COURT FILE NO.: CR-18-152

DATE: 2019 08 15

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HER MAJESTY THE QUEEN

A. Khoorshed for the Crown Appellant

Appellant

• and -

ANDRZEJ FOLTYN

S. Price for the Respondent Foltyn

Respondent

HEARD: August 7, 2019

REASONS FOR JUDGMENT

[On appeal from the judgment of Justice S. Brown dated September 13, 2018]

D.E HARRIS J.

1A police officer’s use of an Approved Screening Device (ASD) which was two days beyond its calibration date led the trial judge to exclude the subsequent breathalyzer readings and acquit the respondent of the charge of driving “over 80.” The Crown appeals.

2With respect, errors of law made by the trial judge in his Section 24(2) Charter analysis require that the Crown’s appeal be allowed.

THE EVIDENCE

3The evidence is simple. The respondent was involved in a minor accident. He admitted to alcohol consumption two hours before. An ASD sample of breath was demanded and provided. A fail was registered. On the breathalyzer, the respondent blew readings of 230 and 220 mg of alcohol per 100 ml of blood.

4The defence impugned the reliability of the ASD operated by Officer Reynolds. She testified in-chief that she knew from her training that the ASD will not turn on if the calibration is expired. The device she used did turn on. She conducted a self-test about a half-hour before administering the text to the respondent. It worked correctly and provided a zero-alcohol reading. No error messages were displayed. She knew the machine had been calibrated by Constable Norton, a Qualified Breath Technician.

5In cross-examination, the officer testified that she did not check the calibration before administering the test. It was only several hours afterwards that she did so. She discovered that calibration was two days overdue. She agreed that if she had known this at the time, she would not have used it. It was Constable Reynold’s evidence that the manual indicates that if the machine has not been correctly calibrated, the operator should not rely on the result. But, at the time Officer Reynolds administered the test, based on the zero self test and the fact the machine turned on, she believed the machine was in proper working order.

6During a break in her testimony, Officer Reynolds was allowed to retrieve an ASD and refresh her memory with respect to its operation. The trial judge found as fact that the officer’s knowledge of the device was “rudimentary.”

7The trial judge’s conclusion was that there was a violation of Section 8 and Section 9 of the Charter and he excluded the breathalyzer evidence under Section 24(2).

DECISION

8There are two issues: 1. Was the trial judge correct that the failure to properly calibrate the machine led to a violation of Section 8 of the Charter? 2. Was the trial judge correct to exclude the breath readings under Section 24(2) of the Charter?

THE SECTION 8 VIOLATION

9If the failure to calibrate the machine can be said to have rendered the “fail” result unreliable, then the fail could not be properly used to contribute to the reasonable and probable grounds necessary to ground a breathalzyer demand under Section 254(3). If this be the case, a Section 8 violation would have occurred.

10There is both an objective element and a subjective element to a valid ASD demand. The Court of Appeal has expressed the standard as a question of whether the “officer reasonably believes [the fail reading] to be true” (R. v. Coutts, 1999 CanLII 3742 (ON CA), [1999] O.J. No. 2013 (C.A.) at para. 20. More recently the Court of Appeal held that the question for a trial judge is not whether the evidence established that the device was in good working order but,

…whether, on an objective basis, the officer had reasonable grounds for believing that the approved screening device was in good working order…

R. v. Topaltsis, 2006 CanLII 26570 (ON CA), [2006] O.J. No. 3181, 34 M.V.R. (5th) 27 (C.A.) at para. 9; also see R. v. Jennings 2018 ONCA 260, [2018] O.J. No. 1460 at paras. 12, 17; R. v. Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 S.C.R. 254, at paras. 59, 60,80, 83).

11The only evidence bearing on the reliability issue was the police officer’s direct testimony and inferences to be drawn from it. There is considerable jurisprudence on the failure to calibrate the ASD. The trial judge considered 11 separate cases. He distinguished most of them on the basis that the evidence from the police officer in this case was much more specific. Officer Reynolds testified that she was trained that results should not be relied upon if the machine had not been properly calibrated. The machine had not been calibrated within the time period required by the manufacturer.

12The law is clear that if the reliability of the ASD is not impugned at trial, no reliability issue can arise. Police officers are entitled to rely on the accuracy of the ASD unless there is credible evidence to the contrary. There lies a significant evidentiary onus on the defence to cast doubt on the officer’s belief in the reliability of the ASD result: R. v. Beharriell, 2014 ONSC 1100, [2014] O.J. No. 882 at paras. 56; R. v. Mastromartino 2004 CanLII 28770 (ON SC), [2004] O.J. No. 1435, 4 M.V.R. (5th) 198, 70 O.R. (3d) 540.

