Court File and Parties

COURT FILE NO.: CR-21-5147-AP DATE: 20211230 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: HER MAJESTY THE QUEEN, (Respondent) AND VIJAY CHANDRASEGARAN, (Appellant)

BEFORE: Justice S. Nicholson

COUNSEL: A. Harris, for Her Majesty the Queen (Respondent) K. Golish, for Vijay Chandrasegaran (Appellant)

HEARD: November 25, 2021

On appeal from the conviction entered on March 30, 2021 by Justice Shannon Pollock of the Ontario Court of Justice.

REASONS FOR DECISION

NICHOLSON J.:

[1] The Appellant, Vijay Chandrasegaran, appeals his conviction of operating a motor vehicle while exceeding 80 mg of alcohol in 100 ml of blood, contrary to s. 320.14(1) (b) of the Criminal Code of Canada.

[2] The trial judge determined that the arresting officer lacked reasonable and probable grounds to arrest and make a breath demand. She found that there had been a violation of the Appellant’s section 8, 9 and 10 (a) Charter rights. However, she declined to exclude the results of the breath samples given by the Appellant under s. 24(2).

[3] The Appellant was accordingly convicted and sentenced to a fine of $2,000 and a one year driving prohibition.

Grounds of Appeal:

[4] The Appellant raises two grounds of appeal. First, he contends that the trial judge misapplied the Grant factors, resulting in an error in her overall balancing under s. 24(2) of the Charter. Secondly, he argues that the certificate of the breath technician was defective as it failed to set out the timing of the breath samples.

Facts:

[5] On March 17, 2019, at 2:43 am, the Appellant was observed running a red light by Windsor Police Services Constable MacKinnon. According to the officer, the Appellant’s vehicle then made an overly wide turn, traveling into the part of the road designated for parking and then veering back into the main portion of the road. The Appellant then made a subsequent turn without signalling and then failed to stop at a stop sign. The officer and his partner accordingly made a traffic stop.

[6] When Constable MacKinnon approached the Appellant’s vehicle, he observed a red plastic cup with brown liquid inside. The cup was located behind the front passenger seat. Beside the cup, the floor was wet. On the floor by the front passenger seat, he observed a half empty bottle of 40 Creek whiskey. Three bottles of Pepsi, one opened, were located on the front passenger seat.

[7] Constable MacKinnon advised the Appellant that he was stopped for running a red light and failing to stop at a stop sign. Constable MacKinnon testified that he could smell a strong odour of alcohol emanating from the Appellant’s breath. Based upon the open alcohol in the vehicle, the Appellant’s driving behaviour and the odour of alcohol on the Appellant’s breath, at 2:44 am, Constable MacKinnon formed the opinion that the Appellant was impaired.

[8] After forming that opinion, Constable MacKinnon was informed by the Appellant that he had recently left a bar. He observed the Appellant to be unsteady on his feet and using his vehicle to balance himself as he exited his vehicle.

[9] At 2:45 am, Constable MacKinnon read the Appellant his right to counsel and a caution. At 2:46 am, he made a breath demand. However, a roadside alcohol screening test was not administered. Constable MacKinnon, at trial, was unable to say whether they had such a device in their cruiser. The Appellant was taken to the police station at 2:50 am, where he was administered tests by a breath technician. His readings, once rounded down to the nearest 10mg were 190 and 180 mg of alcohol in 100 mL of blood.

[10] However, the certificate completed by the breath technician has an empty space where the time of the first test was supposed to be recorded. The time of the second test is stated to be “17”.

Trial Decision:

[11] Trial counsel for the Appellant, Mr. Ducharme, and Crown, Ms. Harris, agreed that the trial would proceed by way of a blended proceeding.

[12] The Crown called three witnesses--Constable MacKinnon, Special Constable Vitale-Ricciotti and Constable Brothers. Special Constable Vitale-Ricciotti assisted the Appellant in contacting a lawyer while he was at the police station. Constable Brothers was the breath technician.

[13] Mr. Chandrasegaran testified in his defence on the Charter application only. His evidence was specifically not to be applied to the trial portion of the blended proceedings.

[14] During the proceedings, the certificate completed by PC Brothers and the Intoxilyzer print-out were made lettered exhibits, pending the trial judge’s ruling on the Charter application. The following exchange occurred:

THE COURT: All right. And while Madam Clerk’s doing that, Ms. Harris do you agree with what Mr. Ducharme has indicated, that the request is that they be made exhibits A and B and that the court not take them into consideration until the Charter application ruling is made?

MS. HARRIS: That’s fine, as long as I can confirm like there’s no issue with notice, there’s no issue with the actual certificate itself.

