R. v. Buehlmann, 2018 ONSC 1665

COURT FILE NO.: 2/16

DATE: 2018/03/12

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Michael Buehlmann

BEFORE: Justice I.F. Leach

COUNSEL: Stephen Price, for the appellant

Douglas B. Walker, for the respondent

HEARD: July 17, 2017

ENDORSEMENT

Introduction

[1] Michael Buehlmann appeals from a conviction made against him in the Ontario Court of Justice on December 14, 2015, in relation to the offence of operating a motor vehicle having consumed alcohol in such a quantity that the concentration in his blood exceeded 80 mg of alcohol in 100 ml of blood, contrary to s.253(1)(b) of the Criminal Code of Canada, (“the Code”).

Background

[2] While I will have more to say about specific trial evidence during the course of my reasons, I note for now that background to the underlying conviction includes the following developments:

• In the early morning hours of March 9, 2014, Sergeant Novacick[^1] and Constable Lockwood were on patrol duty, in separate police vehicles, in the Town of Aylmer. The temperature during their shift, (possibly relevant to proper operation of an approved screening device for taking breath samples), was below freezing and getting progressively colder. In that regard, Sergeant Novacick believed the temperature was minus 2 degrees at 6pm on March 8, 2014, with a projected low overnight temperature of minus 12 degrees. However, Constable Lockwood noted that the temperature at 6pm on March 8, 2014, was already minus 7 degrees.
• On the evening of March 8 and early morning of March 9, 2014, a “Stag and Doe” social function had been taking place at the local Knights of Columbus hall in Aylmer. It was a “licenced function”, in the sense that alcohol was being served and consumed. Sergeant Novacick was aware of that. In particular, at approximately 1:06 am that morning, he already had been obliged to deal with a van, overcrowded with intoxicated passengers, leaving the function as it was coming to an end.
• At approximately 1:36 a.m., Sergeant Novacick observed another vehicle, (a Volkswagon Beetle), exiting the parking lot of the Knights of Columbus Hall. While following that vehicle, Sergeant Novacick observed both of the tires on its driver side totally cross over the yellow dividing line and then “come back over”, even though the roads were clear and dry and there was not much traffic about. The sergeant therefore decided to stop the vehicle to determine whether or not its driver had been drinking alcohol that evening.
• Although Sergeant Novacick activated the emergency lights of his marked police cruiser, the VW Beetle did not pull over immediately. Even after the sergeant activated his vehicle siren as well, the VW Beetle did not pull over right away. It instead continued north for a distance, into a rural area to the north of town, before pulling over and coming to a stop at 1:38 am. The officer used his radio to notify dispatch of the traffic stop, which prompted Constable Lockwood to head to the location as well.
• Constable Lockwood arrived at the scene shortly after that, (at approximately 1:40 am), and was present throughout the events that followed at or near the scene of the traffic stop.
• On approaching the VW Beetle and looking inside, Sergeant Novacick observed a male, (later identified as the appellant), sitting in the driver’s seat. A female sitting in the front passenger seat. The sergeant informed the appellant of the reason for the stop, and asked him to produce his driver’s licence and vehicle documentation. During the course of the conversation that ensued:
  • The sergeant spoke with the appellant and the female passenger, with the latter indicating that she had the vehicle documents.
  • The sergeant detected an odour of alcohol coming from the vehicle.
  • The sergeant noticed an unopened can of beer and what looked like an energy drink in the VW Beetle’s centre console. The sergeant did not notice any open alcohol in the vehicle; e.g., he did not see any empty cans on the floor of the vehicle. However, the sergeant also did not check the vehicle for open alcohol at the time.
  • The sergeant could tell the female passenger had been consuming alcoholic beverages, as she appeared to be intoxicated.
  • In addition to noting the odour of alcohol still coming from the vehicle, the sergeant noticed that the appellant’s eyes also were somewhat glossy.
  • The sergeant had a conversation with the appellant about whether he had consumed any alcohol throughout the evening.
  • The appellant denied that he had consumed any alcohol, but the sergeant still suspected that the appellant had been drinking.
  • At that point, Sergeant Novacick thought he had grounds to demand provision of a breath sample from the appellant, pursuant to s.254(2)(b) of the Code, but “chose not to”. In particular, while the sergeant already suspected the odour of alcohol was coming from both the appellant and the female passenger in the vehicle, the sergeant also “wanted to be 100 percent sure” that the odour also was coming from the appellant, by removing the appellant from the odour of alcohol in the vehicle to “clear” air. Sergeant Novacick therefore asked the appellant to step outside and move to the rear of the vehicle, and the appellant complied.
• While at the rear of the VW Beetle and conversing with the appellant, who continued to deny any alcohol consumption, Sergeant Novacick could still smell the odour of an alcoholic beverage. In particular, the “whole time” the appellant was denying having consumed alcohol, Sergeant Novacick could smell alcohol on the appellant’s breath.[^2]
• Based on the appellant’s “demeanour”, the “odour on his breath”, and “the totality of things”, the sergeant suspected the appellant was lying and may have been drinking alcohol. In that regard, the sergeant suspected the appellant had been drinking at the social event at the Knights of Columbus Hall. However, while the VW Beetle was seen coming from the hall’s parking lot, the sergeant had not seen the appellant in the hall or consuming alcohol, and did not know how recently the appellant may have been drinking alcohol. The sergeant simply suspected that the appellant had been drinking at some point during the night.
• Pursuant to s.254(2)(b) of the Code, the sergeant therefore informed the appellant that he was going to “demand” and “require” the appellant to provide a sample of his breath for a “roadside screening device”. The appellant replied “No problem”, and the sergeant went to retrieve the device from his police cruiser. In that regard:
  • The sergeant knew that the device was a “Drager Alcotest 6810”, (an “approved screening device” for the purpose of s.254 of the Code, pursuant to regulations duly published in the Canada Gazette), and its serial number.
  • The sergeant had received training on the device from Constable Kaastra of the Aylmer Police Service.
  • The sergeant knew that the device was designed to enable its confirmation of any suspicion the police might have that a person had been consuming an alcoholic beverage; i.e., by requiring the person to provide a sample of their breath into the instrument. In particular, the sergeant knew that the testing device was calibrated to register a “fail” indication if it detected a concentration of “100mg of alcohol per 100ml of blood”, giving the police reasonable grounds to believe the person providing the sample was “over the legal limit”.
  • Sergeant Novacick knew from his training that the device could be set to “fail” at any level of mg of alcohol, but also was informed by Constable Kaastra that the device would be set to fail at 100mg, and that the sergeant was to leave calibration of the device to others.
  • The sergeant also knew, from a sticker placed on the device by the Intoxilyzer Technician, that the device had most recently been calibrated on February 24, 2014; i.e., approximately two weeks prior to the traffic stop involving the appellant.
  • The sergeant was not aware of any defects in the device.
  • The sergeant was able to describe, in detail, the button pushed to activate the device, how the device would go through a “set up” before indicating it was ready, the various signals and tones it would make to indicate readiness and the taking of a sufficient breath sample, and the manner in which readings were displayed.
  • The sergeant was not familiar with any suggestion that the device could not be used in temperatures below minus 5 degrees, or any suggestion that the device was not to be used near a police radio or cell phone, (such as the cell phone the officer had with him that day).
• After retrieving the device from his police cruiser, Sergeant Novacick returned to the appellant at the rear of the Beetle, where the appellant continued to deny consumption of any alcohol. Because of those continued denials of any alcohol consumption, the sergeant did not ask the appellant when he had last had a drink.
• The sergeant then tested the screening device in the presence of the appellant, and confirmed that it was working properly; i.e., by blowing into the device himself and observing an expected registered reading of zero milligrams. In testing and demonstrating the device in front of the appellant, the sergeant advised the appellant what was required to provide a sample; e.g., in terms of how long provision of a sample by blowing into the instrument would take. The sergeant then removed the mouthpiece he had used to test the device, and placed a fresh mouthpiece on the device for the taking of a sample from the appellant.
• At the time, Sergeant Novacick understood that, if someone tested with the approved screening device recently had taken a drink of alcohol, residual alcohol in the person’s mouth could result in a “false reading”. In particular, the sergeant knew from his training that, if a subject had consumed alcohol within 15 minutes of providing a breath sample, that could cause a “false high and an inaccurate screening device test”, such that a wait of 15 minutes before using the device was recommended in such circumstances. As for the possibility of such residual alcohol in relation to the appellant, Sergeant Novacick therefore “considered it”. However, based on the appellant’s “flat out” denials of alcohol consumption, the sergeant did not believe residual mouth alcohol was an issue in relation to the appellant. As the sergeant put it, he had “nothing to go on” in that regard. In particular, the sergeant emphasized that, had the appellant acknowledged and admitted any kind of alcohol consumption, the sergeant “would have been investigating that further; e.g., by asking “When was your last drink”, in an effort to “try to pinpoint that”. In that event, depending on the appellant’s admissions and indications of alcohol consumption, the sergeant “may very well have” waited 15 minutes before taking a breath sample from the appellant using the approved screening device. But again, the appellant provided Sergeant Novacick with “no admission whatsoever” in relation to alcohol consumption, and instead continued to deny any consumption whatsoever of alcohol.
• At 1:41 am, Sergeant Novacick read a formal s.254(2)(b) demand to the appellant in the approved form; i.e., “I demand that you provide a sample of your breath into an approved screening device to enable a proper analysis of your breath to be made and that you accompany me now for the purpose of taking a sample. Do you understand?”
• At 1:42 am, the appellant provided a sample of his breath by blowing into the device through a mouthpiece on the top of the device. The breath sample provided by the appellant registered a “fail” reading on the device. At that point, Sergeant Novacick believed, based on the “fail” reading, that he had reasonable and probable grounds to arrest the appellant for “over 80 mg”; i.e., an offence contrary to s.253(1)(b) of the Code.
• Sergeant Novacick advised the appellant that he “had failed”.[^3] When the appellant asked some questions seeking clarification, the sergeant advised that the device was telling the sergeant that the appellant had at least 100mg of alcohol per 100ml of blood in his system, and that the sergeant therefore was now being placed under arrest for “over 80mg”.
• However, when the sergeant reached out to take custody of the appellant, the appellant suddenly attempted to flee on foot. In particular:
  • The appellant suddenly turned to his left and began running down the shoulder of the highway, before crossing a ditch and into a nearby farmer’s field.
  • Constable Lockwood gave chase on foot, while Sergeant Novacick got back into his police cruiser and used that to chase the appellant as well; i.e., by driving into the ploughed field.
  • The appellant continued to flee by running and changing directions, until he found himself in the field between the two police officers, both of whom were challenging him and telling him to get on the ground. The appellant still was not complying with those police demands, and posturing as if possibly preparing to fight. The two officers then drew and pointed their “taser” weapons, and once again advised the appellant he was under the arrest and to get on the ground.
  • Although the appellant then stopped, put his hands in the air and got down on his knees, he remained non-compliant with ongoing police demands that he get prone on the ground. Sergeant Novacick then applied his foot to the appellant’s back to put the appellant prone onto the ground, at which point the appellant finally was arrested and handcuffed, within minutes of his first attempting to flee.
  • The appellant then was placed in the back of the sergeant’s police cruiser, which was driven from the field back to where the VW Beetle and its female passenger remained at the side of the road.
• Sergeant Novacick then had a further conversation with the appellant that included the following:
  • At 1:50 am, the sergeant advised the appellant that he was being arrested for “over 80mg” and “escape lawful custody”. The sergeant read the appellant his rights to counsel in the standard format, including an indication that the appellant had the right to telephone any lawyer he wished, as well as the right to free legal advice from Legal Aid duty counsel. When the sergeant asked the appellant if he understood those rights to counsel, the appellant responded “No”. When the sergeant asked the appellant what he did not understand, the appellant’s reply was “Everything”. The sergeant thought the appellant was “playing games” with him, and followed up by asking: “Do you wish to call a lawyer now?” The appellant then replied “Yes”, but made no request to speak to a specific lawyer.
  • Although the sergeant made no note of it at the time, it was his practice and memory that he explained to the appellant that he would be able to call a lawyer, if he wished to do so, once they were at the police station.
  • At 1:51 am, Sergeant Novacick then read the standard caution to the appellant, concluding by asking the appellant if he understood the caution. The appellant replied by saying: “I want to do a roadside sobriety test.”
