COURT FILE NO.: SCA 9486/18

DATE: 2020-01-14

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HER MAJESTY THE QUEEN

M. Michaud, for the Appellant

• and -

OBINNA RAY WOMACK

Mr. Womack, Self-represented

HEARD: October 16, 2019

The Honourable Justice Catrina D. Braid

REASONS ON APPEAL

On appeal from the directed verdict of acquittal of Justice C.A. Parry of the Ontario Court of Justice dated September 10, 2018.

I. OVERVIEW

1Obinna Womack provided a breath sample into an approved screening device at the roadside, which registered as a fail. He was arrested for an over 80 offence and taken to the police station. A second officer, a breath technician, made a breath demand. Mr. Womack did not provide a proper sample and was charged with failing or refusing to comply with a breath demand.

2The trial judge held that there was no evidence of what the roadside fail meant; and therefore, there was a lack of evidence to support the officer’s objective reasonable and probable grounds to make the breath demand. The trial judge concluded that no reasonable jury could properly convict, and entered a directed verdict of acquittal.

3The Crown appealed the acquittal.

4On this appeal, I must determine whether the trial judge erred in concluding that there was no evidence to establish objective grounds to believe that an over 80 offence had been committed.

5For the reasons set out below, I allow the appeal.

II. FACTS

6Mr. Womack was pulled over while driving, and the officer made an approved screening device (ASD) demand. Mr. Womack provided a breath sample into an ASD at the roadside, which registered as a fail. After the fail result, the officer arrested Mr. Womack for driving with over 80mg of alcohol in his blood. The officer read Mr. Womack his rights to counsel and caution; and read him the breathalyzer demand.

7The arresting officer took Mr. Womack to the police station and reviewed his grounds with a second officer, who was a qualified breath technician. The breathalyzer technician learned that the arresting officer had stopped a motor vehicle for a sobriety check and had a reasonable suspicion that the male driver had alcohol in his system while operating the motor vehicle; that he read an approved screening device demand; that the accused provided a breath sample into the ASD; and that a fail result registered on the device. She also learned that the first officer had arrested Mr. Womack for an over 80 offence and read him a breathalyzer demand.

8After learning this information, the qualified breath technician read Mr. Womack a secondary caution and read her own breathalyzer demand. It is this demand that is the subject of this appeal.

9Mr. Womack did not provide a proper sample at the police station and was charged with failing or refusing to comply with a breath demand, contrary to section 254(5) of the Criminal Code, R.S.C. 1985, c. C-46.

III. REASONS OF THE TRIAL JUDGE

10The trial judge held that the lawfulness of the demand is an essential element of the offence. The Crown must establish that the officer possessed reasonable and probable grounds to believe that the accused’s blood alcohol content is over 80mg of alcohol in 100 ml of blood. The officer must subjectively possess this belief, and this belief must be objectively reasonable.

11The trial judge stated that the failed ASD test was the crucial ground for the breath technician making the breath demand. He acknowledged that the first officer arrested Mr. Womack for the offence of driving while over 80mgs of alcohol in 100ml of blood, and that this officer passed on his grounds for the breath demand to the breathalyzer technician.

12However, the trial judge was troubled by the fact that the breathalyzer technician did not testify to having a belief that the accused’s blood alcohol content was over the legal limit of 80mg of alcohol in 100ml of blood; did not testify that the screening device was in properly working order such that she could rely on the results; and did not testify that a failed ASD meant that the blood alcohol content was over the legal limit because of the calibration. He stated that he could not infer that the fail at the roadside indicated a blood alcohol content above the legal limit.

13The trial judge found that the breathalyzer technician had subjective reasonable and probable grounds. However, he concluded that the grounds were not objectively reasonable.

14The trial judge found that no reasonable jury could conclude that objectively reasonable grounds existed for the making of the demand. Since reasonable grounds is a necessary component of a valid breath demand, the trial judge concluded that the demand was invalid, and thus could be refused. Mr. Womack had not committed an offence because the demand was unlawful. The trial judge therefore entered a directed verdict of acquittal.

