge’s findings in relation to the second stage that give rise to the first two grounds of appeal.

[44] The trial judge found that the only ground that Laarman articulated for reading the breath demand was the fail. The trial judge states at p. 50:

In this case the court finds that the only ground the officer articulated for reading the breath demand was the fail, notwithstanding that the officer gave additional grounds to the breath tech. [my emphasis]

[45] In paragraph 9 of his factum, the respondent relies on this finding and submits that this finding is supported by the officer’s evidence. The respondent submits that when Laarman was asked directly in-chief what he based his grounds for arrest on, that Laarman responded:

I believe he had more than 80 milligrams of alcohol in 100 millilitres of blood. Those are my grounds based on the failing of the approved screening device.

[46] Laarman’s answer quoted by the respondent requires some context. Reproduced below are the relevant portions of the transcript at p. 15 that include the respondent’s answer:

MS. DEFOE: Q. And in arresting Mr. Vandendriessche, as you did, can you tell us what you based the arrest on, why you arrested him? THE COURT: Isn’t that the grounds? MS. DEFOE: Q. Is there anything in addition? [my emphasis] A. I believe he had more than 80 milligrams of alcohol in 100 millilitres of blood. Those are my grounds based on the failing of the approved screening device.

[47] The difficulty with the respondent’s submission is that it focusses only on the officer’s answer; it fails to take into account the question that the officer was answering. When the officer was asked by Crown counsel why he arrested the respondent and what did he base the arrest on, the officer was not able to answer that question because of the interjection from the trial judge. A reading of the transcript does not make it clear why the trial judge interjected. The question asked by Crown counsel was clear; its purpose was for the officer to explain why he arrested the respondent.

[48] Further, following the trial judge’s interjection, the officer did not proceed to answer the original question. Instead, Crown counsel asked a new question. The officer’s answer followed. The officer was answering whether there was anything “in addition.” It was at that time that the officer referred to the fail.

[49] I find that the trial judge misapprehended the evidence when he found that the “only” (my emphasis) ground that the officer articulated for the breath demand was the fail. Rather, the fail was another ground – it was “in addition” (which was Crown counsel’s question) to any other grounds which already have been relied on by the officer.

[50] R. v. Bernshaw, [1995] 1 SCR 254 (S.C.C.) examined the issue as to what constitutes sufficient grounds for a peace officer to make a demand pursuant to s. 254(3) of the Criminal Code.

[51] The following principles emerge from R. v. Bernshaw from the reasons of Sopinka J.:

(a) At para. 48:

… The existence of reasonable and probable grounds entails both an objective and a subjective component. That is, s. 254(3) of the Code requires that the police officer subjectively have an honest belief that the suspect has committed the offence and objectively there must exist reasonable grounds for this belief: R. v. Callaghan, [1974] 3 W.W.R. 70 (Sask. Dist. Ct.); R. v. Belnavis, [1993] O.J. No. 637 (Gen. Div.) (QL); R. v. Richard (1993), 12 O.R. (3d) 260 (Prov. Div.); and see also R. v. Storrey, [1990] 1 S.C.R. 241, regarding the requirements for reasonable and probable grounds in the context of an arrest.

(b) At para. 49:

… The purpose behind this screening test is evidently to assist police in furnishing the reasonable grounds necessary to demand a breathalyzer. The roadside screening test is a convenient tool for confirming or rejecting a suspicion regarding the commission of an alcohol-related driving offence under s. 253 of the Code. A "fail" result may be considered, along with any other indicia of impairment, in order to provide the police officer with the necessary reasonable and probable grounds to demand a breathalyzer. Normally, where a properly conducted roadside screening test yields a "fail" result, this alone will be sufficient to furnish a police officer with such grounds.

(c) At para. 50:

Nonetheless, as I stated at the outset, it cannot be said that a "fail" result per se provides reasonable and probable grounds. If that were the case, it was open to Parliament to indicate this intention in the Criminal Code. Yet, nowhere in s. 254 is it indicated that a "fail" result on an approved screening device is deemed to provide reasonable and probable grounds. Thus, it is necessary to determine as a question of fact in each case whether or not the police officer had an honest belief based on reasonable and probable grounds that the suspect had committed an offence under s. 253 of the Code. [my emphasis]

[52] As a result of the trial judge’s misapprehension of the evidence that the fail result was the only ground articulated by the officer for making a demand pursuant to s. 254(3), the trial judge failed to consider the fail result “along with other indicia of impairment” (see Bernshaw, para. 49) in determining whether the requisite objective and subjective components for making the demand under s. 254(3) were present.