13One of the leading statements on what is required is that of Justice Durno in R. v. Mastromartino at para. 79

An officer using an ASD need only have a reasonable belief that the device is properly calibrated and in working order before relying on a “fail” result to confirm his or her suspicions that a driver may be impaired or over the legal limit. There is no requirement the officer knew the calibration setting of the device, when it was last calibrated, or whether the device was in fact working properly.

14The most recent word describing the standard the defence must achieve is from Jennings at para. 17,

A failure to follow a practice manual direction can serve as some evidence undermining the reasonableness of an officer's belief. But the fact that an officer failed to follow a practice manual direction is not itself dispositive. Not every failure to follow a direction is necessarily fatal to reasonableness of belief. Not all practice manual directions will bear equally, or perhaps at all, on the reasonableness of an officer's belief that the ASD is properly functioning. It is necessary to take the further step and determine of the officer's belief that the ASD was functioning properly.

(Italics emphasis in original. Bold emphasis added)

15Applying Jennings, and taking the further step described there, the reasonableness of Officer Reynold’s belief is the focal point. What ought to have taken precedence from an objective standpoint was that the officer knew from her training that she could not rely on the result if the machine had not been properly calibrated. The self-test and the turning on of the machine did not alter or qualify this basic fact. The prohibition in the officer’s mind on reliance on the fail result had to prevail over all else.

16The trial judge was correct to distinguish the other cases with respect to ASD calibration. Here, unlike in those cases, there was positive evidence of unreliability. While Officer Reynolds held a subjective belief that the machine was working properly, this belief was not objectively reasonable when the sum total of her knowledge was taken into account.

17The Crown argues that the officer’s evidence with respect to the manufacturer’s instructions was inadmissible hearsay. That is incorrect. The issue was the officer’s belief, its honesty and reasonableness. The foundation for her belief whether based on hearsay, incomplete sources or assumptions is admissible: R. v. Bush 2010 ONCA 554, [2010] O.J. No. 3453 at para.66; R. v. Musurichan, 1990 ABCA 170, [1990] A.J. No. 418 (Alta. C.A.) at para. 10.

18I agree with Justice Rose’s approach to similar evidence in R. v. Gioia 2017 ONCJ 695, 395 C.R.R. (2d) 370, a case relied upon by the trial judge at paragraphs 81-85.

19In conclusion, the trial judge was correct in finding a breach of Section 8 of the Charter. It follows necessarily that, as argued by defence counsel at trial, there was a concomitant breach of Section 9, the right to be free from arbitrary detention: R. v. Yamka, 2011 ONSC 405, 8 M.V.R. (6th) 36 (Ont. S.C.J.) at paras. 51-52. A police detention without a valid basis is unlawful and hence arbitrary: R. v. Le, 2019 SCC 34, [2019] S.C.J. No. 34 (S.C.C.), para. 124. The purpose of Section 9 to protect "individual liberty from unjustified state interference" is implicated: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 (S.C.C.), at paras. 20, 54.

EXCLUSION UNDER SECTION 24(2)

20The trial judge’s decision to exclude the breathalyzer evidence is owed deference unless an error in principle was committed or an unreasonable finding was made: R. c. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 44, 89.

21The Crown argues errors in the seriousness of the breach and the impact of the breach areas of the trial judge’s Section 24(2) Grant analysis. First, it is argued that he erred with respect to the seriousness of the breach, the first Grant test. The Crown argues that the officer was acting in good faith. I cannot agree with this argument. It displays a flawed understanding of the concept of good faith as it has developed in the case law: R. v. Grant, (2009), at paras. 74-75; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at paras. 43-44; R. v. Le, at paras. 143-148; R. v. Szilagyi, 2018 ONCA 695, 365 C.C.C. (3d) 461, at paras. 55-65. While clearly not in bad faith, this breach was not committed in good faith either. The officer was careless in not checking the calibration. This is a simple task. Given her understanding that she could not rely on a result when the device was out of calibration, this was not a minor omission.

22This error was, as emphasized in Jennings at paragraph 26, not nearly as serious as was the conduct of the police officer in R. v. Au-Yeung, 2010 ONSC 2292, 209 C.R.R. (2d) 140 at paras. 39-40, 52-56. In that case, the officer was incompetent to administer the ASD in almost every respect. His actions were said to border on wilful blindness. Officer Reynolds made one mistake in this case, albeit a substantial one.

23Some weight ought also be given to the importance of the ASD procedure within the drinking and driving statutory scheme. The administering of the ASD is often the first step in the investigation of a suspected “over 80” driver. The ASD demand and sample collection is a significant inroad by the state into fundamental Charter rights, including Section 10(b), Section 8 and Section 9 Charter rights: R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205 at paras. 15, 29; R. v. Bernshaw at para. 53. Care should be taken to ensure the procedures, basic as they are, are followed. They are not onerous.