Mr. DUCHARME: That’s correct.

[15] During his evidence in chief, the breath technician was asked about the results of the breath test. The following exchange occurred:

Q. Okay. Now, I understand that he did provide two suitable samples of breath, is that correct?

A. That is correct.

Q. And what were the results of those?

MR. DUCHARME: I believe that should be—

MS. HARRIS: Oh, wait, yes, yes, never mind. That’s okay.

MR. DUCHARME: I don’t think that’s necessary.

MS. HARRIS: All right, I don’t think so either. Just, I don’t need to ask that question, sorry, Your Honour.

[16] The Appellant testified that when he made the left-hand turn, the light was yellow, not red. He then made a further turn and was looking for parking. He came to a rolling stop at a stop sign. In contrast to the evidence of Constable MacKinnon, the Appellant testified that after the officer arrested him, he told him to wait in the car and then returned to the police cruiser. After approximately fifteen minutes, the officer returned and told him to exit his vehicle and arrested him. On cross-examination, the Appellant indicated that he did not know the precise amount of time that the officer was gone, but it seemed like fifteen minutes.

[17] The Appellant testified that he was not afforded an opportunity to call a lawyer from the scene of the arrest, which he wished to do. Once he arrived at the police station, he waited in his cell for a further ten minutes before he was given an opportunity to call a lawyer. He was not satisfied with his ability to choose a lawyer, or the advice that he was given.

[18] After the Appellant testified on the Charter application, he chose not to testify in the trial proper. The two lettered exhibits were made numbered exhibits with the consent of trial counsel.

[19] During the submissions on the Charter application, trial counsel asked the trial judge to exclude the breathalyzer test results and any and all observations made after the alleged 10(b) violation.

[20] The trial judge reserved her decision and delivered it orally approximately three weeks later.

[21] She found that the observations of Constable MacKinnon in their totality were objective enough for the officer to have formed a suspicion that the Appellant had alcohol in his body, but not enough for the higher standard of reasonable and probable grounds that the offence of impaired operation had been committed. Accordingly, she found that Constable MacKinnon had breached the Appellant’s s.8 rights.

[22] Given that she had already found that the Appellant’s s. 8 rights were breached because the officer did not have the required reasonable and probable grounds to arrest, the trial judge concluded that his right not to be arbitrarily detained under s. 9 was breached as well.

[23] With respect to s. 10(a) of the Charter, the trial judge concluded that Constable MacKinnon breached the Appellant’s s. 10 (a) right by failing to immediately inform him that he was being investigated for a criminal offence or asked any questions about alcohol. In her view, Constable MacKinnon, having formed the opinion that he was operating a motor vehicle while impaired before he even spoke to the Appellant, was obligated to advise the Appellant as soon as the detention occurred of the criminal investigation.

[24] The trial judge did not find that the police breached the Appellant’s s. 10 (b) right. In her view, “as soon as practicable” meant that the police could wait until the Appellant arrived at the police station before he was provided with an opportunity to call a lawyer, given that he arrived there only ten minutes after his arrest. Furthermore, she did not believe that the police had any further obligation to inquire as to whether the Appellant was satisfied with the advice he had received from the lawyer he called.

[25] The trial judge then turned to s. 24(2) of the Charter to determine whether the evidence should be excluded on the basis that its admission would bring the administration of justice into disrepute. She cited R. v. Grant, 2009 SCC 32, [2009] 2 SCR 353 and its three-part analysis.

[26] With respect to the first part of the Grant analysis, the seriousness of the breach, the trial judge stated as follows:

I have found that the s. 8 breach was such that the officer did not have the requisite reasonable and probable grounds to arrest, but could have resorted to use of the roadside approved screening device based on a suspicion of alcohol in the Applicant’s body, and then could’ve relied upon the results from the ASD to arrest the Applicant.

I find that in the circumstances that this was not a serious breach of the Applicant’s right. The s. 9 breach was determined upon the same basis as that of the s. 8 breach.

As it relates to the 10 (a) violation, the detention was only a matter of seconds before the arrest was made, and any questions answered by the Applicant to the officer’s questions would only go to the grounds for arrest.

The encounter was so brief, this court cannot find it to fall on the serious end of the spectrum despite the cumulative nature of the breaches.

The court does not find the breaches to be egregious as suggested by the Applicant. The officer was acting in good faith in stopping the vehicle to investigate based on the driving observed.

[27] The trial judge also found that the second branch of the Grant test favoured the admission of the impugned evidence. She described that breath sampling procedures involve a minimally intrusive search and seizure. The 10 (a) breach occurred only for a matter of seconds prior to the arrest and rights to counsel. Thus, the breaches, in her view, had only a minimal impact on the Applicant’s Charter protected interests.

[28] The trial judge then concluded that in balancing all three factors, the inevitable conclusion was that the admission of the evidence would not bring the administration of justice into disrepute.

[29] She then determined that the evidence was insufficient to prove beyond a reasonable doubt that the Appellant’s ability to operate his motor vehicle was impaired by alcohol.

[30] However, having admitted the Exhibits into evidence, the trial judge noted that the certificate revealed readings of 190 mg of alcohol in 100 mL of blood and 180 mg of alcohol in 100 mL of blood. Accordingly, she found the Appellant guilty of driving with a blood alcohol level above 80mg alcohol per 100 mL of blood, pursuant to s.320.14(1)(b).

[31] The transcript reveals that the deficiencies in the certificate that the Appellant now raises were never raised at the trial.

[32] I also note that immediately after the trial judge delivered her reasons, the Appellant’s trial counsel made submissions with respect to sentence. There is no suggestion, as asserted on appeal, that there was any further part of the trial yet to be concluded.

Standard of Review on Appeal:

[33] An appeal is not an opportunity for the appellate court to simply substitute its opinion for that of the trial judge, who was in the best position to assess the evidence before her. In order for the appeal to be successful with respect to a finding of fact, I must conclude that the trial judge committed a palpable and overriding error, or made findings of fact including inferences that are clearly wrong, unreasonable or unsupported by the evidence. The standard of review on pure questions of law is one of correctness. (see: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 (S.C.C.) and R. v. Pham, 2005 CanLII 44671 (ON CA), [2005] O.J. No. 5127 (Ont. C.A.).).

[34] With respect to the issue of the existence of reasonable grounds, while these determinations are based on factual findings of the trial judge, the issue of whether the facts as found by the trial judge amount at law to reasonable and probable grounds is a question of law (see: R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527 (SCC)). Accordingly, I must conclude that the trial judge was correct in her determination of whether Constable MacKinnon had reasonable and probable grounds for making the breath demand.

[35] The ultimate question of the admissibility of evidence under s. 24(2) of the Charter is a question of law. Where a trial judge excludes evidence under s. 24(2) on the basis of an error in principle, a misapprehension of material evidence or an unreasonable assessment of the evidence, the exclusion would constitute an error of law (R. v. Manculenko (2013), 116 O.R. (3d) 721, 2013 ONCA 543).

[36] However, a trial judge’s s. 24(2) analysis is ordinarily entitled to appellate deference as described in R. v. McGuffie, 2016 ONCA 365, at para. 64, per Doherty J.A.

[64] The three inquiries identified in Grant require both fact-finding and the weighing of various, often competing interests. Appellate review of either task on a correctness standard is neither practical, nor beneficial to the overall administration of justice. A trial judge’s decision to admit or exclude evidence under s. 24(2) is entitled to deference on appeal, absent an error in principle, palpable and overriding factual error, or an unreasonable determination: see Grant, at paras. 86, 127; Cote, at para. 44; R. v. Cole, [2012] 3 S.C.R. 34, [2012] S.C.J. No. 53, 2012 SCC 53, at para. 82; Jones, at para. 79; R. v. Ansari, [2015] O.J. No. 4355, 2015 ONCA 575, 330 C.C.C. (3d) 105, at para. 72.

Arguments of the Parties:

[37] The Appellant asserts that the trial judge’s conclusion that the s. 8 breach was not serious was not supported by an “in-depth analysis” and that her reasons were inconsistent with the principles set out in R. v. Grant. In the Appellant’s submission, evidence directly resulting from police conduct not based on reasonable and probable grounds must always be considered serious. The failure to administer a road-side breathalyzer was an egregious breach of the Appellant’s constitutional rights.

[38] Furthermore, the Appellant asserts that the defects in the breath technician’s certificate results in their being no evidence to support the conclusion that the Appellant’s blood alcohol level exceeded 80 mg of alcohol in 100 mL of blood.

[39] The Appellant relies on the cases of R. v. Najev, 2021 ONCJ 427 (ONCJ), R. v. Kubacsek, 2021 ONSC 5081 and R. v. Merheje, 2020 ONSC 6413, all of which involve the same Criminal Code offence as in the present case.

[40] The Crown maintains that the police did not violate the Appellant’s Charter rights and that Constable MacKinnon had reasonable and probable grounds to believe that the Appellant was operating his motor vehicle while impaired by alcohol. Alternatively, the Crown argues that the trial judge’s s. 24(2) analysis was correct and/or entitled to deference.

Analysis:

Reasonable Grounds:

[41] Sections 320.27 and 320.28 of the Criminal Code authorize police officers to demand a breath sample in certain circumstances. The relevant portions of those sections read as follows:

320.27(1) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a conveyance, the peace officer may, by demand, require the person to comply with the requirements of either or both of paragraphs (a) and (b) in the case of alcohol or with the requirements of either or both of paragraphs (a) and (c) in the case of a drug:

(a) to immediately perform the physical coordination tests prescribed by regulation and to accompany the peace officer for that purpose;

(b) to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved screening device and to accompany the peace officer for that purpose;

(2) If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.

320.28(1) If a peace officer has reasonable grounds to believe that a person has operated a conveyance while the person’s ability to operate it was impaired to any degree by alcohol or has committed an offence under paragraph 320.14 (1)(b), the peace officer may, by demand made as soon as practicable,

(a) require the person to provide, as soon as practicable,

(i) the samples of breath that, in a qualified technician’s opinion, are necessary to enable a proper analysis to be made by means of an approved instrument, or

[42] These two sections assist police officers in investigating possible offences relating to impaired driving. Under s. 320.27, a police officer may make a demand for a breath sample in an approved screening device if he or she has reasonable grounds to believe that a person has alcohol in their body and was driving a vehicle in the preceding three hours. This section, so long as the police officer has the requisite reasonable grounds, aids the officer in obtaining further evidence that may lead to forming reasonable grounds that a driver has operated a vehicle while impaired by alcohol or has more than the legal limit of alcohol in his or her blood.

[43] There is no requirement, however, that a police officer make a demand under s. 320.27 for a breath sample in an approved screening device at roadside. S.320.27(2) makes that clear by using the words “if” and “may”.

[44] Section 320.28 permits a police officer to make a demand for a breath sample if he or she has reasonable grounds to believe that a person has operated a vehicle while the person’s ability to operate it was impaired by any degree by alcohol, or has committed an offence under 320.14(1)(b). S. 320.14(1)(b) relates to having a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood within two hours of ceasing to operate a motor vehicle.

[45] In other words, if the police officer has the requisite reasonable grounds to believe that a person has driven a vehicle while his or her ability to operate it was impaired by any degree by alcohol, the police officer may skip the request for a roadside screening device and demand a breath sample in an “approved instrument” conducted by a qualified technician. This would almost always occur at a police station.

[46] Accordingly, as noted by the trial judge, the reasonable grounds required under s. 320.28 are more onerous than those required under s. 320.27. The former requires “impairment” while the latter requires merely the presence of alcohol in the body.

[47] When a breath demand is made the officer must subjectively have an honest belief based on reasonable and probable grounds. In addition, that belief must be objectively reasonable on the basis of the information known to the officer at the time of the demand (see: R. v. Bernshaw, 1995 CanLII 150 (SCC), [1994] S.C. J. No. 87; R. v. Bush, 2010 ONCA 554).

[48] The test for reasonable and probable grounds is set out in R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241 (SCC), as follows:

In summary then the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there was indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest.

[49] It has been noted that in the context of a breath demand, reasonable grounds is not an onerous threshold. As was stated by Rouleau J.A. in R. v. Wang, 2010 ONCA 435, at paras. 17 and 18:

[17] In short, Shepherd explains that where a court is satisfied that the officer had the requisite subjective belief, the sole remaining issue is whether that belief was reasonable in the circumstances. The test is not an overly onerous one. A prima facie case need not be established. Rather, when impaired driving is an issue, what is required is simply that the facts as found by the trial judge be sufficient objectively to support the officer’s subjective belief that the motorist was driving while his or her ability to do so was impaired, even to a slight degree, by alcohol: see R. v. Stellato (1993), 1993 CanLII 3375 (ONCA), 12 O.R. (3d) 90 (C.A.), aff’d 1994 CanLII 94 (SCC), [1994] 2 S.C.R. 478.

[18] As Shepherd makes clear, where appellate courts are called upon to review the trial judge’s conclusion on the issue whether the officer had reasonable and probable grounds, the appellate court must show deference to the trial judge’s findings of fact, but the trial judge’s ultimate ruling is a question of law reviewable on a standard of correctness.

[50] In the within case, the trial judge properly stated the legal test for reasonable and probable grounds, noting that it is not a high test. It is more than a mere suspicion and less onerous than a prima facie standard. She noted that the officer was required to take into account all information available to him and was entitled to disregard only information which he had good reason to believe was unreliable.

[51] The trial judge then described the evidence. This included the manner in which the Appellant was driving his vehicle, Constable MacKinnon’s observations within the vehicle including the red solo cup containing brown liquid, pop bottles on the front passenger seat and a partially full bottle of whiskey on the front passenger floor. She noted that the officer initially indicated that he smelled alcohol from the car and then indicated that the smell was coming from the Appellant’s breath. The Appellant also indicated that he had just come from a local bar. I note that Constable MacKinnon had testified that he had formed the subjective reasonable belief that the Appellant was impaired prior to observing the Appellant exit his vehicle and demonstrate unsteadiness. Thus, that observation was not part of the officer’s analysis at the time he formed the subjective reasonable grounds.

[52] The trial judge also noted several indicia that would lessen the likelihood of impaired driving. She noted that the officer made no observations of any difficulty with the Appellant’s speech, with his comprehension or with his coordination in retrieving documents. The vehicle also appropriately stopped when the police lights were activated.

[53] Although the trial judge did not mention it in her Reasons, the evidence of Constable MacKinnon is that he had been with Windsor Police Services for three years, which I take to be from 2018 onward. Accordingly, he was relatively inexperienced at the time of this incident.

[54] Importantly, although the trial judge concluded that the Appellant’s driving was “poor”, she noted that the Crown conceded that the driving observed fell short of what would be called “erratic driving”. Thus, the trial judge’s factual findings fell short of establishing erratic driving.

[55] The trial judge found that there was no issue that the officer subjectively believed that he had the requisite reasonable grounds. The trial judge concluded that, objectively, the officer’s observations were sufficient to form a suspicion that the Appellant had alcohol in his body, but insufficient to meet the higher standard of reasonable and probable grounds that the offence of impaired operation had been committed.

[56] As noted in R. v. Bush, “an assessment of whether the officer objectively had reasonable and probable grounds does not involve the equivalent of an impaired driver scorecard with the list of all the usual indicia of impairment and counsel noting which ones are present and which are absent as the essential test. There is no mathematical formula with a certain number of indicia being required before reasonable and probable grounds objectively existed” (at para. 56).

[57] Recognizing that the trial judge’s decision on reasonable and probable grounds must be determined on a standard of correctness, I am not persuaded that the trial judge erred in her conclusion that objectively there were not sufficient reasonable and probable grounds to believe that the Appellant was impaired, even by a slight degree, by alcohol. She cited the correct legal test and applied the test in accordance with the facts that she found. It is clear from her reasons that the trial judge was not prepared to conclude that the Appellant had been driving “erratically”, for example. That factual finding is entitled to appellate deference. She also gave appropriate weight to factors that would tend to derogate from a conclusion that the Appellant was impaired by alcohol. While there was ample evidence to conclude that Constable MacKinnon had the requisite reasonable grounds to believe that the Appellant had alcohol in his body, the trial judge did not err in concluding that there were insufficient objective grounds to conclude that the Appellant was impaired.

Section 24(2) Analysis:

[58] Having concluded that Constable MacKinnon did not have reasonable and probable grounds for demanding a breath sample, the trial judge concluded that the Appellant’s ss. 8 and 9 Charter rights were infringed. She also found that the officer’s failure to advise the Appellant immediately of the reason for his detention infringed his s. 10 (a) rights.

[59] The trial judge then engaged in the three-part Grant analysis to determine whether the administration of justice would be brought into disrepute if the evidence was admitted into evidence.

[60] As stated in Grant, at para. 68, the inquiry is to determine whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.

[61] I agree with counsel for the Appellant that the trial judge’s analysis under the first part of the test was brief. I disagree that it was unsatisfactory. In concluding that the seriousness of the breach fell at the lesser end of the spectrum, it is clear that the trial judge focused on the brief amount of time that the police would have infringed the Appellant’s rights and the fact that Constable MacKinnon was acting in good faith. Although not perfectly articulated, it is apparent from the trial judge’s reasons that she felt that it was a “close call” whether the officer had the requisite reasonable and probable grounds under s. 320.28. She clearly felt that he did under s.320.27. Her comment about the officer “stopping the vehicle to investigate based on the driving observed” indicates a finding that the manner in which the Appellant was driving warranted the traffic stop. Her conclusion that the short duration of time involved implicitly rejected the evidence of the Appellant on how long the encounter took.

[62] The Appellant relies upon R. v. Najev and R. v. Kubacsek, two cases involving the failure of the police to administer approved roadside screening devices in a timely fashion.

[63] In R. v. Najev, two police officers set up a RIDE spot-check pulling over 63 vehicles prior to stopping the accused’s vehicle. Almost immediately upon detention, one officer detected the odour of alcohol emitting from the accused’s breath. The accused admitted that he had consumed alcohol in response to the officer’s questioning. The officer did not make an approved screening device demand, nor did he make a demand that the accused perform physical coordination tests. He continued to ask additional questions. He arrested the accused approximately twenty minutes after reasonable grounds existed for a formal s. 320.27 screening demand. The accused subsequently provided two samples of breath and his blood alcohol levels exceeded the legal limit.

[64] In Najev, Fiorucci J. noted that the constitutional permissibility of random RIDE stops depends upon their short duration and on the police ensuring that the rights of the driver are infringed as little as possible, noting that the “investigation of sobriety and driving related offences is meant to be focused and brief”. Fiorucci J. noted the Ontario Court of Appeal case of R. v. Smith, (1996) 1996 CanLII 1074 (ON CA), 28 O.R. (3d) 75, as standing for the proposition that in order to minimize the intrusion on a motorist’s constitutional rights, the police must act with dispatch in determining whether there are grounds to make a roadside screening demand or to arrest the driver and make an Approved Instrument demand.

[65] After reviewing R. v. Smith, Fiorucci J. noted that it is implicit that the roadside approved screening device demand must be made by the police officer as soon as he or she forms the reasonable suspicion that the driver has alcohol in his or her body. The test must be administered forthwith as well.

[66] Fiorucci J. applied the Grant test to the breaches of Mr. Najev’s rights. In the first part of the test, he noted that the police conduct fell at the serious end of the spectrum because the officers had conducted a random stop of the accused without appreciating that he was being arbitrarily detained from the moment the vehicle was stopped. The officer’s testimony established that he was oblivious of the duty to proceed with dispatch to minimize the intrusion upon Mr. Najev’s constitutional rights. Rather than make a roadside screening demand, he proceeded with a prolonged and unfocused detention of Mr. Najev, without providing him with right to counsel.

[67] Fiorucci J. was also concerned about the officers’ misleading testimony in court about the availability of an approved screening device.

[68] With respect to the second branch of the Grant test, Fiorucci J. focused on the twenty-minute detention without right to counsel being offered. He described that those circumstances were not minimally intrusive. In Fiorucci J.’s view, this was an “intimidating detention for approximately twenty minutes without right to counsel which had an impact on him psychologically”.

[69] Respectfully, the facts in R. v. Najev make the case completely distinguishable. Fiorucci J.’s primary concern was with the amount of time that passed between when the officers pulled the accused over and formed reasonable and probable grounds to make the breath demand and when the breath demand was actually made. He concluded that the officers had a fundamental misunderstanding of their power to randomly stop vehicles and their obligation to ensure that these stops “impair as little as possible the rights of the driver”. Accordingly, the conduct of the police in that case resulted in significant infringements of the accused’s Charter rights.

[70] In the within case, Constable MacKinnon did act with reasonable dispatch in forming the opinion that he had reasonable grounds to make the breath sample demand under s.320.28, arresting the Appellant and transporting him to the police station to provide the samples. The entire interaction lasted five minutes. This was not a random traffic stop, but one predicated on the observation of various traffic violations. The other problematic police behaviour in Najev was simply not present in the within case.

[71] In R. v. Kubacsek, supra, a summary conviction appeal decision of Dawe J., the investigating officer suspected that Ms. Kubacsek had been drinking and immediately smelled alcohol on her breath. However, he did not make an approved screening device demand until thirteen minutes later, after he confirmed that one was available and could be brought to the roadside in the next ten minutes. The trial judge had found that Ms. Kubacsek’s s. 10 (b) Charter rights had been infringed by not advising her of her right to counsel at an earlier point in her detention. Nonetheless, the trial judge admitted the breath sample evidence under s. 24(2).

[72] Dawe J. allowed the appeal from the conviction on the basis that the statutory “forthwith” requirement was not met, resulting in infringement of Ms. Kubacsek’s ss. 8, 9 and 10 (b) Charter rights. He also found a breach of her s. 10 (a) Charter rights. Furthermore, Dawe J. found that a full appreciation of the nature and extent of the Charter violations resulted in the s. 24(2) balancing tipping in favour of exclusion of the evidence.

[73] Dawe J. found that the officers should be expected to recognize that they were obliged to make ASD demands “promptly” once they had formed the requisite grounds to make a demand. Additionally, in Kubacsek, Dawe J. was concerned with a failure to provide evidence from the officer’s in-car camera, which he found violated her s. 7 Charter rights. All of these factors, considered in the first part of the Grant test, weighed in favour of exclusion of the evidence.

[74] In the second part of the Grant analysis, Dawe J. concluded that the failure to provide Ms. Kubacsek right to counsel resulted in her providing the ASD sample, which she otherwise would have refused. This resulted in a significant impact of the breach upon Ms. Kubacsek. This also weighed against admission of the evidence.

[75] Again, the facts in Kubacsek are readily distinguishable. Dawe J. was concerned about the officers’ failure to recognize that constitutional rights are infringed if tests are not administered promptly. As I have already noted, Constable MacKinnon did not delay in making his demand in the within case. Dawe J. also had to factor in the failure of the police to secure evidence and the failure to allow Ms. Kubacsek to contact counsel, which he found specifically resulted in her providing evidence that she would not otherwise have provided.

[76] On this appeal, I am asked to impugn the fact that all Windsor police cruisers are not equipped with approved screening devices, resulting in a systemic infringement of s. 8 and 9 Charter rights. This ignores the fact that the police are not required to make an ASD demand even where grounds exist to do so (see R. v. Kubacsek, para. 55). While it is true that had Constable MacKinnon had an approved screening device with him, he could have strengthened the reasonable grounds he felt he had under s. 320.28, the trial judge has already found that he acted in good faith even if he was in error in concluding he was justified in making the s. 320.28 demand. This is not a case like Najev, where the police officers were conducting a RIDE program and having an approved screening device on hand would ensure that motorists’ Charter rights were not unnecessarily infringed. I also note that there was no evidence at trial that the Windsor Police routinely do not have ASDs on hand that would have permitted the trial judge, or myself, to conclude that this is a systemic issue.

[77] Furthermore, the facts in this case are not akin to the facts in R. v. Ismail, 2021 ONSC 3883, R. v. Kennedy, 2020 ONSC 844, or R. v. Hassan, 2020 ONSC 6354. In each of those cases, the application judges found that the police officers’ pattern of behaviour demonstrated a flagrant or cavalier disregard for Charter rights, any real understanding of what those rights mean and how compliance with those provisions could have been effected. The trial judge in the within case was not similarly concerned with the conduct of Constable MacKinnon, and her finding in that regard was open to her on the evidence. His conduct in this case was nowhere near as egregious as the conduct noted in Ismail, Kennedy or Hassan.

[78] The trial judge’s conclusion that the police conduct in this case was not of sufficient seriousness to warrant the court dissociating itself with the conduct is entitled to appellate deference, and, in any event, constitutes a justifiable finding in this case.

[79] The trial judge then conducted the second part of the Grant test. She concluded that breath sampling procedures involve a minimally intrusive search and seizure and that the s. 10 (a) breach was extremely short, a matter of seconds, before the arrest was made and the right to counsel read. In her view, the breaches only minimally impacted the Appellant’s Charter rights. She also found that nothing that the Appellant said during the period in which his s. 10(a) rights were violated were used to incriminate him.

[80] Again, while not fulsome, the trial judge’s explanation as to why the exclusion of the evidence was not warranted under the second part of the Grant test was adequate, and in my view not in error. There is ample authority for the proposition that the taking of breath samples is minimally intrusive (see, for example, R. v. Jennings, 2018 ONCA 260).

[81] I would not interfere with the trial judge’s s. 24 (2) analysis. In my view, she was entirely justified in determining that the Charter violations that she found did not warrant the exclusion of the evidence at trial. In Grant, at para. 106, it was lamented that, “notably breath sample evidence tendered on impaired driving charges has often suffered the fate of automatic exclusion even where the breach in question was minor and would not realistically bring the administration of justice into disrepute.” Those words are applicable to these facts. I agree with the trial judge that the admission of the evidence sought to be excluded in this case would not bring the administration of justice into disrepute.

The Breath Technician’s Certificate:

[82] Sections 320.31 and 320.33 of the Criminal Code deal with the admissibility of evidence from samples of a person’s breath at trial. Those sections provide as follows:

320.31(1) If samples of a person’s breath have been received into an approved instrument operated by a qualified technician, the results of the analyses of the samples are conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made if the results of the analyses are the same—or, if the results of the analyses are different, the lowest of the results is conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made—if

(a) before each sample was taken, the qualified technician conducted a system blank test the result of which is not more than 10 mg of alcohol in 100 mL of blood and a system calibration check the result of which is within 10% of the target value of an alcohol standard that is certified by an analyst;

(b) there was an interval of at least 15 minutes between the times when the samples were taken; and

(c) the results of the analyses, rounded down to the nearest multiple of 10 mg, did not differ by more than 20 mg of alcohol in 100 mL of blood.

(2) The result of an analysis made by an analyst of a sample of a person’s blood is proof of their blood alcohol concentration or their blood drug concentration, as the case may be, at the time when the sample was taken in the absence of evidence tending to show that the analysis was performed improperly.

320.33 A document that is printed out from an approved instrument and signed by a qualified technician who certifies it to be the printout produced by the approved instrument when it made an analysis of a sample of a person’s breath is evidence of the facts alleged in the document without proof of the signature or official character of the person who signed it.

[83] As noted above, the certificate in this case did not show the time that the samples were taken. The question before me is whether or not this deficiency was grave enough to enter an acquittal.

[84] First of all, s.320.31 does not explicitly require that the certificate contain the time at which the sample was taken. That section requires that the technician perform a “system blank test”, that the samples were taken at least 15 minutes apart and that, when rounded down to the nearest 10 mg, the two samples are within 20 mg of alcohol in 100 mL of blood of each other.

[85] The certificate in this case specifically states that the system blank tests were conducted, although it is not clear from the certificate when. The certificate clearly notes that there was an interval of at least 15 minutes between the times when the samples were taken. The two results, 190 mg and 180 mg of alcohol in 100 mL of blood are set out and it is noted that these do not differ by more than 20 mg of alcohol in 100 mL of blood. Thus, the certificate does contain all of the elements required under s. 320.31.

[86] It is important to note that the breath technician, P.C. Brothers, was a witness at trial. The transcript is clear that when Crown counsel sought to elicit his evidence with respect to the blood alcohol concentrations, trial counsel for the Appellant interrupted and advised that this would not be necessary. Earlier in the proceedings, Crown had sought confirmation that “there was no issue with the certificate itself”.

[87] Had the deficiency with the certificate been raised at trial, the breath technician could have addressed the issue in his testimony. It is clear from the signed s.320.33 printout from the Intoxilyzer, which was admitted into evidence at trial, that the times that the samples were taken was available to the technician, and to the court. Further, these times were all within two hours of the Appellant’s arrest. The technician did testify to the time that the Appellant was brought before him to administer the Intoxilyzer.

[88] The Appellant relies upon R. v. Merheje. In Merheje, Munroe J. heard an appeal from a summary conviction for operating a motor vehicle having consumed alcohol in excess of 80 mg in 100 mL of blood. An approved screening device was administered roadside. At trial, the breath technician’s certificate contained an error on its face, as it stated that the readings were .170 mg and .150 mg of alcohol in 100 mL of blood instead of 170 mg and 150 mg respectively. The trial judge had accepted these errors were slips and that the evidence of the breath technician adequately explained the slips.

[89] On appeal, Munroe J. disagreed with the trial judge’s acceptance of these alleged errors. He found that the only evidence before her were the results with the preceding decimal point and the breath technician’s oral testimony where he always described the blood alcohol level as being .170 and .150, including the decimal incorrectly. Thus, on appeal, Munroe J. was unable to conclude that the elements of the s. 320.14(1)(b) offence had been made out.

[90] Accordingly, in Meheje, the errors in the certificate could not be corrected by the balance of the evidence at trial and thus neither the trial judge nor Munroe J. could “repair” the deficiencies in the certificate. However, in the within case, the balance of the evidence that was admitted readily allows the trier of fact to determine the time that the samples were taken and correct the deficiencies in the certificate. The requisite elements for the offence of s. 320.14(1)(b) were established in the evidence admitted at trial. Namely, the Appellant’s blood alcohol level was found to be in excess of 80 mg of alcohol per 100 mL of blood within two hours of driving.

[91] In his decision, Munroe J. averted to this possibility in para. 42, where he stated “Of course, when there is other evidence upon which this element can be satisfied beyond a reasonable doubt, a conviction can stand: R. v. Zotich, 2018 BCSC 1735, at paras. 43-50”.

[92] Furthermore, I agree with Crown counsel that it is not in the interest of justice to allow the deficiencies in the certificate to be raised for the first time on appeal. Not only were they not raised at trial but instead trial counsel for the Appellant effectively cut off the Crown from establishing this evidence by appearing to concede the validity of the certificate. Had the deficiencies been raised by the Appellant at trial, the Crown undoubtedly could have led some further evidence to satisfactorily address those deficiencies.

[93] I would not accede to this ground of appeal.

Disposition:

[94] For the foregoing reasons, the appeal is dismissed. The driving prohibition that was stayed pending appeal is hereby reinstated.

“Justice S. Nicholson”

Justice Spencer Nicholson

Date: December 30, 2021