  • At 1:52 am, Sergeant Novacick then read a formal demand to the appellant, pursuant to s.254(3) of the Code, in the approved format: “I demand that you provide suitable samples of your breath into an approved instrument to enable an analysis to be made to determine the concentration, if any, of alcohol in your blood and that you accompany me now for this purpose. Do you understand?” The appellant responded by saying “Yes”.
• In the meantime, Constable Lockwood was attending to the female passenger, and the VW Beetle. In particular:
  • He identified the female passenger, who indicated that the vehicle was owned by her stepfather but provided for her to drive.
  • As the female passenger was upset, and completely intoxicated to the point of being unable to walk and barely able to speak, Constable Lockwood had to escort her to his police vehicle.
  • Constable Lockwood called a tow truck to retrieve the VW Beetle.
  • While waiting for the tow truck, Constable Lockwood searched the inside of the VW Beetle, and confirmed the presence of alcohol and alcohol containers. In particular, located on the floor of the front passenger area was an unopened and full 500ml can of Stella Beer, six unopened and full 500ml cans of Lowenbrau beer, and an unopened 750ml bottle of wine. Located behind the driver’s seat was an empty 500ml can of Stella beer. The items were in “plain sight” as Constable Lockwood found them.
• From 1:52 am to 2:10 am[^4], Sergeant Novacick effectively was obliged to remain at the scene with the appellant in the rear of his vehicle, so that there would be two officers present while Constable Lockwood was looking after the intoxicated female passenger, and for reasons of officer safety. In particular:
  • To ensure a safe prisoner transfer at the Aylmer Police Station, another officer besides Sergeant Novacick would need to be present. As Constable Lockwood emphasized, the police generally “man the accused with two officers”.
  • At the time, however, Sergeant Novacick and Constable Lockwood were the only two police officers on duty. There was no other officer back at the Aylmer Police Station to assist with transferring the prisoner into the station and cell area. Constable Lockwood would have to provide assistance in that regard.
  • Constable Lockwood nevertheless could not clear the scene immediately to return to the Aylmer Police Station. In particular, the VW Beetle had to be secured and the intoxicated female passenger could not be left unattended.
  • Until the tow truck arrived to secure the VW Beetle, Constable Lockwood was unable to leave for Aylmer Police Station with the female passenger, (as a prelude to making sure she got home safely), and Sergeant Novacick effectively was unable to leave for the Aylmer Police Station with the appellant.
• During that time interval, (i.e., 1:52 am to 2:10 am), steps were taken to contact Constable Geling, another officer with the Aylmer Police Service. In that regard:
  • Constable Geling had been sleeping at home, but received a telephone call at approximately 1:57 am on March 9, 2014, advising her of the situation and asking her to attend at the Aylmer Police Station to perform further breath testing services in relation to the appellant.
  • Constable Geling had been contacted in that regard because she is designated, in accordance with provisions of the Code, as a qualified breath technician, qualified to operate the “Intoxilyzer 8000”, which is an “approved breath analysis instrument” for the purposes of s.258 of the Code. In that regard:
    • In March of 2014, Constable Geling had been designated and serving as a qualified breath technician since June of 2009, and had conducted approximately 60 breath tests similar to the one she was going to perform in relation to the appellant.
    • She had received training in relation to the Intoxilyzer 8000, and knew that its purpose was use of a breath sample to generate a reading of how much alcohol was contained in 100ml of the test subject’s blood.
    • Constable Geling was able to provide detailed information about the particular Intoxilyzer 8000 maintained by the Aylmer Police Service, including details about its manufacture, serial number, inspection and servicing, (e.g., indicating that was done at least once a year, although not records were immediately available), along with confirmation that there had been no malfunctioning of the unit since 2009.
    • She also was able to provide a detailed description of the manner in which the instrument routinely was activated, warmed to proper operating temperature, and subjected to diagnostics and calibration checks, as well as a “self-breath” test, before the administration of any tests of a subject.
  • At trial, Constable Geling confirmed that she not only had training, familiarity and experience with the Intoxilyzer 8000, but with the Drager Alcotest model 6810 as well. Her evidence in that regard included the following:
    • She knew that test results generated by the device could be affected by its use after prolonged exposure to temperatures colder than minus five degrees, and that such use therefore was not recommended according to the operations manual for the device. However, Constable Geling also confirmed that the effect in question actually would be an under-estimation of the blood alcohol concentration of the test subject indicated by that subject’s breath sample; i.e., that using the unit in such cold temperatures actually “would be to the advantage” of the test subject. Moreover, she further confirmed that, in her experience, and according to other available training documentation and information, operation of the device and the results it generated would not be affected if the device was exposed to such colder temperatures only for a short period of time. In particular, the device could be used in temperatures between minus 5 degrees and minus 40 degrees for up to 30 minutes without affecting test results, provided the unit had been kept in ambient conditions above zero, (e.g., in a heated room or police cruiser), prior to its use.
    • Constable Geling also knew that the test results generated by the device could be affected by radio frequency interference, (e.g., by operation of the device in close proximity to a radio or cellular telephone), and that the operations manual for the device recommended that radio and mobile transmissions during use of the device should be avoided. However, she also confirmed that, in her experience, such interference would require the radio or cellular phone to be “going off” or in active use at exactly the same time as the device was generating its test result.
• At approximately 2:10 am, Sergeant Novacick cleared the scene of the traffic stop, and left with the appellant for the Aylmer Police Station.
• Sergeant Novacick and the appellant arrived at the Aylmer Police Station at approximately 2:11 am, by which time Constable Lockwood also had arrived back at the station, (with the female passenger), to be present for the prisoner transfer into the station. Upon arrival at the station, the appellant was brought into the booking area, where paperwork was completed.
• At or about the same time, (i.e., at approximately 2:11am), Constable Geling also arrived at the Aylmer police station, and proceeded to the “breath room” where the “Intoxilyzer 8000C”instrument maintained by the Aylmer Police Service was located. She embarked on all of the aforesaid preparation and testing procedures noted above, in accordance with her training. .
• At 2:13am, the appellant was lodged in a cell.
• At 2:18am, Sergeant Novacick placed a call to duty counsel, using the standard “1-800” Legal Aid number. In that regard:
  • the sergeant admitted that he never asked the appellant whether he wanted to call his own lawyer or duty counsel;
  • the sergeant says he instead “would have” asked the appellant if the appellant had a lawyer that he deals with, but the sergeant made no note of that;[^5]
  • the sergeant recalled, (despite not making a note of it), that the appellant “didn’t provide a name of a lawyer that he wanted”; and
  • the sergeant says he therefore would have called duty counsel as per his “normal practice” in such situations.
• At 2:30am, duty counsel (a lawyer named Johnson) returned the call, and the appellant was given privacy to speak with counsel. In particular, the appellant was taken to a “counsel room”, where he was locked inside with a telephone, knocking on the door to be let out once he had finished speaking with duty counsel. Sergeant Novacick did not ask the appellant if he was satisfied with his consultation with duty counsel. However, at no time did the appellant indicate to the sergeant that he was dissatisfied in any way with that consultation.
• At 2:40am, Sergeant Novacick spoke with Constable Geling, advising her of his reasonable and probable grounds for arresting the appellant. In particular, the sergeant informed Constable Geling that the appellant had failed breath testing administered through the approved screen device, told Constable Geling about the location of the appellant’s arrest, advised Constable Geling that the appellant had received his rights to counsel and a caution, and that a demand for further samples of the appellant’s breath had been made.
• At approximately 2:42am, the appellant was turned over to the custody of Constable Geling for breath sample testing using the “Intoxilyzer 8000”. In particular, the appellant was left alone in a room with Constable Geling and the instrument. By that time, Constable Geling had completed the aforesaid preparation and testing procedures, and was satisfied that the instrument was in proper working order and ready to take a breath sample of the appellant.
• During Constable Geling’s interaction with the appellant in the “breath room”, all of which was depicted in a preserved audio-video recording:
  • Constable Geling was in plain clothes, but identified herself as a Certified Breath Technician, and was “pretty sure” the appellant knew she was a police officer because she had had previous dealings with the appellant.
  • Shortly after the appellant entered the room, Constable Geling asked the appellant if he had received his rights to counsel and understood them. The appellant responded by confirming that he understood his rights, and had spoken with duty counsel. In response to Constable Geling saying “Okay, so you talked to a lawyer then”, the accused nevertheless laughed and made a further comment about duty counsel: “I don’t know if you call duty counsel a lawyer – I wouldn’t, personally”. Constable Geling did not ask any further questions about the comment, or ask if the appellant if he wanted to speak with another lawyer. The appellant gave no further reason for making the comment, and at no time provided Constable Geling with the name of any specific lawyer he wished to contact. Perceiving the appellant to be joking, (having heard such jokes before from many others, and having regard to the personal mannerisms of the appellant when he made the comment about duty counsel), Constable Geling believed the appellant understood his rights to counsel and was satisfied with the duty counsel lawyer to whom he had spoken.
  • Constable Geling then read a primary caution and a secondary caution to the appellant, in standard form, and the appellant appeared to understand them.
  • At approximately 2:49am, the appellant provided a sample of his breath by complying with the instructions of Constable Geling, and blowing directly into the Intoxilyzer 8000 sample chamber, through a mouthpiece, for approximately 9 seconds. The instrument analyzed the sample, and provided a result indicating that the appellant had 130mg of alcohol in 100ml of blood.
  • At approximately 3:13am, the appellant provided a second sample of his breath by repeating the same process. The instrument analyzed the sample, and provided a result indicating that the appellant had 124mg of alcohol in 100ml of blood.
  • Based on the Intoxilyzer 8000 testing results generated, in relation to the two breath samples provided by the appellant, Constable Geling formed the belief or opinion that the appellant had a blood alcohol concentration exceeding 80mg of alcohol in 100ml of blood. However, Constable Geling also had noted that there was an odour of alcohol on the appellant’s breath, and that his eyes were bloodshot with dilated pupils. To her, it also seemed that the appellant’s speech was slightly slurred. She formed the impression that the appellant was impaired by consumption of alcohol.
  • During the taking of the aforesaid samples, Constable Geling also asked the appellant a series of questions, (as outlined in a standard “Alcohol Influence Report”), which were posed without threats, the use of force, offers, promises or resort to any form of trickery, lies or deception. The appellant freely answered Constable Geling’s questions in a regular tone of voice. At no point did the appellant indicate that he did not want to answer Constable Geling’s questions, or ask to contact anyone. In particular, he never expressed a desire to speak to counsel again. Constable Geling made notations immediately after each answer given by the appellant.
  • One of the questions posed to the appellant by Constable Geling asked whether he had been drinking, and the appellant’s response was: “A little bit.”
  • Another question posed to the appellant by Constable Geling asked what he had been drinking, and the appellant’s response was: “Beer”. Moreover, the appellant told Constable Geling that he had consumed just five beers on the evening in question.
  • Constable Geling did not believe the answers given by the appellant in relation to alcohol consumption, given the results of the breath sample testing.
  • Before parting with the appellant, Constable Geling reviewed a “Certificate of Qualified Technician” with him, and had the appellant sign at the bottom.
  • During her time with the appellant, Constable Geling felt that the demeanour of the appellant remained similar, with the appellant being polite and cooperative, slouching back in a comfortable way and joking, without any apparent fear or nervousness, and displaying what Constable Geling remembered as a “cocky” attitude in his reactions and responses to questions. To Constable Geling, the appellant “did not appear to be that intoxicated”. At no time did the appellant consume alcohol or eat anything.
• At approximately 3:23am, Constable Geling turned custody of the appellant over to Sergeant Novacick, who returned the appellant to a holding cell.
• Following completion of the breath sample testing by Constable Geling, and communication of the results to Sergeant Novacick, further paperwork was completed prior to the appellant being formally released at 4am on a “promise to appear”. The appellant then was driven home by Sergeant Novacick and Constable Lockwood.
• At no time between the traffic stop and his release from custody did the appellant consume alcohol or anything else. To Sergeant Novacick, it seemed that the observed effects of alcohol on the appellant remained “around the same” throughout that period, without getting weaker or stronger. Sergeant Novacick did not feel that the appellant had slurred his words.

[3] On consent, the trial judge dealt with hearing of the matter by way of a blended voir dire and trial. In that regard:

• The above information about the manner of the traffic stop and subsequent interaction between the appellant and police was provided, during the blended hearing, through the testimony, (including cross-examination by defence counsel), of Sergeant Novacick, Constable Lockwood and Constable Geling.
• The appellant chose to present no evidence on the voir dire, (dealing with requests by defence counsel to exclude evidence based on alleged breaches of sections 7, 8, 9 and 10b of the Canadian Charter of Rights and Freedoms – “the Charter”), the voir dire within the voir dire and/or trial dealing with voluntariness of the statements made by the appellant to Constable Greling), or defence counsel’s application for a stay of the proceeding pursuant to s.24(1) of the Charter, based on destruction and corresponding non-disclosure of the audio-video recording of what transpired between the appellant and Sergeant Novacick in the cell or hallway areas of the Aylmer Police Station.
• The appellant nevertheless did choose to lead evidence during the course of the trial proper, in support of a “bolus drinking” defence which, if accepted, might have prevented Crown reliance on the statutory presumption set forth in s.258(1)(d.i) of the Code; i.e., allowing the results of the testing performed by Constable Geling to be used as proof that the appellant’s blood alcohol concentration exceeded 80mg in 100ml of blood at the time the offence was alleged to have been committed, in the absence of evidence tending to show that the accused’s consumption of alcohol was consistent with a lower blood alcohol concentration at the relevant time.

[4] In relation to the last point, the appellant led evidence in relation to the trial proper from three witnesses: himself, a male friend named Corey Plant, and Dr Michael Ward.

[5] As for the testimony of the appellant:

• He testified that, at the time of the alleged offence, he was 27, with a height of six feet and a weight of 210 pounds.
• The appellant acknowledged that he consumed alcohol in the hours leading up to the relevant traffic stop on March 9, 2014. In particular:
  • He claimed that his first consumption of alcohol during that time period occurred at approximately 9pm on March 8, 2014, at his house. He says that consumption involved his drinking of two drinks of whisky, with an alcohol content of 40 percent, that were poured freely; i.e., without a measuring device. While initially indicating that each drink contained 1½ to 2 ounces of whisky, the appellant acknowledged under cross-examination that each drink may have contained as much 2½ to 3 ounces of whisky. The appellant says that he consumed those two drinks, without “chugging” them, over the course of approximately 90 minutes; i.e., between 9pm and 10:30pm, at which point he and his friends, (including Corey Plante), arrived at the Knights of Columbus hall in Aylmer, (approximately 4-5 minutes away from the appellant’s home by car), for the “Stag and Doe” event being held there.
  • The appellant claimed that, on arrival at the Stag and Doe event, (which was providing alcohol through the sale of tickets redeemable for drinks at the bar), he purchased tickets, (at an effective cost of $4.00 each), for five 355ml beer drinks. He said that he used two of those tickets to obtain and consume two 355ml drinks of “light beer”, (with a four percent alcohol content), between 10:30pm and the relevant bar announcing “last call” for drink service at 1am on March 9, 2014.
  • The appellant claimed that, during the same 10:30pm to 1am time period, he also consumed two 355ml drinks of “regular beer”, (with a five percent alcohol content), supplied to him by a female named Victoria Flint; i.e., a female he met for the first time at the Stag and Doe, and with whom he socialized for the remainder of the evening. The appellant confirmed that Ms Flint was the female passenger later found in the VW Beetle with him at the time of the traffic stop.
  • According to the appellant, the four beer drinks he consumed between 9pm and 1am were “fairly equally spaced out” over that time period.
  • The appellant claimed that, when “last call” was announced by the Knights of Columbus hall bar at “exactly” 1am, (at time he noted as he was checking the time because of his still unused beer tickets), he still had 3 unused beer tickets left, and Ms Flint still had 5 unused beer tickets. He says that he got in line for the bar to use the tickets, was able to obtain more drinks from the bar at approximately 1:10am. He says that he then consumed three more 355ml drinks of light beer, and two more 355ml of regular beer, between 1:10am and the time he left the Stag and Doe function.
  • In short, the appellant claimed at trial that his alcohol consumption on the evening in question included two drinks of whisky and nine drinks of beer, in the following quantities and at the following times:
    • two 1½ to 3 ounce drinks of whisky between 9pm and 10:30pm;
    • two 355ml drinks of light beer and two 355ml drinks of regular beer between 10:30pm and 1:10am; and
    • three 355ml drinks of light beer and two 355ml drinks of regular beer between 1:10am and leaving the Stag and Doe function, which must have occurred at some point prior to Sergeant Novacick observing the appellant driving out of the hall parking lot at 1:36am.
  • The appellant insisted that he had decided to “take down five beers” shortly before he left, even though he admittedly had been “spacing out” his alcohol consumption “throughout the whole evening”.
  • The appellant also claimed that his last drink was consumed “just moments”, and “maybe a minute”, before he left the Stag and Doe function.
• The appellant claimed that he “had no intentions of driving that night”, but wound up driving the VW Beetle brought to the Stag and Doe function by Ms Flint, after an argument with her, as she otherwise was intent on driving the vehicle herself despite being intoxicated. The appellant claimed that he otherwise was unable to stop Ms Flint from driving, although she admittedly was “a little girl”, “maybe 120 pounds”, and intoxicated.
• According to the appellant, he simply intended to drive the VW Beetle to his home; i.e., an approximately 4-5 minute drive from the hall. He says he was not feeling the effects of alcohol during the drive, and recalled no difficulty driving. He admitted swerving over the yellow dividing line of the road, but claimed he had done so “slightly”, and because he “just got distracted talking to [his] passenger”.
• The appellant admitted lying to police about his alcohol consumption to benefit himself.
• The appellant admitted that he attempted to flee from police at the traffic stop, just as he was going to be placed under arrest. He said he did so because he didn’t want to “get into trouble”, thought he could “get away”, and it served his benefit at the time to run.
• The appellant admitted that he had lied to Constable Geling about alcohol consumption. He attributed that to simply being “bored” at the time.

[6] As for the testimony of Corey Plante:

• He confirmed that, along with his wife and sister, he attended the home of the appellant on the evening of March 8, 2014, before the four of them went to the Stag and Doe event at the Knights of Columbus hall in Aylmer. He also confirmed that “whisky mixed with soda” drinks, made by the appellant, were being consumed at the appellant’s home that evening. Mr Plante initially indicated that drinking had taken place at approximately 9:30pm or 10pm., but later thought the drinking may have started at 9pm or 10pm. In any event, Mr Plante acknowledged that he was not “keeping count” of the whisky drinks being consumed by the appellant.
• Mr Plante confirmed that alcohol at the Stag and Doe event was being provided through a ticketing system, and said that he noticed the appellant buying tickets redeemable for beer. However, Mr Plante also confirmed that he thereafter did not spend a lot of time with the appellant that night, into the early morning hours, because the appellant was “busy with a new friend that he had met”, and they “were kissing the entire night”.
• Mr Plante testified that, “around last call”, he saw the appellant leaving the bar ahead of him, and coming through the line, with “two handfuls of drinks” in “Red Solo cups”. However, Mr Plante also indicated that he “honestly couldn’t tell” whether the appellant was carrying “2 cups or 14 cups”, and that he also had “no clue” what the appellant in fact was actually drinking.

[7] Finally, as for the testimony of Dr Ward, who was present during the testimony of the appellant:

• Dr Ward was accepted without Crown challenge as an expert in relation to:
  • the distribution, absorption, elimination of alcohol in the human body;
  • the effects of alcohol in the human body; and
  • the workings of the Intoxilyzer 8000.
• Defence counsel asked Dr Ward to assume a number of factors, (e.g., relating to the timing of the traffic stop, approved screening device failure, and test samples generating the Intoxilyzer 8000 readings), and express an opinion, “given the drinking pattern that you heard”, as to whether the appellant would have been “over the legal limits” when he was seen operating a motor vehicle between approximately 1:34am and 1:39am on March 9, 2014.
• Dr Ward began by explaining that alcohol can take up to one-half hour to be absorbed and distributed after consumption, during which time it cannot be calculated by forensic toxicologists.
• In offering his opinion in this case, Dr Ward repeatedly made reference to the “large quantity” of alcohol “consumed just shortly prior” or “immediately preceding” the appellant’s relevant driving, “according to his evidence”. Having regard to that evidence, the appellant’s evidence of alcohol consumed prior to that time, as well as the appellant’s age, height and weight, and the universally accepted rate of alcohol elimination, (i.e., 10-20 mg of alcohol in 100ml of blood, per hour)[^6], Dr Ward opined that the blood alcohol concentration of the appellant would have been between 49 and 61 mg in 100ml of blood at the time of driving, rising to 130 mg in 100ml at 2:49am, if the test readings were accurate, (and Dr Ward expressly acknowledged that there was “nothing unusual or anomalous” in Constable Geling’s testimony about how the testing had been performed). In other words, the test results were consistent with the pattern of drinking claimed by the appellant, without the appellant having a blood alcohol concentration in excess of the legal limit at the time of driving.
• Dr Ward also opined that the appellant’s evidence regarding his pattern of consumption would be consistent with the appellant displaying slight slurring of speech to the breath technician, suggestive of impairment by alcohol, when that apparently was not noticed by the arresting officer. Having said that, he also acknowledged in cross-examination that “not everyone has the same definition of what slurred speech is”.
• Dr Ward also testified that the lower blood alcohol concentration recorded in relation to the second breath sample taken by Constable Geling, in comparison with the first, was not necessarily indicative of declining blood alcohol concentration, as the ostensible decrease fell within the “typical analytical variability” of the testing instrumentation, which was accepted to be “plus or minus 10 mg percent”. Repeated analysis over a prolonged period of time would have been needed to determine whether the appellant’s blood alcohol concentration actually was “increasing, decreasing or remaining the same”.
• Dr Ward acknowledged in cross-examination that his “forward calculation” in relation to the appellant would have reached levels exceeding the legal blood alcohol concentration limit at the time of driving in scenarios where the alcohol content consumed by the appellant over the entire calculated range, (including the whisky drinks admittedly consumed at the appellant’s home), was increased. For example, if the whisky drinks admittedly consumed by the appellant earlier in the evening were 3 ounces each, Dr Ward calculated that the appellant’s blood alcohol concentration would have been between 68mg and 114mg in 100ml of blood at the time of driving.
• More generally, however, Dr Ward acknowledged in cross-examination that his evidence was “only as good as the evidence of the accused”.

Trial decisions

[8] In the course of the trial, the trial judge made a mid-trial ruling that the Crown had established the voluntariness of the statements made by the appellant to Constable Geling, and admitted them into evidence.

[9] Following the receipt of all evidence, proceedings in the court below were adjourned for approximately four months, (i.e., from April 2 to July 27, 2014), to allow for the filing of authorities and the scheduling of oral submissions.

[10] It seems that, after receiving oral submissions on July 27, 2014, the trial judge reserved his final decision for approximately 5 months; i.e., delivering his decision on December 14, 2015.

[11] In detailed and thoughtful reasons extending over the course of 22 single-spaced pages, the trial judge then provided numerous rulings, which included the following:

• He found that the traffic stop and detention of the accused entailed no violation of section 9 of the Charter.
• He found that the suggested concerns about use of the approved screen device in proximity and/or cellular phones, and/or in temperatures below minus 5 degrees, did not affect or detract from Sergeant Novacick’s honestly held belief concerning the “fail” result at the traffic stop.
• He rejected the argument that Sergeant Novacick should have waited 15 minutes in the circumstances, to eliminate the possibility of testing being affected by residual mouth alcohol, before taking a sample of the appellant’s breath with the approved screening device. There accordingly was no corresponding violation of the appellant’s rights pursuant to section 8 of the Charter.
• He found that there had been a breach of the appellant’s rights to legal counsel, pursuant to s.10(b) of the Charter, insofar as Sergeant Novacick did not adequately follow and/or document his supposed efforts to ensure that the appellant did not wish to speak to a specific lawyer of choice rather than duty counsel, and Constable Geling did not take further steps in that regard after statements from the appellant suggesting confusion about whether he had indeed spoken to a lawyer. However, based on his s.24(2) analysis, the trial judge found that it would be inappropriate to exclude the breath sample testing results, and also dismissed the appellant’s s.10(b) Charter application.
• He considered but refused to grant the appellant’s request for a stay of proceedings pursuant to s.24(1) of the Charter, owing to an alleged breach of the appellant’s section 11 Charter rights stemming from destruction of the audio-video recording of the cell area in the Aylmer police station during the period leading up to the appellant’s being put in touch with duty counsel, and the breath sample testing carried out by Constable Geling.
• He considered but rejected the appellant’s bolus drinking arguments, finding, inter alia, that the testimony of the appellant was not credible for numerous reasons and rejected accordingly.
• He found that the s.253(1)(b) offence had been proven beyond a reasonable doubt, in that, inter alia:
  • Sergeant Novacick had reasonable and probable grounds to issue the s.254(3) demand for breath samples when he did, and did so “as soon as practicable”;
  • the ensuing breath tests were conducted as soon as practicable thereafter by a qualified breath technician, and within two hours of the appellant’s driving of a motor vehicle;
  • the samples were received directly from the appellant into an approved breath analysis instrument operated by a qualified breath technician;
  • that qualified breath technician deemed the breath samples to be suitable;
  • the samples were analysed using the approved breath analysis instrument, and generated testing results indicating a blood alcohol concentration in excess of the legal limit of 80mg of alcohol in 100ml of blood; and
  • the s.258(1)(d.1) presumption remained in place.
• He accordingly directed the registration of a s.253(1)(b) conviction in relation to the appellant.

[12] I in turn have examined and reflected on the reasons of the trial judge in considerable detail, and my failure to replicate those reasons or any portion thereof in their entirety should not suggest otherwise. To the extent necessary, they should be deemed incorporated into these reasons.

[13] However, I do intend to make reference to certain aspects of those reasons in my assessment below.

Standard of review

[14] Before proceeding to an assessment of whether the appeal should be allowed on the basis of any one or more of the myriad issues raised by the appellant, I note the applicable standards of review and burdens which govern this appeal.

[15] Pursuant to s.686(1)(a) of the Code, on the hearing of an appeal against a conviction, the appellate court has a broad jurisdiction to allow the appeal where it is of the opinion that:

1. the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence;
2. the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law; or
3. on any ground there was a miscarriage of justice

[16] Those powers are qualified to some extent by s.686(1)(b)(iii) and (iv). Subsection 686(1)(b)(iii), in particular, provides that, notwithstanding an appellate court’s opinion that an appeal might be decided in favour of the appellate on any ground mentioned in s.686(1)(a)(ii), the appellate court may dismiss the appeal where it also is of the opinion that no substantial wrong or miscarriage of justice has occurred.

[17] As explained by our Court of Appeal in R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), while s.686(1)(a) provides three distinct bases upon which the appellate court may quash a conviction, each shares the same underlying rationale: a conviction which is the product of a miscarriage of justice cannot stand. In that regard:

• subsection 686(1)(a)(i) is concerned with the most obvious example of a miscarriage of justice; i.e., a conviction which no reasonable trier of fact, properly instructed, could have returned on the evidence adduced at trial;
• subsection 686(1)(a)(ii), read along with s.686(1)(b)(iii), presumes that an error in law produces a miscarriage of justice unless the Crown can demonstrate the contrary with the requisite degree of certainty;
• subsection 686(1)(a)(iii) addresses all other miscarriages of justice not caught by the preceding two subsections; and
• while the Crown bears the burden of demonstrating that the error did not result in a miscarriage of justice where the error is one of law alone, the appellant bears the burden of demonstrating a miscarriage of justice in all other cases.

[18] The appellant in this case did not specify the specific provisions of s.686(1)(a) upon which he was relying. In my view, however, the issues raised on appeal effectively centre on the more focused instances of miscarriages of justice contemplated by ss.686(1)(a)(i) and 686(1)(a)(ii), albeit with additional arguments that there were miscarriages of justice occasioned by the trial judge’s failure to stay the proceedings pursuant to s.24(1) of the Charter, and failure to exclude evidence pursuant to s.24(2) of the Charter.

[19] Where the issue is whether the verdict should be set aside pursuant to s.686(1)(a)(i) of the Code, on the ground that it is unreasonable or cannot be supported by the evidence:

• The test is whether the verdict is one that a properly instructed jury, acting judicially, reasonably could have rendered.[^7]
• Although expressed in terms of a verdict reached by jury, the test is equally applicable to the judgment of a judge sitting at trial without a jury.[^8]
• The test imports both an objective assessment and, to some extent, a subjective one. It requires the appeal court to determine what verdict a reasonable jury, properly instructed, judicially could have arrived at, and in doing so, to review, analyse and, within the limits of appellate disadvantage, weigh the evidence.[^9]
• However, appellate courts also are to exercise appropriate caution and restraint. In particular:
  • While the review countenanced by s.686(1)(a)(i) is not limited to a determination of whether there was any evidence to support the conviction, it also does not permit a de novo assessment of the evidence. The section is a protection against perverse or unsafe convictions, not a means of bringing trial verdicts in line with appellate courts’ estimations of the merits of individual cases.[^10] The question of whether a verdict is unreasonable is not the same as the question whether a different verdict would have been reasonable had the evidence presented at trial been interpreted differently.[^11]
  • This applies equally to a review of a decision by a trial judge. The appeal judge must not try the case de novo, or simply substitute his or her views for those of the trial judge. He or she must instead only determine whether the verdict was unreasonable; i.e., whether the trial judge reasonably could have reached the conclusion that the accused was guilty beyond a reasonable doubt.[^12] In that regard, it must also be remembered that a judge’s failure to indicate expressly that all relevant considerations have been taken into account in arriving at a verdict is not a basis for allowing an appeal under s.686(1)(a) of the Code.[^13]
  • In deciding whether a trier has exceeded the bounds of reasonableness, the court must give due deference to the advantageous position of the trier, who actually saw and heard the witnesses.[^14] While it is open to an appeal judge to conclude that a verdict based on credibility findings is unreasonable, if the appeal judge takes into account the fact that a trial judge had the advantage of seeing and hearing the witnesses give evidence, the reviewing court should show “great deference” to the trial judge’s findings of credibility. Where the verdict essentially turns on credibility findings, the appeal judge’s power to interfere should be exercised sparingly.[^15] Indeed, instances where a trial judge’s assessment of credibility cannot be supported on any reasonable view are “rare”.[^16]
  • A “vague unease, or a lingering or lurking doubt based on its own review of the evidence”, does not by itself provide a proper basis for appellate court interference with the verdict below.[^17]
  • More generally, it should be kept in mind that our system of justice and appellate review is not premised on any suggestion that appellate court judges are somehow smarter than trial judges, and thus capable of reaching a better result. In reviewing the decision of a trial judge, the role of appellate courts is not to write better judgments, but to review the reasons provided, in light of the arguments of the parties and the relevant evidence, and then to uphold the decision unless a palpable error leading to a wrong result has been made by the trial judge.[^18]

[20] Where the issue is whether the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, pursuant to s.686(1)(a)(ii) of the Code, the standard of review is correctness.[^19]

[21] Appellate review of a remedy ordered or refused under s.24(1) of the Charter is warranted only where a trial judge misdirects himself or herself in law, commits a reviewable error of fact, or renders a decision that is “so clearly wrong as to amount to an injustice”.[^20]

[22] In relation to decisions made by a trial judge in relation to s.24(2) of the Charter, the Supreme Court of Canada has reaffirmed, on numerous occasions, the importance of deferring to the findings of lower court judges. In particular, while a decision must be a reasonable one, a reviewing court generally will not interfere with a trial judge’s conclusions on s.24(2) of the Charter absent an apparent error as to the applicable principles or rules of law, or an unreasonable finding.[^21]

Assessment

[23] I now have had considerable time to review and reflect upon the proceedings and evidence in the court below, the mid-trial and final decisions of the trial judge, and the submissions of the parties.

[24] Having done so, and applying the applicable standards of review set out above, I find no fault with the findings, reasons or conclusions of the trial judge that would warrant appellate intervention pursuant to s.686(1)(a) of the Code.

[25] To the contrary, I find myself in agreement with the approach and conclusions of the trial judge, and will add only limited comments of my own in relation to a number of the issues raised by the appellant.

[26] In relation to the appellant’s contention that the trial judge erred in finding that the statements made by the appellant to Constable Greling were voluntary:

• General principles relating to voluntariness were restated and emphasized by the Supreme Court of Canada in the seminal case of R. v. Oickle, supra, and have since been repeated in decisions such as R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500. They include the following:
  • Statements by an accused will not be admissible if they are made under circumstances that raise a reasonable doubt as to voluntariness.
  • The burden is on the prosecution to prove beyond a reasonable doubt that a statement was voluntary.
  • Application of the “confessions rule” or voluntariness rule is necessarily contextual, because “hard and fast” rules cannot account for the wide variety of circumstances that may vitiate voluntariness, including sensitivity to the particularities of the accused.
  • A trial judge therefore must consider all relevant factors when reviewing such statements, always keeping in mind the twin goals or objectives of protecting the rights of an accused without unduly limiting society’s need to investigate and solve crimes. However, the factors to be considered include the following:
    1. Whether statements were induced by threats, (including but not limited to threats of violence), or promises, (including but not limited to offers of leniency, counselling, or other forms of “quid pro quo” in exchange for the accused speaking with police) .
    2. Whether a statement was induced by a desire to escape oppressive conditions, (including but not limited to deprivation of food, clothing, water, sleep or medical attention, denial of access to counsel, and/or excessively aggressive or intimidating questioning for a prolonged period of time);
    3. Whether an ostensible statement by the accused was made at a time when the accused lacked “an operating mind”; a requirement which, according to the Supreme Court of Canada, “does not imply a higher degree of awareness than knowledge of what the accused is saying and that he is saying it to police officers who can use it to his detriment”; and
    4. Whether the police used “trickery” to obtain a statement from the accused, (recognizing that courts must be wary not to unduly limit police discretion, and that resort to tricks and other forms of deceit are not prohibited so long as they are not “so appalling as to shock the community”.
  • Again, that list of factors is not exhaustive, but those are the four principal areas or situations giving rise to possible doubt concerning voluntariness identified by the Supreme Court of Canada, which therefore understandably have been the focus of subsequent decisions.
• In this particular case, there was no suggestion that any of the evidence before the trial judge on the voluntariness voir dire offered support for any of the four grounds of concern identified by the Supreme Court of Canada in R. v. Oickle, supra. In particular, the only police officer formally giving evidence on the voir dire was Constable Geling, and her evidence effectively negated any such concerns in relation to her conduct.
• The appellant instead argued, after formal closure of evidence on the voluntariness voir dire, that the Crown had failed to prove voluntariness of the statements made by the appellant to Constable Geling beyond a reasonable doubt because Crown counsel had failed to formally call Sergeant Novacick and Constable Lockwood as witnesses on the voluntariness voir dire. (They formally had been called as witnesses in the Charter voir dire and trial proper, but not as witnesses in relation to the voluntariness voir dire as well.) In the circumstances, the appellant argued that the Crown effectively had failed, for purposes of the voluntariness voir dire at least, to call all persons in authority who had contact with the appellant at all relevant times between the time of his arrest and the making of a statement, as suggested by authorities such as R. v. Woodward (1975), 1975 CanLII 1471 (ON CA), 23 C.C.C. (2d) 508 (Ont.C.A.). In that regard, counsel for the appellant acknowledged that such authorities did not oblige to call every “peripheral” officer on such a voluntariness voir dire, but argued that such a description did not apply to Sergeant Novacick and Constable Lockwood. Such a position finds support in authorities such as R. v. Menezes, 2010 ONSC 4601, [2010] O.J. No. 3758 (S.C.J.), at paragraphs 19 and 20, wherein Justice Hill noted there is no “absolute rule that every person in authority irrespective of the degree of contact with the accused need be called on a confessional voir dire”, but the “flexible rule” is still designed “to examine the role of any police officer with real investigatory or custodial contact” with an accused, in order to promote “meaningful scrutiny of relevant governmental conduct” when it came to determination of issues relating to voluntariness.
• The trial judge initially reacted to such submissions with an expression of concern that the appellant and his counsel had engaged in “trial by ambush”; i.e., by allowing Sergeant Novacick and Constable Lockwood to testify at the blended Charter voir dire and trial, and depart, without having given any indication that their testimony might be required in relation to a voluntariness issue as far as the statements made by the appellant to Constable Geling were concerned. However, the appellant’s counsel then indicated that he had made Crown counsel aware at the outset of trial that voluntariness of the statements was not admitted, and Crown counsel confirmed that to be so.
• In the result, the trial judge effectively held, after hearing and considering submissions from counsel, that the purpose of the aforesaid “flexible rule” had been satisfied in the particular circumstances of the case before him. In that regard:
  • The trial judge noted that the appellant was primarily in the custody of Sergeant Novacick. Constable Lockwood’s contact with the appellant was viewed as being generally “minor”, (apart from his “major” participation in helping to chase and arrest the appellant when he attempted to flee – which did not give rise to any voluntariness concerns), and Constable Lockwood effectively had no other opportunity to engage in threats, promises or trickery.
  • In any event, the trial judge felt that the testimony of Sergeant Novacick and Constable Lockwood concerning their contact and communications with the appellant had been subjected to such fulsome, exhaustive and repetitive cross-examination that it effectively left “not an inch of space”, and “nothing in the context of contact between those two officers and [the] accused”, that the trial judge did not know about. In other words, no room had been left for anything but unwarranted speculation in terms of any basis for the concerns identified in R. v. Oickle, supra. The trial judge emphasized in particular that he had “heard everything” in terms of the interaction between the accused and the Sergeant, and nothing in that regard gave rise to any instance where the trial judge “might suspect inducements, threats, promises and such”.
  • The trial judge also felt that the circumstances of the appellant’s statements to Constable Geling, including the demeanour of the accused indicated in the video, (wherein the appellant appeared alert, responsive and comfortable with no apparent voluntariness concerns), supported a conclusion that there had been no threats, promises or trickery.
  • Having regard to “totality of the circumstances”, the trial judge was satisfied beyond a reasonable doubt that the appellant’s statements to Constable Geling were voluntary.
• In the particular circumstances of this case, I am not inclined to find that the voluntariness ruling of the trial judge resulted in a miscarriage of justice warranting appellate intervention pursuant to s.686(1) of the Code. The appellant’s position in relation to Crown Counsel’s failure to formally call Sergeant Novacick and Constable Lockwood as witnesses on the voluntariness voir dire as well as the Charter voir dire and trial proper may have been accurate, but it elevated form over substance. Having reviewed and considered the transcript of the blended trial and voir dire proceeding in great detail, I think the practical assessment of the trial judge was correct and accurate. During cross-examination of Sergeant Novacick and Constable Lockwood in the blended Charter voir dire and trial aspects of the proceeding, counsel for the appellant subjected every aspect of the interaction between the two officers and the appellant to intense scrutiny under a figurative microscope. I think it fair to say that no figurative stone of potential police misconduct or failing in relation to the appellant was left unturned. In the circumstances, there realistically was no room left for a reasonable doubt that either officer had engaged in behaviour rendering the appellant’s statements to Constable Geling involuntary in any of the ways addressed by R. v. Oickle, supra.

[27] In relation to the appellant’s contention that the trial judge erred in finding that the s.254(2) demand by Sergeant Novacick was made on reasonable suspicion:

• Since s.254(2) provides the police with authorization to conduct a warrantless search, the requirements of the provision must be strictly observed.[^22] However, the provisions must be approached with common sense and the customary rules of statutory interpretation.[^23]
• To make a valid demand pursuant to s.254(2) of the Code, a police officer only needs reasonable suspicion that the person operating the vehicle has alcohol in his or her body, and need not believe that the accused has committed any offence.[^24] Reasonable suspicion of alcohol consumption alone, (without regard to its amount or behavioural consequences), is the focus of the test for making the demand.[^25]
• To demonstrate compliance with the prerequisites s.254(2), it is not necessary for the relevant police officer to parrot the precise words of the subsection. Moreover, the presence of the requisite belief, and reasonable grounds for that belief, may be inferred from circumstantial evidence.[^26] All of the preconditions of s.254(2) must be found in the evidence before the court, whether direct or circumstantial. But if they are present, the demands of s.254(2) will have been satisfied.
• In this particular case, it is true that the testimony presented by Sergeant Novacick in this case never employs the conjoined words “reasonable suspicion”. However, the question is not whether the relevant police witness said the words “reasonable suspicion”, but whether he or she had the reasonable suspicion. As emphasized in R. v. Long, [1999] O.J. No. 364 (Gen.Div.), at paragraph 13:

the words “reasonable suspicion” are not some magic incantation or formula which must be uttered precisely by the witness who made the s.254(2) demand. It is quite sufficient if the testimony found credible, taken as a whole, establishes that the witness had the minimal reasonable suspicion.

• In that regard, Sergeant Novacick expressly testified that he suspected the appellant, found driving a motor vehicle, had been drinking alcohol. In other words, there clearly was evidence before the trial judge clearly indicating that the sergeant had a subjective belief that the appellant had alcohol in his body.
• The testimony of Sergeant Novacick also included evidence indicating reasons for his belief or suspicion in that regard; e.g., the fact that the VW Beetle was seen coming from a social event where alcohol was being served; the observed swerving of the vehicle over the centre line that prompted the traffic stop to check the sobriety of the driver; the glossy eyes of the appellant, and the odour of alcohol on the appellant’s breath. The testimony of the sergeant, taken as a whole, included evidence indicating not only that the sergeant had a suspicion the appellant had consumed alcohol, but numerous observations objectively and reasonably capable of giving rise to that suspicion. Moreover, the sergeant’s testimony expressly linked his suspicion to such observations, justifying a reasonable interpretation and/or inference that the officer addressed his mind to the requirements of s.254(2).[^27]
• The trial judge gave short shrift to the appellant’s contention that Sergeant Novacick failed to employ the “magic words” of reasonable suspicion in the course of his testimony. In that regard, the trial judge noted, inter alia, the officer’s stated belief that the appellant had been “drinking at some point throughout the night”, and a “combination” of factors, such as the odour of alcohol on the appellant’s breath and the licenced social function from which the appellant drove away, as “supports” for the officer’s belief. In the opinion of the trial judge, that “equates with a reasonable suspicion that there was alcohol in the accused’s body”.
• In my view, the finding that Sergeant Novacick had the reasonable suspicion required to make a proper s.254(2) demand was one reasonably open to the trial judge on the basis of the evidence, and should not be disturbed. In the result, there was no basis for finding a breach of the appellant’s section 8 Charter right based on a warrantless search.

[28] In relation to the appellant’s contention that the trial judge erred in finding that the subsequent s.254(3) demand by Sergeant Novacick was made on reasonable and probable grounds:

• Subsection 254(3) permits a police officer to make such a demand for the provision of further breath samples for analysis by a qualified breath technician if the officer has reasonable grounds to believe that a person has committed, at any time within the preceding three hours, an offence under s.253 of the Code.
• In this case, Sergeant Novacick testified that he subjectively had such a belief, (and arrested the appellant accordingly), based on the “fail” result of the approved screening device test, resulting from the sergeant’s s.254(2)(b) demand. The existence of the sergeant’s subjective belief in that regard was not challenged.
• From an objective perspective, police officers may, but are not required to, rely on “fail” readings obtained on an approved screening device as the basis or one of the bases on which they conclude they have reasonable and probable grounds to make a s.254(3) Intoxilyzer breath demand.[^28]
• In my view, the appellant’s generalized concern about the lack of reasonable and probable grounds for the sergeant’s s.254(3) demand therefore effectively falls away unless there is a demonstrable reason why the results of the approved screening device test should not be regarded as objectively reliable. In that regard, the appellant relies principally on suggestions:
  • that Sergeant Novacick failed to deal properly with the issue of residual mouth alcohol; and
  • that Sergeant Novacick displayed inadequate knowledge regarding the approved screening device and its possible frailties.

