R. v. Tran, 2019 ONCJ 991

ONTARIO COURT OF JUSTICE CITATION: R. v. Tran, 2019 ONCJ 991 DATE: March 5, 2019 Central East Region BETWEEN: HER MAJESTY THE QUEEN — AND — CHRISTIAN TRAN Before Justice F. Javed Heard on: December 3, 2018 Reasons for sentence released: March 5, 2019 S. Thompson ........................................................................................... counsel for the Crown F. Saboor ................................................................................................... counsel for Mr. Tran F. Javed J: A.

Introduction [ 1 ] On January 13, 2017, Christian Tran was charged with the offence of having care or control of a motor vehicle having consumed alcohol with a blood alcohol concentration that exceeded 80mgs of alcohol in 100mls of blood, contrary to s.253(1) (

b) the Criminal Code . [ 2 ] Mr. Tran was investigated by the police after some alleged poor driving. After failing an approved screening device (ASD) test, he provided two samples of his breath in excess of the legal limit. [ 3 ] At trial, Mr. Tran sought to exclude the breath samples on the certificate of a qualified breath technician (COQBT), [Exhibit A] arguing that his rights under the Charter of Rights and Freedoms ( Charter ) were violated.

Specifically, he argued the arresting officer, DC Josh Brown of the Durham Regional Police Service (DRPS) did not have reasonable suspicion to make a roadside demand contrary to s.254(2) of the Code. This resulted in a warrantless search and a breach of s.8 of the Charter . As a remedy, Mr. Tran seeks to exclude the breath samples under s.24(2) of the Charter . [ 4 ] The Crown argues DC Brown had lawful grounds to make a roadside demand and the Charter application should be dismissed. Alternatively, Mr.

Tran hasn’t met his onus under s.24(2) to be awarded a Charter remedy. [ 5 ] The defence position is that DC Brown’s reasonable grounds garnered from the FAIL on the ASD result, were undermined by a failure to perform a self-test and the failure to rule out interference with radio frequency. Moreover, there were no objective grounds to support DC Brown’s subjective belief.

It was argued that the lack of reasonable grounds was a serious Charter violation which should lead to an exclusion of evidence under s.24(2) . [ 6 ] The Crown’s case consisted of the evidence of DC Brown and the breath results on the COQBT. [ 7 ] The defence elected to call no evidence on the Charter or trial issues. Mr. Tran was not required to call any evidence but where there are credibility findings that hinge on specific findings of fact, an absence of evidence may be an important consideration. I am reminded that the Crown bears the onus on the s.8 issue while Mr. Tran bore the issue on the s.24(2) issue.

The parties agreed to blend the evidence of DC Brown on all issues.

B. The Evidence [ 8 ] On January 13, 2017, DC Brown was on duty in a plain-clothes capacity. He was in an unmarked police cruiser, traveling with his partner, PC Brohm. [ 9 ] At 7:15 pm, his police cruiser was stopped at the intersection of Brock St and Toronto St. in Uxbridge, in the Durham region. He testified he had an unobstructed view of the intersection and saw a blue GMC pickup truck (“GMC truck”) traveling southbound, not northbound, on Toronto St.

He stated that the GMC truck made a sharp left turn, not a right turn, in front of another motor vehicle, resulting in the other vehicle aggressively braking to avoid a collision. He stated that this action caught his attention and he decided to investigate the motor vehicle under the Highway Traffic Act for the offence of turn not in safety. He saw the GMC truck continue through the intersection and park at a Mac’s Milk located in a plaza at 23 Brock St. West. The Traffic Stop [ 10 ] At 7:16 pm, he parked his police vehicle behind the GMC truck. He approached the driver’s side window.

He stated there were three occupants in the vehicle. The operator was identified as Mr. Tran with a valid driver’s license. The defence did not take any issue with proof of identity. [ 11 ] While interacting with Mr. Tran through the open window, he noticed a glass bottle of Mott’s Clamato Caesar in a cup holder. He knew this to be an alcoholic beverage. The bottle was situated in the passenger side of the cup holder. Based on the liquor in the car, he asked Mr. Tran to exit the vehicle as he was now conducting an investigation pursuant to the Liquor License Act.

He confirmed he didn’t smell alcohol coming from within the vehicle. [ 12 ] Mr. Tran was able to exit without issue. During the initial conversation, there was no odor of alcohol from his breath, nor any issues with his manner of speech. [ 13 ] He asked Mr. Tran if he had anything to drink. Mr. Tran responded he didn’t [have anything to drink] and the alcohol was not his. Casually, he asked Mr. Tran if he would “blow zeros on a roadside”. Mr. Tran said he would. While engaging with him further, his partner PC Brohm was dealing with the passengers who were getting belligerent. At one point, Mr.

Tran also became animated with the passengers. [ 14 ] The passengers had been directed to step outside the vehicle and complied. DC Brown said after all the parties were out of the vehicle, he began to interact with the group, which included Mr. Tran and began to detect an odor of alcohol. He wasn’t sure if the passengers admitted to any alcohol consumption but added he began to smell alcohol emanating from Mr. Tran’s mouth as he spoke. He was in close proximity to him. As I will explain below, I accept this evidence despite the lack of any detailed notes. [ 15 ] At this point, he separated Mr.

Tran from the group and said “Look, I can smell it [referencing alcohol]. You’re going to have a roadside administered to you, like when was your last drink?” He said this because he didn’t believe Mr. Trans’s earlier comment that he wouldn’t fail an ASD. [ 16 ] Mr. Tran responded he had two beers approximately one hour ago at a residence. I accept this evidence, which was unchallenged. The ASD Fail [ 17 ] At or around 7:25 pm, DC Brown formed a reasonable suspicion that Mr. Tran had alcohol in his body and was operating a motor vehicle. Ms.

Saboor put to him that he had formed suspicion almost immediately at 7:16 pm upon stopping him. He responded he did not as he was still investigating him and trying to isolate the smell of alcohol, which took approximately 9 minutes. I accept this evidence. [ 18 ] DC Brown admitted that he did not immediately read Mr. Tran the ASD demand and instead administered rights to counsel (RTC) because he explained that his detention was shifting from the HTA to the LLA and finally to a Criminal Code investigation. In cross-examination, he agreed he didn’t tell Mr.

Tran the reason for the detention, only that he would be administering a roadside test. I note that the defence did not raise any complaints with s.10(

a) of the Charter which requires the police to advise a detainee the reasons for ones’ detention. If the issue was raised, I would have found no breach of s.10(

a) as both the informational and temporal components of the right were satisfied. Mr. Tran knew from the surrounding circumstances the reason for his detention related to providing a roadside demand: R. v. Roberts , 2018 ONCA 411 at para. 78 (CA) . [18] DC Brown said Mr. Tran understood his RTC and did not invoke them. The defence did not raise any issues with s.10(

b) of the Charter , nor do I see any viable complaints upon my own examination. [ 19 ] Out of an abundance of caution, I have considered whether the ASD demand was made in a timely way and whether it was 10(

b) compliant. In my view, it was. It is curious that RTC were administered before the ASD, but it is of no moment in this case. The law is well settled that a detainee must be advised of RTC without delay upon detention, which means immediately, subject to concerns for officer or public safety. In drinking and driving investigations, the law recognizes that RTC are temporarily suspended at the roadside. The reason for this is that the Supreme Court has observed that implementing RTC at the roadside is impracticable. Here, had Mr.

Tran invoked his RTC before the ASD test, DC Brown would have been obligated to fulfill the right, however this never materialized, thus is of no moment. In other words, there’s nothing about the timing of the ASD demand, which was problematic from a constitutional standpoint. At most, there was a very brief delay in administering the ASD demand, which was lawful. [ 20 ] At 7:27 pm, DC Brown administered the ASD demand. No issue is taken with the content of the demand. Mr. Tran indicated he understood.

DC Brown said he did not have an ASD in his cruiser and couldn’t exactly recall when he requested one to be brought to the scene, as it was somewhat chaotic with the passengers. He did recall that it was quite cold outside, around minus 6 degrees, so he directed Mr. Tran to sit in the back of his police cruiser. [ 21 ] Around 7:35 pm, thus 8 minutes later, PC Ceci and PC Redwood attended on scene with an ASD. The device was a Drager

Alcotest 6810 with a serial number ARFK0166. It had been calibrated on January 8, 2017. [22] DC Brown said he is qualified to use an ASD. When he received the device, he turned it on and it displayed a READY sign. Hebelieved it was in proper working order. He would have explained to Mr. Tran how to use the device. [23] Mr. Tran provided a suitable sample on his first attempt. The result was a FAIL. He explained that the ASD is calibrated to failat 100mgs/100mls of blood. The Arrest [24] At 7:35 pm, Mr. Tran was arrested for the offence of exceed 80mgs of alcohol in 100mls of blood.

The FAIL result on the ASDtest was a significant plank in his formulation of reasonable grounds. [25] Mr. Tran was searched incident to arrest and to avoid any delays, DC Brown decided to leave his cruiser and transport Mr. Tranwith PC Ceci who would be the QBT performing the breath tests. It took approximately 4 minutes to complete some administrative tasksat the roadside including searching Mr. Tran and securing his property. [26] At 7:39 pm, he began transport to 15 division. While en route, DC Brown administered RTC again, as Mr. Tran’s jeopardy hadchanged. Mr.

Tran said he understood and did not invoke his RTC. This was prudent police action. [27] At 7:41 pm, Mr. Tran was cautioned which he understood. [28] At 7:49 pm, the parties arrived at 15 Division. DC Brown couldn’t recall the exact conversation with the QBT, PC Ceci, but hedid tell him his grounds for arrest which included seeing Mr. Tran operate a motor vehicle unsafely, the smell of alcohol on his breath,his admission of alcohol consumption and the FAIL result from the ASD test. [29] At 8:14 pm, Mr. Tran was turned over to PC Ceci for the breath testing. [30] At 8:50 pm, Mr.

Tran was returned to DC Brown after providing two samples of his breath. These generated truncated results of110 mgs/100mgs respectively in 100mls of blood. [31] At 9:03 pm, Mr. Tran was released on a promise to appear after being served with the COQBT as well as other documents. C. Analysis

(1) Did DC Brown have reasonable suspicion to make an ASD demand? [32] Ms. Saboor’s first argument is that DC Brown’s evidence that he smelled alcohol on Mr. Tran’s breath should be rejectedbecause it was not recorded in his notes. The argument follows, he didn’t have any suspicion at all, resulting in a breach of s.8 of theCharter. [33] Ms. Thompson disagrees arguing DC Brown was credible on his evidence of smelling alcohol on Mr.

Tran’s breath. [34] I agree with the Crown’s submission. [35] Section 254(2) of the Criminal Code authorizes peace officers to make a demand to provide forthwith a sample of their breathinto an ASD. The provision requires the officer to have “reasonable grounds to suspect that a person has alcohol or a drug in their bodyand that the person has within the preceding three hours operated a motor vehicle or had care or control of a motor vehicle”. [36] The legal standard for a s.254(2) demand is reasonable suspicion not reasonable and probable grounds: R. v. Chehil, 2013 SCC49 , [2013] 3 S.C.R. 220, at paras. 25-35.

Reasonable suspicion must consider the constellation of objectively discernable factsthat are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activityunder investigation. The inquiry is fact based, flexible and grounded in common sense and practical, every day experience: Chehil, supraat para. 29. [37] In the context of ASD demands, reasonable suspicion need only relate to the existence of alcohol in the body. The officer doesnot have to believe that the accused has committed any crime: R. v.

Lindsay (1999), (ON CA), 134 C.C.C. (3d) 159(C.A.) at para. 2. In addition, a police officer is entitled to rely on hearsay information in forming a reasonable suspicion for a screeningdevice demand: R. v. Regan, [2005] O.J. No. 2355 (C.A.) at paras.12-23. The Court of Appeal has held that the odor of alcohol on adriver’s breath, standing alone, is sufficient to give rise to a reasonable suspicion that a driver has alcohol in his body but also, it is not aprerequisite in forming a reasonable suspicion: R. v. Schouten 2016 ONCA 872 at paras. 26-27. See also R. v.

Bush, 2010 ONCA 554 atpara. 38. [38] The defence argument boils down to an invitation to find the evidence of DC Brown incredible based on alleged deficiencies innote-taking. In my view, this argument fails. [39] As a matter of law, police officers don’t have to record everything they do or see in their notes to comply with the Crown’sdisclosure obligation: R. v. Gill, [2015] O.J. No. 6787 (Ont. Sup. Ct.). In Gill, Durno J. held dealt with this argument and held “… Whilesome ... have attempted to elevate the judgment in R. v. Zack, [1999] O.J.

No. 5747 (O.C.J.) to a statement that if an event or observationis not in the notes, that it did not occur, that is not what the judgment says. Indeed, there are numerous authorities where events orobservations that are not noted have been accepted: R. v. Thompson (2000), (ON CA), 151 C.C.C. (3d) 339 (Ont.C.A.); R. v. Bennett [2005] O.J. No. 4035 (S.C.J.). [40] Cases have also established that a significant omission may impact the credibility and reliability of an Officer’s testimony andthe weight of that evidence depending on the circumstances: R. v. Antoniak, [2007] O.J. No. 4816 (Ont.S.C.J.).

[ 41 ] In my view, there is no merit to this argument because I accept DC Brown’s evidence that he smelled alcohol on Mr. T’s breath even if he didn’t jot it down in his notes. The evidence on this issue was as follows: Q. Do you remember who was speaking when you started to detect an odour of alcohol from Mr. Tran? A. Well I was confident at the time that it was emanating from Mr. Tran’s breath. Mr. Tran became very animated when I was over at the passenger side with Constable Brohm, speaking with the other passenger, and then when we went back, like he had conversed with us.

I was confident it was emanating from his breath. [ 42 ] I believe DC Brown’s evidence. In my view, the fact that he didn’t smell alcohol on his breath initially during the brief exchange through the driver’s side window, does not weaken his evidence that he did later on. The initial exchange was quick and non-specific. Later on, Mr. Tran became more animated, which as a matter of common sense, would have given DC Brown more means to detect his breath. He was confident the smell was coming from his breath. The fact that it wasn’t recorded doesn’t mean it didn’t happen.

It was a basis for the ASD demand. [ 43 ] In any event, the smell of alcohol on his breath was only part of the equation. He also relied on the presence of liquor in a vehicle that he was operating. It would have been different if Mr. Tran was seated in the passenger seat near the liquor where the inference of possession would be weaker. As a matter of law, Mr. Tran was arguably in possession and control of the liquor. The belligerence of Mr.

Tran and his passengers towards the police also weakens the defence position. [ 44 ] Using the standard in Chehil , DC Brown had ample subjective belief, which was objectively reasonable in the circumstances. Again, reasonable suspicion engages possibilities not probabilities. It is not proof beyond a reasonable doubt. [ 45 ] I conclude that DC Brown had ample reasonable suspicion to make a breath demand.

(2) Were DC Brown’s RG undermined by the failure to do a self-test on the ASD prior to the testing? [ 46 ] Ms. Saboor’s next argument is that it was unreasonable for DC Brown to rely on the ASD Fail in the formulation of his reasonable grounds largely due to two related reasons. First, DC Brown didn’t do a self-test prior to using the ASD and second, he didn’t rule out the potential for radio frequency interference. [ 47 ] In my view, both of these arguments fail, largely because they purport to challenge the reliability of the roadside device, and thus the Fail result, on purely a speculative basis.

To borrow the language of Durno J. in R. v. Beharriell , [2004] O.J. No. 882 (Ont. Sup. Ct.) , the alleged unreliability issue is “not on the table” with this record. Ms. Saboor relied on the principles in Beharriell , which were cited by Justice Hearn in R. v. Rowland , 2018 ONCJ 868 . As I will explain, the defence reliance on Rowland is misplaced in the circumstances of this case. [ 48 ] In Beharriell, Durno J. held at para. 56, that where a police officer uses an ASD to confirm his or her suspicions the driver has driven while impaired or having consumed excess alcohol and the accused alleges his or her

section 8 rights were infringed, the following principles emerge: (

i) the determination is made on a case-specific basis; (ii) breath samples taken pursuant to an Intoxilyzer demand, involve a warrantless search and the onus is on the Crown to establish, on a balance of probabilities, that the search was reasonable; (iii) police officers may, but are not required to, rely on 'fail' readings obtained on an ASD as the basis or one of the bases upon which they conclude they have reasonable and probable grounds to make an Intoxilyzer breath demand; (iv) police officers using an ASD are entitled to rely on its accuracy unless there is credible evidence to the contrary; (

v) in doing so, the officer must have a reasonable belief the ASD was calibrated properly and in working order before relying on the 'fail' reading as a component of their reasonable and probable grounds to make an Intoxilyzer demand; (vi) a relevant consideration is whether the record discloses that because of his or her training the officer knows that in the circumstances in which the ASD is being used the results will be unreliable; (vii) whether an officer had that reasonable belief can be established by direct or circumstantial evidence; (viii) there is no requirement that the Crown prove the instrument's calibration or that the ASD was working properly; and (ix) there is a heavy onus on the accused to establish a high degree of unreliability in the specific facts of the case.

That evidence may arise in the Crown's case or through defence expert evidence." [ 49 ] In Rowland , Hearn J. relied on these principles and held that he officer in that case did not have objective grounds to support his subjective belief. At para. 94 he explained the reasons for his conclusion which included, in part: (

i) no evidence relating to the calibration/accuracy of the device, (ii) evidence that the ASD was not tested in accordance with the OPP policy manual, (iii) evidence from the police officer that if he knew it hadn’t been tested, it would have been unreasonable for him to rely on the result and (iv) a finding of fact that the officer’s evidence of doing a self-test was “belied” by the failure to know the timing of the accuracy test. [ 50 ] In this case, DC Brown admitted he didn’t do a self-test but in my opinion, this was inconsequential because the law requires an officer to have a reasonable belief that the device was in proper working order before a FAIL result can be relied on.

Here, there is nothing on the record that reliably challenges this belief. For example, in Rowland , the officer testified he wasn’t sure if the roadside device had been calibrated. That isn’t the case here. There was also positive evidence in Rowland that the officer was operating outside the boundaries of his OPP training. There is no such evidence in this case.

[51] The same problems don’t exist here or at the very least, the record doesn’t make them out. DC Brown said the device wasproperly calibrated, it was ready to receive a sample and there was nothing that caused him to have concerns about the reliability of thedevice. That evidence was unchallenged. Returning to Beharriel, Durno J. noted that there is a heavy onus on an accused to establish thehigh degree of unreliability in the specific facts of the case.

This evidence may arise in the Crown’s case or through defence expertevidence. [52] Here, there was no defence evidence on the issue and the Crown’s evidence was not challenged. While it would always be bestpractice for a police officer to perform a self-test prior to administering an ASD as some evidence that the device is functioning properly,in my view, the failure to do so in this case was not fatal. The Crown is not required to prove that the ASD was in good working orderwhen the test was administered: R. v. Topaliskis, (ON CA), 2006 OJ No. 3181 (CA) at paras. 8, 9.

DC Browntestified that the device was properly calibrated and Mr. Tran provided a suitable sample on the first attempt. There was nothing thathappened that might cause him to question the reliability of the result. In the circumstances, it was objectively reasonable for him to relyon the FAIL result based on his belief not what he actually knew or didn’t know. I do not find a breach of s.8 based on the failure to do aself-test: R. v. Jennings 2018 ONCA 260 at paras. 18-23; R. v. Ho, [2014] O.J. No. 4019 (CA) at para. 13, reversed on other grounds,[2015] OJ No. 3997 (CA).

(3) Were DC Brown’s reasonable grounds undermined by radio frequency interference? [53] Ms. Saboor’s next argument involves potential interference with radio frequency during the ASD testing. Like the aboveargument, it too can be dismissed as it is not supported by this record. [54] The defence position is that because the ASD test took place in the police cruiser, it somehow undermined the reliability of thefunctioning of the device because the result could have been impacted by radio frequency interference.

With respect, there’s severalproblems with this argument. [55] First, the record is unclear where the ASD testing took place. DC Brown said he couldn’t recall if Mr. Tran was in or out of thecruiser and there was no other evidence called on the issue. [56] Second, even if the ASD test took place inside the police cruiser, it’s not even clear whether there was any potential forinterference. For example, the record is silent on whether the power in the cruiser was on or off or if the police transmission radios wereon or off.

I could speculate that the police radios were likely on but no evidence was presented on the issue. [57] Third, and more fundamentally, even if I were to assume the power in the cruiser was on and the police radios were also on,there’s no evidence at all about what effect radio frequency had on the reliability of the ASD testing. DC Brown said he didn’t know ofany “rule” with respect to radio and cellular device interference including why or how much it can interfere with the ASD testing.

Thedefence did not present any evidence as to whether there is in fact, a “rule” or how radio interference might interfere with ASD testing.Assuming for a moment that there is such a rule, a finding which I’m not prepared to make, I am in no position to take judicial notice ofthis issue. I’m aware that in some cases the defence has pointed to training manuals that address radio frequency and best practices, butthis wasn’t done here. There was simply no evidence on this issue: R. v. Angus, [2018] OJ No. 3755 (Ont. Sup. Ct.) at para. 8; R. v.Lefebvre, [2016] OJ No. 3606 (Ont. Prov.

Ct.) at para. 37. [58] In the final analysis, there is nothing in the record that undermined the confidence and reasonableness of DC Brown’s beliefgarnered from the ASD fail. Any alleged difficulties relating to the reliability of the ASD testing procedure are entirely speculative: R. v.Cyr Langlois, 2018 SCC 54 at para. 19. [59] Accordingly, I do not find any Charter violations. As a result, the s.8/9 applications are dismissed.

(4) Is Mr. Tran entitled to a section 24(2) remedy? [60] Given my decision on the Charter issues, I need not consider the issue of a remedy under s.24(2). If for some reason, I have erredin my conclusion that the failure to do a self-test was constitutionally infirm and resulted in a s.8 breach, I agree with the Crown that thelaw favors inclusion of the breath samples. Indeed, this issue was dealt squarely in Jennings, supra at paras. 26, 34. [61] Ms. Saboor’s reliance on Rowland to support a s.24(2) remedy in this case is also misplaced given the findings of fact made byHearn J.

Those findings don’t exist here. [62] The COQBT will be made Exhibit 1. The breath results are admissible evidence and conclusive proof of Mr. Tran’s guilt. [63] The defence did not raise any other substantive challenges to the Crown’s case. I’m satisfied the Crown has proven Mr. Tran’sguilt beyond a reasonable doubt. Conclusion [64] There will be a finding of guilt. Released: March 5, 2019 Signed: “Mr. Justice F. Javed”