) ) HER MAJESTY THE QUEEN ) M. Evans/M. Kruk ) for the Crown - v. - ), 2013 MBPC 64

2013 MBPC 64 THE PROVINCIAL COURT OF MANITOBA DAUPHIN CENTRE BETWEEN: ) ) HER MAJESTY THE QUEEN ) M. Evans/M. Kruk ) for the Crown - and - ) ) CORY KENNEDY ) S. Pinx ) for the Accused Accused. ) ) ) Judgment Delivered: November 25, 2013 SLOUGH, P.J. INTRODUCTION [ 1 ] On June 27, 2010, the accused, Cory Kennedy while driving in Brandon Manitoba, was stopped by the police. When the investigating officer spoke to the accused, the officer noted the smell of alcohol on the accused’s breath. The accused acknowledged that he had been drinking earlier in the evening.

In order to ascertain the accused’s state of sobriety, the officer had the accused provide a breath sample into an Approved Screening Device (ASD). The result was a fail. The accused was charged with impaired driving.

He subsequently provided breath samples pursuant to s. 254(3) of the Criminal Code . [ 2 ] The issue in this case is whether or not the officer’s failure to ascertain whether or not the ASD had been calibrated in accordance with accepted guidelines made the demands pursuant to s. 254(2) b and s. 254(3) of the Criminal Code , contrary to the accused’s protection against unreasonable search or seizure, pursuant to s. 8 of the Charter of Rights . [ 3 ] For the reasons that follow, I find that the investigating officer’s reliance on the fail reading was objectively reasonable.

FACTS [ 4 ] While driving in the City of Brandon, at 1:39 a.m. on June 27, 2010, the accused, instead of pulling over to participate in a “Check Stop” (a program to do random checks of motorists) swerved around a police officer, Constable Paterson, and drove away from the “Check Stop”. Another officer, Constable Brossart, gave chase, and the accused quickly stopped his vehicle. When Constable Brossart approached the vehicle and spoke to the accused he could smell alcohol on the accused’s breath.

When questioned about his alcohol consumption, the accused responded that he had had a couple of beer earlier in the evening; shortly thereafter, he advised the officer that he consumed as many as five beer. The accused was brought back to the cruiser car and Constable Brossart radioed Constable Paterson, requesting that an ASD be brought to him so he could perform an ASD test on the accused. Constable Paterson brought the ASD and Constable Brossart made the ASD demand. Ultimately, the accused complied with the demand and a fail reading resulted.

At that point, Constable Brossart determined he had reasonable and probable grounds to believe the accused was impaired and made a demand pursuant to s. 254(3) . The accused was taken to the Brandon Police Service station and provided two breath samples.

[ 5 ] Neither Constable Brossart, nor Constable Paterson had any knowledge as to when the ASD device had last been calibrated. Both officers agreed with the suggestion that they could not rely on the results of the ASD if the device had not been properly calibrated. [ 6 ] Constable Brossart was a 25 year veteran of the Brandon Police Service and had received training on the use of ASD. He indicated that he used the device on a frequent basis. Constable Brossart testified as to the practices of the Brandon Police Service with respect to ASD device.

He indicated the practice of the Brandon Police Service was to have an assigned officer, (not Constable Brossart,) who was responsible for the certification and recalibration of all ASD units. It was the responsibility of this officer to certify the units on a regular basis. This officer was responsible for maintaining the logs indicating when the ASD was last calibrated.

Constable Brossart testified that “I would like to say, I also have knowledge and in fact know that if the – if in fact there was an issue with calibration and the date had expired that any unit at our police service would be taken out of service by the calibrating officer... Because they are not allowed to be utilized no more at the time”. [ 7 ] In his opinion, the device he used on June 27, 2010, was working properly.

He based his opinion on the fact that when he turned it on, the machine indicated it was operational. [ 8 ] It should be noted neither counsel for the accused or the Crown tendered any evidence with respect to when the ASD device in question had last been calibrated.

ANALYSIS Legal Test [ 9 ] This decision is largely fact based, there are no significant legal issues to be resolved or considered. (In my view the evidence did not support an argument that the ASD demand could be challenged on the basis that the accused’s consumption of alcohol was so recent as to require a 15 minute delay in performing the ASD test and I will not deal with that issue in my reasons.) [ 10 ] The relevant legal principles are as set out in the Manitoba Court of Appeal decision of R. v.

Jacob 2013 MBCA 29 at paragraph. 35 : “ As was explained in Bernshaw , the screening test result is not evidence of impairment, in that the driver who fails the screening test is not subject to criminal liability. It is a screening test to be used by a police officer, together with whatever other information he or she has, to determine whether there are reasonable grounds to believe that the driver was impaired and, on that basis, to make a breathalyzer demand.

As such, the result of the screening test is subject to the same rules of admissibility and use for that purpose as is other information gathered by an officer, including hearsay evidence.

I have noted those in some detail above, but I will summarize those rules here: - there are two components to reasonable grounds - whether the police officer had a subjective belief, honestly held, that he had reasonable grounds to arrest or to demand a breath sample and whether a reasonable person in the position of the police officer would conclude that there were reasonable grounds for the arrest or the demand; - in weighing the evidence, the court should take into account the totality of the circumstances known to the police officer and should not examine and test each piece of evidence and each factor individually; - the question is not whether the facts, circumstances and inferences ultimately prove to be true, but whether it was reasonable for the police officer to believe, at the time, that the facts and circumstances were true, to draw the inferences that were drawn and to rely on them at the time of the arrest or the breathalyzer demand; - the standard of proof for reasonable grounds to believe is not high or particularly onerous - it has been referred to as "credibly-based probability," which, on a spectrum of proof, is higher than a reasonable suspicion that an offence has been committed, but lower than proof on a balance of probabilities (the civil standard) or proof of a prima facie case.”

Constable Brossart’s Subjective Belief [11] Constable Brossart testified that he believed the results of the ASD to be accurate. Supporting his belief were the smell ofalcohol on the accused’s breath and the accused’s acknowledgement that he had consumed as many as 5 bottles of beer. ConstableBrossart had extensive experience working with the ASD. In terms of the calibration issue: he stated that it was his belief that the ASDdevices were subject to testing by an assigned officer.

Constable Brossart stated that he believed that if the ASD was not calibratedwithin the times specified by the Brandon Police Service the unit would be taken out of service. Was Constable Brossart’s Belief Objectively Reasonable [12] Counsel for the accused relies on the decision of R. v. Persaud [2011] O.J.

No. 1559 as support for the proposition that wherethe officer fails to pay any attention to the question of the reliability of the machine the officer’s belief is not objectively reasonable.However, in Persaud (at paragraphs 12 – 17), the evidence established that the machine had not been calibrated for 3 months prior to itsuse. (Calibration should be done on a regular basis, typically every 15 to 30 days.) The 3 month delay in testing was known to one ofthe officers involved. This fact scenario led to the following comments by the Court in Persaud (supra) at paragraph 69: “When P.C. Hussain advised P.C.

Sidhu that the ASD was working satisfactorily for subs. 254(3) purposes, based solely on a self-test,he was in no position to make such a comment. He testified at trial that he knew little about these calibration and these devices. Further,the last calibration date was in P.C. Hussain's memo book. He placed it there. He had to have or ought to have known how long it hadbeen since the device had been calibrated. Whether or not he turned his mind to it when he gave information to P.C. Sidhu about the stateof the device, the police knew or ought to have known that the calibration date was a problem.

On the facts of this case, it is obvious thatthe trial judge found that no police officer, and in particular, the arresting officer, could reasonably have believed that this device was inproper working order.” [13] This is to be contrasted with Constable Brossart’s evidence, with respect to his belief that the units were checked, calibrated andtaken out of service if past their calibration date. Expert Evidence [14] Dr. Archie Kraut testified on behalf of the accused. There is no question that Dr. Kraut is an expert in the operation of the ASDand the training of police officers with respect to the use of the ASD.

In addition, Dr. Kraut provided expert evidence with respect to theprocedures with respect to the testing and maintenance of the ASD. Counsel for the accused called this evidence to raise concerns withrespect to the practices of the officers Paterson and Brossart in their use of the ASD. In R. V.

Bernshaw (SCC), [1995]1 S.C.R. 254 Justice Sopinka commented on what the such evidence must demonstrate: ”If the scientific evidence establishes a high degree of unreliability with respect to the screening device when certain conditionsprevail, and if a police officer knows, for example based on his or her training, that the resultant screening device will provideinaccurate results where a suspect has consumed alcohol within the 15 minutes prior to administering the test, how can the policeofficer testify that he or she had an honest belief of impairment, absent other indicia?” (emphasis added) [15] Dr.

Kraut reviewed the transcript of proceedings wherein Constable Brossart testified and commented on the proceduresfollowed by Constable Brossart in his dealings with the accused. [16] Dr. Kraut described the ASD used in this case as a stable and reliable importance of regular calibration and maintenance of theASD. Excerpts of Constable Brossart’s evidence were put to Dr. Kraut and he indicated that based on those excerpts the device shouldnot have been used (See p. 12-14 Transcript of Proceedings, June 3, 2013). The excerpts put to Dr.

Kraut indicated that ConstableBrossart was not aware of the calibration history of the ASD he used to test the accused and in Dr. Kraut’s view it was essential that theofficer using the ASD know the calibration date of the device and that the device be the subject of annual maintenance. Dr. Kraut didnot express significant concerns about the use of the device with respect to testing prior to the taking of the sample from the accused orthe accused’s provision of a breath sample. [17] In my view, Dr.

Kraut’s evidence does not address the practices of the Brandon Police Service with respect to calibration andmaintenance as described by Constable Brossart. That evidence was not put to him for comment. The Brandon Police Service is one oftwo large municipal police services in Manitoba. Instead of having individual officers responsible for checking calibration, the BrandonPolice Service assigns officers to be responsible for the calibration and certification of ASDs.

I find the practice of the Brandon PoliceService is a reasonable and efficient process to ensure the ASD device provides accurate and reliable results. Constable Brossartbelieved that the ASD was in proper working order and properly calibrated when he had the accused provide a breath sample forscreening purposes. From an objective perspective, I find this belief to have been both honest and reasonable and that there is noevidence to suggest any degree of unreliability, let alone a high degree of unreliability, with respect to the operation of the ASD.

[ 18 ] In my opinion, the following factors: the accused’s manner of driving - he failed to stop for a well lit police check stop - he smelt of alcohol, he admitted to having as many as five beer that evening and the fail result of the ASD provide substantial objective criteria justifying Constable Brossart’s demand for breath samples pursuant to s. 254(3) of the Criminal Code . [ 19 ] Accordingly, I find there has not been a breach of the accused’s Charter Rights . ____________________ Slough, P.J.