[29] In relation to the appellant’s particular contention that the trial judge erred in failing to find that Sergeant Novacick lacked reasonable and probable grounds to make a s.254(3) demand because the results of the approved screening device test were unreliable owing to the officer’s suggested failure to deal properly with the issue of residual mouth alcohol:

• The potential for residual mouth alcohol to adversely affect the reliability of results of a test performed with an approved screening device is well known among those engaged in the detection, prosecution and defence of drinking and driving offenders. For such reasons, it is well established that, where there is credible evidence of alcohol consumption within 15-20 minutes preceding the administration of an approved screening device test, a police officer may delay the test in order to obviate the possibility of residual mouth alcohol producing a false “fail”.[^29]
• In particular, an officer is entitled to delay taking the sample where there are grounds to believe that the delay is necessary to obtain accurate results, as where the suspect has recently consumed alcohol.[^30]
• However, where there is no such evidence, the officer is under a statutory duty to administer the test forthwith.[^31] In particular, the word “forthwith” used in s.254(2)(b) means “immediately” or “without delay”, and requires that both the demand and provision of the sample be made forthwith.[^32] The demand accordingly must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body. In particular, unless unusual circumstances require that a more flexible interpretation be given, the requirement of an immediate demand commences at the stage of reasonable suspicion.[^33]
• In that regard, the mere possibility that alcohol has been consumed within the 15 or 20 minute period prior to administration of approved screening device test does not preclude an officer from relying on the screening device. Where an officer honestly and reasonably concludes that he cannot form an opinion as to whether alcohol has been consumed within the preceding 15 or 20 minutes, he is entitled to rely on the screening device and administer the test without delay.[^34]
• In this case, the appellant suggests on appeal, (as he did at trial), that Sergeant Novacick did not “put his mind” to the issue of residual mouth alcohol. As rightly noted and emphasized by the trial judge, the suggestion is simply contrary to the evidence. As noted above, the sergeant expressly testified that he “considered it”.
• The appellant suggests in the alternative that Sergeant Novacick “simply believed that because of the accused’s denial of consumption, (which he clearly did not believe), he was excused from considering mouth alcohol”. That too is an unfair distortion of the officer’s actual evidence at trial. At no point did the sergeant suggest that the accused’s repeated “flat out” denials of any alcohol consumption relieved the office of the ability to consider the possibility of recent drinking and residual mouth alcohol issues. The sergeant instead emphasized that such denials by the accused left him with “nothing to go on” in that regard. In other words, the sergeant was left, in the circumstances, without any credible evidence whatsoever of the appellant having consumed alcohol within the preceding 15-20 minutes.
• In my view, the appellant’s submissions at trial and on appeal improperly conflate evidence and belief of prior consumption of alcohol with evidence and belief of recent consumption of alcohol. As the trial judge rightly noted:
  • at the time of the traffic stop, (and therefore at the time of the formation of Sergeant Novacick’s reasonable suspicion that the appellant had been operating a motor vehicle with alcohol in his body), there was no credible evidence obvious to the officer reasonably supporting the likelihood of alcohol consumption within 15 minutes of the stop.[^35]
  • the evidence available to the officer clearly supported prior consumption of alcohol by the appellant, but not recent consumption of alcohol by the appellant; and
  • the sergeant was not required to question the detained appellant further to determine if there might be something that might support the hypothetical possibility of recent consumption of alcohol in the sense required to delay administration of the test.[^36]
• At the highest, the record before the trial judge indicated that Sergeant Novacick was alive to the possibility of recent alcohol consumption and residual mouth alcohol making an approved screening device test unreliable. However, given the appellant’s recent denials that he had consumed any alcohol whatsoever, nothing in the circumstances, including the appellant being seen exiting a venue where alcohol was being served, gave rise to anything more than a basis for speculation in that regard. To have delayed administration of the approved screening device test on the basis of mere speculation would have put the officer in breach of his duty to conduct the test forthwith, thereby giving rise to a different allegation of the officer having breached the appellant’s rights pursuant to section 8 of the Charter.[^37]
• Moreover, the appellant’s submission that administration of the test should have been delayed to negate the possibility of residual mouth alcohol interference, based merely on the officer’s belief of prior consumption of alcohol rather than recent consumption of alcohol, effectively would require a police officer to wait 15 minutes on each occasion that a police officer makes a s.254(2) demand. The Supreme Court of Canada has made it clear that such a delay is not required in all cases. It is only where the officer has reason to believe that the test may be inaccurate, without waiting, that the officer needs to delay the administration of the test.[^38] Sergeant Novacick had no such reason in this case.
• In my view, the findings and conclusion of the trial judge on this point not only were reasonably available to him in the circumstances, but also clearly were correct.

[30] In relation to the appellant’s particular contention that the trial judge erred in failing to find that Sergeant Novacick lacked a reasonable belief in the fail result generated by the approved screening device, owing to an alleged lack of knowledge regarding the device and its possible frailties:

• The following principles, helpfully summarized by Justice Durno in R. v. Beharriell, supra, at paragraph 56, should be kept in mind:
  • Police officers using an approved screening device are entitled to rely on its accuracy unless there is credible evidence to the contrary.
  • In doing so, the officer must have a reasonable belief that the approved screening device was calibrated properly and in working order before relying on the “fail” reading as a component of their reasonable and probable grounds to make an Intoxilyzer demand.
  • A relevant consideration is whether the record discloses that because of his or her training, the officer knows that, in the circumstances in which the approved screening device is being used, the results will be unreliable.
  • Whether an officer had that reasonable belief can be established by direct or circumstantial evidence.
  • There is no requirement that the Crown prove the instrument’s calibration or that the approved screening device was working properly.
  • 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.
• In this case, I am unable to discern any unreasonable findings by the trial judge in relation to Sergeant Novacick’s reliance on the “fail” reading generated by his use of the approved screening device to test the roadside sample of the appellant’s breath.
• In that regard, there was evidence before the trial judge permitting reasonable findings that Sergeant Novacick had a reasonable belief, (e.g., based on his training, information supplied by Constable Kaastra, familiarity with the approved screening device, the calibration sticker applied to the unit, and the test Sergeant Novacick conducted before using the device in relation to the appellant), that the device was properly calibrated and in proper working order, such that the sergeant was entitled to rely on its accuracy. In my view, there was no credible evidence to suggest otherwise, and there was no miscarriage of justice in that regard warranting appellate intervention pursuant to s.686(1) of the Code.
• While appellant counsel attempted to make much of the sergeant’s lack of familiarity with recommendations regarding prolonged use of the device in temperatures lower than minus five degrees, the trial judge properly noted that was not a concern on the record before him. As emphasized by the trial judge, the uncontradicted evidence of Constable Geling established that such temperature related concerns only arose where the device was exposed to temperatures below minus 5 degrees for more than 30 minutes before use, and in this case the device had been kept inside Sergeant Novacick’s cruiser up until it was taken outside for approximately a minute before its use in relation to the appellant. Those were entirely reasonable findings, available to the trial judge. I might also add that, as noted above, the uncontradicted evidence before the trial judge included confirmation by Constable Geling that, if the device had been affected by prolonged use in temperatures below minus 5 degrees, it merely would have understated the blood alcohol concentration of the appellant.
• Appellate counsel also emphasized Sergeant Novacick’s apparent lack of familiarity with the possibility that test results generated by the device could be affected by radio frequency interference, (e.g., by operation of the device in close proximity to a radio or cellular telephone), and that the operations manual for the device recommended that radio and mobile transmissions during use of the device should be avoided. However:
  • I note that the manual itself suggests there is a potential problem with such interference only where such a unit is in close proximity to the device and actively transmitting during use of the device.
  • As noted by the trial judge, that reality was confirmed by the experience of Constable Geling, whose uncontradicted testimony indicated that, in her experience, such interference would require the radio or cellular phone to be “going off” or in active use at exactly the same time as the device was generating its test result.
  • On the record in this case, there simply was no evidence whatsoever of any radio or cellphone being in close proximity to the approved screening device used in relation to the appellant, and actively transmitting or “going off” at precisely the same moment as the device was being used to test the breath sample provided by the appellant.
  • Moreover, such active transmission or use of a proximate radio or cellphone was unlikely in the particular circumstances of this case. At the time of employing the approved screening device to test the appellant’s breath sample, the only two police officers on duty in Aylmer already were together at the scene. There accordingly was no need for either to communicate with the other via radio. Nor was there any need for either officer to communicate by radio with dispatch at that point, as the traffic stop already had been called in by Sergeant Novacick, and there had yet to be any further developments warranting any further radio communication from the scene of the traffic stop. (Further calls and reports may have been required when the appellant was trying to flee, and/or once it was clear that the breath technician services of Constable Geling would be required at the Aylmer police station, but none of those developments or needs had arisen at the moment when the approved screening device was used in relation to the appellant.
  • Moreover, as noted by the trial judge, the proximity of radios and/or cellular phones not in active use had no impact on the device when it was being self-tested by Sergeant Novacick.
  • In the circumstances, the finding of the trial judge that communication device interference “did not affect and should not detract from the officer’s honestly held belief respecting the result” was not only open to the trial judge, but entirely reasonable on the record.

[31] In relation to the appellant’s contention that the trial judge erred by failing to exclude evidence of the breath sample testing by Constable Greling, owing to the established breach of the appellant’s rights to counsel pursuant to s.10(b) of the Charter:

• As noted above, the trial judge found that there had been a breach of the appellant’s rights to legal counsel, pursuant to s.10(b) of the Charter, insofar as Sergeant Novacick did not adequately follow and/or document his supposed efforts to ensure that the appellant did not wish to speak to a specific lawyer of choice rather than duty counsel, and Constable Geling did not take further steps in that regard after statements from the appellant suggesting confusion about whether he had indeed spoken to a lawyer. There was no cross-appeal by the Crown in that regard.[^39]
• Although the appellant challenged the refusal of the s.24(2) analysis of the trial judge, and his resulting finding that it would be inappropriate to exclude the breath sample testing results as a result of the s.10(b) Charter breach, I ultimately find no basis for appellate intervention in that regard.
• In that regard, the trial judge began by correctly identifying the applicable principles, considerations and approach mandated by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.
• Thereafter, I have concerns about the manner in which the trial judge then approached that analysis, and the clarity of his reasons. In particular:
  • I think there is merit to the appellant’s contentions that the trial judge failed to make clear that he was approaching each of the three Grant considerations as separate and distinct considerations to be assessed independently, and then balanced against each other. In his reasons, the trial judge seems to suggest that the weight to be given to seriousness of the breach would depend on the extent to which the appellant’s rights to counsel were undermined. He in turn then seems to suggest that the extent to which the appellant’s rights actually were undermined and impacted, (having regard to the appellant’s own conduct), was a relevant consideration to determining how Society would regard the prospect of no trial on the merits; i.e., if evidence of the breath testing results was excluded.
  • Although the trial judge provided indications of where the seriousness of the police misconduct fell on a spectrum running from blameless to blatant disregard, found that the s.10(b) Charter breach actually had “little, if any, undermining impact” on the appellant’s right to legal counsel, and opined that Society’s interests favoured a trial on the merits, he engaged in no express assessment of the extent to which each factor militated for or against exclusion of the breath sample evidence.
  • The trial judge’s discussion of the third Grant factor, (i.e., Society’s interest in the adjudication of a case on its merits), seems particularly unclear and problematic, insofar as the trial judge seems to suggest the factor involves an internal balancing assessment of whether an “appropriately informed member of the public would agree that the impact of a Charter breach outweighs that interest”.
• Having said all that, I think it reasonably clear, from a reading of the reasons provided, that the trial judge found that seriousness of the breach provided moderate support for exclusion, that the impact of the breach on the appellant provided minimal support for exclusion, and that Society’s interest in adjudication of the case on its merits was a sufficiently strong factor to tip the balance in favour of not excluding evidence of the breath sample results.
• I am not persuaded that was an unreasonable finding in the circumstances. In particular:
  • The trial judge expressly found that the relevant failings of Sergeant Novacick and Constable Geling were not deliberate or intentional police misconduct, but the product of negligence. In my view, that finding was clearly open to the trial judge in the circumstances. In my view, there was no reasonable way in which such failings could be regarded as severe, deliberate, willful, reckless or flagrant, such that they would tend to have a seriously negative effect on public confidence in the rule of law. The first Grant factor accordingly suggested only minimal to moderate support for exclusion of the breath sample evidence that followed the s.10(b) Charter breach.
  • I think the trial judge’s finding of minimal impact on the appellant’s s.10(b) Charter rights also was open to the trial judge, and I agree with his assessment. The right to legal counsel and counsel of one’s choice obviously has great inherent importance and significance in our system of justice. However, the fundamental reality in this case is that the appellant received the benefit of legal counsel at the appropriate time and, despite being advised expressly of his right to counsel of his choice, never actually expressed any desire whatsoever in that regard, let alone any desire that was frustrated by the relevant failings of the police. There accordingly was minimal intrusion on the appellant’s s.10(b) Charter rights, such that this second Grant factor provided only minimal support for exclusion of the breath sample evidence.
  • Given the death and destruction caused by drinking drivers across this country and the patent reliability of formal breath tests, the third Grant factor strongly favoured admission of the breath sample evidence.[^40] Society’s interest in adjudication on the merits is seriously undercut where highly reliable and important evidence is excluded.[^41]
  • A corresponding balancing of the three Grant factors accordingly favoured admission of the breath sample evidence notwithstanding the relevant s.10(b) Charter breach, and that was the conclusion of the trial judge.

[32] In relation to the appellant’s contention that the trial judge erred by failing to stay the proceedings pursuant to s.24(1) of the Charter, having regard to destruction and non-disclosure of the additional audio-visual recording of the “cell area” in the Aylmer police station:

• I am not persuaded that, in refusing the requested stay of proceedings, the trial judge misdirected himself in law, committed a reviewable error of fact, or rendered a decision that is “so clearly wrong as to amount to an injustice”.
• Citing R. v. Dulude, 2004 CanLII 30967 (ON CA), [2004] O.J. No. 3576 (C.A.), at paragraph 36, in turn citing R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411 at paragraph 68, R. v. Leduc (2003), 2003 CanLII 52161 (ON CA), 176 C.C.C. (3d) 321 (Ont.C.A.), and R. v. Bero, [2005] O.J. No. 4199 (C.A.), the trial judge properly instructed himself as follows:

Generally, a stay is a remedy of last resort, rarely granted because both the accused and the community are entitled to a verdict on the merits. A stay resulting from the Crown’s failure to disclose relevant evidence is justified only if the non-disclosure irreparably prejudices the accused’s ability to make full answer and defence, or irreparably prejudices the integrity of the administration of justice.

• In my view, the trial judge committed no reviewable errors of fact when assessing prejudice to the appellant, and prejudice to the integrity of the administration of justice.
• In considering possible prejudice to the appellant, the trial judge properly noted that the lost recording might have been relevant to confirming whether or not Sergeant Novacick reminded the appellant of his right to call any lawyer. However:
  • A confirmation that such a reminder had been given would have undermined the appellant’s request for a finding that his s.10(b) Charter rights had been violated, making the appellant worse off, from a legal standpoint, than he turned out to be when absence of such a confirmation was found to support the existence of a s.10(b) breach.
  • A confirmation that such a reminder had not been given would have strengthened the case for a finding that the appellant’s s.10(b) Charter rights had been breached, but the court was satisfied as to the existence of such a breach even without production of the lost recording, such that production of the recording really would not have advanced the appellant’s position in the proceeding.
• In considering possible prejudice to the appellant, the trial judge also considered that the lost recording might have provided further depictions of the appellant’s speech and other physical abilities while at the Aylmer police station prior to the taking of his breath samples, and therefore possible support for the appellant’s contention that his condition was deteriorating over time because of his alleged bolus drinking. However:
  • The trial judge rightly noted that the lost recording of the cell area not only would have depicted the appellant for only a relatively short period of time, but also for a period relatively close in time to the period when a recording depicting the appellant already was available; i.e., during the appellant’s interaction with Constable Geling in the breath room. As noted above, the appellant was placed in a holding cell at 2:13am, but already had been taken elsewhere 17 minutes later, when he was speaking by telephone with duty counsel in a private room – after which he was taken to Constable Geling in the breath room.
  • The trial judge also noted that he already had made observations of the appellant’s condition on the video taken in the breath room, and was of the personal view, despite suggestions to the contrary by Constable Geling and the appellant, that it depicted no slurring of speech even at that point – with slight slurring of speech and increased redness of eyes being the only form of deterioration alleged by the appellant. (In that regard, the trial judge thought it noteworthy that the appellant had not asked for the breath room video to be shown in full for a similar purpose; i.e., to depict any alleged increase impairment at that point.)
• In considering possible prejudice to the integrity of the administration of justice, the trial judge rightly noted that there was no evidence or suggestion of wilful destruction of evidence by the state, that mention of the cell video was simply an afterthought mentioned by Sergeant Novacick, (who referred to the possibility of relevant evidence rather than a probability), and that the Crown had no prior awareness of any relevant transaction outside the breath room that would have been captured on video.
• Having regard to all the circumstances, the trial judge found that the situation was “far from the clearest of cases” warranting a stay of proceedings pursuant to s.24(1) of the Charter.
• In my view, all of the above findings were reasonably available to the trial judge, and the decision to refuse a stay was not “so clearly wrong as to amount to an injustice”.

[33] In relation to the appellant’s contention that the trial judge improperly reversed the onus of proof in relation to application of the s.258(1)(d) presumption:

• Although the appellant claims the trial judge “stated that in order to rebut the presumption the appellant’s evidence must be believed rather than simply raise a reasonable doubt”, the trial judge actually did not do that.
• To the contrary, the trial judge expressly indicated his agreement with the appellant’s submission that the Supreme Court of Canada repeatedly has held that “the standard of proof required to rebut the s.258 presumption is reasonable doubt”, and that “the burden of proof respecting the application of a statutory presumption is always upon the Crown”.
• The trial judge did agree with the Crown’s submission that, in R. v. Boucher, 2005 SCC 72, [2005] 3 S.C.R. 499, the Supreme Court adopted the proposition that evidence to the contrary that is disbelieved will not neutralize the operability of the statutory presumption in question. However, that was neither an incorrect statement of law, nor necessarily inconsistent with the Crown’s overall burden to demonstrate application of the statutory prohibition beyond a reasonable doubt. An accused offering evidence that is believed obviously will prevent the Crown from succeeding in its burden. So too will an accused offering evidence that, while perhaps not believed, is still sufficient to raise a reasonable doubt about whether the statutory presumption should apply. However, if the evidence offered by the accused is positively disbelieved, that will not suffice to raise a reasonable doubt sufficient to prevent the Crown’s reliance on application of the statutory prohibition.

[34] In relation to the appellant’s contention that the trial judge erred in finding that the evidence of the appellant was not credible:

• The trial judge clearly took a very dim view of the appellant’s credibility, as emphasized in the following scathing passages of the trial decision:

On the whole, the accused did not present as either forthright or detailed in his presentation at trial. There were far too many critical inconsistencies between his evidence at trial and what arose the night of the stop. Most notably, he gave me just enough information to focus a fact but never enough to fully assess his credibility. My sense is that a lot of what he did tell me was with both eyes fixed steadily on the outcome of this hearing and neither focused on factual accuracy. In weighing the criteria supporting credibility, I am certain the accused was not honestly trying to tell the truth.

On that broad finding, the accused’s evidence cannot be trusted. I find his evidence that he consumed five beers between 1:10 and 1:36am and drove only to prevent Flint from driving not to be credible and I reject it on that basis.

• For the reasons outlined above, such conclusions, by a trial judge who had the opportunity to see and hear from the appellant directly on a sustained basis, are entitled to great deference.
• Moreover, in my view, this is not one of those “rare” cases where an appellate court is entitled to say that the credibility assessment of the trial judge exceeded the bounds of reasonableness. To the contrary, the trial judge devoted a considerable portion of his judgment to assessment of the appellant’s credibility, outlining many reasons why he felt the appellant’s evidence had to be rejected, including the following:
  • the appellant’s attempt to flee, and the multiplicity of different reasons offered for that decision, such that the appellant appeared “prepared to say whatever pops into his mind as suitable to an issue”, and presented as “uncertain how he ought to answer this very basic question with the result that he presented as evasive”;
  • the inconsistencies between the appellant’s statements to Constable Geling and his testimony at trial regarding his drinking pattern on the evening in question;
  • the implausibility of the accused’s decision to drive home after alleged bolus drinking in the face of his decision not to drive to the party; and
  • the implausibility of the accused managing to actually consume so many drinks, make a trip to the washroom, have an argument with Ms Flint about driving, exit a room full of friends, get to the VW Beetle, enter the vehicle and drive away within the compressed time frame suggested by his evidence.
• To such examples might be added the obvious and repeated lies the appellant told to Sergeant Novacick at the time of the traffic stop about having consumed no alcohol whatsoever on the evening in question, all of which also was inconsistent with the appellant’s testimony at trial.
• Having regard to all such considerations, the credibility findings of the trial judge should not be disturbed on appeal.

[35] In relation to the appellant’s contention that the trial judge erred in finding that the testimony of Corey Plante failed to provide sufficient corroboration of the appellant’s testimony regarding bolus drinking:

• In my view, the judge’s finding in that regard was an entirely reasonable one, open to him on the basis of Mr Plante’s testimony.
• As noted above, Mr Plante was able to confirm the drinking of whisky at the appellant’s home, but had little or no evidence to offer about the number of such drinks consumed at home by the appellant, or their size.
• As noted above, Mr Plante admittedly spent little time with the appellant during the course of their time at the Stag and Doe. None of Mr Plante’s testimony included any observation of the appellant actually drinking alcohol during the course of the event, let alone any observation of bolus drinking by the appellant.
• At most, Mr Plante was able to confirm that he saw the appellant walking away from the bar with an unknown number of cups, and perhaps just two cups, around the time of “last call”. Mr Plante confirmed he had no clue what was in the cups. He also had no evidence to offer as to where or to whom the cups were taken, or whether the accused or anyone else drank whatever was in those cups.

[36] In relation to the appellant’s contention that the trial judge erred in drawing an adverse inference because of the appellant’s failure to call Ms Flint as a witness at trial:

• It needs to be emphasized that the actual reasons of the trial judge do not indicate that the judge was “drawing an adverse inference” because the appellant failed to call Ms Flint as a witness; e.g., to corroborate the appellant’s narrative about his bolus drinking, and/or how he came to be driving away from the Stag and Doe function so soon after engaging in his alleged bolus drinking. In particular, there is no indication that the trial judge drew any inference that Ms Flint would have provided testimony contradicting that of the appellant, explaining why the appellant failed to call her as a witness.
• What the trial judge instead emphasized was the reality that “the accused’s interest in the outcome in this proceeding is extremely high and some corroboration of his narrative would help to diminish the weight his self-interest carries”. In other words, without corroboration, the self-interested nature of the appellant’s testimony did not have the weight it otherwise might have had with corroboration. In the context of a credibility assessment, the evidence of the appellant accordingly was “discounted” in comparison to the value it otherwise might have had, if Ms Flint had testified and offered support for the appellant’s version of events.
• Moreover, even if what the trial judge did could be regarded as “drawing an adverse inference”, doing so would not constitute an error in the trial judge’s credibility assessment in circumstances where the appellant first raised the corroborative significance of Ms Flint’s testimony in his testimony, and sowed the seeds of an explanation for her absence as a witness; i.e., by testifying that he had not seen Ms Flint since the day in question.[^42]

[37] In relation to the appellant’s contention that the trial judge erred by disregarding the expert testimony of Dr Ward;

• There is no disputing that Dr Ward was the only expert witness called at trial, that his evidence was uncontradicted, and that the trial judge effectively rejected and disregarded Dr Ward’s testimony.
• However, it is trite law that a trier is not bound to accept the evidence of any witness, even if the witness in question is qualified to offer expert opinion evidence, and is the only expert witness who does so.
• In the particular circumstances of this case, it hardly seems surprising that the trial judge declined to accept and rely upon the evidence of Dr Ward, as the essential portions of that evidence expressly and repeatedly were confirmed to be dependent on the evidence of the appellant, and acceptance of that evidence. As Dr Ward himself acknowledged, “in fairness”, his evidence was “only as good as the evidence of the accused”.
• When the trial judge rejected the evidence of the accused, it accordingly was reasonably open to the trial judge to reject the evidence of Dr Ward as well.

[38] In relation to the appellant’s contention that the trial judge erred in not finding that the appellant had rebutted the s.258(1)(d.1) presumption and that there was reasonable doubt as to the guilt of the accused:

• In this case, the trial judge disbelieved and rejected the testimony of the appellant regarding his claims of bolus drinking. There accordingly was an absence of evidence to neutralize operation of the statutory prohibition in s.258(1)(d.1); i.e., nothing that raised a reasonable doubt about whether the statutory prohibition should apply.
• As the other perquisites of the s.258(1)(d.1) were established on the evidence offered by the Crown and accepted by the trial judge, the results of analyses of samples of the appellant’s breath taken in accordance with s.258(1)(c) showed a blood alcohol concentration exceeding 80mg of alcohol in 100ml of blood, and therefore proof that the appellant had such a blood alcohol concentration at the time when “the offence was alleged to have been committed”; i.e., at the time he was operating the VW Beetle on March 9, 2014.
• In the circumstances, I find no fault with the conclusion of the trial judge directing a conviction in relation to the alleged s.253(1)(b) offence.

Conclusion

[39] For the reasons outlined above, the appeal is dismissed.

[40] A stay regarding imposition of the driving prohibition was put in place pending hearing and disposition of the appeal. That stay correspondingly has now come to an end.

“Justice I. F. Leach”

Justice I.F. Leach

Date: March 12, 2018

[^1]: I note that the trial transcript inconsistently uses two different spellings of the sergeant’s surname: “Novacick” and “Novacich”. Without any ability to confirm which spelling of the sergeant’s surname is accurate, for the sake of personal consistency, I will employ the “Novacick” spelling in these reasons. I do so because that is the spelling used in the transcript index and at the point of the transcript indicating the name by which the sergeant was sworn as a witness. [^2]: In his trial testimony, Constable Lockwood confirmed that he too observed the appellant to be “glossy eyed”, as the appellant “stared directly ahead without any type of motion”. In particular, Constable Lockwood said he “could see the glare” from the appellant’s eyes, as the appellant was “overextending them, looking out”. To Constable Lockwood, it seemed like the appellant’s eyes were “forced open”; i.e., as if the appellant “was trying to keep them open and staring ahead” with a “dead stare”. Although Constable Lockwood also thought the appellant looked “slightly unsteady” on his feet and “swaying”, as he was standing with Sergeant Novacick, that was not mentioned by the sergeant himself. [^3]: Constable Lockwood did not see the reading, but confirmed he heard Sergeant Novacick tell the appellant he “blew a fail”. [^4]: It should be noted that Ontario formally switched to daylight savings time at 2:00 am on March 9, 2014. For the sake of clarity, the trial judge asked the witnesses to continue giving all time indications after 2:00 am that day according to Eastern Standard Time, and I adopt the same approach in these reasons. [^5]: While giving evidence about that during the course of the trial, Sergeant Novacick mentioned that reviewing the “24-7” video of the cell area, if it was available, might assist him in recalling what he had said to the appellant about his rights to counsel. That in turn raised an unexpected disclosure issue, as counsel for the appellant had asked the Crown for copies of all relevant video recordings, and only a video of the appellant’s interaction with Constable Geling, (described below), had been provided. Further inquiries confirmed that the “cell video” was no longer available, owing to an automated system “reusing” of the relevant data storage space after an unknown period of time, prompting the appellant’s counsel to request a stay of the proceeding, pursuant to s.24(1) of the Charter. [^6]: Dr Ward confirmed in cross-examination that he used the universally accepted range of alcohol elimination because he admittedly had never tested the appellant to determine the appellant’s personal elimination rate. [^7]: See R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, at p.185. [^8]: See R. v. Binaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at paragraphs 36-37. [^9]: See R. v. Binaris, supra, at paragraphs 36-37. [^10]: See R. v. Quercia, 1990 CanLII 2595 (ON CA), [1990] O.J. No. 2063 (C.A.), at paragraph 6. [^11]: See R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, at paragraph 62. [^12]: See R. v. Grosse, 1996 CanLII 6643 (ON CA), [1996] O.J. No. 1840 (C.A.), at paragraph 14; and R. v. G.W., 1996 CanLII 427 (ON CA), [1996] O.J. No. 3075 (C.A.), at paragraphs 18-19. [^13]: See R. v. Burns (1994), 1994 CanLII 127 (SCC), 89 C.C.C. (3d) 193 (S.C.C.), at page 199. This accords with the general rule that a trial judge does not err merely because he or she does not give exhaustive reasons for deciding one way or the other on problematic points. [^14]: See R. v. Quercia, supra, at paragraph 6. [^15]: See R. v. Burke, 1996 CanLII 229 (SCC), [1996] 1 S.C.R. 474, at paragraphs 5-6; R. v. G.W., 1996 CanLII 427 (ON CA), [1996] O.J. No. 3075 (C.A.), at paragraph 18; and R. v. Beaudry, supra, at paragraph 63. [^16]: See R. v. Burke, supra, at paragraph 7; and R. v. Beaudry, supra, at paragraph 63. [^17]: See R. v. Binaris, supra, at paragraphs 38 and 41. [^18]: See Housen v. Nikolaisen, supra, at paragraph 4; and R. v. Beaudry, supra, at paragraph 62. [^19]: See, for example, R. v. Hinds, [1999] O.J. No. 1716 (S.C.J.), at paragraph 12; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paragraph 8; and R. v. Bradbury, 2004 NLCA 82, [2004] N.J. No. 420 (C.A.), at paragraph 12. [^20]: See, for example: Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 CanLII 322 (SCC), [1997] 3 S.C.R. 391, at paragraph 87; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at paragraphs 117-118; R. v. Bellusci, 2012 SCC 44, [2012] 2 S.C.R. 509, at paragraphs 17-19; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at paragraph 48; and R. v. Gowdy (2016), 2016 ONCA 989, 135 O.R. (3d) 371 (C.A.), at paragraph 65. [^21]: See, for example, R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223, at page 256; and R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R.631, at paragraph 44, and the many previous decisions of the Supreme Court cited therein. [^22]: See R. v. Hass (2005), 2005 CanLII 26440 (ON CA), 200 C.C.C. (3d) 81 (Ont.C.A.). [^23]: See R. v. Tran (2006), 2006 ONCJ 101, 38 C.R. (6th) 352 (O.C.J.), and R. v. Bromfield, [2007] O.J. No. 394 (S.C.J.), at paragraph 18. [^24]: See R. v. Lindsay (1999), 1999 CanLII 4301 (ON CA), 134 C.C.C. (3d) 159 (C.A.). [^25]: See R. v. Gilroy (1987), 1987 ABCA 185, 79 A.R. 318 (C.A.), leave to appeal to the Supreme Court of Canada refused 87 N.R. 236n. [^26]: See for example: R. v. Clarke (2000), 1 M.V.R. (4th) 298 (Ont.S.C.J.); R. v. Milanovski (2003), 41 M.V.R. (4th) 82 (Ont.S.C.J.); R. v. Subramaniam (2004), 50 M.V.R. (4th) 161 (Ont.S.C.J.); and R. v. Bromfield, supra, at paragraph19. [^27]: See R. v. Shortall, [2002] O.J. No. 1447 (O.C.J.), at paragraph 17. [^28]: See R. v. Beharriell, 2014 ONSC 1100, [2014] O.J. No. 882 (S.C.J.), at paragraph 56. [^29]: See R. v. MacLean, [2013] O.J. No. 3054 (S.C.J.), at paragraph 22. [^30]: See R. v. Dewald (1994), 1994 CanLII 1139 (ON CA), 19 O.R. (3d) 704 (C.A.), affirmed 1996 CanLII 250 (SCC), [1996] 1 S.C.R. 68. [^31]: See R. v. MacLean, supra, at paragraph 22. [^32]: See R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205. [^33]: See R. v. Quanash (2012), 2012 ONCA 123, 286 C.C.C. (3d) 307 (Ont.C.A.). [^34]: See R. v. Einarson (2004), 2004 CanLII 19570 (ON CA), 183 C.C.C. (3d) 19 (Ont.C.A.). [^35]: The appellant attempted to rely on Constable Lockwood’s testimony that he found one open and empty beer can on the floor behind the driver’s seat of the VW Beetle when he searched it, as well as more unopened containers of alcohol on the floor of the front passenger area, and that such items were in “plain sight” from Constable Lockwood’s perspective when he conducted the search. However, I think it certainly was open to the trial judge to find on the evidence, as he did, that there was nothing but speculation to suggest that Sergeant Novacick should have seen those items from his perspective when he approached the vehicle, or inferred from alcohol containers remaining closed that drinking of alcohol had taken place during the very short drive between the Knights of Columbus hall and the traffic stop. [^36]: See R. v. Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 S.C.R. 254. [^37]: See R. v. MacLean, supra, at paragraph 24. [^38]: See R. v. Bernshaw, supra. [^39]: The Crown instead mistakenly approached this matter on the basis that the trial judge had found no breach of the appellant’s rights to legal counsel pursuant to s.10(b) of the Charter. [^40]: See R. v. Grant, supra, at paragraphs 74-75, 81-85 and 139; and R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paragraph 35. [^41]: See R. v. Blake, 2010 ONCA 1, [2010] O.J. No. 48 (C.A.), at paragraph 31. [^42]: See R. v. N.L.P., 2013 ONCA 773, [2013] O.J. No. 5878 (C.A.), at paragraphs 64-68.