[53] There was other evidence before the trial judge capable of explaining why the officer made the s. 254(3) breath demand, including speeding, the vehicle stopping in the center of the road, the smell of alcohol on the respondent’s breath, the respondent’s statement that he had one beer and that he was pleading with the officer about getting his friend home and that he (the respondent) was “the most sober driver.”

[54] All of those facts formed part of the evidence available to the trial judge to determine whether the officer had reasonable grounds to make the demand pursuant to s. 254(3). While the trial judge did consider some or all of those facts in relation to the officer’s “reasonable suspicion” in making the demand pursuant to s. 254(2)(b), that evidence also can form part of the analysis as to whether the officer had reasonable grounds to make a demand pursuant to s. 254(3). I am unable to accept the respondent’s submission that this amounts to conflating the officer’s reasons for making a demand for the ASD and the officer’s reasons for making a demand for the Intoxilyzer.

[55] Having found that the officer’s only reason for making the demand was the fail test on the ASD, the trial judge then embarked on the stage-two analysis. The trial judge found that to issue a breath demand under s. 254(3), the officer is required “… to have reasonable and probable grounds to believe that the accused’s, at the time, blood alcohol content was more than the legal limit” (p. 53).

[56] The trial judge then noted the officer’s evidence relating to the self-test and that the officer had determined that the ASD “… was in proper working order because it showed a pass so to speak in context of his self test” (p. 53).

[57] The trial judge then focused on the officer’s evidence as to his belief that the respondent was operating his vehicle with more than 80 milligrams of alcohol in 100 millilitres of blood. After noting that the fail was recorded on the ASD, the trial judge stated at p. 53-55:

… The only evidence respecting that aspect from the officer is, as a result, I concluded that he was operating his vehicle with more than 80 milligrams of alcohol in 100 millilitres of blood. That conclusion, on the basis of the Charter values imbued in any assessment of s. 254(2) requires something further. Even in R. v. MacDonnell the officer in that case advised the trial court that the ASD had been calibrated earlier in the day and that it was the officer’s understanding that the ASD was calibrated in such a way that a fail reflected at least 100 milligrams in 100 millilitres. The issue in MacDonnell was the officer’s wording. He fouled up 80 milligrams of alcohol in 100 millilitres of blood and as is traditional in those cases everybody jumps on it and here comes the appeal. Now, on appeal, Justice Hill identified that background and made a determination that notwithstanding s. 254(2) exacts Charter values that the officer’s evidence in that case met constitutional scrutiny and I agree with him. It met constitutional scrutiny because in that case the officer identified why he concluded that the fail meant over 80. He concluded that because he mentioned calibration, he directed his mind to it, he considered it and, most importantly, he indicated, “I knew that if it read a fail it meant over 100.” In this case neither piece of evidence was brought forth. In this case the conclusion that the fail means he was over 80 is a belief unsupported by any fact. I agree with Justice Hill’s comments that we are not to tie police officers to a specific set of words. If we were to do that police forces would issue another set of cards for use every time an officer came to court so he made sure exactly what he was supposed to say. [my emphasis]

All of this comes down to whether it is objectively shown that the officer could draw the conclusion he did and without the evidence that he understood the calibration and he understood, at a minimum, that the calibration meant the person was over the legal limit. Without that evidence the conclusion cannot be supported with the result that I find the officer could not reasonably rely on the fail and as a result of that I find that the officer could not have had reasonable and probable grounds to believe he was entitled to arrest and read the Intoxilyzer demand. [my emphasis]

[58] The trial judge then summarized at p. 55-56:

Consequently, and having found that the officer did not have reasonable and probable grounds to arrest and read the demand, I find that the evidence supports that the eventual search that was conducted by Officer Sterling was unreasonable.

[59] It was at that point that the trial judge requested submissions relating to s. 24(2) of the Charter, following which the trial judge gave his s. 24(2) analysis and refused to accept the breath test results.

[60] In relation to R. v. MacDonnell, [2004] O.J. No. 927 (S.C.J.), referred to by the trial judge, there is no principle to be extracted from that case that supports the trial judge’s reliance on lack of evidence regarding calibration. Moreover, the decision of Hill J., in MacDonnell, is of more assistance to the appellant in the case at bar insofar as it refers to an officer being entitled to rely on an ASD yielding reasonable and probable grounds where there exists no evidence of any high degree of unreliability of the device. Hill J. states at para. 24:

24 The same-day calibration of the ASD by a qualified technician in this case, as well as Constable Sparrock's pre-shift and pre-test checks of the device reasonably permitted the officer to believe that the device was set to perform the only function it has for being in a cruiser - screen out motorists or, in the case of a Fail test result, afford reasonable grounds for an intoxilyzer demand. In these circumstances, where there exists no evidence of any high degree of unreliability of the device, a constable is entitled to rely on the device yielding reasonable and probable grounds: Regina v. Paradisi, [1998] O.J. No. 2336 (C.A.) at paras. 1, 2; Regina v. Wharton, [2003] O.J. No. 3846 (S.C.J.) at paras. 6; Regina v. Hill, [2001] O.J. No. 4505 (S.C.J.) at paras. 3-10; Regina v. Merkley, [2001] O.J. No. 4615 (S.C.J.) at paras. 9-11, 17-21; Regina v. Watson (1998), 37 M.V.R. (3rd) 154 (Ont. Ct. Gen. Div.).

[61] Although this appeal could be determined solely on the basis of the trial judge’s misapprehension of the evidence, I do consider the trial judge’s findings in relation to the officer’s belief that the respondent had more than 80 milligrams of alcohol in 100 millilitres of blood.

[62] The trial judge found that the officer’s conclusion that the fail means the respondent was “over 80,” is “… a belief unsupported by any fact” (p. 54). Secondly, the trial judge found that without evidence that the officer understood the calibration and without evidence that the calibration meant that the person was over the legal limit, that the officer could not rely on the fail. As discussed below, the trial judge erred in coming to those conclusions.

[63] In relation to the trial judge’s reasons relating to lack of evidence about calibration, there is no onus on the Crown to prove that the ASD is operating properly. In R. v. Coutts, [1999] O.J. No. 2013 (C.A.), the Court of Appeal for Ontario stated at paras. 19-20:

19 Before considering the constitutional implications of the distinction proposed by Ms. Woollcombe, I feel obliged to point out that on the basis of this record, even if I were to accept her argument, I would nevertheless dismiss the appeal. I say that because in the final analysis, the evidentiary value of roadside test results to discredit "evidence to the contrary" is dependent on the fact that roadside screening devices are calibrated to register a "fail" where a motorist has a blood-alcohol level equivalent to or greater than 100 milligrams of alcohol per 100 millilitres of blood. And yet, no evidence was led in this case to establish that critical fact. Nor for that matter, was there any evidence as to when the screening device was last calibrated or whether it was in proper working order. [my emphasis]

20 Manifestly, where a roadside test is being used solely for the purpose of confirming or rejecting a police officer's suspicion that a motorist might be impaired or over the legal limit, none of these facts need be proved. It is sufficient if the administering officer reasonably believes them to be true. Where, however, the test result is being offered for the truth of its contents, these facts must be proved by admissible evidence. Therefore, even if it was open to the trial judge to use the test result to discredit the "evidence to the contrary" adduced by the respondent, the evidentiary foundation needed to do so was missing. [my emphasis]

[64] In R. v. Beharriell, 2014 ONSC 1100 (S.C.J.), Durno J., in a summary conviction appeal, reviewed a number of authorities and gave a helpful summary of the principles involved in relation to the use of an ASD where a s. 8 Charter breach is alleged. In that case, the basis of the appeal from conviction of over 80 was that the trial judge made an unreasonable finding in concluding that objectively the officer had reasonable and probable grounds to believe that the ASD was operating properly.

[65] In para. 2, Durno J. summarizes the relevant facts:

2 At his trial for driving having consumed excess alcohol, the arresting officer gave no evidence: regarding his testing the ASD before asking the appellant to provide a breath sample, when the instrument was calibrated, what steps he took to determine if the instrument was working properly or that he subjectively believed the instrument was working properly. [my emphasis]

[66] In para. 42 of Beharriell, the following is stated regarding there being no onus on the Crown to prove that the ASD was operating properly:

42 Since the Court of Appeal has held in Coutts that there is no onus on the Crown to prove the ASD is working properly, I am unable to find that after Haas there is now an onus on the Crown to prove the calibration, that the ASD was properly calibrated or that the ASD was in proper working order when the evidence is being introduced to confirm or reject the officer's suspicions the accused was operating the motor vehicle while impaired or was driving having consumed excess alcohol.

[67] The principles summarized by Durno J. in Beharriell included the following at para. 56:

56 Based on the caselaw, the following principles can be derived where a police officer uses an ASD to confirm his or her suspicions a driver has driven while impaired or having consumed excess alcohol and the accused alleges his or her s. 8 Charter rights were infringed:

viii) there is no requirement that the Crown prove the instrument's calibration or that the ASD was working properly; and

ix) there is a heavy onus on the accused to establish a high degree of unreliability in the specific facts of the case. That evidence may arise in the Crown's case or through defence expert evidence.

[68] Durno J. dismissed the appeal, stating at para. 62:

62 The use of circumstantial evidence to show the officer reasonably believed the ASD was appropriately calibrated and working properly was a route open to the trial judge in assessing whether the officer had reasonable and probable grounds to make an Intoxilyzer demand. It can be inferred that the officer had reasonably believed the ASD was operating properly and that on a balance of probabilities the officer had reasonable and probable grounds to arrest and make an Intoxilyzer breath demand. The officer is not required to say any particular words to express his belief in the machine's reliability when used. A reasonable inference can be drawn that the officer had that belief. R. v. Hall (1995), 22 O.R. (3d) 289 (C.A.) In addition, the trial judge was entitled to draw the inference that a reasonable person in the officer's shoes would have relied on the ASD result as reliable.

[69] In R. v. Huang, 2014 ONSC 4785 (S.C.J.), McIsaac J., on a summary conviction appeal, also made clear that there is no need for police to confirm calibration of the ASD, stating at para. 4:

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), 43 MVR (3d) 28 (Ont. C.A.) at para 20; R. v. Topaltsis (2006), 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.

[70] In R. v. Topaltsis, 2006 CarswellOnt 4790 (Ont. C.A.), the police officer, in administrating the ASD, had noticed that the device had last been calibrated 26 days ago which, according to the police officer’s testimony, was outside of his police department’s current practice of calibrating the ASD every two weeks. The police officer further testified that his department’s practice as to frequency of calibration was far in excess of the manufacturer’s standard. It was his evidence during cross-examination that a representative of the manufacturer had told him, at a trade show, that the devices only require calibration every six months. The trial judge, in assessing the police officer’s evidence regarding the conversation with the manufacturer’s representative, commented that it was hearsay and that there was no evidence as to the qualifications of the manufacturer’s representative; the trial judge found that failure to calibrate the device within the department guidelines was some evidence that it was not in proper working order, and the trial judge concluded that it had not been established on an objective basis that the police officer had reasonable and probable grounds. The summary conviction appeal court dismissed the appeal.

[71] On further appeal, the Court of Appeal for Ontario, in allowing the appeal and ordering a new trial, stated in part at para. 9:

9 … We are satisfied that rather than simply assessing whether, on an objective basis, the officer had reasonable grounds for believing that the approved screening device was in good working order, the trial judge embarked on a consideration of whether the evidence established that the device was in good working order. We therefore agree that, in effect, the trial judge required the Crown to prove the device was in good working order. Further, because the trial judge applied the wrong test, his finding that the officer did not have reasonable and probable grounds is tainted and cannot stand.

[72] Similarly, in R. v. Ho, 2015 ONCA 559, the Court of Appeal for Ontario had to consider the reasonableness of an officer’s belief as to whether the roadside test was reliable. The trial judge had acquitted the driver of the vehicle. The summary conviction appeal court set aside the acquittal and entered a conviction. In allowing the appeal, only to the extent of setting aside the conviction and ordering a new trial, the court stated:

1 … We agree with the Summary Conviction Appeal Court judge that the trial judge failed to consider the reasonableness of the officer's belief that the test result was reliable, but instead focussed on whether the officer actually knew whether the result was reliable. The trial judge failed to consider whether the officer's reliance on his fellow officers to follow the established protocol for testing provided a basis upon which it could be said that the officer's belief in the accuracy of the test was reasonable.

[73] In the case at bar, in reviewing the trial judge’s reasons, I find that rather than considering on an objective basis whether the officer had reasonable grounds to believe that the ASD was operating properly, that the trial judge embarked on an inquiry as to whether the ASD was calibrated, whether the officer understood the calibration and what the calibration meant. The trial judge applied the wrong test and in so doing, his analysis was not unlike the reversible errors in Ho, supra and Topaltsis, supra.

[74] Further, context is important. There was no issue raised, or suggestion made, during the trial as to whether the ASD was working properly or when it was calibrated or whether for any reason the fail result could not be relied on. The only cross-examination of the officer in relation to the ASD centered around the issue of the mouth alcohol and, as discussed earlier, the trial judge accepted the offer’s explanation as to why the officer did not delay the ASD test. Also, during cross-examination, the officer was asked and confirmed that he had received training on the Alcotest 6810. Finally, during defence counsel’s submissions, the trial judge was told that when the Charter application was brought, that it was based solely on the mouth alcohol issue.

[75] In support of his position that there was insufficient evidence for the trial judge to assess the reasonableness of the officer’s belief that he could rely on the fail result, the respondent relies on a number of cases. I find that those cases are distinguishable.

[76] R. v. Dignum, [2012] O.J. No. 5074 (Ont. C.J.), a trial decision relied on by the respondent, is distinguishable because the officer agreed that he had no reasonable and probable grounds for arrest, but for the “F” on the ASD. There was no evidence as to what the officer understood the “F” to mean – this is in contrast to the case at bar where Laarman explained what he understood the fail to mean. Also, in Dignum, based on the cross-examination of the officer, the trial judge was concerned about what weight, if any, should be given to the officer’s testimony about whether he actually read an “F” on the ASD (para. 49).

[77] In R. v. Persaud, 2011 ONSC 1233 (S.C.J.), relied on by the respondent, the summary conviction appeal court dismissed the Crown’s appeal from an acquittal of Mr. Persaud on a charge of over 80. Unlike the case at bar, in Persaud, there was evidence that the ASD had to be calibrated every two weeks and, if not, the ASD was not to be used. Further, the evidence revealed that the last calibration date was three months prior to the date of the offence, and that if the officer who administered the ASD had been aware of that fact, it was that officer’s evidence that he “presumed” that he would not have used the ASD.

[78] The respondent relies on R. v. Johnston, 2007 ONCJ 45 (O.C.J.), a trial decision. In that case, the officer testified that he knew the ASD had to be calibrated every two weeks, but that he had not checked the calibration sticker during the course of the investigation. In his testimony, the officer agreed that had he known that the ASD had not been properly calibrated, he would not have relied on the test result to arrest the accused. Finally, in Johnston, expert evidence was called as to the essential importance of calibration. Accordingly, Johnston easily is distinguishable from the case at bar on the basis of the evidentiary record in Johnston.

[79] R. v. Jennings, 2016 ONSC 7845 (S.C.J.), relied on by the respondent, was a summary conviction appeal by the Crown from a trial judgment where an acquittal was entered on a charge of over 80. The trial judge found that the officer had failed to follow certain procedures set out in the training manual for the ASD. During his testimony, the officer had conceded a failure to follow a number of steps in the manual which the officer agreed were an imperative part of the proper operation of the ASD. The appeal court dismissed the appeal on the basis that it was open for the trial judge to conclude that the officer’s belief that the fail result was a reliable result was not supported by objective facts and it was open for the trial judge to conclude that the objective basis for the officer’s belief that reasonable and probable grounds existed had not been satisfied.

[80] The aforesaid authorities relied on by the respondent are distinguishable primarily because the issue of whether the ASD test result was reliable, whether the ASD was working properly or had been properly calibrated, arose during the course of the evidence. Therefore, those issues were “on the table,” unlike the case at bar, where the evidence was silent on such issues. In Beharriell, supra, Durno J. made that observation specifically when discussing Persaud, supra (one of the cases relied on by the respondent):

51 However, whether the ASD was working properly arose in the course of the evidence. When that occurs it can lead to a trial judge finding the officer lacked reasonable grounds to believe the ASD was working properly when used in the specific case. The calibration and/or working condition of the ASD were "on the table" as there was evidence the officers did not check the calibration and there was evidence it had not been calibrated as noted. That is a very different case than this one where the evidence was silent in regards to calibration. [my emphasis]

Disposition

[81] In relation to the trial judge’s misapprehension of the evidence, the test to be applied is set out in R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732 (S.C.C.) and R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.). In R. v. Tschudi, 2012 ONSC 6146 (S.C.J.), I stated at para. 43:

43 The Supreme Court of Canada in R. v. Lohrer examined the test to be applied where it is alleged that the trial judge misapprehended the evidence. The Supreme Court of Canada agreed with the observation of Doherty J.A. in R. v. Morrissey, and stated that R. v. Morrissey describes a stringent standard. The Supreme Court of Canada stated as follows (at paras. 1 - 4):

1. This is an appeal as of right from convictions of the appellant for aggravated assault and uttering a threat. A majority of the B.C. Court of Appeal affirmed the convictions. Hollinrake J.A. dissented. He found applicable to this case what was said by Doherty J.A. of the Ontario Court of Appeal in R. v. Morrissey (1995), 97 C.C.C. (3d) 193, as follows at p. 221:

   Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction, then, in my view, the accused's conviction is not based exclusively on the evidence and is not a "true" verdict.

2. Later in the same paragraph, Doherty J.A. stated:

   If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction. [page 734]

3. We agree with these observations. Where a miscarriage of justice within the meaning of s. 686(1)(a)(iii) of the Criminal Code, R.S.C. 1985, c. C-46, has been demonstrated an accused appellant is not bound to show in addition that the verdict cannot "be supported by the evidence" within the meaning of s. 686(1)(a)(i).

4. Morrissey, it should be emphasized, describes a stringent standard. The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge. Once those hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified must play an essential part not just in the narrative of the judgment but "in the reasoning process resulting in a conviction". [footnotes omitted]

[82] In R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527 (S.C.C.), the Supreme Court of Canada dealt with the standard of appellate review regarding issues similar to the case at bar:

(a) in Shepherd, as in the case at bar, the central issue was whether the officer had reasonable and probable grounds to make a s. 254(3) breath demand;

(b) when evidence is obtained as a result of a warrantless seizure, the onus is on the Crown to show that seizure was reasonable (para. 15);

(c) while the existence of reasonable and probable grounds is grounded in the factual findings of the trial judge, the issue of whether the facts, as found by the trial judge amount at law to reasonable and probable grounds is a question of law (para. 20);

(d) the trial judge’s findings of fact are entitled to deference, but the trial judge’s ultimate ruling is subject to review for correctness (para. 20).

[83] I find that the trial judge’s misapprehension of evidence relates to substance rather than detail, it is material rather than peripheral and it plays an essential part in the trial judge’s reasoning process in concluding that there were Charter breaches.

[84] The trial judge’s conclusion that the officer did not have reasonable and probable grounds to arrest the accused and to read the demand is subject to review for correctness; the trial judge’s conclusion is wrong in law for the reasons discussed above.

[85] In the circumstances, it is not necessary to deal with the ground of appeal in relation to the trial judge’s analysis pursuant to s. 24(2) of the Charter.

[86] This is an appropriate case to order a new trial. Further, during the hearing of the appeal, appellant’s counsel agreed that this would be an appropriate disposition.

Order

[87] The acquittal of the respondent is set aside and a new trial is ordered before a different judge.

Justice Victor Mitrow

Released: July 14, 2017