R. v. Steeves, 2011 ABQB 661

Court of Queen ’ s Bench of Alberta Citation: R. v. Steeves, 2011 ABQB 661 Date: 20111031 Docket: 091379966S1 Registry: Edmonton Between: Her Majesty the Queen Respondent - and - Mitchell Steeves Appellant _______________________________________________________ Memorandum of Decision of

Summary Conviction Appeal of the Honourable Madam Justice J.M. Ross _______________________________________________________ I. Introduction [ 1 ] This appeal considers the following question: what evidence must the Crown lead to establish that an officer was reasonable in relying on a roadside screening device “fail” result to form reasonable and probable grounds for a breathalyzer demand? [ 2 ] The Appellant argues the Court must have testimony from the officer as to why he believed the roadside device was functioning properly in order to conclude that his belief in the accuracy of the device was reasonable. I reject this argument.

[ 3 ] Where an officer uses an approved screening device, absent any evidence to establish that the officer knew or ought to have known of any factor that could undermine the reliability of the device, the officer is entitled to assume the device is functioning properly. I find that the officer was reasonable in relying on the “fail” result to form reasonable and probable grounds for a breathalyzer demand. II. Facts : [ 4 ] On October 16, 2009 a farmer near Onoway, Alberta reported a potential impaired driver sleeping in a vehicle. After arriving at the scene, Cst. Helder discovered the Appellant, Mr.

Steeves, driving the vehicle. Cst. Helder made a demand for the Appellant to provide a sample of breath into an approved screening device (“ASD”). It is not contested that the roadside demand was made lawfully. [ 5 ] The Appellant provided a breath sample into the ASD, which registered a “fail.” Relying on the fail result, Cst. Helder arrested the Appellant for impaired driving and made a breathalyzer demand. The Appellant was transported to the Stony Plain detachment, where he provided two breath samples which registered blood alcohol levels of 0.15 and 0.14 respectively.

The Appellant was charged with operating a motor vehicle with a blood alcohol level exceeding the legal limit, contrary to s. 253(1) (

b) of the Criminal Code . [ 6 ] The trial proceeded by way of voir dire to determine the admissibility of the Certificate of Analysis. After hearing argument from counsel as to whether the roadside device was working properly, Judge Myers found no breach of the Appellant’s s. 8 Charter rights. The Certificate of Analysis was admitted. The Appellant was convicted and sentenced to a $1,000 fine and a one year driving prohibition. The Appellant appeals his

summary conviction. III. Evidence at trial : [ 7 ] The relevant testimony is that of Cst. Helder (AB: 18/16-23): Q. Why did you wait between 10:26 when the ASD demand was made and 10:29 when you administered the exam? A. There’s a short waiting period while the approved screening device – the power is turned on, it runs through a battery of self- tests and before it – and then it registers as a wait, there’s an indication on the approved screening device saying that it’s ready for a breath sample.

It’s a very short – it’s a very brief time but there is a time in there where from the time that you initiate or turn the power on to that approved screening device before it’s ready to be utilized. IV. The trial judge’s findings : [ 8 ] In the ruling on the voir dire, the trial judge referred to the evidence of Constable Helder and found no breach of the Charter , s. 8 (AB: 45/32-41, 46/01-05): Secondly, the defence argues no evidence is given that the approved screening device was working properly. And, further, submits that the description of being a 400D, described by the officer, is not an approved device.

The evidence before the court is as follows. The officer is a qualified operator on the date and time. He says that immediately after he says he uses a 400D instrument. His evidence is he explains the operation of this device to the accused. He explains a three minute delay in demanding the sample and receiving the breath sample as the machine going through a battery of tests before it is ready. And that would, of course, be ready to receive breath samples. In all of the circumstances the court finds that the officer has misnamed the device. He is a qualified technician.

He refers to the device as an approved screening device. He indicates it takes three minutes to conclude its battery of tests which indicates that it is ready to take samples, breath samples which he testifies it does and which he receives a fail. In all of the circumstances I find no

Section 8 breach and I would admit the certificate into evidence and I do so.

