R. v. Grubb, 2011 ONCJ 881

Information No. 11-218 Citation: R. v. Grubb , 2011 ONCJ 881 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN V. COLIN GRUBB REASONS FOR JUDGMENT BEFORE THE HONOURABLE JUSTICE G.J. BROPHY On November 28, 2011, at WALKERTON, Ontario APPEARANCES: J. Macintyre Counsel for the Crown S. Menzies Counsel for the Accused MONDAY, NOVEMBER 28, 2011

REASONS FOR JUDGMENT BROPHY, J. (Orally): Colin A. Grubb has been charged with an offence under section 253(1) (

b) of the Criminal Code . That is to say that he operated a motor vehicle while his blood alcohol concentration exceeded the legal limit of 80 milligrams of alcohol in 100 millilitres of blood. The case began on the 6 th of October 2011, and evidence was received. The evidence received was from two police officers and then, with reference to the Breathalyzer readings, officer Bruce McBlane as a breath technician testified as well. There was no evidence called by the defence and there was no Charter application presented.

Having said that, three issues were identified in the trial by the defence and they were firstly whether or not the arresting officers, but most importantly Officer Merritt, had the proper reasonable suspicion of alcohol being in the system of Mr. Grubb that he could properly make an approved screening device demand. The second issue was whether or not the breath demand, which if the first matter is overcome by the Crown, was made in a timely fashion. That is to say was it made as soon as practicable as contemplated in section 253(3) of the Criminal Code .

The last issue that was identified by the defence was a question about whether or not the breath technician had the proper basis to proceed with the tests in that the evidence of Officer Merritt giving grounds to the breath technician is scanty. If no grounds are given does the breath technician then have the authority to proceed with the breath tests. So those are the three identified issues in this case. The events that we are dealing with occurred on the 3 rd day of March 2011, and they unfolded as follows.

At about 9:23 in the evening Officer Merritt and Officer Andrew Werle, both with the Ontario Provincial Police, Officer Merritt being a new officer travelling with Officer Werle as a coach officer, observed a motor vehicle which it was later found out was operated by Mr. Grubb as he turned onto what I believe is County Road number 4 between Walkerton and Hanover heading into Walkerton. This was just immediately east of Walkerton and the vehicle proceeded down the western, pardon me, the eastern hill into the Town of Walkerton.

The officers noted the operation of the motor vehicle as being somewhat unusual in that when Mr. Grubb turned into the westbound lane he did not actually make the westbound lane on the first instance. He was initially in the eastbound lane. He corrected that and as he was going down the hill he drifted onto the fog line once, which is the evidence of Officer Merritt. He then corrected and then he veered onto the centre yellow dividing line twice, and again that’s the evidence of Officer Merritt.

That evidence is generally confirmed by Officer Werle, not as to its exact details but in a general sense that the driving was not perfect. Having said that, there was no speeding involved and when Mr. Grubb was pulled over, and he pulled into the beer store parking lot just across the bridge in Walkerton, and that was effected properly. There were no other issues with reference to the driving. When they were speaking to Mr. Grubb, Officer Merritt asked some appropriate questions. And in conversation with Mr.

Grubb, Officer Merritt noted after Officer Werle had attended from the passenger side to the driver’s side that there was an odour of an alcoholic beverage on the breath of Mr. Grubb and Mr. Grubb ultimately indicated that he had had two alcohol beverages, the last one being approximately one hour before the stop. Also it was noted that there was some packs of beer in the vehicle on the driver’s side rear with a few beers missing from the packages, although the officers did not see any open alcohol.

With that information Officer Merritt decided it was appropriate to read an approved screening device demand and he did that. Now the stop was at 9:25 p.m. and the approved screening device demand was read at approximately 9:26 p.m. Officer Merritt did that and Mr. Grubb responded that he understood what was happening. Officer Merritt went on to explain how the testing worked. He explained the calibration of the approved screening device, he demonstrated how that device was to be operated, and indeed he gave a test sample into the machine which produced a 000 reading.

Officer Merritt’s view was that the Alco Test 7410 GLC was operating in a satisfactory manner and that it had been calibrated at an appropriate time; I believe on the 20 th of February 2011. At 9:27 the demonstration took place and immediately thereafter Mr. Grubb provided a sample into the approved screening device using a new mouthpiece that had been provided to him and the result that was produced was a fail or “F” which indicated to the officers that Mr. Grubb had over 100 milligrams of alcohol in 100 millilitres of blood in his system.

With that information Officer Merritt then testified that he formed the grounds to arrest Mr. Grubb and he did so. And in evidence he said that he was arresting him for impaired operation for over 80 milligrams of alcohol. The language was not happy configuration of the language for that arrest and that will be commented upon in just a moment. Having said that, the arrest took place at approximately 9:28 p.m. Then the usual protocols were observed. That is to say rights to counsel were provided to Mr. Grubb, no issue was taken about that by the defence. He was given the

usual police caution, no issue was taken on that by the defence and then Officer Merritt’s evidence is that he told Mr. Grubb is that they would take him to the nearest breath technician who was in Kincardine at the time to give a breath sample on an Intoxilyzer 8000C. They had advised him that that was the plan. The arrest as I have indicated took place at approximately 9:28 p.m. but they could not leave the scene until 9:40 p.m. and they did not leave the scene until then. And that was a function of two issues. First of all, they had to organize a tow for the vehicle of Mr. Grubb.

Fortunately two other officers had come by so there were other officers to assist in that. But in addition there was an issue in that Mr. Grubb had a dog in his car, he was otherwise alone, and the dog had to be attended to. It couldn’t be abandoned and couldn’t be left in the car. And I think everybody is ad idem on that point that, that there had to be a humane way to deal with the dog so the dog was not in stress in any way shape or form. As a function of that Mr. Grubb was given the opportunity to call a friend in Walkerton who apparently attended and looked after the dog.

Whether that friend attended before they left at 9:40 I do not know, but nevertheless that was looked after. Having said that, with that 12 minute period of time used, from 9:28 to 9:40, to provide for those two issues, the towing and the tending to the needs of the dog, they left the scene.

As the officers were heading west out of Walkerton near the Huron Tractor corner, which I will call the intersection leading to Paisley on the main road leading out of Walkerton, in conversation between the officers after Officer Werle was reviewing with Officer Merritt what the procedures had been, Officer Merritt suddenly realized that he hadn’t read the formal breath demand to Mr. Grubb. So the officers pulled over at 9:42, so two minutes after they had left the scene, and Officer Merritt then read the formal breath demand from his Ontario Provincial Police card to Mr. Grubb and Mr.

Grubb in response to the question do you understand said yes. After that they headed directly to Kincardine and the officers were careful to note that they made no other stops and this was the most direct route they could follow. Both officers testified that they arrived at approximately 10:09 p.m. I note that Officer McBlane, the breath technician, indicated that they had arrived at approximately 10:12 p.m. Obviously the watches were not synchronized but in general terms the time of arrival was agreed upon. Duty counsel was called and then duty counsel called back at 10:38 p.m. and Mr.

Grubb had an opportunity to speak to duty counsel between 10:40 and 10:45 p.m. Subsequent to that he was turned over to Officer McBlane at 10:46 p.m. where he was reread the breath demand by Officer Merritt, and that plays a role in this analysis as well. Officer McBlane conducted the appropriate tests and in doing so he received test results at 10:46 p.m. and 11:08 p.m. which produced result of 129 milligrams of alcohol in 100 millilitres of blood in the first test and 114 milligrams of alcohol in 100 millilitres of blood on the second test.

That having been said, Officer McBlane also testified to this effect, and this is important, that after speaking to the investigating police officers, police officer, he was satisfied he could proceed. The tests were completed at approximately 11:13 p.m. Mr Grubb was returned to the arresting officer, he was placed in a cell and ultimately he was released at 12:50 now a.m. after being served with the appropriate documentation between 12:45 and 12:50. So those are the basic facts that I have received.

Now having said that, Officer Werle testified as well and Officer Werle generally confirms the scenario and the timelines that Officer Merritt testified to. It is interesting to note a number of things about Officer Werle’s evidence. That is to say that it was not until he came around to the driver’s side that Mr. Grubb made the admission of drinking and it was at that point that Officer Werle detected an odour of alcohol on the breath of Mr. Grubb as well as Officer Merritt. Mr.

Werle, Officer Werle rather said that it was his view that there was alcohol in his body and they would be conducting a roadside screening device test. Officer Werle essentially watched and followed the protocols followed by Mr. – by Officer Merritt and generally those protocols were in accordance with Officer Werle’s understanding of what should happen save and except the failure to read the formal breath demand at the initial stages. I have touched on the evidence of Officer McBlane already. The issues that have been raised by the defence need to be dealt with.

In doing so I have considered the complaints made by Mr. Menzies on behalf of Mr. Grubb in the following areas. First of all, Mr. Menzies developed in cross-examination that there were some errors in the notes by Officer Merritt. These errors in his notes in fact were not errors in the notes, with one exception where he recorded a time of 8:30 and then struck it out, but rather when he prepared his synopsis his timelines were off. That was brought to his attention by the Crown’s office and Officer Merritt then corrected the synopsis and sent a fresh synopsis in. Mr.

Menzies makes that his first commentary because he says that the errors made by the two officers, although individually perhaps could be explained away, Mr. Menzies says has some accumulative effect that the court should look to. In addition for example Mr. Menzies was able to have both officers confirm that they had no notation in their notes that they had formed a reasonable suspicion that the, that Mr. Grubb had alcohol in his system. It was clear of course that the formal breath demand using some standard wording was not read to Mr.

Grubb at the scene immediately after the arrest and the Criminal Code suggests that that should happen. There was also this confusion in Officer Merritt’s evidence about what he was arresting Mr. Grubb for when he said that he was arresting him for impaired operation over 80, or impaired over 80 was the phrase that was actually used. That in a sense is a blend of two basic offences of impaired driving and operating a motor vehicle while your blood alcohol concentration exceeds 80 milligrams of alcohol in 100 millilitres of blood.

Officer Werle in his evidence says that he did not record the exact words used by Officer Merritt but he is sure that Officer Merritt in hislanguage said over 80. There is also the delay which has been identified by the defence as something as an issue from 9:28 to 9:40 but in that sense and as I haveexplained already the delay is not of consequence because there were things that had to be attended to. And as we know from R. v.Vanderbruggen, (ON CA), [2006] O.J.

No. 1138, and other decisions the issue in terms of the timelines associatedwith these matters generally when we are dealing with things as soon as practicable is that the police have to be attentive to their duties,they cannot be distracted by side issues. In this instance it is clear that the initial 12 minutes from 9:28 to 9:40 was filled with ordinaryprotocols and procedures and ensuring that the vehicle was looked after and that the dog was looked after. Having said that, of course this is compounded somewhat because of the necessity, at least in the officers’ view, to stop at 9:42 to issuethe formal demand.

So that lengthened that time by another two minutes, which would make it a 14 minute delay. Finally the rereadingof the demand at the station by Officer Merritt, Mr. Menzies would say is something that is not ordinarily done or is not something thatis according to the ordinary protocols and he suggests that again demonstrates some uncertainty on the part of Officer Merritt about whathe should be doing. That is further compounded by the fact that in this case there is no definitive statement of what grounds were givento Officer McBlane with reference to the, the grounds for the breath test.

Now in connection with these three issues that have been identified, the question comes up of course about reasonable suspicion in thefirst instance. There is ample case law in this area and I preface my remarks before I comment on that case law by indicating that section253(3) and 254(2) and (3) set the ground work for this analysis.

And dealing with the reasonable suspicion, that is in section 254(2)which states that if a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that personwithin the preceding three hours has operated a motor vehicle, then they can make an approved screening device demand. The questionarises as to whether or not the words reasonable suspicion have to be used by the officer when he is testifying, in other words, saying thathe had reasonable suspicion.

The case law seems to suggest that although that might be useful it is not a magic incantation or formula that must be uttered precisely bythe witness. The decision of R. v. Long, [1999] O.J. No. 364, at paragraph 13 specifically, an Ontario Superior Court of Justice decision,says that it is quite sufficient if the testimony, which is found to be credible, taken as a whole establishes that the witness had minimalreasonable suspicion. An additional case that speaks to this issue is R. v. Shortall, [2002] O.J.

No. 1447, which indicates thatcircumstantial evidence can form the basis for the required suspicion prior to making the demand despite the fact that the officer did notspecifically state that in his testimony. The other basis, pardon me, another way of looking at this of course is whether or not the officer has properly articulated the grounds forthe reasonable suspicion. And there are a number of decisions that can be commented on as well saying that no particular words arerequired to articulate the grounds upon the ASD demand was made.

A trial judge is entitled to infer the necessary subjective belief onthe part of the officer, that is reasonable suspicion of consumption of alcohol, from the evidence taken as a whole. References for thatpurpose include R. v. Dietz, 1993 ABCA 24 , [1993] A.J. 45 ON CA, R. v. Church, [2008] BCSC 686, and R. v. Weintz, [2009]BCSC 90. With reference to that general concept of course the question becomes whether or not I accept the evidence of Officer Merritt and for thatmatter Officer Werle with reference to their reasonable suspicion.

Was that in fact what I can properly infer form the evidence as I havereceived it. I think I can and the reason I say that is because Officer Merritt and Officer Werle in my view were good witnesses. They had theirfailings in terms of some errors that were made in terms of protocol obviously and they perhaps could have been more fulsome in theirnotes. But the fact that reasonable suspicion did not appear in their notes does not take away from the overall context in which this eventwas occurring. They had observed some driving issues involving Mr.

Grubb, they had detected an odour of alcohol on his breath, he hadmade an admission that he had consumed two alcoholic beverages and that at least one of those was one hour before the stop, and theysaw some parcels of beer in the vehicle itself. Looking at all of those facts and accepting those facts as being accurate, and I have nodifficulty in terms of credibility of the officers, it seems to me that it is reasonable for me to infer that they have the necessary reasonablesuspicion not withstanding it would have been preferable if they had placed that in their notes.

I note as well and it is of some interest that Mr. Menzies provided me with two cases which require some comment and they are R. v.Au-Yeung, 2010 ONSC 2292 , [2010] O.J. No. 1579, and a second decision R. v. Jeremias, [2010] O.J. No. 6052. The firstdecision being a decision of the Ontario Superior Court of Justice, Justice Ducharme, the second being a decision in the Ontario Court ofJustice by Judge Kowalyshyn.

I think the presentation of these cases is to suggest to the court that the court should be very wary aboutthe way in which the approved screening device demand was implemented in this instance because of the issues I have already identifiedin terms of the protocols that were followed, or not followed. But when it comes to the approved screening device demand in this case,

Officer Merritt was very careful to explain the use of the machine, explain the calibration, demonstrated properly how to conduct the testprotocols and process in a very thorough manner. His errors were with reference to not reading the breath demand, which is a separateissue, and not putting into his notes the words reasonable suspicion.

When I look at that set of facts and compare those facts to the facts in the Au-Yeung decision, for example where the arresting officercould not recall whether any error message came up on the device, did not know what error message could appear on the device, wasunclear what a fail meant, describing it as a square red light where another officer testified that a fail was shown by a black “F”, and itgoes on. The point is that in the Au-Yeung decision the arresting officer was, with respect, incompetent in terms of the use of theapproved screening device demand.

For example, he did not do a self test on the ASD before testing the subject, he did not check whenthe ASD was last calibrated, he was not – he even conceded he was not sure that the device was working properly. Well how couldanybody accept that evidence. The officer simply did not know what was going on with reference to the ASD. He admitted, that officer,that he had been trained on the ASD in 1984 and had not been retrained in the 22 years since. So that case is simply so extreme it doesnot really relate to what is happening here.

The other case, the Jeremias case is of a similar nature but it had another feature to it and that is that there was expert evidence that wascalled to speak about what the codes were when they came up. The officer who was in play in that case said that although the machinewas used repeatedly and a number of codes came up, he paid no attention to those codes until he got the “F”. And then the expertevidence was to the effect that any number of those codes could have produced a conclusion that the machine was not functioningproperly and it was simply random that ultimately it produced an “F” indicating a fail.

So again those facts are distinctly different thanthe facts we are dealing with here and they are of no assistance in terms of resolving the reasonable suspicion issue. Having said all of that, I am of the view that I can properly infer from the evidence I have received that Officer Merritt had the necessaryreasonable suspicion to read the approved screening device demand and take the necessary test. Now turning to the next issue that has been identified and that is the issue about whether or not the breath demand was read as soon aspracticable.

Turning to the legislation again, section 254(3) uses the phrase “as soon as practicable” in two contexts. It first of all saysthat in subsection 3 the peace officer may by demand made as soon as practicable require a person to do certain things. And then thosethings include to provide as soon as practicable samples of his breath to a qualified breath technician.

The issue in this case I guess thenturns on the first question of the wording of the – and the timing related to the, the breath demand being made and then secondly ofcourse goes to the question of as soon as practicable in the generalized sense were the tests taken as soon as practicable. Although thatsecond argument is not very strong. The R. v. Vanderbruggen, (ON CA), [2006] O.J.

No. 1138, decision by the Ontario Court of Appeal speaks to this andhas spoken about it in a fairly conclusive way where Justice Rosenberg talked about the court has – the Court of Appeal has decided thatas soon as practicable means that something was done within a reasonably prompt time under the circumstances that were present. Andit goes on to say that the as soon as practicable requirement must be applied with reason and that the court should look at the whole chainof events to understand what was happening.

The real test is whether or not the police officers were attentive to the duties and the needsto administer the test to the appellant as soon as practicable. And then the final phrase that I would reference is that it becomes aquestion is did the officers give unreasonable priority to any other task.

The Vanderbruggen decision deals more with the second issueabout when the tests were – the samples were provided as soon as practicable but it helps inform the question of whether or not thedemand was made as soon as practicable because the issue is of course what is – what were the officers doing at any relevant time. There are two ways to deal with this. The first is to ask the question of whether or not any formal words are required. The CriminalCode does not require the formal mantra to be produced that I often times hear from officers when they testify about reading the demandfrom the card.

The Criminal Code does not require that and the case law is clear that there is no formal words that are mandatory. Sothe question is what was in fact said to Mr. Grubb at the scene. And what was said to him, and I accept this evidence from the officers,is that they were going to take him to the nearest breath technician in Kincardine to give breath samples on an Intoxilyzer 8000C. That iswhat they told him. They then supplemented that, if I can call it that, or perhaps fed the estoppels, an old real estate term, by stopping at9:42 and reading the formal demand.

But the substance of what they intended to do was that he was being taken to Kincardine. Therewas no issue about him having any option in the matter. He was going to be required to go to Kincardine to meet with the breathtechnician and he was going to be required to produce those breath samples into the appropriate machine. The case law in this area seems fairly clear with reference to this type of matter. The decision of R. v. Ghebretatyos, [2000] O.J. No.4982 ON SCJ, says that no particular words are necessary to make a fresh demand.

A flexible yet functional approach focussing onwhether the vehicle driver understood he or she was required to give a sample of breath is consistent with the jurisprudencerecommending a review of the entirety of the circumstances and deciding whether Breathalyzer technician has acted pursuant to a lawfuldemand. Because of course that is the issue, did the breath technician – was the breath technician able to take the test samples. In otherwords, was the demand lawful with reference to the language, pardon me, the, the criteria that had to be met in the Criminal Code.

It seems to me that in this case the issue of as soon as practicable is a concern with reference to whether or not there was reasonablepromptness or where was the breath demand was given in a reasonably prompt time and it seems to me that the words are not theimportant issue. What is in issue is whether or not the officers conveyed to Mr. Grubb that he was going to be required to provide these

test samples. And they did do that and I accept their evidence in that regard. With reference to the secondary question about whether or not they could correct any error they made by stopping at 9:42, it seems to me that this was an error in form only, not in substance, by not reading him a formal breath demand and that on this set of facts given the total context in which this occurred it seems to me that the stop at 9:42 for a couple of minutes to allow the formal words to be read is perfectly rational and reasonable under the circumstances.

And what is most important about this of course is that the officers were paying attention to the case. They were doing their best albeit they had slipped up in that area with reference to reading the formal demand at the scene and as soon as practicable, but when looked at in its overall context there was no delay in getting to the decision point, being the provision of the breath samples to the breath technician. And simply put, I do not see that the, the oddities that occurred at the scene with reference to the breath demand take away from the import of the case.

So I am not satisfied that there is any issue with reference to the breath demand having been provided as soon as practicable. My finding is that the officers conveyed the necessary information immediately and followed that up with the appropriate language at 9:42 and that that stop to do that did not impact upon the promptness upon which this matter was being dealt with. Turning then to the last point, and that is the question of whether or not the grounds had been given to the breath technician as Mr. Menzies would argue that they should be. Simply put, I think the case law runs against Mr.

Menzies in that argument. I reference of course a foundational case which is R. v. Chavez , [2001] O.J. No. 3753 , which speaks to the principle that the practice of the arresting officers to relay the grounds for the arrest to the breath technician who then issues her or his own demand is not a legal requirement. It is as simple as that. While it may have practical benefit, it is not required by the Criminal Code and it is not necessary for the Crown to lead evidence that a demand was made by the technician or of course that if made the demand was based on reasonable and probable grounds.

In other words, the grounds made by the arresting officers is a continuing demand and that demand continues through that entire process until the breath technician acts on it. I note that Officer Bruce McBlane in his evidence says that after speaking to the officers he was satisfied that he could proceed. Now whether that means that the officers them gave him some specific details or simply said there was an incident and we read a breath demand and he can proceed on that breath demand, it would be perfectly satisfactory. The Crown has provided R. v. Kahn , [2009] O.J.

No. 6239 , a decision by Justice Bovard of the Ontario Court of Justice. And what is interesting from that decision from my perspective is that Justice Bovard reviewed on a fairly current basis the current law with reference to whether or not the Breathalyzer technician or Intoxilyzer technician had to be given the circumstances of the arrest. In doing so he specifically references a decision by Durno, J., R. v. McNeill , [2001] O.J. No. 3770 , in which Justice Durno, as he has want to do, conducted a very thorough review of the law in this area. Justice Durno accepts the dicta in the decision by Mr.

Justice Duncan of the Ontario Court of Justice in Chavez that I have already mentioned and Justice Durno then says it is unnecessary for the arresting officer to relay these grounds to the breath technician and then he makes various citations to that effect. Simply put, the law is that the breath technician does not have to receive specific grounds from the arresting officers, although Justice Durno does comment that it probably is a preferable practice but not from a legal perspective, more from an informational perspective.

So I am not satisfied there is any weight to the issues that have been raised with reference to the failure to provide the grounds to the breath technician. So having said all of that, those are the issues that have been identified. I have not found favour with the defence’s position on any of those issues. As I understand the evidence taken as a whole then all other matters have been satisfied with reference to the over 80 offence. The stop was made in a proper fashion. There was a failure on an approved screening device which was properly made or properly required. He was, Mr.

Grubb was taken to Kincardine for Intoxilyzer tests in what I found to be a reasonably prompt manner, and indeed the total timeline associated with this case was well under the two hours that was in play. It was an hour and 43 minutes from start to finish. And I am satisfied that the breath test results were properly taken. No issue was raised by Mr. Menzies with reference to the validity of the tests and the test results are what they are. A certificate was provided, viva voce evidence was received from the breath technician. And simply put, Mr.

Grubb is guilty of the offence of operating his motor vehicle while his blood alcohol concentration exceeded the legal limit and I so find. ...SUBMISSIONS ON SENTENCE ...REASONS FOR SENTENCE ...WHEREUPON THE PROCEEDINGS CONCLUDED **********

FORM 2 CERTIFICATION OF TRANSCRIPT (SUBSECTION 5(2)) Evidence Act I, Melissa Walter, certify that this document is a true and accurate transcript of the recording of R. v. GRUBB, Colin , in the Ontario Court of Justice held at 207 Cayley St. Walkerton, Ontario, N0G 2V0, on November 28 , 2011 , taken from Recording No. 0311-1-424-2011, the original of which has been certified in Form 1. January 21, 2012 _______________________ Date Signature of Court Reporter *This certification does not apply to the Reasons for Judgment which was judicially edited. Transcript Ordered: November 30, 2011 Transcript Completed: January 21, 2012 Ordering Party Notified: January 21, 2012