IV. ANALYSIS

A. Standard of Review for Findings re: Reasonable and Probable Grounds

15While a trial judge’s factual findings are entitled to deference, the issue of whether the facts as found by the trial judge amount at law to reasonable and probable grounds is a question of law. The standard of review is correctness: R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527.

16Where the issue on appeal is whether the facts as found by the trial judge amount to a reasonable belief, an appellate court must always engage in a de novo analysis and thereby substitute its own view of the correct answer for a trial judge’s legal conclusion: R. v. Wu, 2015 ONCA 667, 127 O.R. (3d) 494; R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250.

17In this case, the Crown does not challenge any of the findings of fact the trial judge made in his analysis of the grounds for the breath demand. The Crown’s argument is that the trial judge, in his analysis of whether the officer had reasonable and probable grounds to make the demand, committed an error in law. Accordingly, correctness is the standard of review.

B. Standard of Review for a Directed Verdict

18The trial judge is not justified to direct a verdict of acquittal where there is before the Court any admissible evidence which, if believed by a properly charged jury acting reasonably, would justify a conviction. This test is applicable to a case resting on direct as well as circumstantial evidence. It is not the function of the trial judge to weigh the evidence, or to test its quality or reliability once a determination of its admissibility has been made. It is also not for the trial judge to weigh the strength of the inferences from the evidence before him. These functions are for the triers of fact, the jury: Monteleone v. The Queen, 1987 CanLII 16 (SCC), [1987] 2 S.C.R. 154.

19On a directed verdict standard, the Crown receives the benefit of all available inferences. This includes reasonably drawn inferences from circumstantial evidence and consideration of the whole of the evidence: R. v. Pettipas-Lizak, 2017 ONCA 963, 356 C.C.C. (3d) 281.

20A reasonable inference need not even be a likely or probable inference. An inference need not be compelling or even flow easily in order to be reasonable. A difficult inference may nonetheless be reasonable: R. v. Dwyer, 2013 ONCA 368.

21A trial judge’s directed verdict decision is a question of law which does not command appellate deference: R. v. Barros, 2011 SCC 51, [2011] 3 S.C.R. 368.

C. The Test for Reasonable and Probable Grounds to Make a Breath Demand

22The legislation that was in force at the relevant time set out the test for making a lawful breath demand: the officer must have reasonable grounds to believe that the accused was driving, within the preceding 3 hours, while having more than 80mg of alcohol in 100ml of blood: Criminal Code, s. 253 and 254(3).

23The central issue on this appeal is whether the breathalyzer technician had reasonable and probable grounds to demand breath samples from Mr. Womack. The Crown must prove the existence of a lawful demand as an essential element in a refusal case: R. v. Alex, 2017 SCC 37, [2017] 1 S.C.R. 967.

24There is both a subjective and an objective component to establishing reasonable and probable grounds. The subjective component means that the officer had an honest belief that the suspect has committed an offence under section 253: R. v. Wang, 2010 ONCA 435, 320 D.L.R. (4th) 680.

25In this case, the trial judge accepted that the officer had subjective reasonable and probable grounds. His concern was with respect to whether the grounds were objectively reasonable.

D. Did the Trial Judge Err in Concluding That There Was No Evidence to Establish Objective Grounds to Make the Breath Demand?

26The sole issue on this appeal is whether the trial judge erred in concluding that there was no evidence to establish objective grounds to make the breath demand. As stated above, the standard is correctness and this court is required to conduct a de novo analysis.

27The objective component of reasonable grounds involves an assessment of whether a reasonable person standing in the shoes of the officer would conclude that there were grounds to make a breath demand. The court must consider the officer’s knowledge, experience and training; and must take into account all the circumstances known to the officer, without piecemeal analysis and microscopic scrutiny of individual items shorn of their context. What may have no significance to the lay person may have a different meaning to an experienced officer: R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250; R. v. Palmer, 2018 ONCA 974.

28The fact that an experienced officer has an honest subjective belief, while not conclusive, is itself some evidence that the belief is objectively reasonable: R. v. Biccum, 2012 ABCA 80, 522 A.R. 310.

29It is not an onerous test to show that the officer’s grounds were objectively reasonable. A prima facie case does not need to be established: Wang.

30In the case before the court, the trial judge appeared troubled by the officer’s reliance on the ASD results to support grounds, absent evidence about the reliability of the ASD results. However, courts have frequently held that a fail result may be sufficient to establish grounds, without evidence about reliability or calibration.

31Parliament enacted a two-stage statutory scheme to provide a means of testing for driver impairment. The first stage is a preliminary investigation to screen drivers at the roadside. The second stage is aimed at precisely determining the driver’s level of alcohol. A fail result on a roadside screening test, in and of itself, may be sufficient to raise the officer’s suspicions to the reasonable and probable grounds required to make a breathalyzer demand: R. v. Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 S.C.R. 254; R. v. Einarson (2004), 2004 CanLII 19570 (ON CA), 70 O.R. (3d) 286 (C.A.).

32Where an approved screening device has been used, the officer is entitled to rely on its accuracy unless there is credible evidence to the contrary, or where there is a real concern regarding the reliability of the result. The mere possibility that the approved screening device did not provide an accurate reading is insufficient to impeach an officer’s objective grounds: Bernshaw; R. v. Notaro, 2018 ONCA 449, 47 C.R. (7th) 229.

33An officer need only have a reasonable belief that the device was in working order before relying on a fail result to confirm her belief that a driver is over the legal limit. There is no requirement the officer knew the calibration setting of the device, or when it was last calibrated, or whether the device was in fact working properly: R. v. Denny (1985), 1985 CanLII 5648 (NS CA), 68 N.S.R. (2d) 88 (C.A.); R. v. Coutts (1999), 1999 CanLII 3742 (ON CA), 45 O.R. (3d) 288 (C.A.); R. v. Mastromartino (2004), 2004 CanLII 28770 (ON SC), 70 O.R. (3d) 540 (S.C.); R. v. Topaltsis (2006), 2006 CanLII 26570 (ON CA), 214 O.A.C. 115 (C.A.).

34Where there is evidence that an approved screening device is in proper working order, it is not open to the court to enter into conjecture that the fail result may be based on some inaccurate calibration: R. v. Davis, [1998] O.J. No. 1702 (C.J. (Gen. Div.)), aff’d [1998] O.J. No. 2463 (C.A.).

35The failure of an officer to correctly state the scientific measurements is not fatal to reasonable grounds. The court may infer the officer subjectively and objectively had grounds, despite her lack of knowledge regarding the level at which the ASD was calibrated to register a fail. Where the officer took steps to use the device for the purpose that it was intended, conducted the test properly, and interpreted the fail result to indicate that an offence had been committed under s. 253, then both the subjective and objective components of the reasonable grounds needed to make the breath demand have been made out: R. v. Toledo (1999), 41 M.V.R. (3d) 76 (Ont. C.J. (Prov. Div.)); R. v. MacDonnell (2004), 2 M.V.R. (5th) 283 (Ont. S.C.).

36No magic words are required by the police officer in expressing belief in grounds. A court may draw inferences from the surrounding circumstances and observations mentioned by the officer. On the totality of the evidence, including circumstantial evidence, it may be apparent that an officer had grounds: R. v. Clarke (2000), 1 M.V.R. (4th) 298 (Ont. S.C.); R. v. Roemer, 2010 ONSC 430.

37In this case, the following factors should be considered in their totality in assessing the officer’s objective grounds to make the demand:

i. The officer was a qualified breathalyzer technician, designated by the Criminal Code and trained to operate an approved instrument. She was specifically trained to receive breath samples from individuals who have been arrested for an impaired or over 80 offence.

ii. She described the summary of grounds for the breathalyzer demand that she received from the arresting officer, which she was entitled to rely on.

iii. She knew that the first officer stopped the vehicle to perform a sobriety check; obtained a fail result on the ASD; arrested Mr. Womack for an over 80 offence; read a breathalyzer demand at the roadside; and then brought him to the station to be turned over to the breath technician for testing.

iv. Since she was an experienced officer, it was reasonable for her to believe that the officer investigating and arresting Mr. Womack for an over 80 offence had calibrated his ASD to provide readings for an over 80 offence. Because there was no evidence to the contrary, she was also entitled to believe that the ASD was in proper working order.

v. It was implicit in her answers that the failed ASD gave her reasonable and probable grounds to make the breath demand.

38In this case, the trial judge embarked on a consideration of whether the evidence established that the device was in good working order and properly calibrated. He appeared to proceed under the misunderstanding that the Crown must lead evidence of what a fail result means on an ASD. However, there is no requirement in law to call evidence of what a fail result means or what an ASD is calibrated to fail at. While it may be good practice to do so for the completeness of the evidentiary record, it is not a legal requirement.

39The trial judge stated that it was not permissible for him to infer that the fail at the roadside indicated a blood alcohol content above the Criminal Code legal limit. However, the trial judge was required to consider all reasonable inferences, and he failed to consider one compelling and inescapable inference: that the experienced officer reasonably believed that the ASD fail, together with the surrounding circumstances, meant that Mr. Womack’s blood alcohol content was above the legal limit.

40Although the breathalyzer technician did not specifically utter the magic words in her testimony, "I believed on reasonable grounds that Mr. Womack had more than 80mg of alcohol in 100ml of blood", that belief was apparent from her testimony. The only reasonable inference to be drawn from the evidence is that she did indeed believe that to be the case. Moreover, her belief in that regard was on reasonable and probable grounds assessed both subjectively, from the officer's perspective, and objectively, from the perspective of a reasonable person placed in the officer's position.

41A trier of fact must consider the totality of the evidence, including hearsay, circumstantial evidence, context, and inferences, in determining if objective grounds existed. Unfortunately, the trial judge failed to consider all available inferences that were available to the Crown.

42In fact, the trial judge engaged in impermissible speculation. He suggested that it was possible that the ASD may have been calibrated to fail at 20mg or 60mg, as it may have been related to a Highway Traffic Act offence of a G1 driver blowing over a zero. However, there was no evidence before the court that Mr. Womack was a G1 novice driver who had a zero BAC restriction on his licence. Further, there was no evidence that any of the police officers were investigating or pursuing a Highway Traffic Act offence relating to an individual driving in contravention of a zero BAC limit.

43The evidence in this case demonstrates that the officer’s grounds were objectively reasonable. On a directed verdict standard, the standard of proof is even lower. The Crown need only lead some evidence upon which a properly instructed jury could conclude there was a valid demand. In assessing the evidence on a directed verdict standard, the Crown is entitled to all available inferences. The trial judge failed to give the Crown the benefit of all reasonable inferences.

44I find that the trial judge erred in law when he concluded that there was no evidence to establish objective grounds to make the breath demand. As a result, the directed verdict is set aside and a new trial is ordered.

V. ADDITIONAL ISSUE RAISED BY CROWN RE: JUDICIAL NOTICE

45The Crown asks the court to take judicial notice of the following statement:

In the context of an impaired or over 80 investigation, a fail result on an ASD means that an accused has registered a blood alcohol concentration at least over the prescribed limit, absent credible evidence that the device was malfunctioning or the reading was otherwise unreliable. This thereby provides grounds under section 254(3) of the Criminal Code (or its successors).

46I am not prepared to make such a declaration, nor is it necessary in the context of this appeal.

VI. CONCLUSION

47For all of these reasons, the appeal is allowed and a new trial is ordered before a differently constituted judge of the Ontario Court of Justice.

48Mr. Womack shall attend first appearance court on Friday, February 14, 2020, courtroom 106 at 9am, at the Ontario Court of Justice, 85 Frederick Street, Kitchener, ON, to set a date for a new trial. The Crown’s office is directed to serve Mr. Womack with a Notice requiring his attendance in court on that date.

Braid, J.