24I agree with the trial judge that the seriousness of the police conduct breaching Section 8 of the Charter tends towards exclusion of the evidence.

25The next alleged error concerns the trial judge’s holding that the second Grant category of the impact of the breach upon the accused moderately favoured exclusion. It is argued that the trial judge failed to recognize and follow the dicta from Grant and Jennings that the providing of breath is not a serious invasion of privacy within Section 8 of the Charter. It is further argued that the trial judge misdirected himself with respect to the impact of the breach category. He considered irrelevant factors and mixed in seriousness of the breach factors when analyzing the impact of the breach.

26I agree with these submissions. Dealing with the first argument, the Court of Appeal in Jennings held that under the impact of the breach on the accused second Grant test in Section 24(2), breath tests are minimally intrusive.

27The trial judge had the benefit of Jennings which was released just before he delivered his judgment. He appeared to recognize the minimally intrusive nature of breath testing at one point in his reasons. However, the trial judge went on to hold that Jennings was distinguishable and, with some apparent reservations, held it was not “technically binding” on him. He commented that he was mindful of the clear policy directive given in Jennings and said it may well be binding on him in the future. In his mind it heralded a new approach and a clear direction from the Court of Appeal. He concluded with the comment that “Perhaps it will be [binding in the future] in this case if it is appealed” (paragraph 108).

28Contrary to the trial judge’s holding, the general position that breath samples are non-intrusive for the purposes of Charter privacy analysis was binding on him. This stems more from Grant than from Jennings. Amongst the consternation swirling around the Jennings decision, there is a common failure to understand that it did not break new ground. The Supreme Court in Grant, in exploring the impact of the breach second test in Section 24(2), specifically pointed out that with reference to drinking and driving cases (para. 111) the privacy intrusion was minor,

… where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused's body may be admitted. For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive.

(Emphasis Added)

29In light of the comment in Grant and its adoption in Jennings, while both cases were obiter on the issue, the Grant obiter is binding and Jennings ought to have been followed as well. For one thing, lower courts should presume that Supreme Court obiter is binding on them: R. v. Prokofiew, 2010 ONCA 423, 100 O.R. (3d) 401 at para. 21 per Doherty J.A., aff’d on other grounds, 2012 SCC 49.

30Furthermore, the Grant decision was not an ordinary decision. It reconfigured the entire approach to the Section 24(2) exclusion of evidence under the Charter. Justice Binnie in R. v. Henry 2005 SCC 76, [2005] 3 S.C.R. 609, using the example of Oakes, held that a broad pronouncement like in Grant is meant to be binding on all lower courts:

… much of the Court's work (particularly under the Charter) required the development of a general analytical framework which necessarily went beyond what was essential for the disposition of the particular case. In those circumstances, the Court nevertheless intended that effect be given to the broader analysis. In R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, for example, Dickson C.J. laid out a broad purposive analysis of s. 1 of the Charter, but the dispositive point was his conclusion that there was no rational connection between the basic fact of possession of narcotics and the legislated presumption that the possession was for the purpose of trafficking. Yet the entire approach to s. 1 was intended to be, and has been regarded as, binding on other Canadian courts. It would be a foolhardy advocate who dismissed Dickson C.J.'s classic formulation of proportionality in Oakes as mere obiter. Thus if we were to ask "what Oakes actually decides", we would likely offer a more expansive definition in the post-Charter period than the Earl of Halsbury L.C. would have recognized a century ago.

(Emphasis Added)

31With respect, the trial judge’s hesitancy in accepting the minimal intrusiveness of the ASD breath sample process demonstrates error. It was incumbent on him to take this legal position as a given. It is apparent that he did not do so.

32In addition, with respect to the second error, virtually none of the several page analysis engaged in by the trial judge analysed factors which in fact were pertinent to the impact of the breach upon the respondent. This can be observed initially in the extensive quotations from paragraphs 12, 16, 17 and 19 of Jennings (see paras. 109-113 of the trial judge’s decision). The problem with this is that these Jennings excerpts deal with the Section 8 breach issue and the question of when a failure to follow the ASD manual directions invalidates the reasonable belief that the ASD is reliable. These paragraphs have nothing to do with the impact of the breach which the trial judge was in the midst of discussing.

33Continuing on to the next paragraph in his reasons—paragraph 114—the trial judge quoted with approval from paragraph 56 of R. v. Dignum, 2012 ONCJ 668, [2012] O.J. No. 3640 (Ont.C.J.), a Section 8 case. In this decision the trial judge found that both the ASD demand and the subsequent breathalyzer demand were unlawful and Section 8 was breached. The excerpt quoted by the trial judge in the course of his reasons in this case was from the seriousness of the Charter breach portion of Dignum, not the impact of the breach section. This is yet another indication that the trial judge in the case at hand mixed the seriousness of the breach into the impact of the breach analysis.