V. Issues [ 9 ] 1. Did the trial judge err in holding that Cst. Helder had reasonable and probable grounds to make a lawful demand for breath samples pursuant to the Criminal Code , s. 254(3)? [ 10 ] 2. If the breathalyzer search violated the Appellant’s s. 8 Charter rights, should the Certificate of Analysis be excluded under the Charter s. 24(2)? VI. Reasonable and Probable Grounds A. Standard of review [ 11 ] Whether facts, as found by the trial judge, amount to reasonable and probable grounds is reviewable on a standard of correctness: R v Shepherd , 2009 SCC 35 , [2009] 2 SCR 527 . B.

Appellant’s Position [ 12 ] The Appellant argues that where an officer relies on a fail result on a roadside screening device to provide reasonable and probable grounds for a breathalyzer demand, the Crown must prove that the officer subjectively believed the device was functioning properly, and that there was an objectively reasonable basis for the officer’s belief.

If there is no evidence that the officer took steps to satisfy himself or herself that the device was working properly, the Crown has not proven that the officer’s belief in the accuracy of the device was objectively reasonable. [ 13 ] The Appellant relies on the following case law in support of his position: [ 14 ] R v Johnston , 2007 ONCJ 45 , 44 MVR (5th) 251 : The officer performed a self-test. He was aware that a properly working ASD should be calibrated every 2 weeks or its results cannot be relied upon.

He did not check the calibration sticker on the machine at the time and later testified that he assumed the required calibration had been performed. Expert evidence was led that a “self-test” had no scientific significance in relation to reliability, and that calibration is the most critical factor in determining whether the instrument is working properly.

The Ontario Court of Justice held that where the officer fails to even consider the timeliness of calibration, the Crown has not met its onus of proving the reasonableness of the officer’s belief. [ 15 ] R v Binelli , 2010 ONSC 539 : No evidence was led as to whether the officer took steps to satisfy himself that the roadside device was working properly.

The Ontario Superior Court of Justice held that the Crown had not met its burden to establish that the officer reasonably believed the roadside device was working properly. [ 16 ] R v McKeith (Alta Prov Ct, unreported, 28 October 2010, para 125): No evidence was led as to whether the officer took steps to satisfy himself that the roadside device was working properly. Demetrick PCJ held that there was no basis for the Court to find the officer was justified in relying on the “fail” result. C. Crown’s Position [ 17 ] The Crown concedes that, absent the fail result on the ASD test, Cst.

Helder did not have reasonable and probable grounds to

make a breathalyzer demand. The issue is whether Cst. Helder was entitled to rely on the fail result. [18] The Crown submits that it is required to demonstrate, with respect to reliance on roadside screening tests, that the device usedwas an approved screening device (“ASD”), and what the officer understood a “fail” reading on the device to mean. Once theseprerequisites are met, the Crown submits there is a presumption that the result of the ASD can be relied on.

It then becomes a questionof whether there is any evidence to suggest that the officer knew or ought to have known the device was unreliable. [19] There are many reasons that a result of an ASD may be found to be unreliable.

The Crown’s position is that without someevidence that any such reason exists, it is speculative to assert that the screening device may have been unreliable. [20] The Crown relies on the following case law in support of its position: [21] R v Martin, 1998 ABPC 162, (1998) 40 MVR (4th) 298: LeGrandeur PCJ held that where the device used was an ASD, andthere is no evidence to establish that the officer ought to have doubted the accuracy of the device, the officer is reasonable in believingthe device was functioning properly.

The officer must testify as to his understanding of what the “fail” result means, but need not testifyas to the accuracy or operating condition of the machine. See also: R v Gillis, 2006 ABPC 323. [22] R. v. Brown, 2009 ABPC 164: Lamoureux PCJ held that there is no requirement to prove that an ASD was in fact functioningproperly, as long as the officer on reasonable and probable grounds believed it was functioning properly. Further, an ASD is presumedto be functioning properly in the absence of evidence to indicate otherwise. D.

Analysis [23] Analysis of this issue must commence with R v Bernshaw, (SCC), [1995] 1 SCR 254, which considers theissue of reliability of a roadside screening test, and whether an officer is entitled to rely on a “fail” result to provide reasonable andprobable grounds for a breathalyzer demand. [24] Bernshaw dealt with the issue of whether a roadside test might be unreliable because of the presence of mouth alcohol.Expert evidence established that a roadside device could be inaccurate if the accused had consumed alcohol within 15 minutes prior tothe test, but no evidence was called to suggest that the officer was aware of recent alcohol consumption. [25] Sopinka J, for the majority, held that Parliament had “set up a statutory scheme whereby a screening test can be administered. . . to assist police in furnishing the reasonable grounds necessary to demand a breathalyzer. . .

Normally, where a properly conductedroadside screening test yields a “fail” result, this alone will be sufficient to furnish a police officer with such grounds” (para 49). [26] Sopinka J rejected the argument that a “fail” result per se constitutes reasonable and probable grounds to make a breathalyzerdemand.

Rather, “it is necessary to determine as a question of fact in each case whether or not the police officer had an honest beliefbased on reasonable and probable grounds that the suspect had committed an offence” (para 50). [27] Thus, if “there is evidence that the police officer knew that the suspect had recently consumed alcohol and expert evidenceshows that the subsequent screening test would be unreliable”, the required subjective and objective tests are not met (para 51). [28] However, in Bernshaw there was no evidence that the officer was aware of recent alcohol consumption by the accused.Sopinka J discussed the effect of this at para 80: In the present case, there is absolutely no evidence with respect to the timing of the respondent’s last drink.

That is, it is unknownwhether any alcohol was consumed within a period of 15 minutes prior to the screening test. The police officer made no inquiry

concerning how long it was prior to administering the screening test that the respondent last consumed alcohol. Without Constable Mashford having this knowledge, it is too speculative to assert that the screening device result was unreliable. Where the particular screening device used has been approved under the statutory scheme, the officer is entitled to rely on its accuracy unless there is credible evidence to the contrary. [ 29 ] If there is no evidence of recent alcohol consumption, one can only show “that a possibility existed that the screening device would be inaccurate.

This is not sufficient to vitiate an honest belief based on reasonable and probable grounds” ( Bernshaw at para 84 ). [ 30 ] The principles in Bernshaw apply generally to issues of reliability of a roadside screening test, including not only the presence of mouth alcohol, but also other factors that may affect the reliability of the test. This would include whether the device itself is functioning properly. Bernshaw makes it clear that in relation to all such issues, the court must be satisfied that the officer honestly and reasonably believed in the accuracy of the test result.

Bernshaw also makes it clear that a mere possibility that a test may be inaccurate does not invalidate an officer’s reliance on the test and that an officer is entitled to rely on the accuracy of an ASD in the absence of evidence to the contrary.

In other words, Bernshaw supports the Crown’s position. [ 31 ] The Appellant argues that this case should be distinguished from Bernshaw , on the ground that establishing that the officer honestly and reasonably believed the ASD was in working order is essential to prove that there has been a “properly conducted roadside screening test”, which is a part of the case that the Crown must prove. I reject this argument.

Anything that might interfere with the accuracy of the screening test, including the presence of mouth alcohol, or problems with the functioning of the ASD, or other factors that could affect accuracy, are all equally relevant to the reliability of the test. If there is evidence that indicates the officer did not or ought not to have believed that the test was reliable for any reason, this evidence would affect the officer’s reasonable and probable grounds to make a breathalyzer demand.

But if there is no evidence of any issues or concerns that might affect the accuracy of the test, it is mere speculation to suggest that the test might have been unreliable. Mere speculation does not invalidate an officer’s honest and reasonable belief in the reliability of the screening test. [ 32 ] The evidence as found by the trial judge was that the officer was a qualified operator, that he used an ASD, that he put it through a self test which indicated it was ready to receive breath samples, and that upon receipt of the samples the device indicated a “fail”.

The officer relied on this result as grounds for a breathalyzer demand. With no credible evidence of any problem with the functioning of the ASD or any other circumstance that might affect the accuracy of the screening test, the officer was entitled to rely on the accuracy of the test result: Bernshaw at para 80 . VIII. Conclusion [ 33 ] The trial judge correctly determined that there was no breach of the Appellant’s s. 8 Charter rights, and properly admitted the Certificate of Analysis into evidence. There is no need to consider s. 24(2) of the Charter . The appeal is dismissed.

Heard on the 1 st day of September 2011. Additional written submissions filed September 15, 2011 and September 20, 2011. Dated at the City of Edmonton, Alberta this 31 st day of October, 2011.

J.M. Ross J.C.Q.B.A. Appearances: Patricia A. Hankinson for the Respondent Theodore H. Kantor for the Appellant