R. v. Williams, 2014 ONCJ 582

Citation: R. v. Williams , 2014 ONCJ 582 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. LINDSAY WILLIAMS ********** R E A S O N S F O R J U D G M E N T BEFORE THE HONOURABLE JUSTICE W.B. HORKINS On September 23, 2014 at TORONTO, Ontario Courtroom 502 ********** APPEARANCES C. Langdon, Ms. Counsel for the Crown D. Gomes, Mr. Counsel for Lindsay Williams R E A S O N S F O R J U D G M E N T HORKINS, J. (Orally) This is the matter of Lindsay Williams, who was tried before me a few days ago. I reserved on delivering Reasons for Judgment until today’s date.

I am delivering this Judgment orally but from notes which could be fairly quickly turned into a written Judgment but for the limited resources we have in doing that on a short timeline. What I intend to do is to order the transcript of the Reasons to preserve the Reasons for Judgment. But I will have no difficulty in outlining the basis of my conclusions, both for the benefit of the parties and to produce a reviewable record. Ms. Williams is charged that on the 13 th of September 2013 with driving, to use the vernacular, over 80.

The only real issue in the case arises from the fact that the arresting Officer read the wrong breath demand to the accused. It is submitted, therefore, that the subsequent breath testing was not done pursuant to the applicable statutory conditions precedent to the admissibility of the Certificate of Analysis. If that is true, then obviously there would be no admissible evidence in this case of the accused’s blood-alcohol level at the material time.

It is actually surprising to me how many of these drinking and driving cases end up coming to grief for the prosecution by the failure ofthe investigating officer to read the correct breath demand. However, the factual context of this particular case adds a bit of a new twistto the usual scenario of simply having read the wrong pre-printed demand from the back of the Officer’s notebook. Ms. Williams was stopped in a RIDE spot check. In response to questions asked she admitted that she had recently come from a licensedrestaurant in the neighbourhood where she had indeed been drinking.

The Officer detected a faint smell of alcohol. He formed areasonable suspicion that Ms. Williams was driving with some alcohol in her blood. He therefore had the lawful basis for making aroadside screening demand and he did that. Ms. Williams complied with the demand and provided a roadside screening test, which shefailed. The Officer then made a second demand, and this is where things started to go sideways. The second demand was again the approved screening demand.

The Officer did not have his notebook with him at the trial, but indicated that he would have read the demand fromthe pre-printed form in the back of his notebook. It became apparent that he did not know that he read the wrong demand until sometimeshortly before trial, when he viewed the on-board video from his police car and realized at that point that instead of having made theapproved instrument demand, he had repeated the approved screening demand.

Up to this point the facts in this case are not very different from so many of the reported cases, cases that I have seen myself, where thewrong demand has been read. The somewhat unique twist in the facts before me is that Ms. Williams apparently was alert to the factthat this second demand was the same demand that she had already complied with, and she pointed this out to the Officer. Ironically, it is only because the accused expressed her confusion that the Officer then sought to explain why he was making the seconddemand.

It is only in this further explanation that the Crown can hope to find sufficient content to comply with the requirements of a valid approved instrument demand. The Officer explained that this second demand involved going to the station to provide a sample that would give a numerical result of her blood-alcohol content. The Crown argues thatthis further explanation elevates the situation to a point where I can conclude that the functional equivalent of the proper demand was infact made.

As I indicated earlier, these “wrong demand” cases are surprisingly common, and as a result the principles of dealing with this situationare relatively clear. First of all, a condition precedent to the admissibility of the Certificate of Analysis for the truth of its contents is proof that the technicianacted pursuant to a lawful demand. I cite Regina v. Nasir, [1998] O.J. No. 2166, (ON SC), Hill J. Secondly, no particular words are necessary to make a valid breath demand.

In fact, in certain circumstances it may even be that theevidence of the Officer simply stating that he has given a demand for a breathalyzer test is some evidence of a valid demand. I reference Regina v. Humphrey, (ON CA), [1977] O.J. No. 1148 (ONCA) and Regina v. Khawaja, [2006] O.J. No. 4021 (OCJ),Pringle, J. As to whether a valid breath demand has been made, the Court should consider the entirety of the circumstances, and take a “flexible yet functional approach” to the issue. And I reference Justice Hill’s decision in Regina v.

Ghebretastiyoss, [2000] O.J. No. 4982 (ON SC) Hill J. Next, the situation becomes more complex when the issue is not simply whether a breath demand was made, but rather which of the twodifferent statutory breath demands was made. Even recognizing the need to take a “flexible yet functional approach”, an ASD demandwill rarely, if ever, be an adequate substitute for an approved instrument demand. And I cite Justice Lipson’s case in Regina v.Kagayalingam, 2006 ONCJ 196 , [2006] O.J. No. 2201 (OCJ) and Justice Blouin’s judgment in Regina v. Cheng, 2008 ONCJ368 , [2008] O.J. No. 3215 (OCJ).

A loose explanation which fails to make it clear what is being asked as more than a mere invitation or request will not be sufficient. In acase where the Officer did not read a breath demand at all to the accused at the side of the road, and could not remember exactly what hedid say to the accused at the road, but felt that he said words to the effect that they were going to the police station “to blow” into a “breathalyzer-type machine” which will measure “how much alcoholyou have in you”, the Court held that such wording fell short of being a valid demand. And I cite Regina v.

Palanacki, a judgment of Justice Blacklock, [2001] O.J. No. 6254 andRegina v. Killen, a judgment of Justice LeDressay, [2006] O.J. No. 4592. To my mind, the fact situation in the case before me is very close to the fact situation in Palanacki. An inadvertently confusingrepetition of the ASD demand was followed by a somewhat loose explanation of a plan to go the station for another more precise test. My conclusion is that this was not a valid approved instrument demand. Perhaps the most useful of the cases considering this issue is the decision of Justice Taylor in Regina v. Ovchinikov, [2008] O.J.

No.5959, Taylor J. (OCJ), where, in Justice Taylor’s words, an inexperienced officer “provided fodder for a number of defence argumentsdirected towards the exclusion of the results” of the breathalyzer tests. The issue arose out of the fact that the Officer, as here, made thewrong demand, he made an ASD demand pursuant to section 254(2) instead of an approved instrument demand. As Justice Taylor highlights, these are distinctly different demands in the Criminal Code scheme.

Not the least of the distinctions between these demands is that the result of the failure on an approved screening device has no evidentiary significance, andin fact is inadmissible except as grounds to continue to the next level of investigation, being a proper approved instrument demand. The results of an intoxilyzer test are, other things being equal, admissible in evidence, and indeed provide the Crown with anextraordinary evidentiary presumption relating the tests and the results of the test fictionally back to an earlier point in time, the time ofdriving, which is the only relevant time.

And this scheme provides for certificate proof of that ultimate fact. This presumption triggered by a proper approved instrument test is truly extraordinary in the context of a criminal prosecution. Inrecognition of this, the Supreme Court of Canada has made it clear that there must be strict compliance with the condition precedent to triggering such a presumption, and I cite the Nobel case, (SCC), [1997] 1 S.C.R. 874. In the case before me, the accused quite incidentally triggered the arresting Officer to give a further explanation.

I have taken advantageof the digital recording system in place in this courthouse to listen to the Officer’s evidence on this particular point. It is very clear from the record that his initial evidence was that he in fact gave an

“instrument demand”. Crown Counsel quite fairly drew out from the Officer the fact that this “instrument demand” was in fact the wrong demand, which was in fact a “screening demand”. The Officer continued in his evidence, then, to explain that after he gave the second demand, the accused indicated she had already done that and did not understand why she was being asked to do it again. It was at that point that he explained what would happen next.

As I have indicated previously, his explanation was that they were going to go to the police station for another sample, the purpose of which was to get a numerical reading of her blood-alcohol level. The pivotal question becomes: does this further commentary elevate the total circumstances to the level of a valid approved instrument demand? My conclusion is very clearly that it does not.

The explanation offered does not make it sufficiently clear that this is a significantly different demand with a dramatically different level of interference with the accused’s liberty, and a dramatically different triggering of rights and obligations coming into play. There is no communication of the fact that this testing process is actually mandatory, or that there will be two samples taken, or that they will be taken by a qualified technician. I am influenced by the fact as pointed out in Justice Taylor’s decision that the consequences of these tests are dramatically different in terms of self-incrimination.

So to respond to the submissions made by the Crown that I could draw something from the apparent cooperation and compliance of the accused, one can also imagine that there might have been, going through her mind, that she was simply going to the station to do another screening test, which literally on the face of it, is what she was being asked to do. So should the courts be apologetic for taking a strict compliance approach to these issues? I do not think so. These are the statutory condition precedent to a truly extraordinary short cut from the usual rules of evidence. Compliance is not difficult.

In this case, the police had set up a RIDE spot check program. They knew exactly what they would be engaged in. Trying to skate past this sort of obvious error is an approach that I decline to engage in in the context of this case. There being no sufficient proper demand, the Certificate is inadmissible and the Crown’s case fails, and the charge is dismissed. **********

FORM 2 Certificate of Transcript Evidence Act , subsection 5 (2) I, Judith Smith , certify that (Please print name of authorized person(s)) this document is a true and accurate transcript of the recording of R. v. WILLIAMS in the Ontario Court of Justice , (Case Name) (Name of Court) held at 444 Yonge Street, Toronto taken from (Court address) Recording No. 4817_502_20140923_095334 , which is certified in Form 1. ________________________ (Date) (Signature of authorized person(s))

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