34Finally, in the last substantial paragraph of the reasons dealing with the impact of the breach, the trial judge can again be seen injecting seriousness considerations into his analysis. He said,

115 I find after a consideration of all the factors in this case that Constable Reynolds, in failing to follow or even direct her mind to whether the ASD was within calibration parameters prior to compelling the defendant to self-incriminate himself, was acting in an unlawful fashion that may be the a result of systemic factors of lack of training of young officers or simply the mistake of one officer in the moment. Nevertheless, the consequences of this omission were significant for the defendant. The fact that I found Constable Reynolds to be an honest witness and candid in addressing and admitting her mistakes that night does little to comfort me in that her rudimentary knowledge of the ASD procedures at the time was overlooked by her and even persisted long after the arrest when she testified at trial.

35Again, this is more about the seriousness of the breach than about the impact of it. In conclusion, it can be seen from any reasonable interpretation of the impact of the breach discussion by the trial judge, virtually all of the analysis was either irrelevant or veered into seriousness of the breach category. This constitutes legal error.

36On the Section 9 breach, the trial judge did mention the serious ramifications of arrest, handcuffing, warrantless search and the several hour detention (paras. 101-102). These aspects were properly categorized as the impact of the Section 9 arbitrary detention breach.

37The Jennings case, in my view, should not be seen as opining on Section 9 issues. Jennings was a straight Section 8 case; Section 9 was never mentioned. The fact that a Section 8 breach arising out of the ASD will virtually always bring with it a Section 9 violation (see R. v. Woods at paras. 15, 29; R, v, MacMillan 2019 ONSC 3560, [2019] O.J. No. 3024 at para. 39-40) is of no moment. Nothing in Jennings ought to be interpreted to attenuate the impact of a Section 9 violation in the context of drinking and driving.

38Nonetheless, assuming without deciding that the Section 9 violation was serious., its impact on the respondent was not substantial taken by itself. The respondent was held for several hours before being released from police custody. There were the usual incidents of police custody. The trial judge did not seem to place much reliance on them. On different facts, this could have been of significance in the Section 24(2) analysis. But it was not of great significance in this case.

CONCLUSION

39The two errors with respect to the impact of the Section 8 breach on the respondent dictate that a new analysis be undertaken of this second Grant heading and of the trial judge’s ultimate decision to exclude the evidence.

40The impact of the breach, given the minimal intrusion of the sample taking, inclines towards inclusion of the evidence, not, as the trial judge held, exclusion. The Section 9 violation impact is more substantial but is not sufficient to tilt the scales in favour of exclusion.

41Analyzed anew, while the seriousness of the breach militates towards exclusion, the impact of the Section 8 breach is minimal and points the other way, towards inclusion. The impact of the Section 9 breach is more substantial. However, taking everything into account, the impact of the two breaches favours admission of the evidence, not, as the trial judge found, exclusion.

42The third Grant factor, society’s interest in adjudication on the merits, as the trial judge found, leans towards inclusion (paras. 117-122).

43In conclusion, balancing the factors, the impact on the respondent of the breaches and society’s interest in a decision on the merits, favour inclusion; the seriousness of the breaches inclines towards exclusion. The trial judge held that, “This is an extremely difficult decision.” He was troubled by the high breath readings, almost three times the legal limit. He said he had started his decision thinking that it would be a conviction. It was only “by the thinnest of margins” that he said he excluded the evidence.

44With the impact of the breaches now leaning against exclusion and towards inclusion, the Section 24(2) balancing exercise has been fundamentally altered. There can be little doubt, given his comments, the trial judge would now have felt compelled to admit the evidence. That is not determinative, of course. A new analysis is necessary.

45In my view, the evidence ought not to be excluded. The seriousness of the breach is not at the highest level. Officer Reynolds was praised by the trial judge for her candor. She made a mistake but it was not of overwhelming seriousness. Her conduct is no where close to that of the officer in Au-Yeung.

46The other two factors—impact on the respondent and the importance of an adjudication on the merits—ought to supercede the seriousness of the breaches. There was an accident in this case and the readings were high. The evidence is necessary to prosecute the offence. The readings should be admitted.

47There being no issues raised at trial other than the one addressed in this appeal, a conviction for the “over 80” offence charged is the appropriate remedy: R. v. Coyle 2007 ONCA 728, [2007] O.J. No. 4017. The appeal is allowed, the acquittal set aside and a conviction is entered.

48Counsel can indicate within the next two weeks whether I should sentence the respondent or whether the matter should be returned to the trial judge for sentencing. If the former, brief written submissions can be sent by email.

D.E. HARRIS J.

Released: August 15, 2019

COURT FILE NO.: CR-18-152

DATE: 2019 08 15

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT